Germain v Police - [2006] SASC 340

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GERMAIN v POLICE
[2006] SASC 340
Judgment of The Honourable Justice Gray
17 November 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Magistrates appeal - appeal against sentence - consideration of application of section 18A of the Criminal Law (Sentencing) Act where a mandatory penalty is to be imposed in addition to the primary penalty with respect to one of the offences - discussion of sentencing principles - consideration of importance of adequate reasons by magistrate - discussion of section 19B of the Criminal Law (Sentencing) Act and Griffiths Remands - Held: Appeal allowed - proceedings adjourned pursuant to section 19B of the Criminal Law (Sentencing) Act for sentencing at a later date.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134; Criminal Law (Sentencing) Act 1988 (SA) s 9, s 10, s 18A, s 19B; Criminal Law (Sentencing - Miscellaneous) Act 1995 (SA); Criminal Law (Sentencing - Miscellaneous) Act 1999 (SA); Bail Act 1985 (SA) s 10, referred to.
Pointon v Police [2004] SASC 4; Police v Whitehouse [2005] SASC 220; Markarian v R (2005) 215 ALR 213; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Slater [2005] SASC 423; R v Waugh (2005) 93 SASR 274; Oliver v Police [2004] SASC 8; Papps v Police (2000) 77 SASR 210; R v Place (2002) 81 SASR 395; Peters v Police [2004] SASC 284; Cross v Police [2001] SASC 47; Szewczuk v Police [2001] SASC 223; Veen v The Queen [No. 2] (1988) 164 CLR 465; Kovacevic v Mills (2000) 76 SASR 404; Scott v Police (1993) 61 SASR 589; Griffiths v The Queen (1977) 137 CLR 293; R v Tindall (1994) 74 A Crim R 275; R v McMann (1997) 70 SASR 1; The Queen v Griggs (1999) 95 FCR 490, considered.

GERMAIN v POLICE
[2006] SASC 340
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against sentence.
On 31 January 2006, the appellant, Stephen Wade Germain, pleaded guilty to the crimes of illegal use of a motor vehicle contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA) and theft contrary to section 134 of the Criminal Law Consolidation Act.
The maximum penalty for illegal use of a motor vehicle for a first offence is imprisonment for two years: for a subsequent offence, imprisonment for not less than three months and not more than four years. Pursuant to section 86A, the offender must also be disqualified from holding or obtaining a driver’s licence for a period of 12 months. The maximum penalty for theft is a term of imprisonment of two years.
In the early 1990’s the appellant was convicted of a number of offences pertaining to illegal use of and illegally interfering with a motor vehicle. The last of these offences was on 20 June 1992. The appellant was then aged 21 years. For the purpose of imposing the penalty pursuant to section 86A, the appellant’s conviction was a subsequent offence.[1]
[1] The appellant’s earlier convictions were pursuant to section 44 of the Road Traffic Act 1936 (SA). Section 86A did not come into operation until 6 July 1992. In Pointon v Police [2004] SASC 4, I held that the meaning of “subsequent offence” in section 86A includes an earlier offence committed against section 44 of the Road Traffic Act. This approach was approved in the Full Court decision of Police v Whitehouse [2005] SASC 220.
On 13 July 2006, the appellant was sentenced by a Magistrate to six months imprisonment and disqualified from holding or obtaining a driver’s licence for a period of 12 months. The term of imprisonment was not suspended. On the same day the appellant was granted bail pending the outcome of this appeal.
Circumstances of the Offending
The Magistrate described the events constituting the offending in the following terms:
[The appellant] and another man had been drinking beer and whiskey. It appears from counsel’s submissions that there was a considerable quantity ingested. They walked around the area of the Esplanade and Jetty Road. The [appellant] stopped at the rear of a vehicle, while the other man got into it, before the vehicle lurched forward, mounting the kerb, and reversed, and drove away. It appears the [appellant] got in the car before it left, as he was in the vehicle when it returned a short time later. They were observed by other people at the beach, who were subsequently interviewed by police.
The vehicle itself then turned up in Taperoo, on fire, and with the [appellant] in the vicinity.
The appellant was initially charged with the arson of the vehicle. However, this charge was subsequently withdrawn. The Magistrate concluded that in the circumstances the appellant had pleaded guilty to the other charges at the earliest opportunity.
Personal and Criminal Antecedents
The Magistrate outlined the appellant’s antecedents as follows:
The [appellant] is in employment and appears to have had a good working history. He also has a substantial criminal history. It is a criminal history that includes imprisonment for illegal use of vehicles. In 1999 he was convicted of a drink/ driving offence and disqualified. He had fines remitted to community service work in 2001 and again later in that year. In 2002 he was fined for disorderly behaviour, refuse name and address, resist police, and for possessing a firearm without a licence, before being placed on the suspended sentence for unrelated offending in the District Court in 2003. He was fined in respect of driving offences on two occasions in 2004. He has 5 children and his family affairs are complicated.
At the time of sentencing, the appellant was aged 34 years. He began consuming alcohol at an early age with a first conviction for consuming or possessing liquor as a minor, when ten years of age. The appellant has continued to commit drug and alcohol offences to the time of his most recent conviction. He has consumed large quantities of alcohol and has smoked marijuana on a regular basis.
The appellant consumed alcohol prior to the commission of the offences in the present case. He suggested that alcohol was a factor in his decision-making and behaviour at the time of the offences.
The appellant successfully completed a drug rehabilitation program in 1990 for heroin and barbiturate abuse. However, there has been no further referral to any rehabilitation program to address his continuing alcohol and marijuana abuse.
The appellant has been in a relationship with his de facto partner for two years. They have three children in their care: a young child from the relationship and two from his partner’s previous relationship. The appellant has two children from a previous marriage with whom he continues to have visiting rights.
As the Magistrate’s reasons record, the appellant has a relevant criminal history. Throughout the 1990’s the appellant committed numerous driving offences including driving under the influence of alcohol and offences relating to the use of marijuana. Nonetheless, the appellant had not committed any dishonesty offences since 1992. The appellant had not contravened the law for the period since 12 months prior to the present offending.
The Sentence
In fixing the sentence, the Magistrate proceeded to impose the one penalty in respect of both offences. This included the mandatory penalty of licence disqualification. The Magistrate gave the following reasons:
I take into account all matters put before me in respect of the matter of [the appellant]. He has pleaded guilty to illegal use of a motor vehicle, and larceny of 7 leather gloves and a car stereo belonging to the owner of the motor vehicle. The property was located on him when he was arrested. He was intoxicated.
…
The plea is entered on the basis that the [appellant] was a passenger in the car obtained by his co-offender, and he was being driven home in a state of intoxication when he became aware that the vehicle was stolen, and that he had nothing to do with the car catching fire.
This is a line ball case. The offending is serious. I have no doubt it had a considerable impact on the victim of the offending. The [appellant] was not the lead participant in the offending but went along with it. In all of the circumstances, at the end of the day it is the fact that the [appellant] has previous convictions for illegal use and that these offences need to be deterred which is the overwhelming factor when regard is had to section 10 of the Sentencing Act and the primary sentencing principles set out in Veen’s case.
The defendant will be ordered to serve 6 months imprisonment forthwith, and disqualified from holding or obtaining a driver’s licence for a period of 12 months.
The Appeal
In Markarian,[2] Gleeson CJ, Gummow, Hayne and Callinan JJ discussed the approach that an appeal court should adopt when considering an appeal against sentence:[3]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[2] Markarian v R (2005) 215 ALR 213.
[3] Markarian v R (2005) 215 ALR 213 at [25] (footnotes omitted).
It is against this test that the Magistrate’s exercise of sentencing discretion must be measured.
Counsel for the appellant contended that the Magistrate failed to adequately explain her process of reasoning in arriving at the sentence imposed, in particular, whether the penalty had been imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and what, if any, reduction had been made for the appellant’s plea of guilty. Counsel submitted that if the Magistrate did impose the penalty pursuant to section 18A of the Criminal Law (Sentencing) Act she erred in her application of the section.
It was the appellant’s complaint that the Magistrate erred in not suspending the sentence pursuant to section 38 of the Criminal Law (Sentencing) Act
It was contended that the Magistrate placed undue weight on the need for deterrence and that the appellant had good prospects for rehabilitation, which were overlooked or alternatively given inadequate weight.
