(g) to recognise the harm done to the victim of the crime and the community."
110 There must be a reasonable proportionality between a sentence and the circumstances of the crime and it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively. The relative importance of the objective facts and subjective features of the case will vary. However, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: R v Dodd [1991] 57 A Crim R 349 at 354.
111 The promotion of the rehabilitation of the offender (s.3A(d)) is but one of the purposes of sentencing which include, consistently with the principle recited in R v Dodd above, ensuring that the Respondent is adequately punished for the offence (s.3A(a)).
112 In R v Scott [2005] NSWCCA 152, Howie J (Grove and Barr JJ agreeing) said at [15]:
"[15] There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. This principle arose under the common law: R v Geddes (1936) SR (NSW) 554 and R v Dodd (1991) 57 A Crim R 349. It now finds statutory expression in the acknowledgment in s 3A of the Crimes (Sentencing Procedure) Act that one of the purposes of punishment is 'to ensure that an offender is adequately punished'. The section also recognises that a further purpose of punishment is 'to denounce the conduct of the offender'."
113 Making due allowance for the strong subjective case which the Respondent can advance by reference to rehabilitative steps taken by him since 26 May 2008, taken together with the motive for the aggravated detain for advantage offence, there remains the inevitability that a significant full-time custodial sentence is required, in the proper exercise of sentencing discretion, having regard to the objective gravity of the two serious crimes of violence committed by him on two separate occasions against two different victims.
114 I am satisfied that this point had clearly been reached by 9 February 2010 in the sentencing hearing. Any adjournment of the hearing by way of s.11 order could not bear properly upon the form of sentence which the law required to be passed in this case. Nor, in my view, could the proper exercise of sentencing discretion involve the setting of the length of the non-parole period being affected by such additional steps which the Respondent may take between February and December 2010. The evidence demonstrated that the Respondent had completed the rehabilitation component of the program and was undertaking a form of retraining as an intern with associated TAFE studies. The evidence also indicated that these TAFE studies could be undertaken by a person in custody.
115 Counsel for the Respondent in the District Court made application to remand the Respondent to ONE80TC for a period of 12 months under s.11(1)(b) to allow him to demonstrate that rehabilitation had taken place (T40.45, 14 December 2009). The sentencing Judge's reasons did not refer to s.11(1)(b) and some of his comments raise a question as to whether some other subsection was being relied upon.
116 Given the uncertainty concerning the particular part of s.11 relied upon by the sentencing Judge, it is appropriate to refer to the various subsections. The Respondent's counsel in the District Court did not rely upon s.11(1)(a), and for understandable reasons. In the circumstances of this case, the Court had ample material to assess the Respondent's capacity and prospects for rehabilitation.
117 The further adjournment of the sentencing proceedings until December 2010 would not serve the purpose of allowing the Respondent to demonstrate that rehabilitation has taken place. At one level, it might be said that the process of rehabilitation of an offender never ends. In circumstances where an offender has been involved in a residential rehabilitation program, it might be said that the greatest challenge will occur when the offender returns to the community and is exposed to the prospect of alcohol and drug use and abuse. I note, in any event, the 12-month outer limit provided for in the section. No proper foundation existed for a s.11(1)(b) adjournment.
118 This was not an "intervention program" for the purposes of s.11(1)(b1) or (b2). "Intervention program" is defined in s.346 Criminal Procedure Act 1986 as a program of measures declared to be an intervention program under s.347 of that Act. The circle sentencing intervention program, the forum sentencing program and the traffic offender intervention program are declared programs for the purpose of s.347: cl.19-19B Criminal Procedure Regulation 2005. Interestingly, an intervention program may not be conducted for an offence under s.35 Crimes Act 1900: s.348(2)(a) Criminal Procedure Act 1986.
119 The residual provision in s.11(1)(c), permitting adjournment for any other purpose the Court considers appropriate in the circumstances, must be read in its statutory context. Section 11 is to be used sparingly. In R v Trindall, it was observed (at [58] and [61]) that the s.11(1)(c) power might be exercised, for example, if a significant risk of suicide existed if the offender remained in custody arising from severe depression or important surgery was to be undertaken on the offender. These examples serve to emphasise that a further 10-month adjournment in the circumstances of this case, after the Respondent's very lengthy residence at the ONE80TC premises, could not properly be justified by s.11(1)(c) of the Act.
