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Court of Criminal Appeal 22 March 2004

R v WILLIAMS

[2004] NSWCCA 64

Theft & property
CRIMINAL LAW SENTENCE

Citation: R v Williams [2004] NSWCCA 64
Court: New South Wales Court of Criminal Appeal
Date: 22 March 2004
Judge(s): Beazley JA; O'Keefe J; Bell J

Background

The respondent pleaded guilty in the District Court to four break, enter and steal offences, including one aggravated offence, committed over a period between December 2002 and May 2003. Six additional matters were listed on a Form 1 to be taken into account at sentencing. The offences carried maximum penalties ranging from 10 to 14 years imprisonment, and the respondent had an extensive criminal history and a serious drug problem.

The sentencing judge, Dodd DCJ, granted a 12-month adjournment under section 11 of the Crimes (Sentencing Procedure) Act 1999, commonly known as a Griffiths remand, to allow the respondent to participate in a drug rehabilitation programme. The adjournment was sought on the respondent's behalf on the explicit premise that a custodial sentence remained likely at the conclusion of the remand period.

The Crown appealed, arguing that Dodd DCJ had failed to make it sufficiently clear to the respondent that a custodial sentence was still the likely outcome at the end of the adjournment period, rendering the order manifestly inadequate.

  • Whether a Griffiths remand under section 11 of the Crimes (Sentencing Procedure) Act 1999 is appropriate where a custodial sentence is likely upon the expiry of the adjournment period.
  • Whether comments made by the sentencing judge to the respondent at the time of granting the adjournment demonstrated that the respondent was left in doubt about the prospect of a custodial sentence.
  • Whether the section 11 order as made was manifestly inadequate.

Decision

Beazley JA, with whom O'Keefe J and Bell J agreed, dismissed the appeal. The Court found that the Crown's challenge rested on a misreading of the sentencing judge's remarks. When the comments were read in context, rather than in isolation, it was clear that Dodd DCJ was explaining the consequences of breaching bail conditions during the remand period, not suggesting that a custodial sentence was no longer a likely outcome of the proceedings.

The Court also observed that the application for the section 11 adjournment was made by the respondent's own counsel on the explicit premise that a custodial sentence was likely. The entire exchange between the judge and counsel, together with the remarks on sentence, made plain that Dodd DCJ understood a custodial sentence to be appropriate and that the purpose of the remand was twofold: to assess the progress of the respondent's rehabilitation and to assist in determining a proper non-parole period.

Because the respondent was not left in doubt about the prospect of a custodial sentence, and no other challenge was raised to the adequacy of the sentencing decision, the appeal could not succeed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A Griffiths remand under section 11 of the Crimes (Sentencing Procedure) Act 1999 is not rendered inappropriate merely because a custodial sentence is likely at the end of the adjournment period. The purpose of the remand in this case was to facilitate rehabilitation and to inform the assessment of an appropriate non-parole period.
  • Where an application for a section 11 adjournment is made by the defence on the premise that a custodial sentence is likely, the respondent cannot readily argue they were left in doubt about that likelihood.
  • Remarks made by a sentencing judge must be read in their full context. The Court of Criminal Appeal rejected an interpretation that took a single passage of the judge's comments in isolation and away from their surrounding exchange with counsel.
  • No error was established in the sentencing judge's decision to grant the adjournment, and the order was not found to be manifestly inadequate in the circumstances.
  • In dismissing the appeal, the Court affirmed that the competing objectives of sentencing can, in appropriate cases, be resolved through a Griffiths remand even where serious offences carrying lengthy maximum terms of imprisonment are involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW) 1900, ss 112(1), 113(1), 113(2), 114(1)(b), 154(1)(a), 527C(1)(c)
- Crimes (Sentencing Procedure) Act (NSW) 1999, s 11
- Criminal Appeal Act (NSW) 1912
- Drug Misuse and Trafficking Act (NSW) 1985, s 10(1)

Cases:
- Griffiths v The Queen (1977) 137 CLR 293
- Pearce v The Queen (1998) 194 CLR 610
- R v Palu (2002) 134 A Crim R 174
- R v Trindall (2002) 133 A Crim R 119