R v Clark

Representation: Counsel:
B McGhie (Crown)
D Evenden (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission of NSW (Offender)

File Number(s): 2024/00004087; 2024/00000538; 2024/00000543; 2024/00000532

Publication restriction: N/A

JUDGMENT

1. On 27 March 2025, during the Queanbeyan sittings I made orders for the release of Jabour Clark pursuant to section 8 of the Bail Act 2013 (NSW) and adjourned the sentence proceedings before me until 6 February 2026 pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 in order to enable the offender to enter into the full-time residential rehabilitation program conducted by Odyssey House. The proceedings have been listed for mention only on 29 August 2025 so as to monitor the progress of the offender in the Odyssey House program.

2. Due to pressing time constraints on the day of the release application I indicated that I proposed to make the orders on that day but would deliver my reasons following my return to Sydney. These are the reasons for those orders.

3. In the course of this matter coming before the Court for sentence in the Moree sittings in late 2024, the Court was advised on 22 November 2024 that the Crown was awaiting instructions from the Director of Public Prosecutions with respect to an ex-officio count for inclusion in an indictment. Both parties requested that the matter be adjourned back to Sydney and be retained by me as a part-heard matter given that the Crown Sentence Summary bundle had been tendered and read by the Court.

4. On 13 February 2025 the offender was re-arraigned on a fresh indictment and entered pleas of guilty to all seven counts in that indictment. An adjournment was sought by the defence on the basis that all previous attempts to secure entry of the offender into a full-time rehabilitation program had been unsuccessful. However, Odyssey House had indicated a possible willingness and availability to take the offender for an extensive rehabilitation program. An adjournment was sought until early March in order to clarify the situation with respect to Odyssey House. The Crown did not oppose the adjournment application although foreshadowing opposition to any lengthy adjournment pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999.

5. On 6 March 2025 the court was advised that the defence were still waiting for receipt of a confirmation letter from Odyssey House. The matter was adjourned to 31 March 2025 after the court was to return to sit in Sydney following a country circuit in Queanbeyan. The parties were given leave to approach the court for the matter to be re-listed in the event of the confirmation letter being received prior to that date.

6. The matter was relisted on 27 March 2025 during the Queanbeyan settings. The confirmation letter from Odyssey House was tendered together with written material on behalf of the defence.

7. An application for release on bail pursuant to a section 11 adjournment in order to have the offender attend on and complete the 9-month rehabilitation program at Odyssey House was made on that occasion.

8. In detailed written and oral submissions the Crown opposed the release application.

9. Notwithstanding that draft reasons had been prepared, due to time constraints in the circuit in Queanbeyan, I indicated that I would hand down my reasons after returning to Sydney but that I would make orders granting the release application on a number of conditions including the admission to and compliance with the Odyssey House rehabilitation program.

10. In circumstances where the offender was not going to be released immediately, as a consequence of his serving the balance of parole from an earlier sentence imposed by Judge Noman SC, that parole having been revoked following the commission of the offences presently for sentence, I indicated that I would hand down my reasons in advance of a proposed review of the parole revocation.

11. A broad overview of the facts giving rise to the seven matters in which respect of which he now appears for sentence include the theft of a quadbike, driving or being conveyed in a number of stolen vehicles, the use of a stolen vehicle as an offensive weapon intending to intimidate police in another vehicle, failing to stop a stolen vehicle knowing that police were in pursuit, and the theft and possession of a number of rifles and ammunition.

12. Prima facie, these are all offences which will potentially attract not insubstantial terms of imprisonment.

CROWN SUBMISSIONS

13. On 12 February 2025, the Crown provided written submissions with respect to the objective seriousness of the present offences. In the Crown submission, the section 5 threshold is crossed in an overall consideration of the offending and there are no alternatives other than full-time imprisonment. For present purposes, it is unnecessary to restate the fine detail of each of the offences. The details of the offending are set out in Agreed Facts which have been tendered and to which I have had regard.

