R v Trindall

60020/02 SPIGELMAN CJ GROVE J SMART AJ Friday, 30 August 2002 REGINA v MARK ANTHONY TRINDALL

1. SPIGELMAN CJ: I agree with the judgment of Smart AJ.

3. SMART AJ: The Crown appeals against the alleged inadequacy of orders made by Mahoney ADCJ on 13 December 2001 whereby on a charge of robbery in company Mr Trindall was remanded to a date and place to be fixed by the Crown in consultation with the Court and his legal representatives. The judge granted Mr Trindall bail as from 14 December 2001 on the following conditions: (i) he submit himself to the custody of his mother Mary Trindall immediately on his release from gaol on 14 December 2001

(ii) he travel with her directly to Namatjira Haven, 100 Whites Lane, Alstonville

(iii) he present himself or admission to Namatjira Haven as a client pursuant to its letters of 11 and 13 December 2001

(v) he keep the peace during the whole of the term of this remand, however long that may be

(vi) he continue to be a resident client at the Haven until such time as required by the administrator of that Institution or until further order of any NSW court

(vii) he attend the NSW District Court whenever required to do so and there stand to receive sentence for the offence of robbery in company committed on 17 April 2001. 4. Leave was granted to the Crown to relist the case for mention in 2002 other than in the period mid-April to mid-June for review of Mr Trindall's progress at Namatjira Haven and to relist the case forthwith in the event of any breach of the bail conditions of Mr Trindall 5. Mr Trindall had pleaded guilty. He was born on 14 April 1976. The judge made it plain that Mr Trindall would have to go to gaol eventually. He was concerned about the length of the sentence and particularly the non-parole period.

(a) Does this Court have jurisdiction to entertain this appeal? Did the orders made in the District Court amount to a sentence within the meaning of sub-paragraph (c) of the definition of "sentence" in s.2 of the Criminal Appeal Act 1912.

(b) If so, should this Court intervene other than to remit the matter to the judge for him to nominate a date not being later than 12 December 2002 on which to proceed with the sentencing hearing. This raises the effect of s.11 of the Crimes (Sentencing Procedure) Act 1999 generally and on the pre-existing law.

At 9.05 pm on 17 April 2001, the victim, a delivery driver for a restaurant was making his last delivery to some flats in Tamworth. As he made the delivery, Mr Trindall and another man made their way over to the victim's car and waited for him. Mr Trindall said "Can you give us a lift down to the corner?" The victim, who was apprehensive about what might happen if he refused, reluctantly agreed. Mr Trindall got into the front passenger seat and his male companion got into the rear seat. Both smelt strongly of alcohol. The victim placed his money bag under his left leg on the driver's seat.

As the journey proceeded Mr Trindall asked "Have you got any Tally papers?" The victim replied, "No". Mr Trindall reached across, grabbed hold of the victim's money bag and said, "What's in there?" The victim replied, "Nothing, it is just mine." The victim then grabbed the bag from Mr Trindall and put it on the other side of the victim's seat.

The victim was directed to proceed further and pull up at Munro Park. Mr Trindall and his companion appeared to be preparing to leave the car. However, Mr Trindall reached over to where the bag was when he first grabbed it and his companion, who was in the back seat, grabbed the victim from behind in a headlock and threatened that if he moved his neck would be broken. While the companion held the victim, Mr Trindall searched the front of the car. He reached over and grabbed the money bag and said, "How much is here?" The victim replied "A couple of hundred." Mr Trindall then removed the victim's wallet from his trousers. The victim, in answer to Mr Trindall's question said that there was "twenty bucks" there.

Mr Trindall instructed his companion, "Put him across in the passenger seat and I will drive." The companion effected the transfer, retaining the headlock the whole time. Mr Trindall drove the car and his companion put his hand over the eyes of the victim as the car proceeded. The victim's mobile phone was pulled out of his pocket. One of the men told the victim they would leave the car and his wallet at the school. As the car was heading back into town the companion made remarks like this, "If you try and be a big hero, I will kill you. I have your details in the wallet." Mr Trindall then said "OK this is what we are going to do. We will drop you off and you will be able to pick your car up outside the school."

