New South Wales Supreme Court CITATION : DPP v Burrow & Anor [2004] NSWSC 433 HEARING DATE(S) : 17/05/2004 JUDGMENT DATE : 24 May 2004 JURISDICTION: Common Law Division JUDGMENT OF : Hidden J at 1 DECISION : Matter remitted to Local Court. CATCHWORDS : CRIMINAL LAW - Suspended sentences - s12 bonds - breach by further offences - whether bonds should be revoked - consideration of s98(3) of Crimes (Sentencing Procedure) Act. Crimes Act, 1900 LEGISLATION CITED : Crimes (Local Courts Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Police Act 1990 R v Holcroft [1997] 2 Qd.R. 392 R v Marston (1993) 60 SASR 320 CASES CITED : R v Moylan [1970] 1 QB 143 R v Zamagias [2002] NSWCCA 17 Saffron v DPP (1989) 16 NSWLR 397 Director of Public Prosecutions - plaintiff PARTIES : David Christopher Burrow - first defendant Magistrate Eve Wynhausen - second defendant FILE NUMBER(S) : SC 12153/03 COUNSEL : P Lakatos - plaintiff D O'Neill - first defendant Solicitor for Public Prosecutions - plaintiff SOLICITORS : Lamrocks - first defendant IV Knight, Crown Solicitor's Office - submitting appearance for second defendant LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Eve Wynhausen LCM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Monday 24th May 2004 12153/2003 – DIRECTOR OF PUBLIC PROSECUTIONS v David Christopher BURROW & Anor JUDGMENT 1 HIS HONOUR: On 12 June 2003 the first defendant, David Christopher Burrow, appeared at the Local Court at Parramatta before the second defendant, a magistrate. He was to be dealt with for two charges of impersonating a police officer, an offence under s204 of the Police Act 1990, carrying a maximum penalty of six months imprisonment and/or a substantial fine. On 6 November 2002 he had been convicted by another magistrate of two counts of committing an act of indecency, an offence under s61N(2) of the Crimes Act, for which he had been sentenced to concurrent terms of imprisonment for twelve months, those terms being suspended under s12 of the Crimes (Sentencing Procedure) Act 1999. Pursuant to s12(1)(b) of that Act, he had been directed to enter into good behaviour bonds. The offences of impersonating a police officer constituted breaches of those bonds, and the question whether they should be revoked was also before the second defendant. 2 Her Honour convicted the first defendant of the charges of impersonating a police officer and imposed a fine of $2,500 on each of them. However, she declined to revoke the s12 bonds. The plaintiff, the New South Wales Director of Public Prosecutions, has brought proceedings in this Court by way of appeal, or in the nature of an appeal, against that latter decision. 3 The facts of the two offences of impersonating a police officer are rather odd. In both of them the first defendant produced a New South Wales Police badge which, apparently, he had obtained from a wall plaque which he had purchased from the Goulburn Police Academy. The first offence was committed outside the Penrith railway station in the evening of 29 May 2003. He approached a man who appeared to be trying to break into parked cars, claimed to be a police officer, took the man's particulars in a notebook and appeared to check those particulars by a call on his mobile phone. He then told the man to behave himself and took no further action. 4 The second offence occurred on the afternoon of 3 June 2003, when he produced the badge to gain access to Penrith railway station without purchasing a rail ticket. It seems that his only purpose was to enter the station and he did not intend to travel on the train without a ticket. 5 The first defendant's legal representative in the Local Court noted that these offences were the only breaches of the s12 bonds, and told her Honour that he had been observing the other conditions imposed by those bonds. He tendered a letter from his client's wife, which attested to his general good character and from which it was apparent that she remained loyal to him and supportive of him. She wrote that they were involved together in a small business which could not survive without him, and asked her Honour not to send him to gaol. 6 Having heard submissions from the first defendant's legal representative and having read the letter, her Honour announced that she would "take no action on the s12 breaches." She continued: "I note that the matters before the Court while certainly not trivial are unrelated it would seem to the matters for which that term of imprisonment which (sic) the s12 suspension was imposed. The Court is no way trivialising the two impersonating police matters, I fail to understand how somebody can order badges, it would seem, from the police academy. Be that as it may, the Court will impose heavy monetary penalties. I note the defendant is a working man with his own business, and has the ability to pay fines." 7 Her Honour then imposed the fines to which I have referred, together with court costs, and allowed time to pay. She also noted that the first defendant had a prior entry for impersonating a police officer on his record, which had also attracted a heavy fine. 8 I shall turn later to the forms of relief sought by the plaintiff. To understand the plaintiff's complaint, it is necessary to look at some of the provisions of the Crimes (Sentencing Procedure) Act dealing with suspended sentences. 