14. Count 1 is being carried in a conveyance without consent, i.e. travelling in a stolen vehicle. The Crown submits that the offending falls below the mid-range of objective seriousness.

15. Count 2 is knowingly driving a conveyance without consent. The Crown submits that the offending falls at or below the mid-range of objective seriousness. There is a Form 1 offence attaching to this sequence of driving in a manner dangerous.

16. Count 3 relates to the theft of a firearm which had been left in a vehicle parked outside a motel. The Crown concedes that there is no evidence to suggest there was prior knowledge of the firearm being located within the bag in the vehicle and submits that the offending falls below the mid-range of objective seriousness. The theft of a quad bike which was on a trailer attached to the vehicle containing the weapon has been placed on a Form 1.

17. Count 4 charges the use of an offensive weapon to intimidate police. The described threatening conduct was driving a motor vehicle behind a police vehicle containing four police officers and causing the police vehicle to increase its speed so as to maintain a safe distance ahead of the following vehicle. The Crown submits that this offending falls above the mid-range of objective seriousness. Without finally determining that assessment, and subject to further submissions, the conduct described falls, in my view, below the mid-range of objective seriousness having regard to the factual circumstances in which such conduct is charged. There was little actual danger to the police officers in the manner of driving which are set out in the Agreed Facts.

18. Count 5 relates to the police following the offender and the vehicle he was driving over an extensive distance south of Moree and towards the town of Narrabri in what is described as a pursuit. Police had originally been deployed when advised that the offender and his co-offender were driving south from Boggabilla and the following police in due course observed the offender change vehicles. Other police who were obviously ahead of the offender’s vehicle in due course deployed road spikes in order to stop the offender’s vehicle. The Crown submits that this offence falls towards the mid-range of objective seriousness. In my view, such offending described in the Agreed Facts, falls below the mid-range of objective seriousness.

19. Count 6 relates to possession of a shortened firearm which was left in the vehicle after he was stopped following the deployment of the road spikes. The offender and his co-offender left the weapon behind in the vehicle when they fled the scene. In the Crown submission, the offence falls at or above the mid-range of objective seriousness.

20. Count 7 relates to a further firearm and is a charge of acquiring a firearm. It was in a disassembled state. The Crown submits that it falls below the mid-range of objective seriousness.

21. I should indicate that with the exception of the use of the vehicle as an offensive weapon and the fact with respect to the pursuit, I am in broad agreement with the categorisation by the Crown as to the respective levels of objective seriousness of the different offences.

22. In additional written submissions dated 26 March 2025, the Crown opposed the release application and the adjournment pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999. In essence, the Crown put forward three bases in opposition to the making of an order under section 11. These were:

23. There is adequate material before the Court to assess the offender’s prospects of rehabilitation without the making of an order under s 11;

24. There is a realistic inevitability that a significant period of incarceration will be imposed, making a deferral under s 11 unnecessary; and

25. A deferral under s 11 would result in a significant delay.

26. The Crown referred in detail to relevant authorities to which I will refer shortly.

SUBMISSIONS OF BEHALF OF THE OFFENDER

24. On behalf of the defence it was conceded that no penalty other than imprisonment is appropriate with respect to the offending. With respect to the objective seriousness of the individual offences, it was submitted that none of the offences were strictly indictable and each of them were capable of being dealt with in the Local Court. With respect to the overall conduct occurring during the period of approximately 3 weeks in December 2023, it was submitted that whilst not a mitigating factor, the offending was unsophisticated and consistent with the offender being under the influence of illicit drugs at the time of the commission of those offences. The offender’s inability to access buprenorphine medication in the community following his release to parole in November 2023 was pointed to as one of the catalysts for his re-offending.

25. The defence submissions highlighted Bugmy factors and the extensive prior criminal record of the offender. The primary basis of the application rested on the acceptance by Odyssey House of the offender into a lengthy rehabilitation program in circumstances of his background and still comparative youth.

