R v Clark - [2025] NSWDC 110

District Court

New South Wales

Medium Neutral Citation: R v Clark [2025] NSWDC 110
Hearing dates: 27 March 2025
Date of orders: 27 March 2025
Decision date: 03 April 2025
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
The s 11 application for attendance at Odyssey House is granted, at [91].

Catchwords:
SENTENCING — Application for deferral of sentence under section 11 Crimes (Sentencing Procedure) Act 1999 — Griffiths remand — Reasons for granting application and bail.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Firearms Act 1996 (NSW)

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

Category: Sentence
Parties: Rex (Crown)
Jabour Clark (Offender)
Representation:
Counsel:
B McGhie (Crown)
D Evenden (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission of NSW (Offender)

File Number(s): 2024/00004087; 2024/00000538; 2024/00000543; 2024/00000532
Publication restriction: N/A

JUDGMENT

On 27 March 2025, during the Queanbeyan sittings I made orders for the release of Jabour Clark pursuant to section 8 of the Bail Act 2013 (NSW) and adjourned the sentence proceedings before me until 6 February 2026 pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 in order to enable the offender to enter into the full-time residential rehabilitation program conducted by Odyssey House. The proceedings have been listed for mention only on 29 August 2025 so as to monitor the progress of the offender in the Odyssey House program.
Due to pressing time constraints on the day of the release application I indicated that I proposed to make the orders on that day but would deliver my reasons following my return to Sydney. These are the reasons for those orders.
In the course of this matter coming before the Court for sentence in the Moree sittings in late 2024, the Court was advised on 22 November 2024 that the Crown was awaiting instructions from the Director of Public Prosecutions with respect to an ex-officio count for inclusion in an indictment. Both parties requested that the matter be adjourned back to Sydney and be retained by me as a part-heard matter given that the Crown Sentence Summary bundle had been tendered and read by the Court.
On 13 February 2025 the offender was re-arraigned on a fresh indictment and entered pleas of guilty to all seven counts in that indictment. An adjournment was sought by the defence on the basis that all previous attempts to secure entry of the offender into a full-time rehabilitation program had been unsuccessful. However, Odyssey House…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clark

Details

AGLC: R v Clark [2025] NSWDC 110
Case: [2025] NSWDC 110
Decision Date: 03 April 2025

CaseChat Overview and Summary

The case of R v Clark involved the defendant, Clark, who applied for a deferral of sentence under section 11 of the Crimes (Sentencing Procedure) Act 1999. The nature of the dispute was the defendant's request for a deferral of sentence to attend a rehabilitation program at Odyssey House. The case was heard in the NSW District Court. Clark's application was based on the need for a structured environment to address his drug addiction and related criminal behaviour. The court needed to decide whether the defendant's circumstances justified a deferral of sentence under the provisions of the Act.

The primary legal issue before the court was whether the defendant's application for a deferral of sentence was appropriate given the requirements of section 11 of the Crimes (Sentencing Procedure) Act 1999. The court considered the defendant's history of drug addiction, his compliance with court orders, and the potential benefits of attending the Odyssey House program. The prosecution argued against the application, citing the defendant's previous breaches of bail and the seriousness of the current charges. The court had to balance these considerations against the defendant's expressed willingness to engage in rehabilitation.

The court granted the application for a deferral of sentence, recognising the defendant's commitment to addressing his drug addiction through the Odyssey House program. The judge emphasised the potential for rehabilitation and the defendant's efforts to comply with court orders. The decision was influenced by the defendant's detailed plan for rehabilitation, his expressed remorse, and the support of his family. The court concluded that a structured rehabilitation program could significantly reduce the risk of reoffending. The defendant was ordered to attend Odyssey House as a condition of bail, with specific terms and conditions to ensure compliance.

The final orders of the court included the granting of the defendant's application for a deferral of sentence, with specific directions for attendance at Odyssey House. The court set out clear terms and conditions for the defendant's bail, including regular reporting to the court and participation in the rehabilitation program. The defendant was also required to undergo regular drug testing and comply with any additional conditions imposed by the court. The decision reflects the court's focus on rehabilitation and the potential benefits of structured rehabilitation programs for offenders with drug addiction issues.

Orders

Orders of the court

The s 11 application for attendance at Odyssey House is granted, at [91].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Clark [2025] NSWDC 110
Hearing dates:	27 March 2025
Date of orders:	27 March 2025
Decision date:	03 April 2025
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	The s 11 application for attendance at Odyssey House is granted, at [91].
Catchwords:	SENTENCING — Application for deferral of sentence under section 11 Crimes (Sentencing Procedure) Act 1999 — Griffiths remand — Reasons for granting application and bail.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 Clark (1997) 95 A Crim R 585 Griffiths v The Queen (1977) 137 CLR 293 Jones (unreported, NSWCCA 15 April 1994) R v Farrell [2014] NSWCCA 30 R v Fernando (1992) 76 A Crim R 58 R v Henry (1999) 46 NSWLR 346, R v Hopoi [2014] NSWCCA 263 R v Palu [2002] NSWCCA 381 R v Tindall (1994) 74 A Crim R 275 R v Trindall [2002] NSWCCA 364 R v Tindall & Gunton [1994] 74 A Crim R 275
Category:	Sentence
Parties:	Rex (Crown) Jabour Clark (Offender)
Representation:	Counsel: B McGhie (Crown) D Evenden (Offender) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission of NSW (Offender)
File Number(s):	2024/00004087; 2024/00000538; 2024/00000543; 2024/00000532
Publication restriction:	N/A