New South Wales Court of Criminal Appeal CITATION : R v S W Bugmy [2004] NSWCCA 258 HEARING DATE(S) : 18/06/04 JUDGMENT DATE : 3 August 2004 JUDGMENT OF : Bryson JA at 1; James J at 2; Kirby J at 3 DECISION : 1. Leave to appeal is granted; 2. The appeal is allowed in respect of condition (4) of the bond which is hereby quashed. The sentence imposed by Finnane DCJ on 21 February 2003 is otherwise confirmed. CATCHWORDS : Criminal Practice & Procedure - appeal against sentence - whether excessive - bond - condition of bond that not enter Willicania except with Judge's permission - whether valid - test to be applied in determining validity of conditions of a bond. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 (NSW) R v Fernando (1992) 76 A Crim R 58 Veen v The Queen (No 2) (1988) 164 CLR 465 R v Shankley [2003] NSWCCA 253 Gamgee (2001) 124 A Crim R 469 R v Hammoud (2000) 118 A Crim R 66 CASES CITED : Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 Macpherson v Beath (1975) 12 SASR 174 Williams v Marsh (1985) 38 SASR 313 R v Harvey (1989) 40 A Crim R 102 R v Sanerive (CCA (Vic), unreported, 23.6.95) Lapa (No 2) (1995) 80 A Crim R 398 Miroslav Jovanovic (1999) 106 A Crim R 548 Regina PARTIES : Steven Wayne Bugmy FILE NUMBER(S) : CCA 60403/03 COUNSEL : G Rowling (Crown) A Joseph (Appl) SOLICITORS : S Kavanagh (Crown) P Katsoolis (Appl) LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0154 FILE NUMBER(S) : LOWER COURT Finnane DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60403/03 BRYSON JA JAMES J KIRBY J Tuesday 3 August 2004 REGINA v Steven Wayne BUGMY Judgment 1 BRYSON JA: I agree with Kirby J. 2 JAMES J: I agree with Kirby J. 3 KIRBY J: Steven Wayne Bugmy ("the applicant") seeks leave to appeal against a sentence imposed by Finnane DCJ on 21 February 2003. Mr Bugmy pleaded guilty to two counts as follows: Count 1: Assault occasioning actual bodily harm (s59 Crimes Act 1900). Count 2: Affray (s93C Crimes Act 1900). 4 The maximum penalty for each offence was five years imprisonment. The offences were committed on 7 April 2002. Mr Bugmy had been in custody since 16 April 2002, a period of a little over ten months. Taking account of that time, his Honour imposed the following sentences: Count 2 (the affray): A fixed term of imprisonment of nine months from 16 April 2002 to 15 January 2003. Count 1 (assault occasioning actual bodily harm): Imprisonment for two years from 16 January 2003 to 15 January 2005, such term to be suspended from 21 February 2003, upon Mr Bugmy entering a bond under s12 of the Crimes (Sentencing Procedure) Act 1999, such bond to be subject to a number of conditions. The grounds of appeal. 5 The written submissions of counsel for Mr Bugmy raise a number of issues. Paraphrasing those submissions, the complaints against the sentences appear to be as follows: · First, that the sentence in respect of each offence was excessive. · Secondly, that his Honour was in error in wholly accumulating the two sentences. · Thirdly, that the conditions imposed under the s12 bond were unduly onerous. · Fourthly, that it was inappropriate and unsatisfactory that his Honour should have required the applicant to seek his Honour's permission to return to Wilcannia during the currency of the bond. The offences. 6 Mr Bugmy was one of three individuals involved in a brawl at a cafe at the Shell Service Station at Wilcannia. The incident occurred shortly after 8.00 pm on 7 April 2002 as the cafe was about to close. Robert Shepherd and Steven Williams were also involved. They too were charged with affray. In addition, Mr Shepherd was charged with malicious wounding (s35(a) Crimes Act) and Mr Williams with malicious wounding with intent (s33 Crimes Act). 7 During the course of the day, Mr Bugmy and his companions had drunk a number of casks of wine. Mr Shepherd went to the cafe and asked for two dim sims. It was plain to the shopkeeper that he had insufficient money. He asked for credit, which was refused. He then began shouting angrily at the person behind the counter. His actions and words were captured on video surveillance maintained at the premises. 8 Mr Shepherd left the premises, promising to return. He did so with Mr Bugmy and Mr Williams. Finnane DCJ, who saw the video, described what happened thereafter in these words: "All three of them became involved in arguments with this man, the shop assistant, and also subsequently with Mr Bellos. The video film showed Mr Bugmy beckoning the other two away at various points. They each came back. Mr Bugmy continued arguing, though it was unclear to me precisely why he wanted to continue arguing with the people in the shop. Shepherd and Williams, notwithstanding Mr Bugmy pushing them out of the premises on one occasion and directing them out, came back a number of times and both of them in the presence of the offender struck the two men behind the counter at the same time as they shouted and yelled abuse at them. That striking whilst shouting and yelling abuse was the foundational fact behind the offence of affray to which all three ultimately pleaded guilty. Mr Bugmy himself did not strike the men behind the counter but he participated in what they were doing by standing there and joining in the arguments that they were joining in." 9 In the course of the affray, Mr Williams produced a knife. It had been concealed in his trousers. Mr Bugmy did not see him do so. His Honour specifically found that he was not aware that Mr Williams had a knife. 