BACKGROUND CIRCUMSTANCES

26. Jabour Clark is a young man who is still only 24 years of age. He was born in September 2000 and has had ongoing interaction with the criminal justice system from the age of 12. He spent periods of time in his teenage years in juvenile detention. His extensive criminal history includes offences relating to taking and driving vehicles, possession of unauthorised firearms and ammunition, charges of break and enter, destroy or damage property, possession of prohibited drugs and numerous breaches of bail and correction orders.

27. He first entered an adult prison some 3 months after his 18th birthday. He has subsequently spent most of his adult life in correctional facilities.

28. His first offence as an adult related to using a prohibited weapon, contrary to a prohibition order under the Firearms Act 1996. That prohibition order had been made against him in 2018 when he was 17 years of age.

29. In April 2019, he was placed on a Community Correction Order for 9 months with supervision. He was also dealt with in relation to a contravention of an Apprehended Domestic Violence Order and further charges of acquiring and possessing ammunition contrary to the prohibition order which was in place.

30. The following month, May 2019, he was arrested and charged with breaking and entering a house and stealing. He was remanded in custody and was ultimately sentenced to 18 months imprisonment with a non-parole period of 12 months.

31. In November 2019, after he had served 6 months of the sentence, his sentence was varied by the District Court to a term of 12 months commencing in November 2019, to be served by way of an Intensive Correction Order. He was accordingly released on 23 November 2019.

32. Approximately 2 months after his release, he went back into custody with respect to an offence committed in May 2019 of being carried in a stolen vehicle. He was also charged with the acquisition of a pistol part, goods in custody and possession of housebreaking implements. He remained in custody. In June 2020, he was sentenced to an aggregate of 2 years and 8 months imprisonment in the Local Court at Moree. A non-parole period was specified of 1 year and 10 months. An appeal against severity to the Moree District Court resulted in a reduction to the aggregate sentence. The sentence was varied to a head sentence of 2 years and 4 months with a non-parole period of 1 year and 4 months. He was released to parole on 1 June 2021.

33. In August 2021, he was again arrested and charged with a number of firearms offences. These included several counts of supplying prohibited firearms, as well as supplying a shortened firearm. He was also charged with possession of a prohibited drug.

34. He remained in custody until sentenced by Judge Noman SC in the Sydney District Court on 12 December 2022. He was sentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years, backdated to commence from 22 November 2021. He was released to parole on 21 November 2023.

35. The background facts with respect of the matter before Judge Noman SC related to the theft of a number of firearms which had been stolen from a rural property by another person, Steven Howard. Howard and the offender were subsequently both involved in negotiations with police undercover operatives regarding the supply of the stolen firearms. As Judge Noman SC observed in passing sentence, the offender was illegally dealing in firearms at a time when he was still subject to a prohibition order under the Firearms Act. According to the account of the offender, he was under the influence of illicit drugs during the time of the offending.

36. At the time of sentence the offender was 22 years of age. Her Honour noted that he was “still of an age where rehabilitation assumes greater importance in determining sentence.”

37. Her Honour undertook a detailed analysis of the offender’s subjective background. Her Honour described in summary his neglected family background, including his mother having been a drug user, an addict and a supplier of drugs. The offender’s own long-standing use of cannabis had commenced at the age of 13, before transitioning to his long-term drug of choice, “ice”.

38. Her Honour made reference to an earlier police pursuit in which the offender’s friend had been killed while trying to avoid police. Her Honour noted the sexual abuse said to have been sustained by the offender in primary school by a teacher and subsequently in juvenile detention by both an inmate and also a staff member.

39. Whilst making objective criticism of a letter purportedly from the offender, which in fact had not been written by him but apparently authored by his solicitor, her Honour did accept that there was remorse and insight, and that the expressions of remorse and a stated desire to undertake rehabilitation were genuine.

