District Court New South Wales Medium Neutral Citation: R v Bell [2014] NSWDC 299 Hearing dates: 24 October 2014 Date of orders: 24 October 2014 Decision date: 24 October 2014 Jurisdiction: Civil Before: Neilson DCJ Decision: No action taken on call up Catchwords: SENTENCE – Section 12 call up – Whether good reasons for excusing offender's failure to comply with conditions of bond – Whether subjective circumstances and consequences of revocation of bond can constitute good reasons Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Director of Public Prosecutions v Burrow [2004] NSWSC 433 DPP (NSW) v Cooke [2007] NSWCA 2 R v Marston (1993) 60 SASR 320 Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) (Crown) Corie William James Bell (Offender) Representation: Solicitors: Director of Public Prosecutions (NSW) (Crown) Mr Cramer (Offender) File Number(s): 2014/414556 Publication restriction: No Judgment 1. This is an application for leave to appeal from a sentence imposed by Magistrate Walsh sitting in the Local Court at Campbelltown on 7 August 2014. 2. The appellant was charged with an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The particulars of the offence were that between 3pm on 7 December 2013 and 10.20am on 8 December 2013 at Airds in this State the appellant did intimidate Natasha Bell with the intention of causing her to fear physical or mental harm. 3. To that offence the appellant pleaded guilty on 12 May 2014. The learned Magistrate imposed a bond to be of good behaviour for a period of 18 months. His Honour imposed the "usual" conditions. They did not include supervision by Community Corrections. 4. It appeared to me on reading the papers that the order that his Honour made ought to have included supervision by Community Corrections. I have given the appellant a Parker warning, that has been accepted by his solicitor and the appellant does not object my allowing the appeal but to the extent of imposing upon the s 9 bond for 18 months a requirement that he be subject to the supervision of Community Corrections. 5. No other party wished to be heard and no other submission has been made. 6. Accordingly, I allow the appeal. I add to the conditions of the s 9 bond for the period of 18 months a requirement that the offender be subject to the supervision of Community Corrections during the term of the bond. 7. The latter is a little bit more complicated than I thought but I think that I have negotiated my way across it. All right. No one wishes to be heard any further? BARNES: No, your Honour. CRAMER: No, your Honour. 1. HIS HONOUR: The offender Corie William James Bell has been called up to appear before me for an alleged breached of a good behaviour bond. 2. On 29 October 2012 I sentenced the offender to imprisonment for a period of two years for the offence of robbery and suspended that sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 3. What happened prior to the imposition of that sentence is set out in my reasons for judgment given on 29 October 2012 which are before me and can be easily accessed. There is no reason for me to repeat what I then said. 4. The offender was called up for an alleged earlier breach of the s 12 bond. The essence of that alleged breach was a failure to report to what is now Community Corrections as required by that service. 5. Eventually the offender did comply with his reporting requirements and on 27 November 2013 pursuant to s 92(2)(a) and s 98(3)(d) of the Crimes (Sentencing Procedure) Act 1999 I took no further action on the breach. 6. In the meantime the offender was sentenced for certain offences which had occurred prior to that time. Those were only drawn to this Court's attention on 15 September 2014 when I directed that the offender be called up before me in Sydney today. 7. The further offences are alleged to have occurred on 7 and 8 December 2013. The offender was arrested by Campbelltown Police on 8 December 2013 and remained in custody until being given parole on 4 February 2014. It can be seen therefore that he spent approximately two months in custody. The court attendance notices for the three offences of 7 and 8 December 2013 appear to have been first returnable before the Local Court at Campbelltown on 20 January 2014. 8. As I have earlier mentioned, the offender pleaded guilty to the charges on 12 May 2014 and was sentenced by Magistrate Walsh on 11 August 2014 at Campbelltown. There was one charge of stalking or intimidating with intent to cause physical or mental harm. For that offence the Court imposed a s 9 bond for a period of 18 months. The offender was also charged with the resisting a police officer in the execution of his duty for which the Local Court imposed a s 9 bond for a period of 12 months. The offender was also charged with escaping from police custody for which he was fined $500. 9. When there is a breach of a bond, s 98 of the Crimes (Sentencing Procedure) Act applies. Section 98(3) is in the following terms; "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." 1. It could not be said, in my view, that the further offences committed by the offender were trivial in nature. There is before me a question of whether there are good reasons for excusing the offender's failure to comply with the conditions of the bond. There is also one legal matter which needs to be considered. However, is important to note what has happened since the offender was charged with the further offences on 8 December 2013. 2. On 4 February 2014 Mr Bell entered The Glen, a residential rehabilitation program at Chittaway Point on the Central Coast. The offender completed a 12 week in-house program and as at 11 September 2014 was still residing at The Glen in transitional supported accommodation. Inquiries made by Community Corrections of staff at The Glen confirmed that the offender had then satisfactorily completed a rehabilitation program and was continuing to engage in alcohol and other drug intervention programs. As at 11 September 2014 the offender had engaged in workplace training and development activities, and he had obtained casual employment at a local hardware retailer through a partnership with the Job Network Provider and The Glen Centre itself. 3. The offender's response to supervision and The Glen program over the then seven months had been considered satisfactory and the offender had complied with and engaged with all aspects of the programs offered to him. The assessment made on 11 September 2014 is that the offender displayed a level of insight into his offending behaviour and was committed to being sober. 4. The most recent report from Community Corrections bears the date 16 October 2014. That report tells me that the offender's circumstances have not changed since the report submitted on 11 September 2014. The offender remains a resident at The Glen and has now obtained full time employment. 5. Staff at The Glen have given positive reports of the offender's ongoing engagement in its programs. He has attended all meetings required of him and engaged in all aspects of The Glen's programs. The report continues thus: "He has impressed as a young man who presents with good insight into his offending behaviour and appears to be committed to his recovery from alcohol and other drugs." There is also a report before me from Mr Joe Coyte, the chief executive officer of The Glen. He tells me of the various programs in which the offender has engaged. In that report Mr Coyte tells me this: "Corie has become a good leader among the clients at The Glen and has really enjoyed the sporting program. Corie has taken advantage of our work experience program to gain paid employment at Bunnings and has been working there for the last month. Corie understands that his old environment is a risk to his continued sobriety and is putting plans in place (supported by The Glen) to relocate his young family to the Central Coast where he has a good support network and paid employment." There is also before me a letter from the manager of Bunnings at Tuggerah. That letter confirms that the offender has been working at Bunnings at Tuggerah for three months and he has been working full time. The report says this: 'Corie has proven himself to be a valuable employee. He is reliable, trustworthy and a valued member of our Bunnings, Tuggerah team.'" 1. It can be seen therefore that the imposition of a full time custodial non-parole period would remove the offender from paid full time employment, remove him from the support that he receives at The Glen and interfere with his plans to relocate his young family from the Campbelltown area to the Central Coast where the offender would be distant to an environment which is not congenial to his rehabilitation and interfere with the long-term plans of the offender and his wife and child. I note that the offender's wife is again pregnant and they expect a second child in due course. 2. The imposition of a full time custodial non-parole period would clearly upset everything that has been achieved thus far. Likewise the imposition of home detention would probably be unavailable to the offender because of where he is currently living and the imposition of an intensive corrections order would probably only mirror the situation that currently obtains. 3. I turn then to consider the nature of the offences which have led to the current call-up. 4. At about 3 o'clock on Saturday 7 December 2013 the offender and his wife and their child attended the offender's parental family home at Airds. Present at the time was the offender's father and the offender's siblings, Natasha Bell, Tara Bell who was 13 years old, Keiran Bell who was 11 years old and Racquel Bell was then aged eight years. It was Natasha Bell's birthday. 5. It is to be remembered that in my remarks on sentence on 29 October 2014 I recorded that the offender's father was frequently incarcerated throughout the offender's life and that the emotional toll of the offender's father's absences from his life was apparent when the offender was interviewed by a probation and parole officer. 6. On 7 December 2013 there was a heated argument between the offender's sister Natasha and their father. The argument was about its being Natasha's birthday. The inference to be drawn from the facts placed before the Magistrate is that Natasha was upset with her father because he had not provided her with a birthday present. According to the facts before the Local Court the offender interjected into the argument between the offender's father and his sister, and said to his sister: "Fuck you. My fucking son didn't get a present for his birthday. I didn't get a present for my birthday, why the hell should you get anything for your birthday. I should stomp on your head and cave it in, flatten it out". Other than the use of violent language the first number of sentences of that interjection are of no moment. The only moment is the threat implied in the last sentence of the quotation I have just made. However, many things are said between family members which are not meant to be taken literally. 1. One can always recall the interview of the wife of a former Archbishop of Canterbury who was asked whether she had ever threatened to divorce her husband. Her reply was, "Divorce never, murder frequently." There is no suggestion that the offender did anything or made any gesture which would imply that he might carry out the implicit threat in the last statement which I have quoted. 2. Following the offender's interjection, Natasha went back to her bedroom and shut the door and shortly afterwards left and spent the night at a friend's place. 