Mr Trindall stopped the car and his companion released the victim who alighted. The car was driven off towards town. The victim ran towards Rosary College where he found his car. He reported the matter to the police. The victim did not get a look at the male companion and was unable to identify Mr Trindall from a group of 12 photographs.

Mr Trindall was arrested on 31 May 2001 on some outstanding warrants. In his record of interview as to this matter he claimed that the victim and another person approached him whilst he was at a friend's flat and asked him to score some drugs for him (the victim). Mr Trindall claimed that he took the victim to score drugs and then they drove to a paddock to smoke the drugs. Mr Trindall stated that he took the pencil case containing the drugs and walked away from the car. During the sentence proceedings Mr Trindall's counsel informed the judge that Mr Trindall did not adhere to this version and admitted the police facts.

Between 1985 and 1997 Mr Trindall had an extensive criminal history. He spent a lot of time in institutions and gaol. While some of the offences were towards the lower end of the scale others were serious. For example, in 1988 he was sentenced to 5 years penal servitude with a non-parole period of 2 years 6 months for robbery with wounding, in 1993 to 2 years 8 months with a minimum term of 8 months for robbery and a concurrent sentence of a fixed term of 8 months for assault occasioning actual bodily harm. In 1996 he was sentenced to a minimum term of 1 year to commence on 12 July 1996 and an additional term of 3 years for robbery in company. On 23 February1998 he was fined on two counts of larceny and ordered to pay court costs and compensation of $28.35. On 28 March 2000 he was placed on a good behaviour bond of $500 for 18 months for obstructing an officer in the execution of his duties.

From his record it appears that he was eligible for release about 12 July 1997. It does not appear exactly when he was released. In the letter he wrote to the judge he indicated that he was at large for a period and then arrested on charges of aggravated break enter and steal. Bail was refused and he was kept in prison until the court case concluded. He was acquitted on those charges but he had to apply for parole. He said that he was released on parole on condition that he lived at his parents' home. Upon his release he found out that his father did not have long to live.

On 3 April 2001 he was charged with the offences of drive conveyance taken without consent of owner, resist or hinder police officer in the execution of his duty and unlicensed driver. He was convicted in his absence on 1 May 2001 and a warrant for his arrest was issued. Consequent on his arrest on 3 May 2001 he was taken before Tamworth Local Court on 1 June 2001. For the first offence he was sentenced to 9 months imprisonment with a non-parole period of 4 months. He was sentenced to a further 1 month for escaping police custody. The convictions were confirmed on appeal.

Mr Trindall told Mr P Nolan, psychologist, that for some months prior to being told that his father had cancer and was going to die he had been living in the Tamworth community and had avoided criminal activity for some months. This probably refers to the period between say about July 2000 and February 2001. He was also drug and alcohol free during this period.

Mr Trindall told Mr Nolan that the stress and grief of learning of his father's illness caused him to resume drinking. While under the influence he committed the subject offence (and presumably those with which he was charged on 3 April 1991). Mr Trindall further told Mr Nolan that shortly before his father's death he (Trindall) had promised his father he would not offend again.

Mr Trindall told Mr Nolan that he (Trindall) found it difficult to come to terms with his father's terminal illness and death. The judge was inclined to think that Mr Trindall was making too much of these matters.

The formal education of Mr Trindall went only to Year 7. He has never been in regular employment and had no fixed place of abode. He developed a heavy drug dependency.

He recently disclosed that he had been sexually assaulted as a child over an extended period by a member of his family with whom he continued to have contact. He believed that to have disclosed this abuse would have caused much family conflict. He had not even told his mother. He told his mother he had deliberately offended to escape this abuse.

Mr Trindall has a son who is now aged about 13 who was placed in the care of Mr Trindall's parents when he was aged one.

The assessment of the Acting Curator of Aboriginal Art at the Art Gallery of New South Wales was that Mr Trindall was an artist with significant talent and potential who could make a living from his work.

Both Mr Nolan and Ms C Bennett, the Drug and Alcohol worker at Tamworth Correctional Centre, who had assisted Mr Trindall, commented on his lack of trust of people. This was due to the experiences which he had had.