10 The shopkeeper, Mr Bellos, responded by arming himself with a baseball bat, attempting to frighten the intruders off. The video showed the men leaving the shop. However, they soon returned. Mr Shepherd hurled a garbage tin lid at Mr Bellos. Mr Bugmy then tackled Mr Bellos, using what the sentencing Judge described as a "rugby style tackle" (giving rise to count 1, the offence of assault occasioning actual bodily harm). Mr Bellos was knocked off his feet. He was driven some distance along the floor, out of sight of the camera. Mr Williams then stabbed him. Mr Bellos clearly let go of the baseball bat which one of the offenders used to strike him. There was no evidence as to who was responsible for the blows with the baseball bat. Specifically, in relation to Mr Bugmy, his Honour made the following finding: "I am unable to conclude that Mr Bugmy hit him with the baseball bat." 11 However, in respect of the offence of assault occasioning actual bodily harm (count 1), his Honour said this: "He has pleaded guilty to assault occasioning actual bodily harm in respect of this matter. There is evidence before me that satisfies me that Mr Bellos suffered bruising on various parts of his body and a graze on one of his arms. The bruising and the graze could well have been caused as a result of his being tackled. That alone could have produced that. That would of course amount to actual bodily harm." 12 The shopkeeper, Mr Bellos was taken to hospital. Apart from bruising, he had a 1 cm stab wound to the left scapula region, requiring four stitches under local anaesthetic. He had a further laceration to the right parietal region, likewise requiring four stitches. There was a further 1 cm laceration to his left lower lip and a 0.5 cm laceration to the mucus membrane of his left upper lip, presumably the consequence of a punch or punches. Ground 1: Sentences excessive. 13 Before dealing with the offences, it may be useful to describe Mr Bugmy's subjective case. He was born on 4 February 1975. At the time of the offences he was 28 years old. He was one of six children. He was raised by his parents in Wilcannia, where he has a large extended family. He lived in an area known as "the mallee". The Probation and Parole report included the following: "His father has always been in full time employment and although Mr Bugmy appeared to have enjoyed a good upbringing it appears that alcohol abuse has been prevalent in his family over the years." 14 Mr Bugmy attended school in Wilcannia until the age of 16 years. His Honour said this: (ROS 8) "The fact of this background has meant that he has never really worked, although his father had worked. Two of his brothers have served periods of imprisonment. He at various stages has wandered around Australia but has no real skills. He did a course in horticulture but did not complete it. He is, as far as I can tell, able to read and write but he is not well educated. He has a background of deprivation and hopelessness that people who are not of Aboriginal background find difficult to understand." 15 His Honour remarked that Mr Bugmy was entitled to have the Court take account of those matters identified by Wood J in R v Fernando (1992) 76 A Crim R 58. 16 Mr Bugmy had a long history of alcohol and drug abuse. He began sniffing petrol, using marijuana and abusing alcohol at the age of 14. He quickly accumulated a criminal record. Many of his offences were alcohol related. He was brought before the Children's Court on a number of occasions. He was placed on probation and made the subject of control orders. In May 1994 he was dealt with as an adult and convicted of assault. He was placed on a bond. In August 1995 he was dealt with in the Broken Hill Local Court for assault and attempting to steal. He was ordered to perform 60 hours community service in respect of each count. In January 1996 he was again convicted of a series of offences, including assault and two counts of assault occasioning actual bodily harm. He was ordered to perform a total of 500 hours of community service and placed upon a bond. 17 In August 1996 he was again convicted of assault occasioning actual bodily harm (two counts). On this occasion he was sentenced to a term of imprisonment consisting of a 10 month minimum term with an additional term of 18 months. In October 1996 he was dealt with for further charges of assault and a number of breaches of an apprehended violence order. Short terms of imprisonment were imposed. 18 On 21 November 1996 Mr Bugmy was dealt with for a breach of his parole. He was imprisoned for the period between 10 October 1996 and 20 February 1998. 19 In 1999, Mr Bugmy was charged once more with assault occasioning actual bodily harm (two counts). On each count he was sentenced to a fixed term of one month. At the same time he was charged with two further counts of assault occasioning actual bodily harm and sentenced to fixed terms of imprisonment of three months in respect of each. In February 2002 Mr Bugmy was convicted of having resisted an officer in the execution of his duty (two counts) and assault occasioning actual bodily harm. In respect of the former, he was placed upon a bond for 12 months, and in respect of the assault he was sentenced to imprisonment for six months, such term being suspended upon his entering into a bond which included a requirement that he submit to the supervision of the New South Wales Probation and Parole Service. It was a condition of his bond that he attend a TAFE and receive counselling. However, on 6 May 2002 he was again convicted of assaulting an officer in the execution of his duty (two counts), as well as maliciously destroying or damaging property to the value of $2,000. He was sentenced on each count to imprisonment for one month. 