Ground 2 - the trial Judge was not able to take into consideration the prepared pre-sentence report by Adult Probation and Parole Service due to hearsay issues when determining the sentence.
12 On the applicant's behalf, it is submitted that Ms O'Reilly and/or the Crown should have invited the Judge to order a fresh pre-sentence report and to stand the proceedings over in the interim to enable this to be done. Further, it was submitted that the Judge should have adjourned the proceedings of his own motion, and directed the preparation of a fresh pre-sentence report. An alternative challenge was that his Honour was wrong to excuse the author of the report, and that having regard to the potential importance of the report, his Honour should have taken the evidence of the parole officer, presumably over the objection of the applicant's solicitor.
13 In R v Majors (1991) 27 NSWLR 624, this Court considered a challenge that proceedings on sentence had miscarried by reason of the sentencing Judge's refusal to adjourn the hearing and direct the preparation of a pre-sentence report. Carruthers J (with whose judgment Hunt and McInerney JJ agreed) observed (at 627):
It is essentially for the trial judge to determine whether he or she considers it appropriate to defer the sentencing process until such time as a pre-sentence report is obtained. In this regard a number of factors would exercise the sentencing judge's mind. One factor which may be relevant, is that in many cases the pre-sentence report, the preparation of which invariably involves an interview with the offender, consists substantially of self serving statements made by the offender, often involving unsubstantiated allegations. The Crown is obliged to tender the report, which obviates the need for the offender to give evidence before the sentencing judge, and thereby deprives the Crown Prosecutor of the opportunity to cross-examine the offender. It also deprives the judge of the opportunity of hearing the offender give evidence of subjective matters. The sentencing judge is often then left in doubt as to how much weight may be given to all or any of the report, particularly conclusions, suggestions and recommendations by the interviewing officer. Experience indicates that much of the information gathering undertaken by officers who prepare pre-sentence reports involves work, which should have been undertaken by the legal representatives of the accused, prior to the conclusion of the trial. It is essential for the proper administration of the criminal justice system that those representing an accused person be in a position to adduce all relevant evidence for the purposes of a plea in mitigation of sentence at the conclusion of the trial. I refer here to such matters as the preparation of a family, work and medical history of the offender and the like. It is acknowledged that there are certain matters in respect of which probation officers may be of special assistance, for example, details of previous behaviour by the offender whilst on parole, but the principle remains that except in rare cases, those representing the offender should be in a position to adduce all relevant evidence in mitigation at the conclusion of the trial. Adjournment of the sentencing process to enable the preparation of a pre-sentence report should be confined to those cases where it is apparent to the judge that there is a clear and legitimate advantage to be obtained by this course.
14 It is appropriate for the Court to direct the preparation of a pre-sentence report in a case in which the Judge is of the opinion that an alternative to a sentence of fulltime custody may be within the range of appropriate sentencing dispositions: a number of sentencing options cannot be imposed unless the Court is satisfied that the offender is a suitable person to undertake them. In deciding whether to sentence an offender to a term to be served by way of periodic detention, or home detention, or to impose a community service order, the Court is required to have regard to the contents of an assessment report, and to such evidence from a probation and parole officer as the Court considers necessary.
15 In this case the Judge was informed by agreement of the parties that the applicant had been assessed by the Probation and Parole Service as suitable for a community service order and for periodic detention. It is clear from his Honour's remarks that he considered the statutory requirements for each of these sentencing dispositions to have been met.
16 Mr Condon did not submit that the applicant was deprived of an assessment as to his suitability for alternative sentencing dispositions. The complaint made in the written submissions, and pressed in the course of oral argument, was that the applicant had been deprived of additional information as to his suitability for alternative sentencing dispositions. It is to be observed that any such material was considered by Ms O'Reilly not to advance the applicant's interests.
17 There is no basis for concluding that Ms O'Reilly was derelict in not asking the Judge to direct the preparation of a fresh pre-sentence report. The applicant had the benefit of the favourable assessments in relation to the alternative sentencing options. The applicant gave evidence and was cross-examined by the Crown Prosecutor. His mother and stepfather gave evidence in his case. Direct evidence was before the Court concerning the applicant's upbringing, history of drug addiction and of his endeavours to overcome it.
18 In addition to the oral evidence, there were a number of reports and other documents tendered in the applicant's case. These included a report by Anita Duffy, a psychologist; an affidavit sworn by David Follent, an Aboriginal Health Education officer, who has had dealings with the applicant in relation to the applicant's attempts to enter a drug treatment program in the days immediately prior to the commission of the offence; a report from the Orana Withdrawal Management Unit, giving details of the applicant's admission to their drug rehabilitation program upon his release on bail; a report from the Weigelli Centre Aboriginal Corporation, concerning drug rehabilitation undertaken by the applicant while on bail; letters from the Wollongong Crisis Centre Drug and Alcohol Services and the Illawarra Aboriginal Medical Service. There was also a letter relating to casual employment undertaken by the applicant by the proprietor of a business, Dionshannon Transport. A number of certificates were tendered on the applicant's behalf, attesting to courses undertaken by him in business skills, language, literacy and numeracy, and other vocational preparation.
19 The applicant's case appears to have been thoroughly prepared and to have been advanced competently. The applicant, at the age of 31 years, stood for sentence in relation to an offence under section 97(1), which involved the threatened use of a syringe, represented to the victim as filled with HIV contaminated blood. The submission that had the Judge had the benefit of a pre-sentence report he might have imposed a sentence other than one of fulltime custody, in my view, should be rejected. I consider that this was a case in which it would have been open to the Judge to decline to order a pre-sentence report on the basis that the offence was one that called for a sentence that was to be served in fulltime custody.
20 Ground 2 fails.