Griffiths v R

Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, s 13(1)
Crimes Act 1900, s 530(1)

Cases Cited: Nil.

Texts Cited: Nil.

Category: Principal judgment

Parties: Appellant – Mark Anthony Griffiths
Crown – R (NSW)

Representation: Counsel:
Appellant – Mr Booker, A.
Crown – Mr Holmes, A. (Solicitor)
Solicitors:
Appellant – Kells the Lawyers
Crown – Office of the Director of Public Prosecutions (NSW)

File Number(s): 2024/00386187

Publication restriction: Nil.

Judgment

1. HIS HONOUR: This is an appeal against a sentence imposed by Magistrate Kiely sitting in the Local Court at Sutherland on 16 May 2025. The appellant was charged with five offences. He entered a late plea of guilty to each of those offences and the Magistrate allowed a 10% discount for his plea of guilty in respect of each of the offences. At the time that the appellant stood for sentence he was incarcerated; he had been arrested for these offences on 18 October 2024. As at the date that her Honour gave judgment, he had been incarcerated for six months and 29 days, almost seven months.

2. The sentence passed by her Honour completely ignores that period of incarceration which can only have been due to the offences for which he stood for sentence. That is, in my view, a significant oversight by the Magistrate because it means that the offender spent almost seven months in gaol for no crime at all. The period that the offender spent in custody should be taken into account. Her Honour placed the offender on an intensive corrections order (“ICO”) for a period of 14 months, commencing on the day of sentence, 16 May 2025, and that ICO is due to expire on 15 July 2026; that is, next year.

3. The offences can be identified by their sequence numbers. They are sequences 2, 3, 5, 7, and 8. In respect of each of those sequence numbers, her Honour fixed an indicative term. The indicative terms are these:

4. Sequence 2: five months.

5. Sequence 3: six months.

6. Sequence 5: seven months.

7. Sequence 7: five months.

8. Sequence 8: six months.

9. Sequence 2 was a conviction for stalking or intimidating with intent to cause physical or the like harm, an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The victim of that offence was the offender’s then wife, Kathryn Griffiths. The couple were in the process of estrangement at the time but were still living together under the same roof.

10. Sequence 3 was an offence contrary to s 530(1) of the Crimes Act 1900, being torturing or beating or the like and causing the death of an animal. The animals were ten budgerigars and two parrots. The effect of that offence only came to light when the complainant found, on the appellant’s mobile telephone, a photograph of those dead birds in a bucket. There is no suggestion that it had been shown to the complainant in order to intimidate her, nor is there any suggestion that she was even aware of the euthanasia of the birds by the appellant as some form of threat to her.

11. According to the appellant, he had euthanised the birds by twisting the necks of each of the birds and breaking their spinal cords, thus causing death. They all appear to have been native birds. The appellant believed that the birds were affected by the French Moult germ, a condition scientifically known as Polyomavirus.

12. An article about that condition was before the Local Court and comes before this Court on appeal. The first paragraph of the article is this:

“In my opinion, French Moult is the most serious disease of the modern-day exhibition budgerigar. However, most experienced fanciers do not consider it so and continue to select birds with signs of French Moult for breeding. Feather abnormalities are usually the only sign of French Moult in Australian aviaries and the majority of youngsters regrow new healthy feathers very quickly. This is why most fanciers are not concerned about French Moult.”

However, the document in question goes on to suggest why the opening sentence of that quotation is important.

8. Before the Local Court and before this Court also, is another article headed, “Association of Avian Veterinarians Australasian Committee”. Beneath that are the words, “Policy document - Avian euthanasia”, which specifies how indigenous birds ought be euthanised scientifically, rather than the basic method used by the appellant. There is not a scintilla of evidence to suggest that the appellant was motivated by anything other than concern for the birds at the time that he destroyed them.

9. Sequence 5 was a further allegation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

10. Although the learned Magistrate said that she allowed a 10% reduction for the late pleas of guilty, there is nothing to suggest that she took that into account after fixing the indicative sentences. Allowing a 10% discount for the indicative sentences for sequences 2, 3 and 5, the indicative sentences should have been 4 months, 5 months and 6 months. The total of those indicative sentences is 15 months and applying a similar reasoning to that used by the learned Magistrate, the aggregate sentence for those three offences ought to have been seven months. Nevertheless, the appellant had spent almost that amount of time in custody. In my view, her Honour ought to have punished the offences known as sequences 2, 3 and 5 with a period of imprisonment for seven months, and doing the best I can, I shall allow in lieu the six months and 29 days that the appellant had spent in custody prior to his standing for sentence.

11. The remaining offences are known as sequences 7 and 8. Sequence 7 was an allegation of assault occasioning actual bodily harm to the offender’s then wife Kathryn Griffiths, for which her Honour fixed a indicative sentence of 5 months. The final charge was again under s 13(1), and the indicative sentence fixed was 6 months. However, there is no suggestion that the magistrate allowed the 10% discount. Had she done so in rounding down as she was required to do, the indicative sentences should have been 4 months and 5 months, giving a total of 9 months. It is moot what actual aggregate sentence her Honour may have imposed, but I take the pragmatic view that it should have been four months and 11 days, such that the ICO for those two offences ought to have concluded today, after four months and 11 days.

12. For those reasons, I set aside the sentences imposed by Magistrate Kiely sitting in the Local Court at Sutherland on 16 May 2025. In lieu thereof:

13. Firstly, for sequence 2, I fix an indicative sentence, after the plea of guilty, of four months.

14. For sequence 3, I set an indicative sentence, after a plea of guilty, of five months.

15. In respect of sequence 5, I fix an indicative sentence, after the plea of guilty, of six months.

I fix an aggregate sentence of six months and 29 days. The offender is sentenced to imprisonment for a period of six months and 29 days commencing on 18 October 2024, expiring on 16 May 2025.

13. For sequences 7 and 8:

14. In respect of sequence 7, I fix an indicative sentence, after a plea of guilty, of four months.

15. In respect of sequence 8, I fix an indicative sentence, after a plea of guilty, of five months.

I fix an aggregate sentence of four months and 11 days commencing on 16 May 2025 and expiring today, 26 September 2025.

14. I add this comment. Her Honour placed as a condition of the appellant’s being sentenced to an ICO, a requirement that he be electronically monitored and restricted the places to which he could reside to any place outside the Sutherland Shire, except as ordered by the Court. No such exception was made.

15. The appellant had grown up on the Central Coast, but he commenced high school in year 10 at Heathcote High School in the Sutherland Shire. After completing year 11, he entered the workforce working initially for St George Aquariums, which I understand to be within the St George area, which is adjacent to the Sutherland Shire, and he then worked for Auto One as a spare parts interpreter before returning to TAFE to obtain his higher school certificate. He then started his own business known as Griffith Initiatives.

16. He married his wife, and they had two children, a son born in 2008 and a daughter born in 2011. As I understand it, the offender and his wife had been living together with their children for the best part of three decades at Engadine and it would appear that the appellant had spent most of his life living in the Sutherland Shire.

17. The place restriction order made by her Honour was draconian. The Sutherland Shire is very large, it includes most of the Royal National Park, a lot of the area west of the Woronora River extending to the Liverpool Local Government area, and the appellant could easily have lived outside Engadine or its surrounding suburbs but still within the Shire, and to make the order that was made, clearly interfered substantially with the appellant’s ability to maintain contact with his children and to obtain work which he was used to doing. Such a draconian order, in my view, ought not to have been made.

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