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District Court 13 June 2012

R v Pearman

[2012] NSWDC 167

Drugs
CRIMINAL LAW SENTENCE FORM 1 DRUG SUPPLY

Citation: R v Pearman [2012] NSWDC 167
Court: District Court of New South Wales
Date: 13 June 2012
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty at an early stage to two counts of drug supply, both involving comparatively small quantities of drugs packaged for supply and found in his possession at the time of arrest. Additional matters, including possession of a taser, were dealt with by way of a Form 1 and a section 166 certificate.

The offender had a long history of drug use beginning at age fifteen and a related pattern of repeated criminal offending. He had received custodial sentences on multiple previous occasions, and on each release had re-offended. At the time of sentencing, he had been accepted into the Salvation Army Bridge Program, a residential rehabilitation course scheduled to commence on 21 June 2012.

The offender's counsel sought an adjournment under section 11 of the Crimes (Sentencing Procedure) Act to allow the offender to complete the residential program before a final sentence was imposed. The Crown opposed the adjournment, arguing that the seriousness of the offending required immediate full-time custody.

  • Whether a section 11 remand adjournment was appropriate given the offender's history of repeated custodial sentences and reoffending
  • Whether rehabilitation prospects could justify deferring final sentencing in a matter otherwise warranting full-time custody
  • What conditions, if any, should attach to the grant of bail pending the adjourned sentence

Decision

His Honour acknowledged that section 11 remands are not to be granted lightly, particularly where an offender has demonstrated a sustained disregard for the law and where their continued offending causes substantial harm to the community. Releasing an offender on such a remand carries the real risk of further offending before the final sentence is imposed.

However, the court observed that custodial sentences had consistently failed to deter this offender, and that rehabilitation opportunities within the prison system were limited. The repeated cycle of custody, release, and reoffending suggested that the usual approach had not been effective.

His Honour held that a section 11 adjournment can serve a purpose beyond cases where a non-custodial outcome is likely. It can also inform both the structure and the length of any eventual custodial sentence. If the offender demonstrated genuine rehabilitation, that progress would be taken into account at the final sentencing hearing.

The court was explicit that this represented a final opportunity. His Honour stated plainly that if the offender failed to take advantage of the program, the court would impose a lengthy term of imprisonment.

Orders Made

  • Matter adjourned under section 11 of the Crimes (Sentencing Procedure) Act to Sydney on 7 June 2013
  • Bail granted on conditions, including that the offender not be released from custody until a time consistent with attendance at the Salvation Army Bridge Program on 21 June 2012
  • The offender to be released only into the custody of his father, who was to transport him directly to the program
  • Recommendation that the offender be held at Cessnock Gaol to facilitate transport to the program
  • Transcript of proceedings ordered for the next occasion
  • Pre-sentence report ordered

Key Takeaways

  • A section 11 adjournment under the Crimes (Sentencing Procedure) Act is not confined to cases where a non-custodial sentence is the anticipated outcome; the District Court confirmed it can also inform the nature and length of an eventual custodial sentence.
  • Where a history of custodial sentences has consistently failed to address the root causes of reoffending, a sentencing court may treat demonstrated rehabilitation as a factor capable of affecting the final sentence, even in cases involving drug supply.
  • The court's reasoning underscores that section 11 remands require careful consideration of community protection, and that the risk of further offending during the adjournment period is a factor weighing against their grant.
  • Bail conditions attached to a section 11 remand can be structured to minimise risk, including requiring release directly into the supervision of a family member and immediate attendance at a residential program.
  • The practical unavailability of rehabilitation programs within custody was acknowledged as a relevant circumstance in the exercise of the court's sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), sections 11 and 166

Cases cited:
No cases were cited in this judgment.