Citation: Griffiths v R [2025] NSWDC 423
Court: District Court of New South Wales
Date: 26 September 2025
Judge: Neilson DCJ
Background
The appellant pleaded guilty in the Local Court at Sutherland to five offences: two counts of stalking or intimidating with intent to cause physical or mental harm, one count of torturing or beating an animal causing its death, one count of assault occasioning actual bodily harm, and a further stalking or intimidation offence. The victims of the domestic violence offences were his then wife, with whom he was still living at the time. The animal cruelty offence arose from his killing twelve birds, including ten budgerigars and two parrots, by breaking their necks, apparently in the belief that they were infected with a disease known as French Moult (Polyomavirus).
Magistrate Kiely sentenced the appellant on 16 May 2025, allowing a 10% discount for his late guilty pleas across all five offences and imposing an intensive corrections order (ICO) of 14 months. At the date of sentencing, the appellant had already spent six months and 29 days in pre-sentence custody. The Magistrate's sentence made no reference to that period of custody and imposed a condition restricting the appellant from residing anywhere within the Sutherland Shire.
The appellant appealed to the District Court on the basis that the sentence was excessive, challenging the failure to account for pre-sentence custody, the apparent failure to apply the guilty plea discount before fixing indicative sentences, and the harshness of the place restriction condition.
Legal Issues
- Whether the Magistrate correctly applied the 10% guilty plea discount before arriving at the indicative sentences for each offence
- Whether the approximately seven months of pre-sentence custody was required to be taken into account in fixing the sentence
- Whether the condition restricting the appellant's residence to areas outside the entire Sutherland Shire was disproportionate in the circumstances
Decision
Neilson DCJ found that it was unclear from the Magistrate's reasons whether the 10% guilty plea discount had been applied before the indicative sentences were fixed, rather than after. Recalculating by applying the discount first, the correct indicative sentences for sequences 2, 3, and 5 were four months, five months, and six months respectively, producing an adjusted aggregate of seven months for those three offences.
On the pre-sentence custody issue, his Honour found the omission to be a significant error. The appellant had spent close to seven months in custody prior to sentencing, a period that could only have been referable to the offences for which he was being sentenced. Failing to account for that time meant, in effect, that the offender had served almost seven months in gaol without it being reflected in his sentence.
For sequences 7 and 8, his Honour similarly found the discount had not been applied, reducing the indicative sentences to four months and five months. Applying a pragmatic assessment of the aggregate sentence those offences warranted, his Honour determined the ICO for those offences should have concluded on the date of the appeal hearing, 26 September 2025.
On the place restriction, Neilson DCJ found the blanket exclusion from the entire Sutherland Shire was draconian. The Sutherland Shire is geographically very large and the appellant had lived and worked in the area for most of his adult life. The restriction substantially interfered with his ability to maintain contact with his children and to continue his established employment, without any provision for exceptions. His Honour declined to replace the restriction with a different condition.
Orders Made
- Sentences imposed by Magistrate Kiely on 16 May 2025 set aside in their entirety
- For sequences 2, 3, and 5: indicative sentences of four months, five months, and six months respectively; aggregate sentence of six months and 29 days imprisonment, commencing 18 October 2024 and expiring 16 May 2025
- For sequences 7 and 8: indicative sentences of four months and five months respectively; aggregate sentence of four months and 11 days commencing 16 May 2025 and expiring 26 September 2025
Key Takeaways
- Pre-sentence custody that is referable to the offences for which an offender stands for sentence must be taken into account in fixing that sentence; the District Court found that failure to do so resulted in the appellant serving close to seven months in custody without credit.
- A guilty plea discount must be applied before arriving at indicative sentences, not as an unexplained adjustment made separately; where the order of that calculation is unclear from a Magistrate's reasons, that ambiguity itself constitutes a ground for appellate intervention.
- Place restriction conditions attached to an ICO must be proportionate to the individual offender's circumstances; a blanket exclusion from an entire local government area will be considered disproportionate where the offender has deep residential and employment ties throughout that area and the restriction impairs contact with children.
- In the animal cruelty offence, the court accepted that the appellant's sole motivation was concern for birds he believed were diseased, distinguishing the conduct from any intent to intimidate the complainant, which was relevant to the character of that offence.
- Under the sentencing framework, where pre-sentence custody effectively satisfies the aggregate term warranted for a group of offences, the appropriate course is to impose imprisonment for that period with the sentence backdated to the date of arrest, resulting in the sentence being fully served by the date of the original sentencing hearing.
Legislation and Cases Referenced
Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes Act 1900 (NSW), s 530(1)
Cases
- No cases were cited in the judgment.