AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
20
Court of Criminal Appeal 30 August 2002

R v Trindall

[2002] NSWCCA 364

Also reported as (2002) 133 A Crim R 119
Theft & property
PAROLE PERIOD TO BE FIXED

Citation: R v Trindall [2002] NSWCCA 364
Court: New South Wales Court of Criminal Appeal
Date: 30 August 2002
Judge(s): Spigelman CJ, Grove J, Smart AJ

Background

The respondent pleaded guilty in the District Court to robbery in company arising from an incident in Tamworth in April 2001. He had an extensive criminal history dating back to 1985, including prior convictions for robbery with wounding and robbery in company. The sentencing judge accepted that a custodial sentence was inevitable but was uncertain about the appropriate non-parole period given evidence of genuine rehabilitative potential.

Rather than proceed immediately to sentence, the District Court judge granted what is known as a "Griffiths remand": he adjourned sentencing and released the respondent on bail, on conditions requiring him to reside at and participate in a residential rehabilitation program at Namatjira Haven in Alstonville. The judge wanted to observe whether the respondent made genuine progress before fixing the non-parole period.

The Crown appealed, contending that the orders were inadequate. A central procedural deficiency was that the judge had not fixed a specific return date for the sentencing hearing.

  • Whether the Court of Criminal Appeal had jurisdiction to hear the Crown appeal, specifically whether the District Court's adjournment orders constituted a "sentence" within the meaning of s 2 of the Criminal Appeal Act 1912
  • What effect s 11 of the Crimes (Sentencing Procedure) Act 1999 had on the pre-existing common law governing Griffiths remands
  • Whether the sentencing judge's decision to grant a Griffiths remand in this case was open on the material before him
  • Whether the failure to fix a specific adjourned date for sentencing was a legal error requiring correction

Decision

The Court confirmed that it had jurisdiction to entertain the Crown appeal. The adjournment orders, made following a guilty plea and directed at the sentencing process, fell within the definition of "sentence" under the Criminal Appeal Act 1912, and the Crown's challenge to their adequacy was properly before the Court.

On the substantive question, the Court examined the effect of s 11 of the Crimes (Sentencing Procedure) Act 1999 on the pre-existing law concerning Griffiths remands (so named after the High Court's decision in Griffiths v The Queen (1977) 137 CLR 293). The Court held that s 11 codified and preserved the practice, but with a significant constraint: any remand must be to a specified date, and that date must fall within 12 months of the finding of guilt. The Court emphasised that a Griffiths remand should only be granted where there are good reasons to think it will genuinely assist the court in determining whether to impose a custodial sentence or in fixing its length or non-parole period.

The Court found that the sentencing judge's decision to grant a Griffiths remand in this case was open to him. Psychological and clinical reports pointed to a genuine rehabilitative prospect, and the judge was entitled to want to see how the respondent responded to structured treatment before fixing the non-parole period. Critically, however, the judge had failed to nominate a specific return date for the sentencing hearing, which was a legal error requiring correction.

The Court declined to intervene further or impose sentence itself. It remitted the matter to the sentencing judge solely for the purpose of fixing a return date no later than 12 December 2002, being within 12 months of the original finding of guilt.

Orders Made

  • The matter was remitted to the sentencing judge (Mahoney ADCJ) to fix a hearing date for sentencing proceedings prior to 12 December 2002, and to give such other directions as he saw fit.
  • The appeal was otherwise dismissed.

Key Takeaways

  • A Griffiths remand granted following a guilty plea, as part of the sentencing process, constitutes a "sentence" within the meaning of s 2 of the Criminal Appeal Act 1912, giving the Court of Criminal Appeal jurisdiction to entertain a Crown appeal against it.
  • Section 11 of the Crimes (Sentencing Procedure) Act 1999 preserves and codifies the Griffiths remand practice but imposes a firm requirement: the adjournment must be to a specified date falling within 12 months of the finding of guilt.
  • A Griffiths remand is only appropriate where there are good reasons to conclude it will assist the court in determining the fact or length of a custodial sentence, or in fixing a non-parole period; the practice is not available for borderline cases where imprisonment is entirely uncertain.
  • Where a custodial sentence is inevitable and the remand is granted to inform the non-parole period, the sentencing court should make that purpose explicit to the offender at the time.
  • Failing to nominate a specific return date for sentencing is a correctable legal error, though it did not in this case warrant full re-sentencing by the appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Criminal Appeal Act 1912 (NSW), s 2
- Bail Act 1978 (NSW)
- Imperial Acts Application Act 1969 (NSW)

Cases:
- Griffiths v The Queen (1976-77) 137 CLR 293
- R v Tindall & Gunton (1993) 74 A Crim R 275
- R v Clark (1997) 95 A Crim R 585
- R v Crotty (unrep, CCA, 28 February 1994)
- R v Khoury (unrep, NSWCCA, 5 December 1994)
- R v Hartley (unrep, NSWCCA, 28 August 1996)
- R v King (unrep, NSWCCA, 3 October 1996)
- R v Kerr (unrep, 26 August 1997)
- R v FR (unrep, NSWCCA, 28 May 1998)
- R v Moore (unrep, NSWCCA, 23 April 1998)
- R v DWD (unrep, NSWCCA, 2 March 1998)
- R v Tocknell (unrep, NSWCCA, 28 May 1998)
- R v Jones (unrep, NSWCCA, 15 April 1994)