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).