Mr Nolan expressed these views: "The prognosis, then for successful reform of Mr Trindall's behaviour must be guarded. There are, however a number of encouraging factors. Maturation, the fact that he is now thirty years old and has an adolescent child who has lost his father figure (Mr Trindall senior) are causing him to focus his thoughts on supporting his mother and playing a greater role in the raising of his son. His commitment to his father to avoid further criminal behaviour is also significant. His apparent commitment to drug and alcohol rehabilitation and his art are also positive indicators. If his statements about his period in the community without offending are correct, there is another small indicator that he might be breaking his cycle of regular offending. The risk factors working against successful reform are Mr Trindall's underlying personality factors of social isolation, anger and poor communication skills. These suggest he would not be a good candidate for psychological treatment. I do believe he would respond to a mentoring relationship. Having disclosed an abusive history, he may, with patience be able to develop a trusting relationship with one or two people. It does not appear to me that he has had any positive relationship in his adult life. I do not believe I am being falsely optimistic in suggesting Mr Trindall has a fair chance of avoiding further conflict with the law if he maintains his own commitment and allows himself to be helped by someone he trusts." 25. Ms C Bennett expressed these views: "Because of the trauma in Mark's childhood, Mark started to offend at an early age to remove himself from the abuse. He stated he finds it difficult to trust anyone in his life and therefore has been reluctant to ask for help when he really needed it. His offending behaviour and indeed his drug and alcohol abuse have been a way for him to cope with the constant memories that plague his mind. Mark has come a long way in the past few months and has had to face some challenging and heart wrenching situations. He has been able to open himself up for the first time and embrace the help that has been afforded to him. I am confident that he is genuinely committed to turning his life around. I feel he will respond to Namatjira Haven's extensive program and be able to put what he has learnt, into practice in the community.

Although drugs have been a part of his life for so long, Mark states that this was his own choice and has been able to take or leave drugs and alcohol at certain times over the years. Unfortunately, he lacks coping skills and this is what he has turned to in times of crisis. Mark is aware that he has a long road ahead of him and things may seem worse before they improve, but his change of attitude is an indication that he is maturing and ready to address the demons that have controlled his life up until now.

In conclusion, I feel that Mark will not receive the help that he needs serving a custodial sentence. It has never benefited him before and there is no evidence indicating that it would now. 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." 26. Namatjira Haven initially required Mr Trindall to live-in for a period of three months. After this time it proposed to assess his needs for further rehabilitation. The effect of the letter of 1 March 2002 from the Haven was that the applicant was making good progress. The Haven expressed this view : "Having monitored his progress to date, I believe he would benefit from one extra month in our programme, during which he would be supervised during more frequent activities taking him away from the Haven. The purpose of this programme is to assist him in gaining greater ability to cope in the outside world." 27. From the judge's comments during the hearing and his remarks when he remanded Mr Trindall, he was anxious to have some concrete evidence from which he could assess Mr Trindall's capacity and prospects of rehabilitation and to give him the opportunity to demonstrate that rehabilitation.

28. During the hearing before the judge the Crown conceded that without the accused's admission on 31 May 2001 there would have been no Crown case.

29. In argument, the judge told the Crown he was contemplating granting a Griffiths remand to enable Mr Trindall to go to Namatjira Haven. The judge may have been thinking of the common law position. Neither of the legal representatives drew the judge's attention to s.11 of the Crimes (Sentencing Procedure) Act 1999 which provides: "11. (1) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date, and granting bail to the offender in accordance with the Bail Act 1978. (a) for the purpose of assessing the offender's capacity and prospects for rehabilitation, or

(b) for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or

(c) for any other purpose the court considers appropriate in the circumstances. (2) The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the finding of guilt.

