Citation: R v Brown [2009] NSWCCA 6
Court: NSW Court of Criminal Appeal
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 and one additional robbery offence. The principal offence involved the respondent producing a small knife and threatening a victim in a city street, before punching him and stealing his mobile phone. Approximately one hour later, the respondent snatched a mobile phone from a second victim. He was arrested later the same evening.
At the sentencing hearing on 20 November 2008, Judge Tupman heard oral evidence from the respondent. The respondent described a period of acute personal crisis in the days before the offences, involving domestic violence, unemployment, homelessness, and fears for his young children's welfare. Her Honour accepted this evidence and formed the view that the offences appeared very much out of character.
Rather than proceeding immediately to impose sentence, Judge Tupman adjourned the proceedings for approximately three months under section 11 of the Crimes (Sentencing Procedure) Act, to allow time to obtain further psychological and social circumstances evidence bearing on the respondent's rehabilitation prospects. The Crown appealed that adjournment order.
Legal Issues
- Whether Judge Tupman erred in making an order under section 11 of the Crimes (Sentencing Procedure) Act (a "Griffiths remand") in circumstances where a non-custodial sentence was unlikely
- Whether there was any reasonable prospect that the adjournment would produce evidence of significance to the sentencing exercise
- Whether the sentencing judge was required to give the respondent an explicit warning that full-time custody might still follow, even if rehabilitation progressed well during the adjournment period
- Whether the sentencing judge erred by failing to make formal findings of fact about the offences before making the adjournment order
- Whether, even if error were established, the Crown appeal would have any practical utility
Decision
The Court dismissed the Crown appeal. James J (with whom McClellan CJ at CL and Adams J agreed) addressed each ground in turn. On the question of whether a section 11 adjournment requires a realistic prospect of avoiding full-time custody, James J accepted that the circumstances justifying a Griffiths remand are not limited to cases where rehabilitation during the adjournment might lead to a non-custodial outcome. Evidence about rehabilitation prospects can also properly inform the length of sentence and other sentencing factors, such as special circumstances affecting the ratio of non-parole to head sentence.
James J found no substance in the Crown's complaint that Judge Tupman failed to warn the respondent that full-time custody remained a real possibility. The judgment recorded that her Honour had given clear warnings to the respondent and his legal representative during the proceedings that full-time custody might have to be imposed even if matters progressed well during the adjournment period. The Crown's submission about the absence of such a warning was rejected.
The submission that the judge failed to make findings of fact before adjourning was also rejected. An agreed statement of facts had been admitted into evidence, and no further formal findings were required in those circumstances. James J acknowledged there may have been more force in the Crown's argument that no evidence of real significance was likely to emerge, but was not satisfied that the judge had erred in her implicit assessment that some useful evidence might be obtained.
Separately, and independently of the error question, James J held the appeal would have been dismissed in any event for lack of utility. The matter was already listed before Judge Tupman on 13 March 2009, only five weeks away. The Court was reluctant to interfere with District Court listing procedures by directing an earlier hearing, particularly where the Crown was not seeking this Court to impose sentence itself.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- A "Griffiths remand" under section 11 of the Crimes (Sentencing Procedure) Act is not confined to cases where rehabilitation during the adjournment might enable a non-custodial outcome. The provision can properly be invoked to obtain evidence bearing on sentence length and other discretionary sentencing factors.
- Under the principle affirmed in R v MRN, where a Griffiths remand is granted in a case where full-time custody remains likely, it is desirable for the sentencing court to make clear to the offender that the adjournment does not avoid punishment required by the objective gravity of the offending.
- No error arose from the absence of formal findings of fact before making a section 11 order where agreed facts had already been admitted into evidence at the sentencing hearing.
- In dismissing the Crown appeal, the Court confirmed that even where legal error by a sentencing judge might be established, an appellate court retains discretion to refuse relief where allowing the appeal would serve no practical utility.
- James J observed, in a comment not essential to the decision, that a sentencing judge can sometimes be justified in adjourning sentencing proceedings to obtain further evidence without needing to invoke section 11 or any other statutory provision at all.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), section 11
- Criminal Appeal Act (NSW), section 5D
Cases:
- Griffiths v The Queen (1977) 137 CLR 293 (High Court authority giving the Griffiths remand its name)
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery sentencing)
- R v Alameddine [2005] NSWCCA 68
- R v MRN [2006] NSWCCA 155
- R v Palu [2002] NSWCCA 381
- R v Tindall; R v Gunton (1994) 74 A Crim R 275
- R v Trindall (2002) 133 A Crim R 119