40. The Court, in December 2022, reflected on the offender’s extensive criminal history, including at the Children’s Court. Her Honour thought there was a real risk of institutionalisation and assessed the offender at 22 years old as still being of an age where rehabilitation assumed greater importance in the determination of an appropriate sentence. Judge Noman SC found that the offender’s disadvantage in his upbringing and the dysfunction in his education and home life served to lessen his moral culpability and to ameliorate the sentence. She referred to his expressed willingness to undertake drug rehabilitation programs.

41. In the event, following his release to parole the offender effectively returned to his antisocial peer group. He resumed the abuse of illicit drugs and committed the offences before this Court over a period of weeks in December 2023.

42. He has remained in custody since the time of his arrest on the present matters on 1 January 2024.

43. The Court has been provided with a psychological report from Dr Melissa Hughes, Clinical Neuropsychologist and Forensic Psychologist. Dr Hughes also had access to an earlier psychological report of Mr Sam Borenstein which had been prepared for the sentence proceedings before Judge Noman SC. Mr Borenstein had expressed the opinion that the offender had diagnoses of a Substance Use Disorder relating to his significant history of substance usage, predominantly “ice” and cannabis, and a Complex Post-Traumatic Stress Disorder. This would appear to have been related to episodes of being sexually abused as a child, including both at school and subsequently whilst in juvenile detention.

44. His use of ice had increased from what was described as a “half ball daily” until around the age of 18 when he started injecting half a gram of “ice” on a daily basis whilst not in custody. During his most recent period of incarceration since January 2024, he has been on buprenorphine for the period whilst he has been incarcerated.

45. When interviewed in October 2024 by Dr Hughes, the offender had reported an intention to remain abstinent when released. It is clear that he expressed similar sentiments prior to the passing of sentence by Judge Noman SC. Dr Hughes was cognisant of those previous intentions and expressed the opinion that his “plans to do so seem limited and naïve.” She was of the view that the offender appeared to have poor insight into his dependence on substances as a coping strategy for any stressor that arises. Her report further indicated that in order to prevent further impact of illicit substances on his cognitive functioning and also to assist with managing issues of recidivism, “he will need considerable support for substance use and community integration when released into the community.”

46. Consistently with the conclusions by Judge Noman in 2022, Dr Hughes formed the view that the offender appeared “institutionalised”.

47. The offender also described to the psychologist difficulties in the Moree community where other people in his extended peer group appeared to blame him for the death of a friend in the course of an earlier police pursuit.

48. The detail of the offender’s dysfunctional upbringing are set out in the earlier judgment of Judge Noman SC and also in the detailed report from the clinical psychologist, Dr Hughes.

49. It suffices for present purposes to observe that notwithstanding that his family heritage is Lebanese rather than indigenous, it is appropriate to observe that his dysfunctional upbringing is not dissimilar to what is unfortunately seen regularly in the broader Moree district. There is no doubt that principles derived from Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 and Fernando (1992) 76 A Crim R 58 are enlivened in a consideration of the moral culpability of this young man. The documented history of substance abuse by his mother during his childhood and an overall perspective of his neglect during his formative years is unquestionable.

50. The Court has been provided with a detailed description from his aunt who resides in Inverell and who is a certified personal trainer, online coach and business owner of Melissa Lahood Fitness. She does not have any criminal record. She described in considerable detail her observations of the offender being left to fend for himself as a child due to his mother’s drug addiction at that time. She described attempts to get assistance from family and community services on numerous occasions including lodging reports with Family and Community Services herself with respect to the neglect of her nephew in Moree.

51. She described the offender’s current expressions of extreme remorse for his repeat offending and how she looked on helplessly as in her words “Jabour became another statistic in the juvenile justice system.” She had discussed in detail with him rehabilitation options and the necessity of the offender ultimately living away from Moree.

52. The Court has also received a detailed letter from the offender’s mother. She has moved to Maclean where she is now employed and rehabilitated from her own drug addiction. She described the absence of ongoing assistance for her son following his release from the term of imprisonment imposed by Judge Noman SC. She described the inability to organise ongoing buprenorphine program management after his release. She had contacted Probation and Parole and was told that the medical team at the Cessnock Medical Facility should have organised for the continuation of the buprenorphine program following the offender’s release.

53. Additional material indicated that following his release, he had been assaulted by people holding him responsible for the death of a friend to which I have referred earlier. He resumed substantial drug use and told Dr Clark he could not account for or remember the offending due to being on drugs at the time.

LEGAL PRINCIPLES

54. The Crown correctly reminded the Court of the relevant principles to be applied in relation to a section 11 deferral. These had been summarised in R v Hopoi [2014] NSWCCA 263 where the Court summarised the appropriate considerations at [44]:

This Court's decision in R v Farrell [2014] NSWCCA 30 has identified the appropriate considerations in relation to a s 11 deferral:

(a) It is necessary for the Sentencing Judge to make findings of fact and an assessment of the objective seriousness of the offence before adjourning a matter under s 11: R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [38];

(b) A Crown appeal is available under s 5D of the Criminal Appeal Act 1912 (NSW) from a s 11 deferral: Farrell at [36];

(c) A deferral under s 11 will be manifestly inadequate if it is demonstrably obvious that a sentence was called for: Farrell at [36];

(d) A s 11 deferral should not be granted unless there are good reasons for concluding that it is likely to assist the Court in determining whether an offender should be sent to gaol or in fixing the length of the sentence or the non-parole period: R v Trindall [2002] NSWCCA 364; 133 A Crim R 119 at [64];

(e) Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice by reason of the delay: Palu at [30];

(f) A s 11 deferral is not confined to cases where something other than a full-time custodial sentence is contemplated by a sentencing judge if rehabilitation is successful: Trindall at [64]; R v Brown [2009] NSWCCA 6; 193 A Crim R 574 at [22].

55. In the event, the Court of Criminal Appeal in Hopoi found that the sentencing judge, Williams DCJ, had erred in the exercise of his discretion in deferring sentence in that particular matter. The respondent had pleaded Guilty to aggravated robbery with wounding, contrary to s 96 of the Crimes Act 1900. The sentencing judge had failed to assess the objective seriousness of the offending and the circumstances of a guarded view about his rehabilitation was held to be an inadequate justification for the deferral given the factual circumstances of the subjective case.

56. There was on the basis of the psychological material tendered in the proceedings ample evidence to indicate the state of the respondent’s rehabilitation and to enable the sentencing judge to assess the likelihood of future rehabilitation.

57. Given the nature of the offending and the guideline judgment in R v Henry (1999) 46 NSWLR 346, the Court found that there were no good reasons for concluding that a deferral was likely to assist the Court in determining whether the respondent should be sent to gaol. The Court found it difficult to see how a deferral would have assisted the Court in fixing the length of the sentence or the non-parole period.

58. The case of R v Farrell [2014] NSWCCA 30 to which the Court had referred in Hopoi, was an appeal by the Director of Public Prosecutions against a deferral pursuant to s 11 by Hanley SC DCJ.

59. The respondent in that matter had been a member of an outlaw motorcycle gang, the Rebels, and had been charged with a number of serious firearms offences including possession of a prohibited weapon including a 9mm calibre Luger manufactured select-fire sub-machine gun. An additional weapon, a 9mm Uzi machine pistol with a loaded magazine had been included, together with other offences, on a Form 1.

60. The respondent had suffered serious injuries in a motorcycle accident in September 2011. In the course of submissions by Mr James QC, one of the reasons for seeking an adjournment under s 11 was to permit the respondent to have necessary surgery on his left hand.

61. However, significantly, there was no material before the sentencing judge as to whether any approach had been made, either by the respondent or on his behalf, to Justice Health to seek to have the surgery arranged whilst in custody.

62. A second basis for the s 11 adjournment was said to be so as to enable the Court to ascertain what his response might be to rehabilitation in order to enable a more informed assessment of this aspect in the ultimate sentencing exercise.

63. R A Hulme J, Hoeben CJ at CL and Adams J agreeing, found at [34]:

“A**ll the information that was required for there to be a proper assessment of sentence was already before the Court. The respondent had made some progress in terms of rehabilitation and there was material to enable an evaluation of his future prospects in that respect and there was no need for the respondent to be at liberty for him to undergo surgery.”

64. R A Hulme J had observed at [33]:

“T**here was material before the judge to the effect that necessary surgery would be arranged by Justice Health. The finding of the judge that the respondent’s need for surgery supported disposition under section 11 was simply one that was not open to be made.”

65. Ultimately, despite error having been established, the Court refrained from intervention in the exercise of its discretion. The order had been made by Hanley SC DCJ in November 2013 and the judgment in the Court of Criminal Appeal was handed down in March 2014. The proceedings in the District Court were due to come back before Judge Hanley SC on 14 April 2014. In such circumstances, there was nothing practical to be achieved by sending the matter back to the District Court on an earlier date.

66. In the judgment in Farrell, the Court made reference to earlier decisions of the Court of Criminal Appeal.

67. These included R v Palu [2002] NSWCCA 381. Palu was an appeal by the Crown against a deferral or adjournment under s 11 by Judge Coorey of the District Court. Palu had pleaded Guilty to the malicious inflicting of grievous bodily harm. The respondent had caused serious injuries to a former friend in the course of a fight between them. The victim had suffered a 10cm right occipital skull fracture with underlying extradural haematoma and right frontal lobe contusions. He underwent a right occipital craniotomy and was taken to intensive care. He developed meningococcal meningitis. He suffered Post-Traumatic Amnesia and severe hearing loss in his right ear. He had permanent cognitive and physical problems.

68. Howie J, who had himself been elevated from the District Court at that time, undertook a detailed examination of the circumstances attending dealing with Friday “short matters” in the District Court.

69. His Honour referred to the circumstance that there were factual disputes in the matter which were not yet resolved. In the Crown’s submission in the Court of Criminal Appeal, it was submitted that there was insufficient material before the sentencing judge to indicate that there was “a real expectation, founded upon solid grounds rather than mere sentimentality that an adjournment would compel some course of conduct to rehabilitate or reform the respondent.” His Honour referred in this respect to R v Tindall & Gunton [1994] 74 A Crim R 275 at 276.

70. Howie J, Levine and Hidden JJ agreeing, ultimately determined that the proceedings in the District Court had miscarried. Howie J at [32] held that:

“A miscarriage of justice has occurred in the present case because his Honour had insufficient regard to the seriousness of the step he was proposing in adjourning the matter for a lengthy period. The only basis upon which his Honour seemed to have concluded that an order under s 11 was warranted was because he thought that the respondent “probably needs counselling in anger management and he needs counselling in alcohol control.””

71. His Honour further found that the circumstance that there were factual findings which were yet to be determined and hence the Court not having been able to assess the objective seriousness of the offence, were additional bases upon which the section 11 adjournment was inappropriate.

72. Howie J referred to R v Trindall in which his Honour described that the purpose and effect of an order under s 11 had been considered. I will refer to the detail of Trindall shortly but I note before leaving Palu that Justice Howie observed at [29]:

“As Smart AJ identified” (in Trindall) “the discretion conferred upon a sentencing judge by section 11 can be a valuable sentencing tool when used in appropriate case for the purpose of arriving at a sentence which is just both for the offender and for the community.”