(3) This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment." 30. That section requires the proceedings to be adjourned to a specified date. The proceedings were adjourned to a date and place to be fixed by the Crown and Mr Trindall's legal representatives. Section 101(1)(a) provides that the power that a court had before the commencement of the section (3 April 2000) to require a person to enter into a recognizance or to keep the peace is abolished. A Griffiths remand involves a recognizance: Griffiths v The Queen (1976-77) 137 CLR 293 at 320-321. Section 101(2) provides that that section applies to any such power that a Court had under s.30 of the Imperial Acts Application Act 1969, at common law or otherwise. Thus the source of the power which the judge purported to exercise is to be found in s.11.

31. Section 5D(1) of the Criminal Appeal Act 1912 provides that the Attorney-General or the Director of Public Prosecutions may appeal to this Court "against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party."

32. Section 2 gives a comprehensive definition of "sentence". "Sentence means:

(a) any order made by the court of trial on convicting a person of an offence, including:

(i) any sentence of imprisonment (including any sentence of imprisonment the subject of a periodic detention order or home detention order and any sentence of imprisonment whose execution is suspended), and

imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999, or

(c) any order made by the court of trial in respect of a person under section 11 or 12 of the Crimes (Sentencing Procedure) Act 1999 on convicting the person of an offence, or

and the power of the Court of Criminal Appeal to pass any such sentence includes power to make any such order or direction." Under s.2 "Court of trial" means any court from whose finding, sentence, order or other determination, a person is by the Criminal Appeal Act entitled to appeal or to apply for leave to appeal. 33. It is to be noted that an appeal only lies where the court convicts a person of an offence. While the judge did not state expressly that he convicted Mr Trindall of the offence of robbery in company, the judge did so implicitly. A plea of guilty had been entered and the judge told Mr Trindall that he was going to gaol and that the only questions were the length of the sentence and the non-parole period. 34. The definition in paragraph (a) is very wide and covers any order made by the court of trial on convicting a person of an offence. Thereafter it lists, as included, specific types of penalties, namely, sentences, orders, bonds and fines. It is clear that the words at the end of paragraph (a), namely "imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999" qualify the sub-paragraphs (i) to (iv). Do they also apply to the introductory words of paragraph (a), namely, "any order made by the court of trial on convicting a person of an offence"? This is a difficult question but I am inclined to the view that they do. 35. Whether or not those words at the end of paragraph (a) apply to the introductory words of that paragraph there is another problem. It is hard to see why the words in paragraph (a) if given their ordinary meaning would not cover the orders referred to in paragraph (c), that is, orders under s.11 or s.12 of the Act on convicting the person of an offence. An order made under s.11 is an order imposed under Part 2 of the Act. Perhaps, the draftsman added paragraph (c) for more abundant precaution.

Mr Trindall contends that this Court has no jurisdiction because he has not received a sentence as the orders made by the judge did not amount to an order under s.11 of the Crimes (Sentencing Procedure) Act 1999 or an order otherwise susceptible to challenge under the appeal process as constituted by the Crown's application before this Court. Counsel submitted that an order lacking a "specified date" is not an order under s.11. Further, cl.5 of the conditions was inconsistent with s.101 of the Crimes (Sentencing Procedure) Act 1999.. I reject the contention advanced that the Court has no power to require an accused person to enter into an agreement to keep the peace during the period he is on bail. Section 36(1) of the Bail Act 1978 provides that bail may be granted subject to conditions. Section 36(2)(a) provides that one of the conditions which may be imposed on the grant of bail is that the accused enter into an agreement to observe specified conditions as to his or her conduct while at liberty on bail other than financial requirements and requirements of the kind referred to in s.36A(2). That sub-section deals with additional conditions which may be imposed where the court thinks an accused would benefit from undergoing assessment, treatment or rehabilitation for drug or alcohol misuse.

It was submitted that so far as it was possible to classify the orders made by the judge they constituted a grant of bail and conditions of bail under the Bail Act against which an appeal, as presently constituted does not lie.

Counsel for Mr Trindall submitted that s.11 of the Crimes (Sentencing Procedure) Act 1999 constituted a new regime and a fresh approach to what were previously known as Griffiths remands. It was contended that the adjournment to a specified date was an integral part of the new regime. There should have been an adjournment to a specified date. It enables the Court to keep better control of the matter and helps to ensure that important steps are taken promptly. The maximum time for which a matter can be adjourned is 12 months. In the present case the course taken by the judge was designed to assist Mr Trindall, the Crown and the judge.