20 The present offence, like many before it, was committed at a time when Mr Bugmy was heavily intoxicated with alcohol. However, Mr Bugmy's outlook was not entirely bleak. He at least recognised that he had a problem. Whilst in custody in 1997, he had successfully completed a Drug and Alcohol Relapse Prevention Programme. The Probation and Parole report submitted to the sentencing Judge included the following: "A further report dated 27 May 1997 from the Far West area Health Service indicated that Mr Bugmy was 'self referred' to that Service. The reason he gave 'was his concern about his history of alcohol abuse and the subsequent problems this behaviour brought with it'. The following comments were made in that report. 'It has been encouraging to witness the positive changes Steven has made. He is very much aware that he needs to avoid situations that could be a risk to him maintaining his present direction.'" 21 His Honour accepted that Mr Bugmy regretted his actions. He had pleaded guilty. He was entitled to a discount which his Honour stated was "usually of the order of 20 to 25 percent". 22 Turning to the offences, his Honour described the offence of affray in these terms: (ROS 2) "I have earlier said in remarks on sentence on 17 December 2002 when I sentenced Mr Williams and Mr Shepherd that the affray was a serious matter, as it involved the assaults on two persons of the three who were keeping open a Shell service station in Wilcannia, a remote town in the State of New South Wales." 23 Nonetheless, there were matters which plainly differentiated Mr Bugmy from his co-offenders. First, he had endeavoured to persuade his companions to leave the cafe. Indeed, at one point he had pushed them out the door. Secondly, it was Mr Shepherd and Mr Williams who physically struck Mr Bellos, not Mr Bugmy, although Mr Bugmy associated himself with the affray in the manner described by his Honour. 24 Whilst it is important in sentencing for affray to identify the offender's role, the seriousness of the offence reflects, to some degree, the actions of co-offenders whom the offender chose to join. This recognises that in an affray offenders "feed off each other". Aggression begets aggression. 25 Whilst his Honour may have imposed a lesser sentence than nine months imprisonment for the affray (having regard to Mr Bugmy's largely passive role before the rugby tackle (which gave rise to the first count)), the sentence was not, in my view, outside the discretion his Honour had. 26 The assault occasioning actual bodily harm was described by his Honour in these terms: (ROS 10) "In relation to the assault occasioning actual bodily harm, he deliberately and directly attacked a man who was lawfully in a shop. He had no reason to do it. The proper course for him to take when that man produced a baseball bat to defend himself was to leave the premises." 27 His Honour found that his actions were impulsive. It was said on behalf of Mr Bugmy that, in truth, he was acting defensively after he saw Mr Bellos raise the baseball bat. Such a submission is somewhat at odds with the plea of guilty to the offence. It was Mr Bellos, the shopkeeper, who was defending himself and his property, in the face of Mr Williams who had produced the knife. There was no warrant for the action of Mr Bugmy. 28 The offence was plainly serious. The criminal history of Mr Bugmy, which included many assaults, could not be ignored. Howie J, reflecting the principle in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, explained the relevance of an offender's record in these terms (R v Shankley [2003] NSWCCA 253): (para 31) "The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that retribution, deterrence and protection of society may indicate a more severe sentence is warranted." 29 Here, his Honour imposed a suspended sentence of two years conditional upon Mr Bugmy entering a bond (s12 Crimes (Sentencing Procedure) Act 1999). The suspension operated from the date of the sentencing hearing (21 February 2003), although the sentence commenced a month earlier (16 January 2003). The sentence, therefore, combined a term of imprisonment (which had already been served) (16.1.03 to 21.2.03), with the suspension of the remainder of the two year term. That was, at the time, an approach open to his Honour (Gamgee (2001) 124 A Crim R 469, per Mason P and Dowd J, Sully J (dis)). 30 In suspending the sentence on the day that it was passed (so that Mr Bugmy would be released at once), his Honour was plainly extending some leniency to Mr Bugmy. His order sought, appropriately, to deal with the time already served. It was plainly open to his Honour to select the term of two years as an appropriate term, having regard to the nature of the offence and the supervision he had in mind. Ground 2: Accumulation 31 The second ground is directed at the accumulation of the sentences. It was suggested that the sentences ought to have been concurrent, or at least partially concurrent. 