Reported Decision: 193 A Crim R 574 New South Wales Court of Criminal Appeal CITATION: R v Brown [2009] NSWCCA 6 HEARING DATE(S): 4 February 2009 JUDGMENT DATE: 12 March 2009 JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Adams J at 32 DECISION: Crown appeal dismissed. CATCHWORDS: CRIMINAL LAW – Sentencing – Crown appeal against sentence – s 11 Crimes (Sentencing Procedure) Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Appeal Act Griffiths v The Queen (1977) 137 CLR 293 R v Alameddine [2005] NSWCCA 68 R v Henry (1999) 46 NSWLR 346 CASES CITED : 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 PARTIES: Regina BROWN, Bradley FILE NUMBER(S): CCA 2008/7196 COUNSEL: D U Arnott SC - Applicant A Francis - Respondent SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Applicant Michael Croke & Co - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 08/11/0413 LOWER COURT JUDICIAL OFFICER: Tupman DCJ LOWER COURT DATE OF DECISION: 20 November 2008 IN THE COURT OF CRIMINAL APPEAL 2008/7196 McCLELLAN CJ at CL JAMES J ADAMS J THURSDAY 12 MARCH 2009 R v BROWN, Bradley Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: On 4 February 2009 the Court announced its decision to dismiss an appeal by the Crown against an order made on 20 November 2008 by her Honour Judge Tupman in the District Court adjourning to 13 March 2009 proceedings for the sentencing of the respondent Bradley Brown. The order was made by her Honour pursuant to s 11 of the Crimes (Sentencing Procedure) Act ("the Act"). Such an order is sometimes referred to as a "Griffiths remand" (Griffiths v The Queen (1977) 137 CLR 293). 3 On 4 February 2009 the Court did not give reasons for its decision, informing the parties that it would give its reasons later. The following are my reasons for joining in the decision by the Court to dismiss the appeal. 4 On 20 November 2008 Judge Tupman was conducting proceedings for the sentencing of the respondent for an offence of armed robbery to which he had pleaded guilty. Her Honour was to take into account in sentencing the respondent an additional offence of robbery. 5 A statement of agreed facts of the offences was admitted into evidence in the proceedings on sentence. The facts of the principal offence can be briefly summarised as follows. In the late afternoon of 6 October 2007 the respondent approached the victim in a city street. The respondent produced a knife which was about 5 centimetres long. The respondent said "give me your phone or I'm going to stab you". The victim was carrying a mobile telephone attached to the belt around his waist. A struggle ensued between the respondent and the victim in which the respondent did not use the knife but threw several punches, at least one of which connected with the victim's face. The respondent seized the victim's mobile telephone and ran off. 6 The facts of the additional offence, very broadly stated, were that about an hour later on 6 October 2007 the victim was using her mobile telephone in a street in an inner city suburb. The respondent grabbed the victim's mobile telephone, pulled it from her grip and ran off. 7 The offences were promptly reported to the police and a description of the offender was broadcast over police radio. The respondent was arrested later on the evening of 6 October 2007, while walking in a city street. 8 In the proceedings on sentence on 20 November 2008 the respondent gave oral evidence before her Honour. The respondent's legal representative then addressed her Honour. In the course of this address the respondent's legal representative submitted that a course which her Honour might adopt would be to make an order under s 11 of the Act. Her Honour decided that she would adopt this course. 9 Before making the order appealed from, her Honour delivered some brief remarks. 10 In these remarks her Honour noted that, on the face of it, having regard to the facts of the principal offence and the guideline judgment for sentencing for offences of armed robbery R v Henry (1999) 46 NSWLR 346, the respondent would be likely to receive a sentence of full time custody. However, her Honour then referred to evidence the respondent had given before her in the proceedings on sentence. Her Honour said:- "From the evidence he has given under oath I accept that there were a number of serious circumstances and incidents surrounding him at the time he committed the offences, all of which occurred within the five or six days preceding the offence, which involved his wife, his young children, violence, becoming unemployed, becoming homeless, losing his children in circumstances where he was fearful for their wellbeing, on the face of it with some justification, having no money and at least from a lay perspective getting to a stage at the time he committed this offence where all those surrounding events had overwhelmed him and clouded his judgment." 11 Her Honour observed that the offences appeared to be very much out of character and that there was no logical explanation for the respondent's conduct. 12 Her Honour continued:- "It would be desirable, however, for the court to have access to more evidence about his ongoing and past psychological situation, perhaps with reference to the state of mind that he must have been in at the time he committed the offence, but in any event, his ongoing circumstances and have further evidence in relation to his general social circumstances so that his real prospects of rehabilitation can be assessed." 13 Her Honour noted that the Crown opposed the making of an order under s 11 on the grounds that the objective facts of the principal offence was such that no sentence other than a sentence of full time custody would be appropriate. 14 In her remarks her Honour continued:- "It is submitted and suggested that there is a possibility that something other than full-time custody may be available. That is yet to be determined. Even if that is not so, the prisoner's real prospects of rehabilitation must be known on the basis of proper evidence before the court, so that the appropriate length of sentence and the finding of any special circumstances and the like can be properly ascertained." 