9 Provision for suspended sentences is to be found in s12, the relevant part of which is as follows: "12(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence. …" 10 Section 98 provides generally for proceedings for breach of a good behaviour bond. Subsection (3) of that section deals with a s12 bond, as follows: "98(3) In the case of a good behaviour bond referred to in s12, a court must revoke the bond unless it is satisfied: (a) that the offender's failure to comply with the conditions of the bond was trivial in nature, or (b) that there are good reasons for excusing the offender's failure to comply with the conditions of the bond." 11 The consequences of the revocation of a s12 bond are to be found in s99(1)(c): "99(1) If a court revokes a good behaviour bond: … (c) in the case of a bond referred to in section 12: (i) the order under section 12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (ii) Part 4 applies to the sentence, except to the extent to which it has already applied in relation to setting the non-parole period and the balance of the term of the sentence, and (iii) subject to the requirements of Part 4 having been complied with, the sentence takes effect." Part 4 of the Act deals with terms of imprisonment. 12 No reference was made to s98(3) in the proceedings before her Honour. It is obvious that the decision not to revoke the bonds could not be justified under par (a) of the subsection, as her Honour made it clear that she did not see the offences of impersonating a police officer as trivial. If the decision could be supported, it would be only by the application of par (b). 13 In this Court counsel for the plaintiff, Mr Lakatos, argued that the only basis for that decision apparent from her Honour's brief reasons is that the offences of impersonating a police officer, constituting the breaches of the bonds, were different in nature from the offences of committing an act of indecency the subject of the bonds. He submitted that, while that fact might be relevant to the question whether the bonds should be revoked, it could not of itself justify an exercise of the discretion under subs 3(b). 14 Counsel for the first defendant, Mr O'Neill, submitted that par (b), in enabling a court to decline to revoke a bond if there were "good reasons for excusing the offender's failure" to comply with its conditions, confers a wide discretion. He argued that the difference between an offence constituting a breach and the offence the subject of the bond might be sufficient to enliven that discretion. He referred to cases in other jurisdictions where such a difference, although not the only factor, was considered to be significant: R v Moylan [1970] 1 QB 143, R v Marston (1993) 60 SASR 320, and R v Holcroft [1997] 2 Qd.R. 392. 15 However, Moylan and Holcroft were dealing with legislation materially different from that in New South Wales. In both cases the relevant provision enabled the court to take no action on the breach if "it would be unjust to do so in view of all the circumstances that have arisen" since the suspended sentence was passed. Marston was concerned with legislation relevantly similar to the New South Wales provision, but the difference between the offence constituting the breach and the offence the subject of the bond was but one of a number of matters to which the court had regard: see the judgment of King CJ at 321-2. 16 However, Mr O'Neill also submitted that, in the context of the record of the proceedings as a whole, her Honour's reasons should not be read in the confined way for which Mr Lakatos contended. It does appear that neither her Honour nor the first defendant's legal representative maintained a clear distinction between the issue of the appropriate penalty for the offences of impersonating a police officer, on the one hand, and the question of the revocation of the s12 bonds, on the other. Rather, both matters were addressed in a global manner. In addition, her Honour's judgment followed immediately upon the first defendant's legal representative's address, during which she asked questions and made comments which could throw some light upon her reasons. 17 Viewed in this way, Mr O'Neill argued, her Honour's reasons for directing no action on the bonds emerge as follows: (a) The offences of impersonating a police officer were different in nature from those the subject of the bonds; (b) The circumstances of those offences were unusual and the first defendant had come by the police badge lawfully; (c) Those offences were to be dealt with by heavy fines; (d) The first defendant had been compliant with other conditions of the bonds; (e) He could rely upon the favourable matters in his wife's letter; (f) In particular, he was involved with his wife in a business to which his contribution was essential; (g) In all those circumstances, it was inappropriate at that stage to send him to gaol. 18 Mr O'Neill submitted that the combination of these factors could amount to "good reasons" within the meaning of s98(3)(b). For present purposes I am prepared to accept that her Honour's reasons might be fleshed out in that way. Whether those reasons address the question posed by subs 3(b), however, is another matter. 19 Section 9 of the Crimes (Sentencing Procedure) Act provides for a good behaviour bond instead of the imposition of a sentence of imprisonment. Section 98(2) confers an unfettered discretion upon a court to take no action in respect of a breach of a bond of that kind. In his second reading speech prior to the passage of the Act, the responsible minister noted the difference between a suspended sentence and a s9 bond when he said: "Suspended sentences involve the court imposing a sentence of imprisonment and then suspending its operation and releasing the offender on specified conditions. The offender is liable to a term of detention if the conditions are breached. The primary purpose of suspended sentences is to denote the seriousness of the offence and the consequences of re-offending, whilst at the same time providing an opportunity, by good behaviour, to avoid the consequences. The impact on the offender is, however, weightier than that of a bond." ( Hansard , 28 October 1999, p 2326) 20 A helpful examination of the nature of a suspended sentence, with reference to relevant authority, and of its place in the