32 The principle which should guide this aspect of the sentencing discretion was stated by Simpson J in R v Hammoud (2000) 118 A Crim R 66 in these terms: (at 67) "Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong." 33 Here, there were certainly matters which suggested concurrence, or partial concurrence. The offences were committed at approximately the same time and at the same place. Indeed, the assault, the subject of count 1, occurred during the course of the affray. When sentencing Messrs Shepherd and Williams, his Honour made the sentences he imposed upon them in respect of the affray partially concurrent with the sentences he imposed in respect of the other charges. 34 Having said that, I do not believe his Honour was bound to make the sentences concurrent or partially concurrent. His Honour was obliged to deal with the totality of Mr Bugmy's criminality. He had plainly determined that he should be released on a bond immediately, making provision under the bond for supervision. In these circumstances, I believe it was open to him to make the sentences cumulative. I would therefore not find error. 35 I would reject ground 2. Grounds 3 and 4: The conditions of the bond. 36 It is convenient to restate grounds 3 and 4 and deal with them together. They were: Ground 3: The conditions imposed under the s12 bond were unduly onerous. Ground 4: It was inappropriate and unsatisfactory that his Honour should have required the applicant to seek his Honour's permission to return to Wilcannia during the currency of the bond. 37 The suspended sentence in respect of count 1 was passed pursuant to s12(1) of the Crimes (Sentencing Procedure) Act 1999, which at that time was in these terms: " Suspended sentences 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 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." 38 His Honour specified the conditions of the bond as follows: (1) That the offender submits to supervision of the Probation and Parole Service for the whole of the period of the suspended sentence. He is to report to the officer-in-charge of the Probation and Parole Service at Broken Hill within seven days of today. (2) He is to reside at an address at Broken Hill which is notified to the Adult Probation Service. ... (3) He is to submit to such counselling and other programmes as the Adult Probation Service require him to do and to attend such rehabilitation programmes as they may require him to attend. (4) He is to remain away from Wilcannia during the term of this sentence unless he has, upon prior application to me, been permitted to do so. (5) During the period of the sentence he is to be of good behaviour. ..." 39 Grounds 3 and 4 are directed to condition (4). The genesis of that condition is to be found in the Probation and Parole report, which included these words: "Mr Bugmy who was born in Broken Hill and raised in Wilcannia where the majority of his family still reside, is the third eldest in a family of six children. He left home at the age of 17 years however he has always remained in contact with his family and had their support. ... it appears that alcohol abuse has been prevalent in his family over the years. ... Mr Bugmy said he travelled throughout Australia after he left home although he returns to Wilcannia to visit his family or to attend events such as funerals which are important with the aboriginal culture." 40 The report continued: "... However Mr Bugmy believes he is more likely to deal with his abuse of alcohol away from his associates and some of his extended family members who live in the Broken Hill/Wilcannia area. He claimed he has relatives in the Albury area who would provide a more constructive and 'sober' environment for him and he would prefer to reside within that area." 41 The Probation and Parole report then referred to the steps taken by Mr Bugmy to address his problem with alcohol. It added: "Mr Bugmy is aware that he must take steps to address his problems which related primarily to abuse of alcohol however it is apparent on his past history this is unlikely to be achieved if he remains in the Wilcannia area. Any previous benefits he may have achieved by attending to programs which address problems such as alcohol abuse appear to have been negated by his maintaining association with people who may have similar problems. He appears genuine in his desire to deal with his problems and is prepared to move away from that area. However unless Mr Bugmy can develop sufficient personal strengths to withstand pressures which will undoubtedly come from his associates and some family members this will be difficult to achieve." (emphasis added) 42 In his remarks on sentence, Finanne DCJ made the following observation relevant to the danger which Wilcannia posed for Mr Bugmy: (ROS p8) "... there is largely nothing to do in Wilcannia. There are no sporting teams, there are no recreational activities, and for young men the unfortunate fact is that they grow up in an environment where both men and women spend a great deal of their time drinking alcohol. I mention those facts because in effect that drinking of alcohol is the only form of recreation in Wilcannia. That is a sad statement to make about any place." 43 His Honour added: (ROS p9) "The Probation and Parole Service consider that he is aware of the need to take steps to address his problems, and they consider that he is genuine in his desire to deal with the problems and that he is prepared to move away from Wilcannia." 