73. R v Trindall [2002] NSWCCA 364 was a judgment of the Court of Criminal Appeal delivered approximately 3 weeks before Palu. Acting Judge Mahoney had remanded Trindall to a date to be fixed by the Crown in consultation with the Court, at sometime in the future. Trindall had pleaded Guilty to a charge of robbery in company following a robbery of a delivery driver in Tamworth. Between 1985 and 1997, Trindall had an extensive criminal history. He had spent lengthy periods in institutions and in gaol. Trindall had a dysfunctional upbringing and had never been in regular employment. He had no fixed place of abode and had developed a heavy drug dependency. He had been sexually assaulted as a child.

74. The Acting Curator of Aboriginal Art at the Art Gallery of New South Wales reached an assessment in more recent times that Trindall was an indigenous artist with significant talent and potential who had the ability to make a living from his work.

75. The report of a psychologist indicated that successful reform and rehabilitation was guarded although there were a number of encouraging factors including a more recent commitment to drug and alcohol rehabilitation.

76. Material before the sentencing judge indicated that a more recently developed expressed intention to endeavour to rehabilitate himself from drug and alcohol abuse provided a basis for some optimism. The Drug and Alcohol worker at Tamworth Correctional Centre expressed the view: “I feel he would respond to Namatjira Haven’s extensive program and be able to put what he has learnt into practice in the community.” That report concluded: “The fact that he has applied for rehabilitation of his own volition, is in itself, an enormous step for Mark and I ask that your Honour give him this chance.”

77. The judge at first instance made reference to the common law position with respect to what was then known as a Griffiths remand.

78. Neither of the legal representatives brought the provisions of s 11 of the Crimes (Sentencing Procedure) Act to the Judge’s attention.

79. In considering the Crown appeal against the deferral of sentence, Acting Justice Smart (Spigelman CJ and Grove J agreeing) undertook an analysis of the principles behind s 11 which had been introduced following the recommendation of the Law Reform Commission. The Discussion Paper from the Law Reform Commission had noted that s 11 “should only be granted where there is a real expectation that rehabilitation and reform are likely to be achieved”: R v Tindall (1994) 74 A Crim R 275.

80. Smart AJ also made reference to the Minister’s Second Reading Speech in introducing the Legislative amendment. His Honour also referred to the Minister’s speech in reply, in which a Griffiths remand (Griffiths v The Queen (1977) 137 CLR 293) was described as:

“a very effective sentencing tool which encouraged offenders, particularly those convicted of drug-related offences, to rehabilitate themselves, or at least progress seriously along that route*.”* (emphasis added)

81. His Honour examined numerous unreported decisions including cases in which despite the inevitability of a sentence of full-time custody, the Court of Criminal Appeal had dismissed an appeal against the grant of a Griffiths remand.

82. His Honour noted exceptions to the rule that cases requiring a full-time custodial sentence would usually result in a Griffiths remand not being appropriate to be granted and referred to Clark (1997) 95 A Crim R 585 which involved exceptional circumstances and a significant risk of suicide, and Jones (unreported, NSWCCA 15 April 1994) involving “very significant progress in rehabilitation during 8 months prior to the sentencing hearing”.

83. His Honour said at [59]:

“While the prospects of rehabilitation arise for consideration when considering whether an offender should be jailed and the length of the head sentence they are also of great importance when fixing the non-parole period.”

84. His Honour continued at [60]:

“Often a Court experiences difficulty when sentencing an offender in determining the offender's prospects of rehabilitation and whether the foreshadowed rehabilitation will occur. In many instances it will be of great assistance to the sentencing judge if there is an adjournment to enable the offender to demonstrate that rehabilitation has taken place or is well on the way. That was the present case. It is so much better for the court to have evidence of what has actually taken place than to have to base its decision on the opinions of experts, assertions by the offender and what has happened over a short period of time, that is, since the commission of the offence or the offender's arrest.”