When the judge began the sentencing exercise he was required to proceed under Part 2 of the Act as to the imposition of penalties. That governed what he could do and what he did. He was exercising jurisdiction under that Act and made an order. The fact that he may have made a slip in exercising that jurisdiction does not mean that there was a failure to exercise jurisdiction or an invalid exercise of jurisdiction. It could not fairly be said that the failure to adjourn the matter to a specific date was such a defect as to render the order "no order". This is all the more so when the slip could have been readily corrected by asking the judge to re-list the matter and fix a date.

It would be anomalous if the Crown could appeal against an order in the nature of a Griffiths remand under s.11 where the judge specified an adjourned hearing date in the succeeding 12 months and not when he failed to specify a date and both parties were at liberty to apply to fix such a date. In my opinion, having regard to the terms of paragraphs (a) and (c) of the definition of sentence and Part 2 of the Crimes (Sentencing Procedure) Act 1999, this Court has power to entertain an appeal from the orders made by the judge.

Section 11 was introduced following the recommendation of the Law Reform Commission. In April 1995 the Attorney General requested the Commission to inquire into and report on the laws relating to sentencing in New South Wales. In Discussion Paper 33, Sentencing, issued by the Commission in April 1996 it was stated: "Whether or not a conviction was recorded, an offender may be remanded for sentence for a lengthy period and released on conditions, known, in this context as a 'Griffiths Bond' or 'Griffiths Remand … " (p.345)

Footnote 81 records, "In practice, the conditions attaching to a Griffiths Remand generally form part of bail conditions." The Discussion Paper continues at 345-346: "A court will take this actin to allow an assessment of the offender's behaviour and capacity to be rehabilitated over a period of time before the appropriate sentence is passed." 42. The Discussion Paper noted "It 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.

43. In the Commission's Report 79 on Sentencing, issued in December 1996 Recommendation 17 was in these terms: "The power to impose bonds at common law should be abolished in order that bonds may only be imposed pursuant to a statutory power. An additional statutory power should be created to allow the sentencing court to defer passing a sentence for a period of time in order to assess the offender." At p.86 the Commission stated: "This statutory provision would allow a sentencing court to adjourn sentencing for a stated period to assess the offender's behaviour while on release and subject to appropriate bail conditions."
44. In the Minister's Second Reading Speech (Hansard, Legislative Assembly, 28 October 1999 p.2326) this passage appears: "At common law, the courts have a power to impose a bond to be of good behaviour, with or without entering a conviction for the offence. This includes a power - commonly known as a Griffith's (sic) bond - to release an offender pending sentence in order to assess the offender's behaviour and capacity for rehabilitation before imposing the sentence. These powers will now be set out in the bill. Clause 9 sets the general power to impose a bond. Clause 10 relates to non-conviction bonds. It includes the provisions previously found in section 556A of the Crimes Act."
45. During the Minister's speech in reply he adopted these contributions of two members of the Legislative Assembly, namely, (a) A Griffiths remand was 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. If they do the court gives full weight to their rehabilitation attempts. If they do not take advantage of the opportunity given them they can expect and receive the full force of the law (see Hansard, 18 November 1999, pp.3422 and 3448).

(b) A Griffiths remand allows an offender to demonstrate his ability to be rehabilitated. He is effectively his own gaoler for 12 months (see Hansard, 18 November 1999, pp.3425 and 3448). 46. Before examining the legislation in further detail account should be taken of the decided cases. In Griffiths v The Queen (1977) 137 CLR 291 Jacobs J at 323 demonstrated that a common law bond to be of good behaviour, whether it required the offender to appear on a nominated day or to appear for sentence when called upon, did not in law prevent a judgment for penal servitude being passed even if the conditions of the bond were kept. At 324 Jacobs J stated that if the offender kept the conditions of the bond it would hardly be just to have kept him hoping and trying for a year and then to have sent him to prison (p.324). At 325-6 Jacobs J continued: "The applicant's crimes warranted a substantial sentence of penal servitude. If it was intended that he would be sentenced to penal servitude then there was no justification for delay. If, on the other hand, it was contemplated that there might not be a prison sentence, then for the trial judge to take such a view was wrong." 47. Jacobs J was evidently of the opinion that a Griffiths remand should not be employed where there was a serious offence which required a full custodial sentence. He did not refer to the fixing of a non-parole period. The judgments also established that the Court cannot postpone sentence sine die against the will of the prisoner.

48. In R v Tindall & Gunton (1993) 74 A Crim R 275 the offenders had indicated their intentions to plead guilty to an armed robbery of a convenience store. The sentencing judge granted Griffiths remands to enable the offenders to complete their courses of rehabilitation. At 276 Hunt CJ at CL said: "There are occasions … where it is appropriate to delay imposing a sentence in order to compel, by the terms of the remand, some course of conduct by the offender conducive to his rehabilitation and reform. Such a remand should only be granted where there is a real expectation, founded upon solid grounds … More importantly, such a remand should only be granted where, in the event that rehabilitation and reform are achieved, it would be appropriate to impose a non-custodial sentence. I have no doubt as to the validity of the Crown's argument in this appeal that an offender would have a justifiable sense of grievance if a custodial sentence were to be imposed after he had complied with all the terms of a Griffiths remand."

I have considerable reservations as to the validity of the Crown's argument adopted by Hunt CJ at CL. Everything depends on the circumstances. I will return to this subject later. 49. Hunt CJ at CL continued: "The issue in a Crown appeal in relation to the grant of a Griffiths remand is therefore whether the circumstances of the offence and of the offender are such that, in the event that rehabilitation and reform are achieved whilst on remand a non-custodial sentence would be manifestly inadequate." While that is still an important matter I do not see as the issue in view of the terms of the Crimes (Sentencing Procedure) Act 1999 . Hunt CJ at CL regarded the objective facts as serious and said: "A non-custodial sentence would, despite the rehabilitation and reform of the respondent apparently under way, be manifestly inadequate, and if imposed would necessarily lead to a successful Crown appeal. The granting of a Griffiths remand was upon that basis erroneous." 50. After reviewing the facts in some detail Carruthers J stated that the offences committed called unquestionably for the imposition of a full time custodial sentence and that when such a sentence is required it is better than it be imposed sooner rather than later. It should have been imposed when the offenders first came before the sentencing judge.

51. Carruthers J at 282-283 quoted, with evident approval the remarks of Street CJ in Griffiths in the Court of Criminal Appeal, that adopting a wait and see policy by granting a remand for a substantial period was not a permissible sentencing procedure. A wait and see policy involved telling the offender than he may or may not go to gaol. Street CJ thought that the power of adjournment was not properly exercised if the adjournment is ordered as an integral part of the sentencing process to see how the offender responds to rehabilitation exercises.

52. Having regard to the objective gravity of the offence Carruthers J held that the device of a Griffiths remand was wrongly adopted. He agreed with the Crown that the grant of a Griffiths remand would leave an offender with a justifiable sense of grievance if he or she were later sentenced to imprisonment. Tindall differs from the present case in that here the judge told the offender that he was going to gaol. It was only a question of how long the sentence, especially the non-parole period, should be.

53. Bruce J, the third member of the Court in Tindall thought that the sentencing judge was wrong to defer the sentencing of the offenders and that it was only in the most unusual circumstances that the Court could proceed on a wait and see basis by adjourning proceedings from time to time to ascertain the progress of the accused in rehabilitative programmes.

54. In Crotty (unreported, CCA 28 February 1994), a case of an armed robbery of a taxi driver by a passenger with a knife at night, the sentencing judge had adjourned the sentencing proceedings part heard before him to enable the offender to return to and complete a drug rehabilitation programme on which he had embarked. Sully J, who delivered the leading judgment held: "It is not a dutiful exercise of the sentencing power or a dutiful discharge of the sentencing responsibility to temporise …:
55. Tindall & Gunton has since been applied in a number of cases: Khoury, NSWCCA, 5 December 1994, unreported; Hartley, NSWCCA 28 August 1996, unreported; King, 3 October 1996, unreported; Kerr, NSWCCA 26 August 1997, unreported; FQ, NSWCCA, 28 May 1998, unreported. A similar approach was taken in Moore, NSWCCA, 23 April 1998, unreported. In some instances this Court, in cases where a custodial sentence was usually required, reversed the sentencing judges decision that exceptional circumstances existed and consequently held that a Griffiths remand should not have been granted.

