R v Farrell

[2014] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Farrell [2014] NSWCCA 30
Hearing dates:	24 February 2014
Decision date:	14 March 2014
Before:	Hoeben CJ at CL at [1] Adams J at [2] R A Hulme J at [3]
Decision:	Crown appeal dismissed
Catchwords:	CRIMINAL LAW - Crown appeal against sentence - s 11 Crimes (Sentencing Procedure) Act 1999 (NSW) adjournment amenable to appeal under s 5D Criminal Appeal Act 1912 (NSW) - failing to impose a sentence where one is demonstrably called for is a manifestly inadequate exercise of sentencing discretion -error in concluding need for surgery supported disposition under s 11 - no benefit in deferring sentencing to enable offender to undertake supervised rehabilitation - sentencing direction miscarried - residual discretion - no practical benefit in allowing appeal - appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v The King [1936] HCA 40; 55 CLR 499 R v Brown [2009] NSWCCA 6; 193 A Crim R 574 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 R v Trindall [2002] NSWCCA 364; 133 A Crim R 119 Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
Category:	Principal judgment
Parties:	Regina (Applicant) Shannon Farrell (Respondent)
Representation:	Counsel: Ms H Wilson SC (Crown) Mr G James QC with Mr P Lange (Respondent) Solicitors: Solicitor for Public Prosecutions Turnbull Lawyers
File Number(s):	2013/36983
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2013-11-21 00:00:00 Before: Hanley SC DCJ File Number(s): 2013/36983

Judgment

1. HOEBEN CJ at CL: I agree with R A Hulme J.

1. ADAMS J: I agree with R A Hulme J.

1. R A HULME J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against a "sentence" imposed upon the respondent on 21 November 2013 by his Honour Judge Hanley SC in the District Court at Campbelltown.

1. The respondent stood for sentence in relation to a charge of Possess Prohibited Weapon contrary to s 7(1) of the Firearms Act 1996 (NSW). Such an offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years. A further four charges under the Firearms Act listed on a Form 1 document were before the court to be taken into account on sentence pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

1. The judge adjourned the proceedings and granted the respondent bail, pursuant to s 11 of the Crimes (Sentencing Procedure) Act. His Honour directed the respondent to appear before the Campbelltown District Court on 14 April 2014 when it is anticipated that a sentence date will be fixed.

1. The sole ground of appeal is that the "sentence" is manifestly inadequate.

1. The definition of "sentence" in s 2 of the Criminal Appeal Act includes an order made by a court under s 11 of the Crimes (Sentencing Procedure) Act. It was confirmed in R v Trindall [2002] NSWCCA 364; 133 A Crim R 119 at [40] that such an order is amenable to an appeal under s 5D.

Facts

1. A statement of facts was included in material tendered by the Crown before the primary judge without objection. It was summarised in the written submissions by Ms Wilson SC who appeared for the Crown in this Court as follows:

"The respondent established and conducted a car audio business, 'Elite Car Audio', from commercial premises at ... Queen Street in Campbelltown. In November 2012, the business was transferred to the management of the respondent's de facto wife, Amanda Leach.

On 31 January 2013 police executed search warrants upon the premises in Queen Street and upon the respondent's home address at ... Minto. ...

A search of the showroom and retail section of the respondent's business revealed nothing of interest. In a workshop located behind the publicly accessible retail section a 'show car' was located. The car had been partially disassembled, and many of the vehicle's interior panels had been removed, and were stored stacked inside the car.

Inside the wall panel of the rear left passenger door of the car, police located a bundle of cloth which was secured with black electrical tape. Underneath the first layer of cloth and tape was a second similar layer of cloth secured with tape. Inside the inner wrapping police located a 9 millimetre Uzi machine pistol, loaded with a magazine which contained fifteen rounds of ammunition. The serial number on the weapon had been defaced and could not be made out. With the pistol was a box containing a further forty rounds of live 9mm ammunition.

The respondent was cautioned and asked about the gun. He asserted that he had no knowledge of it. He said that the car was not his but had been handed over to him when he acquired the business in October 2012. He denied that any DNA that may be found on the weapon could be linked to him.

A closed circuit television surveillance system was operational at the Queen Street premises and investigating police seized footage recorded by it covering the period 23 January 2013 to 1 February 2013.

Footage from 23 January 2013 depicted the respondent in conversation with two men near the show car. The respondent was filmed as he reached inside the car and retrieved a bundle consistent with that concealing the firearm. He took the bundle to a work station accompanied by the men. Some minutes later he was recorded manipulating the bundle, apparently wrapping the cloth. The respondent then returned the cloth bundle to the panel of the rear left passenger door.

The following day the respondent was recorded by the surveillance cameras reaching inside the rear left hand passenger door of the show car, and retrieving an object consistent in appearance with the cloth wrapped firearm. The respondent left the area filmed by the cameras without the object. He returned a short time later with a male person and the two men were filmed as they rummaged through the show car. The respondent left the area a short time later, carrying a bundle similar to that containing the firearm.

Later forensic testing of the Uzi revealed the respondent's fingerprints on the weapon, and DNA consistent with that of the respondent was recovered from a number of areas on the gun and on the box containing the ammunition.

When it was examined by ballistics experts the firearm was found to have been altered to operate in a fully automatic firing mode. It was found to be a 9 millimetre calibre Luger manufactured select-fire sub-machine gun, with its serial number obliterated. The firearm was fully functional, and was capable of firing projectiles in rapid succession upon a single depression of the trigger, at a rate of 1700 rounds per minute. The muzzle velocity was determined to be 345 metres per second, and the effective range one hundred metres. The gun was determined to be a prohibited pistol.

The search of the respondent's home turned up nothing of interest other than the engine of the show car, which was located in the garage.

The respondent did not participate in any interview with police.

The respondent was not authorised to possess any firearm, or ammunition."

The sentence proceedings

1. The respondent was arrested on 6 February 2013 and refused bail. He entered a plea of guilty on 1 July 2013 and was committed for sentence from the Local Court. He appeared in the District Court at Campbelltown on 2 August 2013 when a date for sentence of 10 October 2013 was fixed. On that date the sentence hearing was adjourned on the respondent's application and the matter was listed on 21 November 2013 for sentence.

1. The respondent adhered to his plea of guilty to the primary offence. The Form 1 offences the judge was invited to take into account were:

"Possess ammunition without authorisation, s 65(3) Firearms Act 1996, maximum penalty 50 penalty units ($5500);

Possess unregistered firearm (the Uzi), s 36(1) Firearms Act 1996, maximum penalty 10 years imprisonment;

Not keep pistol safely (the Uzi), s 39(1)(a) Firearms Act 1996, maximum penalty 50 penalty units or 2 years imprisonment, or both; and

Possess firearm with identification defaced (the Uzi), s 66(b) Firearms Act 1996, maximum penalty 5 years imprisonment."

1. The appellant and respondent presented their respective cases which each comprised documentary material supplemented by some oral evidence. The evidence for the appellant included an officer from the Firearms and Organised Crime Squad informing the judge that the respondent was a member of the outlaw motorcycle gang, the Rebels. Nothing, however, was sought to be made of this in submissions (although it must be noted that the Crown's submissions were truncated by the turn of events that I will come to).

1. Brief reference should be made to some of the subjective issues. The respondent had a criminal history that was not insignificant, but it was not lengthy and did not involve any prior full-time custody. His early guilty plea would ordinarily attract a reduction of sentence of 25 per cent. He had been assessed by a psychologist as suffering a number of psychiatric disorders: "Somatic Symptom Disorder, with Predominant Pain, severe", "Major Depressive Episode with Melancholic Features, Recurrent and Severe" and "Substance Use Disorders (various substances) with behavioural dysregulation; (in remission whilst held in a controlled environment)".

