Citation: R v Brown [2009] NSWCCA 6
Court: Court of Criminal Appeal, New South Wales
Date: 12 March 2009
Judge(s): McClellan CJ at CL, James J, Adams J
Background
The respondent pleaded guilty in the District Court to armed robbery, with a related robbery offence to be taken into account on sentencing. The armed robbery involved the respondent producing a small knife and threatening a victim in a city street before punching him and stealing his mobile phone. Approximately an hour later, the respondent snatched a second victim's mobile phone in a nearby suburb. He was arrested the same evening.
At the sentencing hearing on 20 November 2008, Judge Tupman heard oral evidence from the respondent. The respondent described a cluster of serious personal circumstances in the five or six days before the offences, including domestic violence, job loss, homelessness, and separation from his young children in circumstances he found frightening. Her Honour accepted that evidence and concluded the offences appeared to be out of character, but formed the view that further evidence about the respondent's psychological history and rehabilitation prospects was needed before sentencing could properly proceed.
Judge Tupman made an order under s 11 of the Crimes (Sentencing Procedure) Act, adjourning the sentencing proceedings for approximately three months. A Griffiths remand of this kind allows a court to adjourn sentencing to gather further information, including about an offender's rehabilitation. The Crown appealed against that order.
Legal Issues
- Whether Judge Tupman erred in making an order under s 11 of the Crimes (Sentencing Procedure) Act given that, on the armed robbery guideline in R v Henry, a custodial sentence was likely and a non-custodial sentence could only be imposed in exceptional circumstances.
- Whether the order was invalid because there was no reasonable prospect that the adjournment would yield evidence of significance to the sentencing exercise.
- Whether her Honour failed to warn the respondent that full-time custody remained a likely outcome, as required where a s 11 order is made for purposes other than assessing rehabilitation to avoid custody.
- Whether her Honour erred by failing to make formal findings of fact about the offences before making the s 11 order.
- Whether, even if error were established, there would be any utility in allowing the Crown appeal.
Decision
Issue 1: Whether a s 11 order requires a realistic prospect of avoiding custody
The Court confirmed that the power under s 11 of the Act is broader than a traditional Griffiths remand. A strict Griffiths remand is limited to cases where, if rehabilitation is achieved, a non-custodial sentence would follow. The power under s 11 is not so confined. The Court endorsed the analysis in R v Trindall, which held that a s 11 adjournment may also assist the sentencing court in fixing the length of a sentence or the non-parole period, and cautioned against circumscribing that wide statutory discretion.
Issue 2: Whether an adequate warning was given
James J found there was no substance in the Crown's complaint on this point. Although Judge Tupman's formal remarks did not explicitly state that custody remained likely, her Honour had during the proceedings given clear warnings to the respondent and his legal representative that full-time custody might have to be imposed even if everything went well during the adjournment period.
Issue 3: Whether her Honour failed to make findings of fact
The Court rejected this ground. An agreed statement of facts had been admitted into evidence in the sentencing proceedings, and no error in that respect was made out.
Issue 4: Whether there was a reasonable prospect of obtaining useful further evidence
James J acknowledged there was some force in the Crown's submission that the adjournment might not yield evidence of significance. However, the Court was not satisfied that her Honour had erred in concluding, implicitly, that there was a reasonable prospect of obtaining evidence that would assist in sentencing the respondent.
Issue 5: Utility of allowing the appeal
Even if error had been established, the Court would not have allowed the appeal. The matter was already listed to return before Judge Tupman on 13 March 2009, just over five weeks away. The Court was unwilling to interfere with the District Court's listing arrangements by requiring an earlier return date, and the Crown had not sought to have the Court of Criminal Appeal proceed to sentence the respondent itself.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- Under s 11 of the Crimes (Sentencing Procedure) Act, a sentencing court may adjourn proceedings not only where a non-custodial sentence is a realistic possibility, but also where further evidence may assist in determining the appropriate length of a sentence or the non-parole period.
- A s 11 order made for the purpose of assessing rehabilitation where custody remains likely should be accompanied by a clear statement to the offender that imprisonment is still a probable outcome, but the absence of such a statement in the formal order is not necessarily fatal if adequate warnings were given during the proceedings.
- No error arises from failing to make formal findings of fact before making a s 11 order where an agreed statement of facts has already been admitted into evidence.
- In dismissing the appeal, the Court of Criminal Appeal reinforced that it will be reluctant to interfere with District Court listing arrangements, and that the utility of allowing a Crown appeal must be assessed at the time the appellate court considers the matter.
- A sentencing judge may sometimes be justified in adjourning sentencing to obtain further evidence without invoking s 11 at all, and nothing in this decision limits how the sentencing discretion is ultimately exercised on the return date.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated