Regina v Cook [2002] NSWCCA 113

New South Wales Court of Criminal Appeal

CITATION : Regina v Cook [2002] NSWCCA 113 FILE NUMBER(S) : CCA 60512/01 HEARING DATE(S) : 18 March 2002 JUDGMENT DATE : 18 March 2002

PARTIES : Regina v Brian Frederick Cook JUDGMENT OF : Dunford J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0029 LOWER COURT JUDICIAL His Honour Judge Price OFFICER :

COUNSEL : Crown - P.E. Barrett Applicant - In person SOLICITORS : Crown - S.E. O'Connor Applicant - In person CATCHWORDS : Sentencing appeal - breach of a s12 bond - no question of principle suitable to be determined by a two Judge Bench Crimes Act 1900 s 59 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 ss 12, 24(b), 98(3) and 99(1)(c) Criminal Appeal Act 1912 s 6AA(2) CASES CITED: R v Edwards (1996) 90 A Crim R 510 R v Hansen (1961) 79 WN (NSW) 148 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60512/01

DUNFORD J CARRUTHERS AJ

Monday, 18 March 2002 REGINA v Brian Frederick COOK Judgment 1 DUNFORD J: I agree. I would only add this. Whether in the case of a suspended sentence, the head sentence may be reduced if the bond entered into as a condition for the suspension of the sentence is adhered to for only part of the term of the bond must depend on a consideration of the interrelationship between ss 12, 24(b), 98(3) and 99(1)(c) of the Crimes (Sentencing Procedure) Act 1999. In my view, this involves a question of general principle and is therefore not suitable to be determined by a bench of two judges: Criminal Appeal Act 1912 s 6AA(2). 2 It has not been necessary to consider the matter further for disposition of this application, but in a suitable case it may be necessary for a bench of three judges to be constituted to determine the issue. The orders of the court will be as proposed by Carruthers AJ. 3 CARRUTHERS AJ: The applicant, Brian Frederick Cook, seeks leave to appeal against a sentence imposed upon him by his Honour Price DCJ at Armidale Court on 20 July 2001. The applicant came before his Honour on a breach of a s 12 bond: see s 98 of the Crimes (Sentencing Procedure) Act 1999. In respect of the breach of the bond, his Honour imposed, on 20 July 2001, a term of imprisonment for 18 months commencing on 20 July 2001 and expiring on 19 January 2003 and fixed a non-parole period of 10 months expiring on 19 May 2002. 4 The applicant is not legally represented but has made written submissions to this Court and is not personally present, at his wish. The offence for which the s 12 bond was given was one of assault occasioning actual bodily harm, committed on 30 October 1998. This offence, under s 59(1) of the Crimes Act 1900, carries a maximum penalty of five years imprisonment. 5 When sentencing the applicant for the original offence on 2 May 2000, his Honour, Ducker DCJ said this: "Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 , I sentence the offender to 18 months. I suspend that sentence upon him entering into a bond under s 9 of that Act. That bond will contain the following conditions",