85. His Honour ultimately concluded at [65] and [66]:

“65. The judge had a sober but generally encouraging report from Mr Nolan, the psychologist, that the applicant had a fair chance of avoiding further conflict with the law and the report of Ms C Bennett of Alcohol & Other Drugs Unit at Tamworth Correctional Centre that Mr Trindall had come a long way in the past few months and was genuinely committed to turning his life around. She thought that he would respond to Namatjira Haven's extensive programme and that he realised there was a long road ahead of him. There was also the assessment from the Acting Curator of Aboriginal Art at the NSW Art Gallery that Mr Trindall had significant talent and potential.

66. While this material pointed to a future for Mr Trindall, the judge was worried that with Mr Trindall's past record he may not rehabilitate as hoped. The judge wanted to see how Mr Trindall responded and whether he was well on the way to rehabilitating himself. In the circumstances of the present case the judge's decision to grant a Griffiths remand was well open to him.”

86. Acting Judge Mahoney had failed to fix a date for the adjourned hearing of the sentence proceedings and, accordingly, the matter was remitted to the sentencing judge for the purpose of fixing an actual hearing date prior to the expiry of a 12-month period and as required by section 11.

DETERMINATION

87. An examination of the tragic history of this young offender paints a picture which is not atypical of the well-publicised problems in the Moree region where I have sat during circuit sittings over the past 3 years. His inability to continue on the path towards rehabilitation notwithstanding the opportunity extended to him in the reduced ratio of his non-parole period by Judge Noman SC, does not augur well for a determination of his prospects of rehabilitation into the future.

88. However, the material indicating a renewed and respectful relationship between his mother and him, the material provided by his maternal aunt, and the detailed analysis by the forensic psychologist, in conjunction with the opportunity to avail himself of the highly respected and well-regarded full-time residential rehabilitation program at Odyssey House will, in the event of his successful completion of that program, provide the Court with considerably better insight into his prospects of full rehabilitation.

89. I respectfully adopt the reasoning of Smart AJ in Trindall and have a firm view that a proper determination of an appropriate non-parole period will be substantially assisted by a consideration of those prospects following the deferral of sentence.

90. His ultimate rehabilitation and abstinence from illicit drug use and association with his former peers in Moree will ultimately benefit the community, just as much as it will benefit him.

91. The orders which I made in Queanbeyan are as follows:

92. The offender is to be released pursuant to section 8 of the Bail Act 2013.

93. The adjournment application is granted pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 in order to enable the offender to enter into the full-time residential rehabilitation program conducted by Odyssey House.

94. The following bail conditions are imposed:

(a) The applicant is to reside at the Odyssey House Program at either 169 Campbelltown Road, Ingleburn NSW 2565 or 13 A Moonstone Place, Eagle Vale NSW 2558, and at no other place. (b) The applicant is to attend the Odyssey House Program and obey all reasonable directions of staff at that Program whilst he is there. (c) The applicant is not to leave the Odyssey House Program unless in the company of a staff member of the program or another appropriate person, as determined by Odyssey House. (d) The applicant is to report immediately to NSW Police if he refuses admission to the Program or leaves the Program for any reason. (e) The applicant is not to occupy the driver's seat of any motor vehicle/motorcycle.

(f) The applicant is to abstain from consuming alcohol and/or any illicit drugs whilst on bail. (g) The Applicant is not to be released on bail unless arrangements are in place for him to be met by his father Brad Clark and/or mother, Michelle Clark, and transported from Macquarie Correctional Centre to the Odyssey House Program.

4. The matter is adjourned for mention only on Friday, 29 August 2025 at 10:00am, part-heard before Judge Sutherland SC in Sydney, to obtain an update on the offender's progress in Odyssey House. The offender is excused from attending so long as he is still at Odyssey House and is legally represented.
5. The matter is further adjourned for hearing on Friday, 6 February 2026 at 10:00am, part-heard before Judge Sutherland SC in Sydney, at which time the Court will either proceed to sentence or fix a date for sentence, depending on the material available to the Court at that time.

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