Application of section 18A of the Criminal Law (Sentencing) Act
Section 18A of the Criminal Law (Sentencing) Act provides:[4]
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
[4] Section 18A was introduced into the Sentencing Act on 30 September 1992. The section initially provided that the number of offences had to be charged on the one complaint or information and the court had to sentence the person to one penalty for all of the offences. This was subsequently amended by the Criminal Law (Sentencing – Miscellaneous) Act 1995 (SA) and the Criminal Law (Sentencing – Miscellaneous) Act 1999 (SA).
In the second reading speech the following explanation was provided for the enactment of section 18A:[5]
[The section allows] a court convicting a person of multiple offences against the same provision of an Act to impose one penalty in respect of all of the offences
…
The amendment will simplify the task of the sentencer in establishing an appropriate penalty and the setting of a non-parole period. The new provision will also eliminate the risk of miscalculation and errors in complex sentence calculations and avail prisoners of a clear picture of the penalty imposed by the court.
[5] South Australia, Parliamentary Debates, Legislative Council, 12 February 1992, 2662-2663 (The Hon. C.J Sumner).
The purpose of section 18A is to provide the sentencing judge with the discretion to sentence a person to one penalty for multiple offences in order to overcome the often difficult and potentially artificial process of constructing an appropriate sentence for a series of offences by means of concurrent or cumulative sentences.
Section 18A contemplates that a sentencing judge will undertake the same task in imposing the one penalty for two or more offences as would be undertaken in imposing separate penalties for two or more offences. In Major,[6] Doyle CJ observed:[7]
[I]f a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. …
If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.
[6] R v Major (1998) 70 SASR 488.
[7] R v Major (1998) 70 SASR 488 at 490
Doyle CJ clarified the above observations in Symonds[8] where His Honour observed:[9]
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outline in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
[8] R v Symonds [1999] SASC 217.
[9] R v Symonds [1999] SASC 217 at [21]-[22].
In Slater,[10] the Court of Criminal Appeal confirmed that unless there is good reason to depart from it, the general rule is that the approach in Major should be followed. Regardless of the approach adopted in the application of section 18A, a sentencing judge should adequately explain how the sentence was imposed. In Waugh,[11] White J (Doyle CJ and Sulan J concurring) observed:[12]
Whichever approach is adopted [the approach in Major or Symonds], it is necessary for the sentencing judge to provide an adequate explanation for the sentence imposed. Such an explanation is intrinsic in the approach identified in R v Major. That is one of the advantages of that approach. When a judge goes directly to a single sentence, some explanation of how that single sentence is derived is still necessary. That might be given, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers that they should be served cumulatively or concurrently. Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary. This may be because the imposition of such sentences would be crushing or might lead to a sentence which did not reflet the overall seriousness of the criminality involved.
[10] R v Slater [2005] SASC 423.
[11] R v Waugh (2005) 93 SASR 274.
[12] R v Waugh (2005) 93 SASR 274 at [43] (footnotes omitted).
In the present case the Magistrate did not indicate how she arrived at the penalty of six months imprisonment nor did she specifically state that she sentenced the appellant pursuant to section 18A. Nevertheless, it may be inferred from the sentencing remarks, and the one penalty imposed for both offences, that the Magistrate sentenced the appellant pursuant to section 18A. Both counsel accepted that the Magistrate invoked section 18A.
Counsel for the appellant submitted that the Magistrate erred in her application of section 18A to the present case. It was counsel’s submission that the application of section 18A requires a single penalty to be imposed. However, it was argued that the Magistrate also imposed the further mandatory penalty of licence disqualification.[13] This submission was said to raise two issues: counsel contended that section 18A could not be invoked where there is a penalty that is additional to what could be imposed for one offence and not the other. Counsel for the appellant further submitted that the term of imprisonment and the licence disqualification resulted in two penalties being imposed contrary to the one penalty required when section 18A was applied. If these submissions are accepted it would lead to the result that section 18A could not be applied in circumstances where one of the offences imposes an additional statutorily prescribed penalty.
[13] Criminal Law Consolidation Act 1936 (SA).
The question to be determined is the impact of statutorily prescribed penalties that are to be imposed in addition to penalties imposed by the sentencing judge, on the application of section 18A.
Mandatory licence disqualification pursuant to section 86A was introduced into the Criminal Law Consolidation Act on 6 July 1992. Section 86A provides:
(1)A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
Penalty:
For a first offence—imprisonment for 2 years;
For a subsequent offence—imprisonment for not less than 3 months and not more than 4 years.
(2)Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any other order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver's licence for a period of 12 months.

In the second reading speech, the following explanation for the mandatory licence disqualification was provided:[14]
[I]t is proposed that section 86a(2) will impose a severe penalty upon a person guilty of an offence against this section by requiring the court to order that the person be disqualified from holding or obtaining a driver’s licence for a period of 12 months. … As I noted, it is a very severe penalty that does reflect the prevailing community wish that this Parliament increase penalties, in this instance by way of an addition of a specified period of disqualification of a licence, that is, a fixed period of 12 months. It is not less than nor more than 12 months. It will bring about consistency in the courts, in that anyone who embarks on an illegal use offence, apart from the penalties that are already prescribed by way of fines or imprisonment, in addition, faces a fixed period of disqualification for 12 months, which means consistency and certainty.
[14] South Australia, Parliamentary Debates, Legislative Council, 1 April 1992, 3755 (The Hon. Diana Laidlaw).
The purpose of the statutorily imposed licence disqualification was to impose a penalty in addition to any other order made by a sentencing judge. The sentencing judge exercises no discretion as to whether to impose the licence disqualification or the length of the disqualification period. Rather the licence disqualification is imposed to give effect to the requirement of the statute. It was not Parliament’s purpose to impact upon the sentencing judge’s discretion when imposing the primary penalty. There is no indication that Parliament intended additional mandatory penalties to inhibit the operation of section 18A.
The appellant’s contention is contrary to the way in which courts have utilised section 18A since its enactment. Courts have interpreted section 18A broadly so as to allow maximum flexibility in its application and thereby give effect to the underlying purpose of the section, which is to simplify the sentencing process with respect to multiple and related offences and to assist the court in arriving at a fair and just penalty. In the absence of clear, parliamentary pronouncement to the contrary, there is no reason to diverge from the course thus far adopted by the courts.
Counsel for the appellant sought to rely on Oliver v Police,[15] where it was observed:[16]
In this matter the magistrate erred in his application of section 18A of the Sentencing Act. He purported to impose a $700 fine for both offences but then separately imposed a licence disqualification for the section 47B offence. This was an incorrect application of section 18A. Having invoked section 18A the magistrate was only authorised to impose the one sentence for both offences. This error of approach by the magistrate requires this Court to reconsider the penalty.
[15] Oliver v Police [2004] SASC 8.
[16] Oliver v Police [2004] SASC 8 at [10].
The sentencing error identified in Oliver was that the Magistrate purported to use section 18A but instead of imposing one penalty pursuant to the section, the Magistrate imposed separate penalties in respect of the offending. The circumstances of Oliver are to be distinguished from the approach of the Magistrate in this case.
In the present case, the one penalty was imposed with respect to all the offending of the appellant. The Magistrate was required, in that one sentence, to bring to account the mandatory provisions of the relevant legislation. The licence disqualification was imposed in relation to the offence of using a motor vehicle without consent. However, that formed part of the one penalty. The Magistrate did not err in her application of section 18A.
The sentencing remarks
Section 9 of the Criminal Law (Sentencing) Act provides:
(1)     A court must, upon sentencing a defendant who is present in court—
(a)     state its reasons for imposing the sentence; and
(b)     cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(2)The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
Counsel for the appellant submitted that the Magistrate erred in failing to adequately explain the process of reasoning in arriving at the sentence imposed. The importance of adequate reasons was discussed by this Court in Papps v Police,[17] where it was observed:[18]
[17] Papps v Police (2000) 77 SASR 210.
[18] Papps v Police (2000) 77 SASR 210 at [34] (footnotes omitted).
The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be “coherent, intelligible and comprehensive”. But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In the present case, it is difficult to determine from the remarks given by the Magistrate how she arrived at the sentence. It is difficult for this Court to determine whether the Magistrate had sufficient regard to the appellant’s prospects of rehabilitation, as the remarks do not address the topic.
The sentencing remarks also failed to disclose what, if any, reduction was made on account of the appellant’s plea. The importance of disclosing a reduction was considered in Place[19] where the Court observed:[20]
This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice. It is intended to encourage guilty persons to admit their guilt, instead of putting the State to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists. This is an important public policy consideration, and judges are to be encouraged to foster an awareness amongst people charged with criminal offences, and those who advise them, of the advantage to be gained by a guilty person by acknowledging his guilt at the first reasonable opportunity.
General awareness of the advantage to be gained by a plea of guilty would be contributed to by judges indicating clearly, in their sentencing remarks, not only that they have taken the plea of guilty into account, but also the extent to which they have taken it into account.
I think that this Court should actively encourage sentencing judges to take that course.
It does not follow, of course, that merely because the learned judge did not indicate the extent to which he took the plea of guilty into account, that he did not give it appropriate weight.
…
The Court of Criminal Appeal has continued to recognise the importance of identifying both the reasons for reducing a sentence and the extent of the reduction … As a consequence of the encouragement, for a number of years the vast majority of sentencing judges and magistrates have consistently identified the extent of the reduction given for a plea of guilty and cooperation with authorities.
[19] R v Place (2002) 81 SASR 395.
[20] R v Place (2002) 81 SASR 395 at [44], [46].
Section 9(2) provides that the validity of a sentence is not affected by non-compliance. However, the authorities spell out the importance of and need for reasons.[21] It remains open to a court to set aside a sentence as a result of the inadequacy of reasons.[22] In this case, the Magistrate’s reasons are sufficiently inadequate so as to justify setting aside the sentence imposed.
[21] Peters v Police [2004] SASC 284.
[22] Cross v Police [2001] SASC 47; Szewczuk v Police [2001] SASC 223.
Sentencing considerations
The circumstances of this offence were unusual. The appellant did not become aware that the vehicle had been stolen until he was travelling in the vehicle. At relevant times he was intoxicated. The theft was of an odd number of gloves and a stereo and would appear to be a result of his intoxicated state.
Counsel for the appellant submitted that the Magistrate erred in treating deterrence as an “overwhelming factor” when considering the sentence to be imposed. Counsel contended that the Magistrate misapplied the observations of the High Court in Veen (No 2)[23] and in doing so placed too much weight on the issue of deterrence and the appellant’s previous convictions for dishonest conduct. As a result, counsel argued, the sentence imposed by the Magistrate was manifestly excessive.
[23] Veen v The Queen [No. 2] (1988) 164 CLR 465.
In Veen (No 2), Mason CJ, Brennan, Dawson and Toohey JJ observed:[24]
[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences…The antecedent criminal history is relevant, however, to show whether the instant offence is uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
[24] Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477
Section 10 of the Criminal Law (Sentencing) Act requires consideration to be given to all relevant factors identified and for appropriate weight to be given to each factor. Deterrence and an offender’s criminal antecedents are but only two of the factors to be considered. The Full Court observed in Kovacevic v Mills[25] that an offender’s personal circumstances and prospects for rehabilitation are factors that must not be overborne by the need for deterrence:[26]
We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed.
Similarly Mullighan J observed in Scott v Police:[27]
In my view the learned magistrate gave too much emphasis to the prevalence of the offence of shoplifting and the need for general deterrence and too little emphasis to the personal circumstances of the appellant. True it is that she has a significant history of prior offending, but the material before the learned magistrate established a psychological explanation for her conduct of a significant mitigating nature. It seems that the learned magistrate discounted much of this material and there is no reason why he should have done so. Furthermore, there was evidence of a real prospect of rehabilitation…
In my view it has been established that the learned magistrate was in error in the exercise of the sentencing discretion by giving undue emphasis to the two matters I have mentioned and too little emphasis to the circumstances in which, and the reasons why, she committed the offences. The sentencing discretion must be exercised afresh.
[25] Kovacevic v Mills (2000) 76 SASR 404.
[26] Kovacevic v Mills (2000) 76 SASR 404 at [39].
[27] Scott v Police (1993) 61 SASR 589 at 592-593.
The Magistrate placed undue emphasis on the appellant’s criminal antecedents. As earlier observed, these convictions occurred 13 years prior to the offences the subject of this appeal and at a time when the appellant used alcohol and illicit drugs to excess. The appellant successfully completed a rehabilitation program for illicit drug addiction and the related offending ceased. While the appellant has committed a number of minor offences there has been no serious offending of a like kind since 1992. The observations of Mullighan J in Scott are apposite.
In the present case, sentencing error occurred. Although deterrence was an important factor to be weighed, the Magistrate expressly considered that the need for the sentence to reflect deterrence “overwhelmed” other relevant sentencing considerations. The Magistrate, by placing undue weight on deterrence, failed to have sufficient regard to the significant time that had elapsed since the appellant’s earlier dishonesty offending; that the appellant had not committed any offences for twelve months prior to the offending and the appellant’s successful rehabilitation from illicit drugs. The Magistrate failed to have proper regard to the very real prospects of rehabilitation that were established on the evidence. For these reasons I have reached the conclusion that the sentencing discretion miscarried.
Re-sentence
Having identified error in the approach of the Magistrate, it is necessary to re-sentence the appellant.
Counsel for the Crown submitted that, should the Court allow the appeal, consideration should be given to deferring the re-sentencing of the appellant pursuant to section 19B of the Criminal Law (Sentencing) Act. Section 19B provides:
(1)A court may, on finding a person guilty of an offence (whether or not it proceeds to conviction), make an order adjourning proceedings to a specified date, and granting bail to the defendant in accordance with the Bail Act 1985—
(a)   for the purpose of assessing the defendant's capacity and prospects for rehabilitation; or
(b)   for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place; or
(c)   for the purpose of assessing the defendant's eligibility for participation in an intervention program; or
(d)   for the purpose of allowing the defendant to participate in an intervention program; or
(e)   for any other purpose the court considers appropriate in the circumstances.
(2)As a general rule, proceedings may not be adjourned under this section (whether by a single adjournment or a series of adjournments) for more than 12 months from the date of the finding of guilt (the usual maximum).
(3)A court may adjourn proceedings for a period exceeding the usual maximum if the defendant is, or will be, participating in an intervention program and the court is satisfied that—
(a)   the defendant has, by participating in, or agreeing to participate in, the intervention program, demonstrated a commitment to addressing the problems out of which his or her offending arose; and
(b)   if the proceedings were not adjourned for such a period—
(i)the defendant would be prevented from completing, or participating in, the intervention program; and
(ii)the defendant's rehabilitation would be prejudiced.
(4)In considering whether to adjourn proceedings for a period exceeding the usual maximum, a court is not bound by the rules of evidence and may (in particular) inform itself on the basis of a written or oral report from a person who may be in a position to provide relevant information.
(5)A person who provides information to the court by way of a written or oral report is liable to be cross-examined on any of the matters contained in the report.
(6)If a statement of fact or opinion in a report is challenged by the prosecutor or the defendant, the court must disregard the fact or opinion unless it is substantiated on oath.
(7)This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment.
Section 19B was introduced into the Criminal Law (Sentencing) Act on 19 December 2005. The section gave statutory effect to the common law practice of “Griffiths remands” or “Griffiths bonds”. The section allows a court to adjourn proceedings after finding a person guilty and to release the defendant on bail before determining sentence. The purpose of the section is to provide the court with the flexibility and discretion to assess a defendant’s prospects for rehabilitation, allow a defendant to demonstrate that rehabilitation has taken place or arrange for a defendant to be assessed for, or undertake, an intervention program.
In turning to consider the appropriate use of section 19B, it is useful to refer to the dictum of Barwick CJ in Griffiths v The Queen.[28] In commenting on the circumstances in which such a remand might properly be used, Barwick CJ observed:[29]
It is a course which must be reserved for proper cases, cases in which the guilty person will accept the delay in the determination of the sentence and submit to the compulsion towards reformation which that delay and the terms of a recognizance may involve: and in which there is a real expectation founded upon solid ground and not on mere sentimentality that such reform is likely to occur. It is a course which one would expect to be taken only by those who have had experience in this field and who have heard and evaluated the convicted person.
[28] Griffiths v The Queen (1977) 137 CLR 293.
[29] Griffiths v The Queen (1977) 137 CLR 293 at 306.
Later, in Tindall,[30] Hunt CJ at CL added:[31]
More importantly, such a remand should only be granted where, in the event that rehabilitation and reform are achieved, it would be appropriate to impose a non-custodial sentence.
[original emphasis]
[30] R v Tindall (1994) 74 A Crim R 275.
[31] R v Tindall (1994) 74 A Crim R 275 at 276.
In McMann,[32] Perry J took the view that Griffiths remands should only be used in exceptional cases where the sentencing judge has considered the possible negative consequences of delaying the sentencing process:[33]
There are a number of problems associated with the Griffiths remand procedure. Not only does the process put a quite extraordinary strain on the defendant, but it could act to his or her detriment if, after the period of the remand, the indications are against successful rehabilitation. In such a case, the court would be justified in imposing a longer non-parole period than might have been imposed if the offender had been sentenced without the remand being granted. Furthermore, I hardly think that it will ever be the case that the conduct of the defendant during the period of any such remand would be a reliable indicator of the prospects of rehabilitation once the sentencing process was completed.
Another factor which counts against the desirability of such a course in most cases is that it inevitably gives rise to the submission that, the defendant having been at large during the period of the remand on bail, it would then be unfair to impose a sentence of imprisonment, however much that might otherwise be indicated at that stage.
Any adjournment of the sentencing process for a substantial period of time, coupled with an order granting bail to the defendant, is apt to encourage the defendant to create, perhaps artificially, situations which might be thought to support a suspended sentence.
Furthermore, if any such procedure is ever contemplated, it would only be proper to permit it on the basis that an independent report is given to the court as to the outcome of the remand, in particular as to the conduct of the defendant during the course of the remand.
…[I]n my opinion, recourse to the Griffiths remand procedure should only ever be countenanced when unusual factors in the case are thought to outweigh the negative features to which I have referred.
[32] R v McMann (1997) 70 SASR 1.
[33] R v McMann (1997) 70 SASR 1 at 9.

Griffiths remands however have been considered an appropriate tool for use in determining whether a defendant can be successfully rehabilitated from drug abuse.[34]
[34] The Queen v Griggs (1999) 95 FCR 490.
Having considered the purpose of section 19B of the Criminal Law (Sentencing) Act and the circumstances in which Griffiths remands have been previously used, in my view it is appropriate in the present case to adopt the procedure prescribed by section 19B.
The appellant had demonstrated that he was able to refrain from offences pertaining to the illegal use of motor vehicles for 13 years. The Magistrate accepted that the appellant’s plea of guilty was entered on the basis that he was being driven home in a state of intoxication when he became aware that the vehicle was stolen. The appellant’s theft appears to be spur-of-the-moment conduct influenced by his intoxicated state. The appellant was not involved in the burning of the vehicle.
The appellant has a young family. He has successfully completed a drug rehabilitation program in the past. He has a problem with alcohol, most of his prior offending having been committed whilst under the influence of alcohol. The appellant has not attended any further rehabilitation programs to address his excessive alcohol and marijuana use.
The appellant is at a crossroads. He is now a mature adult with family responsibilities. He has evidenced a clear desire to attend to his family obligations. He needs help in regard to his alcohol and minor drug addiction. His earlier success in more serious drug rehabilitation suggests that there are prospects for his rehabilitation. There is a real community interest in his being rehabilitated. A section 19B remand will assist that opportunity. If the appellant does not progress with rehabilitation then he will face sentencing for this offence. In the event that he is successfully rehabilitated he is likely to be an appropriate candidate for a suspension of the mandatory term of imprisonment that must be imposed.
The appellant has given his consent for the present proceedings to be adjourned pursuant to and for the purpose of implementing the procedures in section 19B of the Criminal Law (Sentencing) Act.
Conclusion
I make the following orders:
1. Appeal allowed
2. That the Magistrate’s sentence be set aside
3.That the proceedings be adjourned to 20 April 2007 at 2.15pm before Mr Kevin Edgecomb SM or the presiding magistrate at the Port Adelaide Magistrates Court pursuant to section 19B(1) of the Criminal Law (Sentencing) Act (to be reviewed by a magistrate).
4.That the appellant be granted bail pursuant to section 10 of the Bail Act 1985 (SA) to include a condition that he follow the directions of the supervising officer with respect to attending drug and alcohol rehabilitation courses.