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District Court 8 November 2023

R v Dean

[2023] NSWDC 522

Assault & violenceDrugsTheft & property
CRIME SENTENCE SERIOUS OFFENCES SUBSTANTIAL HISTORY OF OFFENDING MENTAL HEALTH DRUG ADDICTION

Citation: R v Dean [2023] NSWDC 522
Court: District Court of New South Wales
Date: 8 November 2023
Judge(s): Newlinds SC DCJ

Background

The offender, a 32-year-old man, appeared for sentencing on a large number of serious offences including assaulting a police officer in the execution of duty and break, enter and steal. The Crown and defence agreed the objective seriousness of the offences fell somewhere towards the mid-range, though the court regarded that assessment as generous to the offender.

The offender carried a substantial criminal history, having spent a large proportion of his adult life in custody. Evidence before the court indicated a childhood marked by deprivation, sexual abuse, long-term drug use, and diagnosed mental health conditions.

Since the offences were committed, and following the death of his mother while he was in custody, the offender had reportedly begun engaging with psychological treatment for the first time. He had also secured full-time employment, formed a family unit, and had a psychologist with a proposed treatment plan.

Legal Issues

  • Whether the matter should be adjourned under section 11 of the Crimes (Sentencing Procedure) Act 1999 (a "Griffiths remand") to allow the offender's rehabilitation prospects to be properly assessed before sentence is imposed.
  • What conditions, if any, should attach to bail during that adjournment period.

Decision

Issue 1: Whether a section 11 adjournment was appropriate

The court identified the central sentencing question as whether the offender could achieve and sustain freedom from drugs and address his mental health issues. The court reasoned that if those prospects were genuine and strong, the risk of reoffending would be correspondingly low; if they were not, reoffending was, beyond reasonable doubt, almost inevitable (at [5]).

Newlinds SC DCJ granted the section 11 adjournment with some hesitation, noting the offender had already had ample opportunity to change his ways. The court accepted the defence submission that a 12-month adjournment would provide meaningful clarity about the offender's capacity for rehabilitation, which would in turn inform the appropriate sentence (at [6]-[7]).

Issue 2: Expectations and consequences

The court was explicit that compliance with the bail conditions carried no guarantee of a non-custodial outcome. Given the objective seriousness of the offences and the weight of the criminal history, a non-custodial sentence was not certain, though the court did not rule it out entirely (at [8]).

The court warned directly in open court that any non-inadvertent breach of the conditions would result in the matter being relisted and the full weight of the sentencing discretion brought to bear, with serious consequences for the offender and his family (at [7]).

Orders Made

  • Matter adjourned pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 to 8 November 2024 at 10am before Newlinds SC DCJ.
  • Bail continued on strict conditions, including:
  • Daily reporting to Burwood Police Station.
  • Residence at a specified address, with address changes requiring written consent from the treating psychologist.
  • No alcohol or non-prescribed drugs.
  • Engagement within seven days with a general practitioner for mental health and drug rehabilitation assessment.
  • Commencement of the psychologist's treatment plan and compliance with all directions, including urine analysis and residential rehabilitation if directed.
  • Maintenance of current employment, with immediate notification of any change.
  • Weekly attendance at Narcotics Anonymous meetings, with evidence of attendance provided to the psychologist.
  • An interim progress report from the psychologist to be provided to all parties by 31 March 2024.
  • Any breach to be brought to the court's attention promptly.
  • Directions hearing listed for 27 September 2024.
  • Liberty to either party to relist on short notice.

Key Takeaways

  • A section 11 adjournment under the Crimes (Sentencing Procedure) Act 1999 (formerly known as a Griffiths remand) remains available even where the offending is serious and the criminal history is substantial, provided the court is satisfied there is a genuine basis to assess rehabilitation prospects before imposing sentence (at [6]-[7]).
  • The District Court treated the relationship between drug dependency and the risk of reoffending as a central sentencing consideration, reasoning that the likelihood of future offending rose significantly if the offender remained drug-dependent (at [5]).
  • A childhood background of deprivation, sexual abuse, and resulting mental health and drug conditions is capable of constituting strong subjective mitigation, consistent with the principles in Bugmy v R [2013] HCA 27, even where full argument on that point has not yet been heard (at [3]).
  • Granting a section 11 adjournment carries no implied promise of leniency: the court stated expressly that a non-custodial sentence was not guaranteed and might not be available on the facts, regardless of the offender's conduct during the adjournment period (at [8]).
  • Where strict bail conditions attach to a section 11 adjournment, the court may frame non-inadvertent breach as a matter requiring immediate relisting and likely significant sentencing consequences, reinforcing the conditional nature of the indulgence granted (at [7]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 , s 11
- Crimes Act 1900 , s 60(2), s 112(1)(A)

Cases
- Bugmy v R [2013] HCA 27