120 Reference was made in submissions to the state of preparation or readiness of the Respondent to experience a prison sentence. The sentencing Judge did not refer to this as the rationale, in whole or in part, for the order. I observe that part of the evidence suggested that the Respondent was ready to face a prison sentence, although other evidence suggested that further delay might make him better prepared. I have difficulty with this consideration being a relevant factor to found a s.11 order in the absence of most exceptional circumstances involving, for example, a current but passing serious illness on the part of the offender (see R v Trindall at [58] and [61]). It is sufficient to say that, on any view of it, that is not the present case.
121 The facility of adjourning proceedings by way of a s.11 order is a useful measure in an appropriate case. However, the s.11 power is not to be used to delay the imposition of sentence beyond a point of time when a court is sufficiently seized of all relevant material. In particular, the delay implicit in the s.11 order must be kept in mind so that the Court is not itself creating circumstances where an argument may be put that delay constitutes a factor which ought operate in an offender's favour on sentence. The Crown submitted here that a further delay of sentence in this case until December 2010 would give rise to such a scenario. By that time, more than two-and-a-half years would have passed since the commission of the offences. Although some delay would assist the sentencing Court by allowing the Respondent to demonstrate that rehabilitation had occurred, the Crown submitted (in my view, correctly) that the evidence concerning steps taken by the Respondent between 26 May 2008 and 9 February 2010 provided ample foundation for the Court to make findings in the Respondent's favour with respect to rehabilitation. That, however, is but one of the factors relevant to sentence. Consistent with principle, that factor cannot become the dominant or controlling factor on sentence in circumstances where objectively serious crimes have been committed which must attract appropriate punishment.
122 The Respondent will be entitled to call in aid on sentence, the authorities which provide for some discount by way of quasi-custody in a residential rehabilitative program. To qualify for a discount, conditions must bear some of the features of imprisonment and thus impose a form of punishment on the offender. However, the sentence cannot be reduced to a level insufficient to reflect the objective seriousness of the Respondent's crimes: Truss v R [2008] NSWCCA 325 at [21].
123 It is sufficient for the purpose of determining the present Crown appeal to conclude that the making of an order under s.11 lay outside the proper exercise of discretion in the circumstances of this case. Fairly read, the evidence before the sentencing Judge revealed that the Respondent had completed the rehabilitation program and was undertaking a form of retraining. Although this served the interests of the Respondent, it did not serve the interests of the community in the timely imposition of appropriate punishment for serious crimes. In my view, the only reasonable view available and consistent with authority as at 9 February 2010 was that the Court should have proceeded to sentence the Respondent.
124 I am satisfied that the Crown has demonstrated error in The House v The King sense and that the order made on 9 February 2010 involved the imposition of a manifestly inadequate sentence. A s.11 order was clearly inappropriate in the circumstances of this case: R v Alameddine [2005] NSWCCA 68 at [14]-[15]; R v ABS [2005] NSWCCA 255 at [31].
125 If this point was reached, Mr Stratton SC submitted that the Court would consider dismissing the Crown appeal in the exercise of its discretion, a course which remains open: R v JW [2010] NSWCCA 39 at [95]. An affidavit of the Respondent sworn 22 April 2010 was read in support of this submission. I am not persuaded that the Court should exercise its discretion to dismiss the Crown appeal in this case. I am satisfied that a clearly erroneous order has been made which delays significantly, for a further seven months, the sentencing of the Respondent. This delay is entirely inconsistent with the public interest in the Court proceeding to sentence without delay. The delay is not justified under s.11 nor is it supported by other sentencing principle. The Crown brought this appeal promptly, with the hearing being delayed as the unrevised remarks on sentence did not become available to the parties until 7 April 2010. I am not persuaded that the Court should decline to intervene in this case in the exercise of its discretion.
126 If this point was reached in the appeal, the parties agreed that the appropriate order would be to remit the matter for sentence before Coorey DCJ in the District Court. This course will permit a first-instance Judge to make findings and impose sentence. The parties will thereafter have their appeal rights under the Criminal Appeal Act 1912 with respect to sentence: R v Palu at 185 [43]; O'Neil-Shaw v R [2010] NSWCCA 42 at [57].
127 Before concluding this judgment, I observe that a fair reading of the transcript of 9 February 2010 would have left the Respondent with the false expectation that periodic detention was an available sentence in the circumstances of his case. In my view, this was clearly wrong and serves to exemplify, once again, the vice of a s.11 order where the offender is not told in clear terms the limited purpose of delaying sentencing.
128 I propose the following orders: