R v WILLIAMS

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0830 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60432/03

BEAZLEY JA O'KEEFE J BELL J

22 March 2004 R. v. WILLIAMS FACTS The respondent pleaded guilty before Dodd DCJ to four offences of break, enter and steal, including an offence of aggravated break, enter and steal. The offences were laid pursuant to s.112(1), s.113(1) and s.113(2) of the Crimes Act (NSW) 1900 . The first and last sections carry a maximum penalty of 14 years imprisonment whilst the second carries a penalty of 10 years imprisonment. In addition, there were six matters on a Form 1 to be taken into account. Dodd DCJ granted an adjournment for 12 months pursuant to s.11 of the Crimes (Sentencing Procedure) Act (NSW) 1999 to enable the respondent to participate in a drug rehabilitation programme.

The Crown appealed on the ground that the trial judge erred in failing to inform the respondent that it was likely he would receive a custodial sentence notwithstanding that the proceedings were to be adjourned for 12 months to enable him to demonstrate that rehabilitation had taken place.

HELD per Beazley JA (O'Keefe and Bell JJ agreeing):

(i) The application for an order under s.11 in this case was made on the premise that an eventual custodial sentence was likely.

(ii) The adjournment was sought to facilitate the respondent's rehabilitation process and to assist the determination of an appropriate non-parole period.

(iii) The trial judge granted the adjournment for those reasons.

(iv) The Crown's challenge to the basis upon which the sentencing judge dealt with the respondent in granting the adjournment was due to a misunderstanding of comments made by Dodd DCJ to the respondent. ORDERS

(i) Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL CCA 60432/03

BEAZLEY JA O'KEEFE J BELL J

22 March 2004 R. v. WILLIAMS Judgment 1 BEAZLEY JA: This is a Crown appeal against sentence. The appeal raises the question of the appropriateness of a bond under s.11 of the Crimes (Sentencing Procedure) Act (NSW) 1999, when the commission of the offences in this case called for the imposition of a period of imprisonment. 2 On 15 October 2003, the respondent pleaded guilty before his Honour Judge Dodd at Sydney District Court to four break, enter and steal offences, including an offence of aggravated break, enter and steal. Those offences were committed over a period commencing on 17 December 2002, when he was arrested and granted bail, and ending on 26 May 2003 when he was again arrested. The offences charged were laid under s.112(1), s.113(1) and s.113(2) of the Crimes Act (NSW) 1900. The offences under s.112(1) and 113(2) carried a maximum penalty of 14 years imprisonment. The offence under s.113(1) carried a maximum penalty of 10 years imprisonment. At the time of his arrest on 26 May 2003, the respondent was on bail in respect of the first count on the indictment, being the offence committed on 17 December 2002. 3 In addition to the four counts to which he pleaded guilty, there were six matters on a Form 1, being offences committed between 12 December 2002 and 26 May 2003, that the respondent requested the Court to take into account. The first offence on the Form 1 was an offence under s. 154(1)(a) of the Crimes Act, being the offence of take and drive a conveyance without consent, carrying a maximum penalty of 5 years imprisonment. The second offence was the offence of break, enter and steal: s. 112(1) of the Crimes Act which carries a maximum penalty of 14 years imprisonment. The other four offences were committed on 26 May 2003 being two offences of goods in custody (s.527C(1)(c) of the Crimes Act); possessing prohibited drugs (s.10(1) Drug Misuse and Trafficking Act 1985); possessing housebreaking implements (s.114(1)(b) of the Crimes Act). The last of these offences carries a maximum penalty of 7 years imprisonment. 4 The respondent pleaded guilty to the first charge on the indictment before a local court magistrate on 5 June 2003. He pleaded guilty to the remaining three counts on 2 September 2003, also before a local court magistrate. He adhered to those pleas when the matter came before his Honour, Judge Dodd, in the District Court on 16 October 2003.

The offences 5 First count on the indictment: aggravated break and enter with intent to steal: s.113(2) of the Crimes Act.

On 17 December 2002 the respondent was seen with another man outside a property in Redfern. The two men were observed to remove a security grill from a window to a unit in the property and to climb through the window. The observer contacted the police who took up positions outside the unit. Both men gave themselves up shortly afterwards. An inspection of the premises revealed that it had been ransacked and a blue backpack, which the two men had been observed to have with them when they entered, was found on the bathroom floor, containing a number of tools. The matter of aggravation relied upon by the Crown in respect of this offence was the fact that the respondent was in company at the time he committed the offence. 6 The respondent was charged with this offence later that day and was granted bail with conditions that he report daily to the police officer in charge of Kingsgrove Police Station between 8.00 a.m. and 10.00 p.m. 7 Second count on the indictment: break enter and steal; s.112(1) of the Crimes Act.

Sometime between the hours of 6.00 p.m. on Tuesday 28 January 2003 and 4.30 a.m. on 29 January 2003, the respondent entered premises at Silverwater and stole a computer and two telephone fax machines. He had gained entry to the premises by opening one of the first floor glass windows. He also smashed a window on this floor. Blood found on glass fragments as well as on other items inside the premises returned a DNA result which matched that of the respondent. The value of the property stolen on this occasion was approximately $1,300.00. 8 Third count on the indictment: break, enter and steal: s.112(1) of the Crimes Act.

Between 24 May 2003 and 26 May 2003 the respondent broke into office premises at Liverpool and stole a considerable quantity of office equipment including electrical equipment, video cassette recorders and printers. The total value of the property stolen was in excess of $15,000.00. 9 Fourth count on the indictment: break and enter with intent to steal: s.113(1) of the Crimes Act.

In the early hours of Monday 26 May 2003, the respondent jemmied open the front sliding door of business premises at Kingsgrove. He had in his possession at the time a blue/grey backpack containing a number of house breaking implements including a long handled screwdriver, a crowbar, a cordless electric screwdriver and a torch. A patrolling police vehicle prompted the respondent to cease his efforts to gain entry into the premises. However, he was noticed walking away from the premises by police in another police vehicle. He was apprehended a short distance away. The respondent made a full admission in respect of this offence.

Respondent's personal circumstances 10 The respondent was born on 7 April 1970 and was 32-33 years of age at the time of the commission of these offences. He has been in a de facto relationship for about 8 years and has two children of that relationship aged 6 and 7 years. The family lives in rented accommodation in Bexley. He has a 13 year old daughter from a previous relationship with whom he maintains contact. The respondent has a serious drug problem and an extensive criminal record. His first recorded offence was in 1984 when he was convicted of possessing a prohibited drug (LSD). His record thereafter involves numerous stealing offences and other offences of dishonesty, driving offences and drug offences. He has served a number of custodial sentences of varying lengths, the first imposed in early 1991. He has had sentences of periodic detention and community service. 11 The longest term of imprisonment was imposed on 5 June 2001 at Sydney District Court. On that occasion he was sentenced to imprisonment for a period of 2 years with a non-parole period of 18 months. That sentence was in respect of the offence of "aggravated break and enter and commit a serious indictable offence in company". The respondent was convicted of three other offences on that occasion in respect of which concurrent sentences were imposed. 12 The last custodial sentence prior to the commission of the first of the offences the subject of the current appeal was imposed on 11 July 2001 at the Sutherland Local Court, when the respondent was imprisoned for a period of 6 months as a result of the revocation of a community service order made on 4 December 2000. 13 When the matter came before Dodd DCJ, the respondent's counsel submitted that this was an appropriate case for his Honour to make an order under s.11 of the Crimes (Sentencing Procedure) Act. It was proposed that the respondent spend a period of 12 months in a full-time residential programme at the Westside Mission. This is a well recognised treatment programme for seriously addicted drug users. 14 Section 11 provides: " 11 Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes (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. (2A) … "

15 Section 11 is the statutory enactment of a procedure which was known in colloquial legal parlance as a "Griffiths remand": see Griffiths v. The Queen (1977) 137 CLR 293. 16 The provisions of s.11 are wider in certain respects than was the position at common law under a Griffiths remand. Those differences are not relevant here. The only question that arises here is whether, by making an order under s.11, the sentencing judge thereby imposed a sentence that was manifestly inadequate. 17 The Crown initially submitted that there was a question whether an adjournment should be granted under s.11 in a case where it is inevitable that the offender would be sent to gaol at the end of the adjourned period. However, as the Crown appeal was ultimately argued, it was submitted that the trial judge erred in failing to inform the respondent that it was likely he would receive a custodial sentence notwithstanding that the proceedings were to be adjourned for a period of 12 months to enable the respondent to demonstrate to the Court that rehabilitation had taken place. The Crown frankly conceded that had the judge made this clear to the respondent, the Crown would have "held its hand" and waited until the ultimate custodial sentence was imposed before giving consideration to the question whether the sentence was or was not appropriate. 18 There was no dispute in the case that an adjournment under s.11 was a "sentence" for the purposes of s.5D(1) of the Criminal Appeal Act (NSW) 1912 against which an appeal could be brought. 19 The circumstances in which it is appropriate to grant a Griffiths remand was recently considered by this Court in R v. Trindall (2002) 133 A Crim R 119, where Smart AJ, (Spigelman CJ and Grove J agreeing), said at 64: "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." 20 The circumstances in which it was appropriate to make an order under s.11 were considered by the Court of Criminal Appeal in R v. Palu (2002) 134 A Crim 174. In that case, Howie J, (Levine and Hidden JJ agreeing) after referring to Smart AJ's statement, said at 29: "As Smart AJ identified, the discretion conferred upon a sentencing judge by s.11 can be a valuable sentencing tool when used in an appropriate case for the purpose of arriving at a sentence which is just both for the offender and for the community". 21 Of particular concern to Howie J was the possibility that unless used in a principled way, an adjournment under s.11 could itself become an instrument of injustice by, inter alia, "raising false expectations in the mind of the offender as to the sentence which will ultimately be imposed …". In Palu, it had not been made clear to the accused that a custodial sentence was virtually inevitable in due course. There were other difficulties in that case which are not relevant here and do not require discussion. 22 This case is different from Palu. When counsel for the respondent submitted to the sentencing judge that an order under s.11 was appropriate he made the basis of his application quite clear. He said: "Your Honour, the basis of the submission would be, that it is not in lieu of any custodial sentence that your Honour might ultimately impose, but it is to essentially front-end load the rehabilitation process" (AB 17). 23 His Honour expressed concern at the suggested procedure, making a comment to the effect that it was not appropriate to undergo rehabilitation as proposed "and then try and go back into custody". Counsel responded to his Honour's concern by submitting that the purpose of the adjournment in this case would be so as to assist the process of determining "an appropriate non-parole period (AB 17) … [i]f your Honour was persuaded to refer him, you would necessarily be persuaded these are matters and this is an offender to whom special circumstances apply. So it would be on a next occasion if he was to be successful [on the application for an order under s.11] if (a) your Honour was to refer him (b) it was to be successful, it would be submissions in respect to an appropriate non-parole period and a longer than normal period of parole where he was to continue or do what your Honour directed him" (AB 18). 24 The application was opposed by the Crown. In doing so the Crown referred the Court to the annotations in the Butterworths Practice that "the use of such a procedure will rarely be appropriate where the ultimate sentence which must be passed is a custodial order, although it might be done in order to allow the offender to complete a rehabilitation programme which would otherwise be disrupted" (AB 18). The Crown submitted that rehabilitation would not be disrupted, (because the rehabilitation programme had not commenced) and that the making of an order in a case such as this would be "unrealistic". 25 After hearing evidence on sentence, including the evidence of the respondent, the sentencing judge then commenced his Remarks on Sentence. He referred to the application for an order under s.11, observing that the respondent had already been in custody for a period of 5 months. His Honour considered that a discount of 25% was appropriate for the early plea of guilty. He made reference to the assistance which had been provided to authorities and expressed the view that a further discount of 25% was appropriate for that. He commented that a court must always be sceptical of assurances by prisoners that they had "turned the corner or come to the cross-roads". However, his Honour found that even evaluating the evidence with "a significant degree of scepticism": "there is a significant chance, not only that you are genuine as to those matters, but that there is also a significant chance that you may be able to succeed given the right conditions in overcoming your current or past drug addiction" (AB 47). 26 His Honour also referred to the principles to be applied in circumstances where there were multiple offences: see Pearce (1998) 194 CLR 610. His Honour then said: "Carrying out a purely mathematical exercise and without the discounts for the plea of guilty and your assistance to police, it seems to me that the appropriate head sentence would be in the vicinity of 5 years imprisonment. It does not take a mathematical genius to work out from that that with discounts the head sentence is in the vicinity of 2 years and 10 months with a non-parole period in the vicinity of 2 years and 2 months" (AB 48). 27 His Honour further observed that if he did accede to the application, even though it would be a condition that he attend Westside Mission, "time spent at Westside Mission, although restrictive of your liberty, could not be equated to a prison sentence" (AB 49). He concluded that the tension between the various competing objectives of sentencing were in this case appropriately resolved by a Griffiths remand. His Honour then made the following comments, which essentially became the focus of the challenge by the Crown to the grant of the Griffiths remand. "If you do not comply with the conditions of that remand, then you can expect, as a high probability, that you will be brought back in breach of your bail conditions and sentenced to a further term of imprisonment" (AB 50). 28 The Crown submitted that it was apparent from these comments that as was the case in Palu, the order under s.11 was manifestly inadequate because it was not made clear to the respondent that a custodial sentence was still appropriate at the end of the period of adjournment. 29 In my opinion, this challenge fails. In the first place, I do not attach the same interpretation to this passage as did the Crown. Amongst other things, the Crown's interpretation takes the passage out of context. His Honour added to that comment the following: "I say that, not to preclude a proper consideration of any circumstances that may in the future arise, but so that you clearly understand that that is the probability should you breach your bail conditions of such a remand" (AB 40).

In these comments, his Honour was drawing to the respondent's attention the consequences of a breach of the bail conditions. He was not referring to the ultimate outcome of the proceedings at the end of the remand period. 30 Further, there was no doubt that it was understood both by his Honour and by the respondent that a custodial sentence was possible and even likely in this case at the end of the remand period. The application for an order under s.11 was made on behalf of the respondent on that premise and it is clear from the entire exchange between his Honour and counsel and from the Remarks on Sentence that his Honour well knew that a custodial sentence in this case was appropriate and that the purpose of the remand was to enable the assessment of the respondent's rehabilitation and also to enable a proper assessment of the appropriate non-parole period. 31 In my opinion therefore, as this was not a case where the respondent was left in any doubt as to the appropriateness of a custodial sentence and as no other challenge was made to the adequacy of the sentence, the appeal should be dismissed. 32 O'KEEFE J: I agree with Beazley JA. 33 BELL J: I agree with Beazley JA. **********

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