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District Court 3 April 2025

R v Clark

[2025] NSWDC 110

Assault & violenceTheft & propertyTraffic & drivingFirearms & weapons

Citation: R v Clark [2025] NSWDC 110
Court: District Court of New South Wales
Date: 3 April 2025
Judge: Sutherland SC DCJ

Background

The offender pleaded guilty on 13 February 2025 to seven counts on a fresh indictment, arising from a series of offences committed in regional New South Wales near Moree and Boggabilla. The offending included travelling in and driving stolen vehicles, using a stolen vehicle as an offensive weapon to intimidate police, failing to stop for police during a pursuit, and stealing and possessing firearms and ammunition.

The offender had previously been sentenced by Judge Noman SC, and his parole under that earlier sentence had been revoked following the commission of the present offences. The matter came before Sutherland SC DCJ during Queanbeyan circuit sittings after several adjournments, during which the defence sought confirmation from Odyssey House of a place in its nine-month full-time residential rehabilitation program.

On 27 March 2025, the Court received a confirmation letter from Odyssey House and heard the release application. Due to time constraints on circuit, the judge made orders on the day and delivered written reasons upon returning to Sydney.

  • Whether sentence proceedings should be deferred under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow the offender to enter and complete a residential rehabilitation program (a so-called "Griffiths remand")
  • Whether the offender should be released on bail pursuant to section 8 of the Bail Act 2013 (NSW) during the deferral period
  • Whether there was adequate material already before the Court to assess rehabilitation prospects without a deferral
  • Whether the realistic prospect of a significant custodial sentence made the deferral unnecessary
  • Whether the length of the proposed deferral was appropriate

Decision

The Crown opposed the section 11 application on three grounds: that sufficient material already existed to assess rehabilitation prospects; that a lengthy custodial sentence was realistically inevitable, making deferral unnecessary; and that the proposed deferral would cause significant delay. Sutherland SC DCJ rejected each of those grounds and granted the application.

On the objective seriousness of the offending, the judge broadly agreed with the Crown's assessments for most counts. The judge did, however, reach a different view on two: the use of the stolen vehicle as an offensive weapon to intimidate police was assessed as below the mid-range of objective seriousness (rather than above), given the limited actual danger in the circumstances as described in the Agreed Facts; and the police pursuit offence was similarly assessed below mid-range.

On the question of deferral, the judge applied the reasoning from authorities including Griffiths v The Queen, R v Fernando, Bugmy v The Queen, and R v Trindall, and drew on Clark (1997) directly. The judge noted that a proper assessment of an appropriate non-parole period would be substantially assisted by observing the offender's actual rehabilitation progress, rather than relying only on prospects assessed at the time of sentencing. The judge expressed the view that the offender's rehabilitation and abstinence from drugs would ultimately benefit the community.

Strict bail conditions were imposed to ensure the offender proceeded directly from custody to Odyssey House and remained there for the duration of the program. A progress mention was listed for August 2025, with the sentencing hearing fixed for February 2026.

Orders Made

  • The offender released on bail pursuant to section 8 of the Bail Act 2013
  • Sentence proceedings adjourned pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 to enable entry into the Odyssey House full-time residential rehabilitation program
  • Bail conditions imposed, including:
  • Residence confined to the Odyssey House program premises (Ingleburn or Eagle Vale)
  • Attendance at the program and compliance with all reasonable staff directions
  • Not to leave the program except in the company of a staff member or other person approved by Odyssey House
  • Immediate reporting to NSW Police if refused admission or if the offender leaves the program for any reason
  • Not to occupy the driver's seat of any motor vehicle or motorcycle
  • Abstain from alcohol and illicit drugs while on bail
  • Not to be released unless arrangements are in place for the offender to be collected from Macquarie Correctional Centre by a parent and transported directly to Odyssey House
  • Matter listed for mention only on 29 August 2025 (offender excused from attending while at Odyssey House and legally represented)
  • Matter listed for sentencing hearing on 6 February 2026, at which the Court will either proceed to sentence or fix a sentencing date

Key Takeaways

  • A Griffiths remand under section 11 of the Crimes (Sentencing Procedure) Act 1999 remains available even where full-time imprisonment is a realistic sentencing outcome, provided the court is satisfied that deferral will materially assist in assessing an appropriate non-parole period.
  • The prospect of a significant custodial sentence does not, of itself, render a deferral unnecessary. The District Court held that observing actual rehabilitation progress can substantially assist in calibrating the non-parole period, beyond what pre-sentence material alone can establish.
  • Where all parties accept that imprisonment is inevitable, a Griffiths remand can still be warranted if the offender's engagement with rehabilitation during the deferral period is likely to provide meaningful information at sentencing.
  • The court assessed the objective seriousness of individual counts independently from the Crown's characterisation, reaching a lower assessment on the vehicle-as-weapon and pursuit offences based on the specific factual circumstances in the Agreed Facts.
  • Strict bail conditions tightly controlling the offender's movements and conduct during the deferral period are a standard feature of release granted in connection with a section 11 adjournment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Bail Act 2013 (NSW), s 8
- Firearms Act 1996 (NSW)

Cases
- Griffiths v The Queen (1977) 137 CLR 293
- Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- Clark (1997) 95 A Crim R 585
- R v Trindall [2002] NSWCCA 364
- R v Tindall (1994) 74 A Crim R 275; R v Tindall & Gunton [1994] 74 A Crim R 275
- R v Henry (1999) 46 NSWLR 346
- R v Palu [2002] NSWCCA 381
- R v Farrell [2014] NSWCCA 30
- R v Hopoi [2014] NSWCCA 263
- Jones (unreported, NSWCCA, 15 April 1994)