44 His Honour therefore reached the following conclusion: (ROS p13) "He has got to stay away from Wilcannia during the term of the sentence; not set foot in the place at all. If he does, he will be brought before me in Sydney and I will deal with him. It is my policy never to ask for another judge to deal with somebody who breaches a suspended sentence or a good behaviour bond." 45 However, his Honour recognised that Mr Bugmy may need to attend the funeral of a relative. He said this: (ROS p13) "I acknowledge that there are obligations imposed on all Aboriginal people to attend funerals. I would not do anything to stop Mr Bugmy attending a funeral in Wilcannia, but I would be requiring him to get my consent before he did it; not just turn up. If he turned up for a funeral he could anticipate the consent would be given on strict conditions. It would mean he would go and he would return, and he would get into no trouble in Wilcannia. There is only one way he could stay out of trouble in Wilcannia and that would be to refrain from drinking." 46 Mr Bugmy had plainly altered his view since speaking to the Probation and Parole Service. It was said on his behalf that condition (4) was unreasonable and unduly onerous. Mr Bugmy's family and extended family lived in the Wilcannia area. He has other connections with that town. The requirement that he seek the Judge's permission to return to Wilcannia for a funeral was "cumbersome". It inevitably involved delay. During the currency of the bond, Mr Bugmy has twice been obliged to seek permission to return to Wilcannia. On each occasion he approached the Legal Aid Office to assist in obtaining the Judge's consent. Legal Aid does not ordinarily extend to such assistance. However, it was provided in the circumstances by a solicitor pro bono. Permission was given by Finnane DCJ on one occasion and by the Chief Judge on another (presumably because Finnane DCJ was not available). That permission was subject to Mr Bugmy leaving Wilcannia immediately after the funeral. It was submitted that, as a matter of public policy, such supervision by the Court was undesirable. 47 The Crown submitted that condition (4) was appropriate. A condition need only relate to some aspect of punishment or rehabilitation. Here it was plainly designed to serve the interests of Mr Bugmy's rehabilitation. It was acknowledged that the condition was unusual. Counsel could not call to mind a similar condition. However, the fact that it was unusual did not, in the Crown's submission, make the condition invalid. 48 Part 8 of the Crimes (Sentencing Procedure) Act 1999 deals with the procedure when imposing a good behaviour bond. The conditions which may or must be included in a bond are set out in section 95. That section is in these terms: " 95 Good behaviour bonds A good behaviour bond: (a) must contain a condition to the effect that the offender to whom the bond relates (the person under bond ) will appear before the court if called on to do so at any time during the term of the bond, and (b) must contain a condition to the effect that, during the term of the bond, the person under bond: (i) will be of good behaviour, and (ii) will inform the registrar or clerk of the court by which the bond is imposed of any change in the person's residential address, and (c) may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond: (i) to perform community service work, or (ii) to make any payment, whether in the nature of a fine, compensation or otherwise." 49 Section 98 is concerned with the breach, or suspected breach, by an offender of one or more of the conditions imposed under a bond. The section is in these terms: "98 Proceedings for breach of good behaviour bond (1) If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond: (a) the court with which the offender has entered into the bond, or (b) any other court of like jurisdiction, may call on the offender to appear before it and, if the offender does not appear, may issue a warrant for the offender's arrest. (2) If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court: (a) may decide to take no action with respect to the failure to comply, or (b) may vary the conditions of the bond or impose further conditions on the bond, or (c) may revoke the bond. (3) In the case of a good behaviour bond referred to in section 12, 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." 50 Given the broad nature of the discretion under s95(c), can it be said that condition (4) is beyond power or inappropriate? What limitations, if any, are there upon the exercise of that power? In Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490, the Court was dealing with a broad discretion conferred upon a Local Council to grant development approval unconditionally, or subject to "such conditions as it may think proper to impose", or to refuse an application (clause 40(1) of the North Sydney Planning Scheme Ordinance). Walsh J (with whom other members of the Court agreed) said this: (at 499) "In accordance with a well-recognized rule, s40(1) ought to be understood (quite apart from the limitation contained in its opening words) not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made." 51 In Macpherson v Beath (1975) 12 SASR 174, a Special Magistrate imposed a two year bond with certain conditions. There was an appeal by the person who was subject to those conditions. He was a university student. He had been convicted of having assaulted a lecturer at the university. It required the defendant "to be of good behaviour and to obey the reasonable directions of, and be at all times courteous to, members of the administrative and teaching staff of any educational institution which he may be attending". 52 Bray CJ, having referred to the Act which gave the power to impose a bond, said this: (at 180) "The present condition is obviously not authorised by sub-sections (a) or (b). It can be justified, if at all, only under the words in sub-s (c) about 'such additional conditions with respect to ... any other matters, as the court may, having regard to the circumstances of the case, consider necessary or desirable for preventing a repetition of the same offence or the commission of other offences.' I think this condition is bad for several reasons. In the first place I think it is too uncertain to be enforced and hence oppressive. The appellant must be able to know just what conduct during the next two years will subject him to automatic incarceration. What directions are 'reasonable'? What does 'courteous' mean in this context? Standards of courtesy vary. Must he get to his feet every time a lecturer enters the room and address him or her as 'Sir' or 'Madam', as the case may be?" 53 The Chief Justice believed that the condition could not reasonably be regarded as "necessary or desirable for preventing a repetition of the assault" (at 181). Rather, it "was designed to bend the defendant's unruly will and force him to conform to conventional standards of politeness under threat of gaol" (at 181). The power given could not be used for that purpose. The Chief Justice added: (at 181) "I have more than once deprecated the tendency to insert unusual conditions into recognizances designed to control the defendant's private life in contexts only indirectly related, if at all, to the crime for which he is being punished. I have allowed appeals against such conditions: see Neil v Steel (1973) 5 SASR 67; Baddock v Steel (1973) 5 SASR 71. To my mind they tend to savour of excessive paternalism and in extreme cases of tyranny. I realise that views differ on this matter, but mine are strongly held." 54 Zelling and Jacobs JJ agreed. Jacobs J added: (at 183) "With all respect to the learned Special Magistrate, and without in any way criticising the purpose which he had in mind, I am constrained to think that a condition 'to obey the reasonable direction, and be at all times courteous, to members of the administrative and teaching staff' of a specified educational institution, is at worst too vague and too uncertain to be enforceable, and at best, too wide. Conduct which may constitute a breach of the bond should be capable of reasonably clear definition." 55 In Williams v Marsh (1985) 38 SASR 313, Cox J had occasion to consider a similar issue. The appellant had been convicted of behaving in a disorderly manner at Colley Reserve at Glenelg. A Special Magistrate imposed a bond that he be of good behaviour for twelve months and that during that period "he not attend the Glenelg foreshore area". The appellant entered the bond in those terms. However, he later sought relief from the condition relating to the foreshore area, which was said to be "unduly harsh" and "inappropriate". 56 The Crown, in the words of Cox J, raised "no great opposition" to the appeal being allowed, submitting that the condition was superfluous. It really did not add anything to the requirement that the appellant be of good behaviour. However, Cox J said this: (at 315) "... the responsibility for deciding on the right penalty in any particular case is, in the end, that of the court. The learned Special Magistrate who dealt with the appellant's case evidently considered that more was needed than the usual conditions about keeping the peace and being of good behaviour. He thought that it was desirable to keep the appellant out of the area where the offence took place for the period of the bond, and that s70ab enabled him to impose a condition to that effect. So far as the principle of the matter is concerned, I see no reason to disagree with him." 57 His Honour observed that the power to impose conditions was unqualified by the terms of the legislation. The Court, in his view, should be wary of reading limitations into the legislation that Parliament had not chosen to prescribe for itself. Cox J added: (at 316) "Obviously any additional conditions that a court might decide to include in any particular case should be appropriate to the circumstances of the offence and the offender in question and, as with all forms of punishment, be no more than the circumstances reasonably require. It will never be proper to impose conditions that will operate harshly or unreasonably, or which may fairly be thought to be merely intrusive or officious. Certainly they will need to be directly related to the offence which led to their imposition. It would not be a proper use of s70ab for the court merely to take the opportunity offered by a man's conviction to attempt a general reform of his character that might be thought desirable. It is a power to be used with circumspection." 58 His Honour was not persuaded that the condition in the bond was oppressive or improper in the circumstances (at 316). He was concerned, however, that the condition was too imprecise (at 319). The "foreshore" was not defined. His Honour therefore revised the condition. The appellant should not, during the currency of the bond, "enter upon Moseley Square or Colley Reserve at Glenelg" (at 320). 59 In R v Harvey (1989) 40 A Crim R 102, Ms Harvey pleaded guilty to a charge of cultivating a prohibited plant, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The sentencing Judge imposed a bond to be of good behaviour for a period of five years. It was a condition of the bond that Ms Harvey report to the police each day, Monday to Friday, between the hours of 8.00 am and 8.00 pm, and that she accept the supervision of the Probation and Parole Service. Application was made to the Court of Criminal Appeal to quash the order requiring Ms Harvey to report daily to the police. Lee J (Wood and Grove JJ agreeing), having stated that neither counsel was aware of a similar order having been made in the context of a bond, added: (at 103/104) "... One finds it very commonly, of course, when bail is allowed and its purpose there is plainly twofold, essentially to ensure the attendance of the accused at trial but also to act as a deterrent against further criminal activity during that period. Such an order in my view always has that secondary operation upon the prisoner. In my view his Honour had the power to make such an order and in this particular case, involving as it did a planned enterprise in regard to cultivation of a prohibited drug, I am not prepared to say that his Honour was in error in turning his mind to the possible deterrent effect of the making of such an order. I am, however, strongly of the opinion that his Honour did err in requiring the order to operate during the entire period of the recognisance. It was, in my opinion, in that respect needlessly onerous. The applicant was required to report to the Probation and Parole Service and would get the supervision offered by that Service and I cannot see that reporting to the police for the whole period stated served any purpose at all. As the applicant has in fact carried out the order for a period now since it was made last October, it seems to me that it would be appropriate for this Court to quash the order so that no further reporting to the police is required. Of course, the other conditions of the recognisance would still stand." 60 Grove J, whilst agreeing that the time had come to remove the requirement of reporting (four months having elapsed since the condition was imposed), said this: (at 104) "I do not think it is an appealable error to make such an order at all and I imagine, although I cannot immediately contemplate, that there may be some circumstances in which an order of this type could be apposite." 61 What, then, are the principles to emerge from these authorities? · First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is, the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation. · Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed. · Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous. 62 Did condition (4) offend these principles? The Probation and Parole report suggested that Mr Bugmy's offending behaviour, and indeed his criminal history of violence, was related to his abuse of alcohol. That, in turn, was linked to his associations in Wilcannia with certain family members and friends. Mr Bugmy, when interviewed by the Service, appeared to acknowledge that link and the need to remove himself from Wilcannia. 63 Finnane DCJ, in framing condition (4), was plainly addressing these issues. He no doubt hoped that Mr Bugmy's absence from Wilcannia would break the habit of alcohol abuse. It may therefore interrupt the cycle of abuse followed by criminal behaviour. Addressing what I have termed "the first principle" (supra para 59), condition (4) is plainly related to the crime being punished and the purposes of punishment, specifically rehabilitation. 64 However, was the condition sufficiently certain? The condition embodied a principle and made an exception. The principle was that during the term of the bond Mr Bugmy was not to enter Wilcannia. The exception was that he may enter if he first obtained the permission of the sentencing Judge. The principle, I believe, was certain. The conduct which would put Mr Bugmy in breach was clearly identified. However, the exception was quite uncertain. Although, in the remarks on sentence, there was discussion of the importance of funerals in Aboriginal culture, and the need for Mr Bugmy to attend such funerals, the condition, as framed, was not so limited. Without amendment it cannot, in my view, be allowed to stand. 65 However, with respect, the exception is unsatisfactory for other reasons. I would not read s95(a) of the Crimes (Sentencing Procedure) Act 1999 as authorising the sort of supervision contemplated by his Honour's order. Rather, that provision relates to s98(1), where it is suspected that the offender may have failed to comply with the conditions of the bond. There is no other provision which expressly empowers a judge to make an order with the sort of exception in condition (4). Nor would I imply such a power from other provisions in the Act. Essentially, the exception to condition (4) was administrative in character, not judicial. There is no defined procedure for making an application, no right for the Crown to be present, and no obvious right of appeal. Where permission is given by the Judge, does he have the power to impose conditions, as was done in this case? If so, what is the status of those conditions? Are they "conditions" for the purposes of the procedure in s98(1), where a breach is suspected? If not, what is the remedy if there is a breach? 