3. At about 10 o'clock on Sunday 8 December, Natasha returned to the parental family home. The offender, his wife and child were still there as was their father and the three younger siblings of both the offender and Natasha. There was again a heated argument between Natasha and her father. Again, there was an interjection made by the offender. However, that was preceded by this direction by Natasha to the offender, "Get out, mum's coming home soon anyway." When that direction was given to the offender he said to his sister, "I'll jump on your head before she comes home." 4. Again, there is no suggestion the offender did anything or made any gesture to imply that he would carry out that threat, it could well have been merely idle. 5. However, Natasha became fearful, returned to her room and contacted the police. The police arrived shortly thereafter and placed the offender under arrest at 11.20am. When Constable Hazzard placed his hand on the accused's arm in the formal process of arrest there was an immediate reaction from other family members. Those were Tara who was then, as I said, 13, Keiran who was then, as I said, 11 and the offender's wife who was holding their son, Chance, in her arms. The accused pulled away from the police and attempted to withdraw his arm from the officer's hands which had clasped it. That amounted to resisting the police officer in the execution of his duty. 6. Tara and Keiran then commenced to assault the police by punching him in the back. Police took the offender to the ground and attempted to handcuff him but the offender squirmed. The offender managed to regain his feet and was again put on the floor by the police. However, Tara continued to punch police in the back and on their flanks. Keiran picked up a branch about a metre long and 5 centimetres in diameter and began to strike the police with it. Whilst they were doing that the offender's wife was pushing and shoving the police in an attempt to free the offender from their hold. Whilst she was doing that she was still holding their one year old son, Chance. 7. The police finally placed the offender in the back of a caged police vehicle but when they attempted to close the door the accused pushed the door open and despite a threat to employ capsicum spray the offender managed to leave the back of the police truck having pushed Constable Kissell with both hands on the upper chest causing him to fall backwards. 8. The accused ran into nearby bushland but after a short pursuit on foot the police again arrested him and put him back into the caged police vehicle. The latter facts constitute the escape from lawful custody. 9. The offender's primary offence was making threats which appear to have been idle to his sister where she had been in a heated argument with their father. Unfortunately those idle threats caused Natasha some fear. 10. Although the offender did attempt to release himself from the clasp of the police, violence was effected not by the offender but by his wife and younger siblings. The major interaction between the offender and the police is clearly his pushing Constable Kissell with both hands to the constable's upper chest causing him to fall backwards, although the police facts do not state that he fell to the ground, merely that he was knocked backwards. 11. Everything arises out of a domestic dispute caused by disharmony between Natasha and her father over her perception that her father had not adequately acknowledged her birthday by giving her a birthday present. 12. Although I have said that these offences could not be classified as "trivial" there are in my view good reasons for excusing the offender's failure to comply with the requirement that he be of good behaviour in the circumstances of this case, after all a more offensive conduct was offered to the police by the offender's younger siblings, a 13 year old and 11 year old, and by his wife who could hardly have done much bearing in mind that she is nursing a one year old child. 13. Furthermore, one has to consider the consequences for the offender resulting from this interaction. 14. Matters of the similar nature were considered by the Court of Criminal Appeal in DPP (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379. The judgment of the Court of Criminal Appeal was given by Howie JA with whom Sully and Price JJA concurred. His Honour said this: "[17] There is a live issue as to the extent, if any, to which a court can have regard to matters other than the behaviour giving rise to the breach in determining whether to excuse the breach, such as the impact upon the offender of the consequences of the breach. The issue was considered by Hidden J in Director of Public Prosecutions v Burrow [2004] NSWSC 433. His Honour stated: '[24] The question posed by s 98(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 para (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 para (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, para (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.' [18] The reference to Marston in that passage is a reference to R v Marston (1993) 60 SASR 320. That was a decision of the South Australian Court of Criminal Appeal concerned with a section, not dissimilar to s 98, giving a court power to refrain from taking action on a bond where the non-compliance was trivial or "that there were proper grounds upon which the failure should be excused". In that case the offender had been given a suspended sentence for an offence of armed robbery. In breach of the bond entered into by the offender as a pre-condition for the suspension of the sentence, she had been convicted of larceny of two muffins and a butter knife. The court accepted that the offence was committed on the spur of the moment because she was hungry. King CJ described her criminality for the behaviour giving rise to the breach in this way: 'It is clear that the appellant's impulsive actions were not motivated by any settled resolve to behave dishonestly, although, of course, necessarily