There have been a number of instances where the offence was serious and usually attracted a sentence of full time custody and this Court has dismissed an appeal against the grant of a Griffiths remand: DWD, NSWCCA, 2 March 1998, unreported; Tocknell, NSWCCA, 28 May 1998, unreported, (the Court holding that exceptional circumstances existed); Clark (1997) 95 A Crim R 585 (exceptional circumstances - significant risk of suicide if offender retained in custody); Jones, NSWCCA, 15 April 1994, unreported (very significant progress in rehabilitation during eight months prior to sentencing hearing).

This brief review shows that, prior to the enactment of s.11 earlier quoted, while in cases usually requiring a full time custodial sentence a Griffiths remand should not be granted, there were exceptions to that rule: see Clark, supra and Jones, supra. In other instances where the sentencing judge has granted a Griffiths remand this Court has declined to intervene on discretionary grounds.

I return to s.11 of the Crimes (Sentencing Procedure) Act 1999. Parliament has accepted the Law Reform Commission's recommendation that there should be a statutory power to allow the sentencing court to defer a sentence for a period in order to assess the offender. Parliament in conferring the statutory power has used terms which are a little different from those suggested in the Commission's report. It saw the object of the remand as being to assess the offender's behaviour while on release and subject to bail conditions. Parliament specified the purposes as being assessing the offender's capacity and prospects of rehabilitation, allowing the offender to demonstrate that rehabilitation has taken place or for any other purpose the Court considers appropriate. An example of the lastmentioned case would be a significant risk of suicide if the offender remained in custody, for example, arising from severe depression.

While the prospects of rehabilitation arise for consideration when considering whether an offender should be gaoled and the length of the head sentence they are also of great importance when fixing the non-parole period. That represents the court's view of the minimum period an offender must spend in gaol. The Parole Board in sentences exceeding three years mostly acts on the non-parole period fixed by the court.

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.

The addition in s.11(1)(c) of any other purpose which may be appropriate as the basis for granting a Griffiths remand extends the generally understood purposes for which such a remand may be granted. I have earlier referred to one example. Another is to enable recommended and important surgery to take place. There would be other instances where it would be appropriate to grant a Griffiths remand.

I do not share the view that it necessarily imposes undue hardship on the offender to grant a Griffiths remand and warn him that he may still go to gaol, or that he will go to gaol and that the remand is for the purpose of determining a non-parole period. From my experience many offenders prefer to take their chances. Most believe that they will be able to demonstrate marked improvement or rehabilitation, for example, defeating a drug habit, obtaining employment, taking their medication regularly to keep a troublesome condition under control or as the case may be. After all, going straight to gaol gives them no opportunity of avoiding that devastating experience or reducing the extent of that experience. For many, almost anything is better than that experience. Given the unattractive alternative a period of waiting and uncertainty is preferred. A Griffiths remand is not granted against the will of an offender.

As the maximum period for which a Griffiths remand can be granted is 12 months, this option can be adequately controlled. That is an important additional provision.

The granting of a Griffiths remand is likely to arise for consideration in a relatively small number of cases. Generally, such a remand 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. If the latter be the case, the judge should, as here, make it clear to the offender that he will be going to gaol and that the purpose of the remand is to assist the court in fixing the non-parole period. This Court should not seek to circumscribe the wide statutory discretion given to the sentencing judge.

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.

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.

In future where a judge fails to fix an adjourned date either the Crown or the offender should apply to him to do so. I propose the following orders: 1. Remit this matter to the sentencing judge (Mahoney ADCJ) for the purpose of fixing a hearing date for the sentencing proceedings prior to 12 December 2002 and giving such other directions as shall seem fit.

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