66 In R v Sanerive (CCA (Vic), unreported, 23.6.95), the sentencing Judge made what was termed "a community based order", which is a form of non-custodial sentence. The order was subject to a number of conditions. Amongst other things, the offender was required to perform eight hours of unpaid community work each week for a period of five years. The order contemplated an annual report to the sentencing Judge from those responsible for community service "as to the progress of the prisoner". The offender was required to attend before the sentencing Judge on 12 February each year for the duration of the bond, when these issues would be reviewed. Ormiston J (with whom Southwell and McDonald JJ agreed) said this: "... the order as a whole was oppressive. Although, as I have said, orders may exceed two years, this order was designed not merely to be carried out over five years but to require the performance of each of the conditions, other than those relating to education, over a five year period. Not only did that require the supervision by a community corrections officer but in the present case there was further supervision of the applicant on an annual basis directed by the judge. Although in theory such a condition might be open on the legislation, in fact it misconceives the nature and duty of the sentencing court and the role of the supervising court. The object of the legislative scheme is that supervision should be carried out by qualified officers on an administrative basis. It is highly undesirable that courts should take on the role of actively administering such orders. Whatever the virtues of case management in the civil jurisdiction of the courts (and even to an extent in the criminal jurisdiction), a judge should not take on the role of both prosecutor and sentencer unless legislation clearly and unambiguously requires a judge to do so." 67 His Honour added: "However well intentioned it may have been, the imposition of this condition of judicial supervision would appear to have confused the role of prosecutor and sentencing judge in a way which should not occur whether under the 1985 or 1991 Acts." 68 Although there are differences between that case and the present case, ordinarily one would expect that once a sentence had been imposed, and the order entered (recording the conditions of the bond), the Judge's role would end (cf Lapa (No 2) (1995) 80 A Crim R 398 at 402/403, per Clarke JA (Handley JA and Sully J agreeing); Miroslav Jovanovic (1999) 106 A Crim R 548, per Wilcox, Miles and Weinberg JJ at 551-559). Specific provision is made where a breach of the conditions of the bond is suspected (s98(1) (supra para 47)) However, that provision confers the power on the Court (as defined by s3), not the Judge who imposed the bond, although by convention a suspected breach may be referred back to the Judge who imposed the bond. 69 Here, any exception to the prohibition against entry into Wilcannia had to be expressed with certainty, and its administration handed to the Probation and Parole Service, being the body responsible for Mr Bugmy's day to day supervision. 70 Assuming that were done, would such a condition offend against what I have termed "the third principle" (supra para 59)? Should such a condition be characterised as unduly harsh or unreasonable or needlessly onerous? If the condition were to provide that an offender should not see his family, it would plainly be unacceptable. Such a condition would not in any obvious way relate to the offence or the purposes of punishment. It would be both harsh and unreasonable. Here Mr Bugmy's family and extended family lived in an area of Wilcannia known as The Mallee. They were said to be poor. Wilcannia is an isolated town in the north west of New South Wales. It is a long way from other major centres. Was the practical effect of exclusion from Wilcannia a severance of the physical link between Mr Bugmy and his family? 71 His Honour, in the exception provided, plainly recognised that, at least in the context of funerals, such a condition would be too harsh. He sought to ameliorate the operation of that condition by permitting Mr Bugmy to make application to him. However, in my view, the exception, even if properly framed, and appropriately administered by the Probation and Parole Service, would still be harsh and unreasonable. The term of the bond was almost two years. That is a long time to exclude or effectively exclude a person from normal physical contact with his family. Even in prison family members are permitted to visit. Whilst it was open to his Honour, in the interests of Mr Bugmy's rehabilitation, and appropriately protecting the community, to provide for his exclusion from Wilcannia for a short period (say six months), two years was too long. A short period may have given Mr Bugmy the respite from alcohol abuse that may have enabled him to have successfully tackled his problem. A two year exclusion from Wilcannia, in my view, was akin to "a general reform of his character" (cf Cox J in Williams v Marsh (supra) at 316). The condition was, in my opinion, unduly harsh and unreasonable. 72 The sentence was imposed on 21 February 2003. The bond has almost run its course. For what remains of the bond, I would quash condition (4). Mr Bugmy may, if he wishes, return to Wilcannia. Order 73 The order I propose is as follows: 1. Leave to appeal is granted. 2. The appeal is allowed in respect of condition (4) of the bond which is hereby quashed. The sentence imposed by Finnane DCJ on 21 February 2003 is otherwise confirmed. ********** Last Modified: 08/06/2004 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.