15 Her Honour decided that an adjournment of about three months would be required and then made the following formal order:- "Pursuant to s 11 of the Crimes (Sentencing Procedure) Act I adjourn the matter part-heard before me for sentence to Friday 13 March 2009 at 10am." 16 It was common ground on the appeal that the appeal was competent. An order made under s 11 of the Act is a "sentence" for the purposes of s 5D of the Criminal Appeal Act. 17 It was submitted by the Crown on the appeal that Judge Tupman had erred in making an order under s 11 of the Act, because, even allowing for any subjective factors, anything less then a sentence of full-time imprisonment could not be justified. The Crown referred to Henry and submitted that the present case was worse than the common category of cases of armed robbery described in par 162 of the Chief Justice's judgment in Henry, for which the Chief Justice said that a head sentence of imprisonment between four and five years should generally be imposed. At par 113 of his judgment in Henry the Chief Justice said that a non-custodial sentence for armed robbery could be imposed only in exceptional circumstances and it was submitted by the Crown that the present case, whatever evidence might be obtained about the respondent's prospects of rehabilitation, could not be regarded as an exceptional case. 18 It was submitted by the Crown that, as in R v Alameddine [2005] NSWCCA 68, there was no justification for the making of an order under s 11 because "there was no reasonable prospect that her Honour was likely to learn by virtue of the further adjournment of the matter, any significant matter likely to bear upon the exercise of the sentencing discretion" (Alameddine at (15) per Barr J). 19 It was further submitted by the Crown that, while it was accepted that the circumstances in which an order under s 11 of the Act could properly be made were not limited to those where, if rehabilitation was effected during the period of the adjournment, a sentence not involving full-time custody might properly be imposed, nevertheless in any such other cases "it ought to be explained to the offender that the use of s 11 will not avoid punishment made necessary by the objective gravity of the crime(s) under consideration" (R v MRN [2006] NSWCCA 155 at (114) per Simpson J). it was submitted that no such explanation had been given to the respondent in the present case. 20 It was further submitted by the Crown that the sentencing judge had failed to make findings about the facts of the offences before making an order under s 11. The Crown referred to R v Palu [2002] NSWCCA 381. 21 It is clear that a number of the submissions made by the Crown which I have summarised should be rejected. 22 As was in fact conceded by the Crown in one of its submissions, the power to make an order under s 11 of the Act, while it is to be exercised sparingly, is not, as the power to grant a "Griffiths remand" strictly so called was held to be, limited to cases where "in the event that rehabilitation and reform are achieved, it would be appropriate to impose a non-custodial sentence" (R v Tindall, R v Gunton (1994) 74 A Crim R 275 at 276 per Hunt CJ at CL). The circumstances in which an order can be made under s 11 were discussed by Smart AJ, with whose judgment Spigelman CJ and Grove J agreed, at pars 41-64 of his Honour's judgment in R v Trindall (2002) 133 A Crim R 119. At 131 (64) his Honour said:- "The granting of a Griffiths remand (that is an order under s 11) is likely to arise for consideration in a relatively small number of cases. Generally, such a remand should not be granted unless there are good reasons for concluding that it is likely to assist the court in determining whether an offender should be sent to gaol or in fixing the length of the sentence or the non-parole period. If the latter be the case, the judge should, as here, make it clear to the offender that he will be going to gaol and that the purpose of the remand is to assist the court in fixing the non-parole period. This Court should not seek to circumscribe the wide statutory discretion given to the sentencing judge." 23 In the present case, although Judge Tupman did not say so in her short remarks, her Honour had during the proceedings on sentence given clear warnings to the respondent and his legal representative that in due course a sentence of full-time custody might have to be imposed "(even) if everything goes well" during the period of the adjournment. 24 There is no substance in the submission by the Crown that her Honour erred in failing to make findings about the facts of the offences. An agreed statement of the facts of the offences had been admitted in the proceedings on sentence. 25 There may be more force in the Crown submission that there was no reasonable prospect of more evidence of any significance about the respondent's prospects of rehabilitation being obtained during the period of the adjournment. I am, however, not satisfied that I should find that her Honour erred in deciding, as she implicitly did, that there was a reasonable prospect of some evidence being obtained which would assist her in sentencing the respondent. 26 Even if it were held that her Honour did err in making the order under s 11, the question would arise whether there would be any utility in allowing the Crown appeal. 27 It was not suggested by the Crown that, if the appeal was allowed, this Court should itself proceed to sentence the respondent. The orders sought by the Crown, in the event of the appeal succeeding, were that her Honour's order should be quashed and the matter be returned to the District Court to be re-listed before her Honour. 28 Under her Honour's own order the matter is to be re-listed before her on 13 March 2009, that is in just over five weeks time. This Court has no information about her Honour's availability and commitments and would be reluctant to interfere with listing procedures in the District Court by requiring a listing of the matter before her Honour prior to 13 March. 29 Accordingly, even if error had been established, I would not have been in favour of allowing the appeal. 30 The above are my reasons for joining in the Court's decision to dismiss the Crown appeal. 31 I would add the following comments. A sentencing judge will sometimes be justified in adjourning sentencing proceedings to enable further evidence to be obtained, without any need to invoke s 11 of the Act or any other statutory provision. My further comment is that nothing in this judgment is to be taken as constraining in any way the ultimate exercise by her Honour of her sentencing discretion. 32 ADAMS J: I agree with James J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.