there was dishonesty involved in the offence, but rather by a foolish and somewhat irresponsible inclination to satisfy her hunger by means of the muffins which were displayed on the breakfast table, and of course by using the knife to spread the butter on them.' [19] The Court, in deciding that the Judge in revoking the bond had erred in the exercise of discretion, placed significant weight, not only on the circumstances of the behaviour giving rise to the breach, but also on the "marked disproportion between the seriousness of the breaching offence and the length of the sentence which is activated if the suspension is revoked". King CJ, with whom Duggan J agreed, concluded at 321: 'For my part, I think that the activation of a severe sentence for robbery with violence is not justified by the relatively minor nature of the offending which constitutes the breach. I think that that consideration, together with the evidence of the psychological problems confronting this appellant, constitute proper grounds upon which the failure to comply with the condition of the bond to be of good behaviour should be excused. I think that the learned judge was in error in the way in which the discretion was exercised.' Perry J also agreed in substance with the reasons of the Chief Justice. [20] It is unnecessary in order to determine the present matter to form a decided view on whether the approach taken in Marston should be followed in this State in applying s 98(3)(b). Although the wording of the relevant sections in the two jurisdictions is similar, there are two important differences between the regime in place in South Australia when Marston was decided and the regime in place in this State. Firstly a suspended sentence is more restricted in this State because it can be given for no more than two years. The sentence suspended in Marston was one of three years. Secondly, and perhaps more significantly, the impact of the revocation of the bond can be ameliorated in this State by ordering that the sentence that is enlivened by the breach be served by periodic detention or home detention. There has also been a recent change to the legislation so that the non-parole period is fixed at the date of revocation and not when the sentence was passed but suspended: see ss 12(3) and s 99(1)(c)(ii). These differences indicate to me that, assuming that a court could take into account the impact of the revocation of the bond, it would be a rare case indeed in which it would be appropriate to do so in this State. [21] But two matters should be emphasised from Marston: firstly the determination under s 98(3)(b) should be made bearing firmly in mind that generally a breach of the conditions of the bond will result in the offender serving the sentence that was suspended and, secondly, the principal consideration, if not the only one, is upon the conduct giving rise to the breach." In the current case I would describe the offender's reoffending as minor, as was the finding in Marston. 1. I am not aware of any further decision that binds me as to whether this Court can take into account the impact of the revocation of the bond bearing in mind the minor nature of the reoffending and the length of the suspended sentence. I am prepared to assume that I do have the ability to do so. 2. Having said that, in my view, this is the sort of rare case in which it is appropriate to take into account the effect upon the offender of the revocation of the two year good behaviour bond. 3. Accordingly, in my view, there are good reasons for excusing the offender's failure to comply with the conditions of the bond on 7 and 8 December 2013. 4. If I be wrong in so finding on the facts or on the law then I should point this out. Section 99(1)(c) of the Crimes (Sentencing Procedure) Act 1999 governs what should occur if a s 12 bond is revoked. The subsection provides this: "(i) the order under s 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, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part." Part 4 commences at s 44 and ends with s 63. Section 24 is in Part 3. Section 24(b) is in the following terms; "In sentencing an offender, the court must take into account […] (b) in the case of an offender who is being sentenced as a result of failing to comply with the offender's obligations under a community service order, good behaviour bond or intervention program order: (i) the fact that the person has been the subject of such an order or bond, and (ii) anything done by the offender in compliance with the offender's obligations under the order or bond," is required to be taken into account." Normally one would not take into account such matters in fixing a non-parole period under Part 4. 1. In the circumstances of this case, however, I am required to consider that the offender has been under a bond to be of good behaviour since I imposed the s 12 bond on 29 October 2012, nearly two years ago, and the facts that the offender has been, in essence, compliant with the order during that almost two year period, and the rehabilitation which the offender has undertaken during that period, that he has obtained full time employment with a reputable employer and is doing well in that employment and that he has made a new milieu for himself on the Central Coast, that he intends to move his pregnant wife and child to the Central Coast so that they make a new life there. 2. Bearing in mind those things, were I to revoke the s 12 bond I would fix a non-parole period until the rising of the Court. After all the s 12 bond will expire in five days' time. 3. However, returning to my original holding I find that there are good reasons for excusing the offender's failure to comply with the s 12 bond on 7 and 8 December 2013 and the offender is accordingly discharged. ********** 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. Decision last updated: 06 March 2015