sentencing scheme created by the Crimes (Sentencing Procedure) Act, is to be found in the judgment of Howie J in R v Zamagias [2002] NSWCCA 17 at [23] ff. His Honour observed at [31]:- "As s5 of the Act recognises, the imposition of a sentence of imprisonment is a grave step for a court to take whether or not the offender's liberty is immediately removed or curtailed. … A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended…That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive." 21 His Honour continued at [32]: "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 22 Put shortly, while it is well adapted to the rehabilitation of an offender, the suspended sentence remains a salutary punishment. In large part, this is because normally the offender cannot escape commitment to prison if he or she is in breach of the associated bond. In Marston (supra) King CJ had this to say (at 322): "I repeat what I said in R v Buckman (1988) 47 SASR 303 at 304: 'There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.' It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders." 23 It is against this background that s98(3) of the Crimes (Sentencing Procedure) Act must be understood. The subsection mandates the revocation of a s12 bond in the event of breach unless the court finds one or other of the exceptions expressed in it. Clearly, the legislature intended that a court should have much less room to move with a s12 bond than it has by s98(2) with a s9 bond. Unless a significant breach of a s12 bond normally leads to its revocation, the suspended sentence would be deprived of its salutary quality and of its viability as a sentencing option for serious offences. 24 The question posed by s98(3)(b) is whether "there are good reasons for excusing the offender's failure to comply with the conditions of the bond". Where the breach of the conditions of the bond is a further offence, this requires the court to focus upon the circumstances of that offence. Mr Lakatos postulated the example of a man who drives with the prescribed concentration of alcohol in his blood, but only for the purpose of taking his pregnant wife to hospital after she has unexpectedly gone into labour. That could well be such a case, although this is not to suggest that par (b) is confined to offences with extenuating circumstances of that kind. It is a matter about which generalisation is not possible, and whether the paragraph might properly be invoked must depend on the facts of the case at hand. 25 Where the offence is relatively minor, it might be appropriate to weigh its gravity against the consequences of revocation of the bond, particularly where the suspended sentence is a long one. One of the matters to which King CJ had regard in Marston (at 322) was the "marked disproportion between the seriousness of the breaching offence and the length of the sentence which is activated by the revocation of the suspension". (Of course, I am not speaking here of offences which are trivial in their nature, for which separate provision is made in par (a).) 26 An assessment of the seriousness of the offence constituting the breach may require that regard be had to the offender's subjective circumstances. However, in my view, par (b) does not permit the excuse of such a breach by reason only of his or her subjective circumstances at the time a court is considering revocation of the bond. Nor, it seems to me, can the court have regard to the severity of the penalty to be imposed for the fresh offence. 27 It is clear that in the present case her Honour did not approach the question of the revocation of the first defendant's bond with an eye to s98(3)(b) [although it seems that she did have regard to par (a)]. This is an error warranting the intervention of this Court and the matter must be remitted to the Local Court for further consideration. Given the unusual nature of the offences of impersonating a police officer, it might yet be open to avoid revocation of the bonds by the application of subs (3). About that matter I express no view. 28 This brings me, then, to the forms of relief sought. The plaintiff has appealed against her Honour's decision under s56(1) of the Crimes (Local Courts Appeal and Review) Act 2001, which enables a prosecutor to appeal on a question of law against a variety of magistrates' decisions set out in the subsection. One of those is "a sentence imposed by a Local Court in any summary proceeding": subs1(a). Mr Lakatos submitted that her Honour's refusal to revoke the first defendant's bonds amounts to a "sentence" within the extended meaning afforded to that expression by the definition in s3 of that Act. To determine whether that is so would require a careful examination of the terms of that definition. However, I find it unnecessary to decide that matter because I am satisfied that the plaintiff is entitled to the alternative form of relief sought. 29 The plaintiff also claims relief of a prerogative nature, seeking declarations and orders setting aside her Honour's decision and remitting the proceedings to the Local Court to be heard and determined according to law. Relief of this kind may be granted where there has been a constructive failure by a magistrate to exercise his or her jurisdiction: Saffron v DPP (1989) 16 NSWLR 397, per Priestley JA at 418. For the reasons I have given, this is such a case. 30 It is unnecessary to set out the terms of the declarations and orders sought in the summons. It appears to me that the orders sought in pars 3 and 4 are appropriate but, in the light of my reasons, further thought might need to be given to the terms of any declaration. I shall consult the parties before making any declaration or any formal order and, if necessary, hear argument on costs. ********** Last Modified: 05/25/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.