1. Two aspects of the respondent's subjective case were of some significance. He suffered serious injuries in a motorcycle accident in September 2011. Injuries to his hands and shoulders were the most severe. He subsequently suffered from chronic pain and came to abuse prescription medication. He also became reliant upon a variety of illicit drugs including crystal methamphetamine and cannabis. The injuries and subsequent drug abuse affected his life in a variety of ways including that he could no longer work in his chosen employment as a gyprocker and he disengaged from family life to the point where his wife was contemplating leaving him. At the time of his arrest he was due to undergo further surgery on his left hand. Admission to hospital for that purpose had been arranged for 12 March 2013.

1. The psychologist's report included that the time in which the respondent had been in custody had been useful in terms of enabling him to commence rehabilitation with regard to his substance abuse problems. However there was controversy about the issue of the necessary surgery to the respondent's hand. The procedure was not carried out on 12 March 2013 as planned. The Crown tendered information to the judge to the effect that the Justice Health and Forensic Mental Health Network were able to arrange for necessary surgery for inmates. It became clear at the hearing of the appeal that there was no material before the sentencing judge as to whether any approach had been made, either by the respondent or on his behalf, to Justice Health to seek to have the surgery arranged. The respondent had told the psychologist that he was fearful of a lengthy delay in undergoing the surgery because he otherwise might suffer a serious permanent disability.

Submissions on sentence

1. The submissions by Mr James QC on behalf of the respondent covered the following topics:

• The seriousness of the offence is certainly "in very much the lower range, much lower than mid-range"

• The Form 1 offences should not have an aggravating effect on sentence

• The respondent is not a "good vehicle for specific or general deterrence"

• There should be a 25 per cent discount for the plea of guilty

• Imprisonment whilst on remand has been "somewhat more onerous"

• No arrangements have been made by Justice Health for the surgery required in relation to the respondent's left hand

1. The submissions culminated with Mr James submitting that there were two possible dispositions - backdating the sentence and setting a non-parole period at the equivalent of the time served or commencing a sentence from the date of the hearing involving a period of supervision into the future. At this point the learned judge interrupted counsel with the following proposition:

"HIS HONOUR: I can deal with him under s 11".

1. His Honour indicated in the course of the ensuing discussion that this would give the respondent an opportunity to have the surgery and also to demonstrate whether he was capable of rehabilitating himself. His Honour added, "but it would also not be a promise that he would not go back to gaol".

1. The solicitor appearing for the Crown had not had an opportunity to make any submissions on the subject but at this point the judge turned to him and said:

"Well Mr Crown I propose to deal with him pursuant to s 11".

1. The solicitor responded by submitting that doing so would involve appellable error. The following ensued:

"HIS HONOUR: You can appeal me then if you want to do that, that's the way I am going to deal with it.

[CROWN]: Does your Honour wish to hear from the Crown at all?

HIS HONOUR: Well I'll hear from you, yes."

1. It was then submitted for the Crown that the offence was not relatively minor as sought to be characterised on the respondent's behalf but that it was one that was objectively grave in that the weapon was a machine-gun pistol capable of discharging 1700 rounds per minute, which was found loaded in an entirely unsecured state and with additional ammunition packed with it. The court was also referred to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act and it was submitted that an order made under s 11 incorrectly gave priority to rehabilitation at the expense of all other purposes of sentencing. The submissions also incorporated reference to the maximum penalty for the offence as a measure of its seriousness.

Reasons for judgment

1. The judge adjourned the proceedings until later in the day when he delivered short reasons before disposing of the matter pursuant to s 11. The first matter his Honour referred to was that Smart AJ observed in R v Trindall [2002] NSWCCA 364; 133 A Crim R 199 at [58], [61] that the provision in s 11(1)(c) may be availed of "for any other purpose the court considers appropriate in the circumstances" and was wide enough to extend to a situation where a court may make an order "to enable recommended and important surgery to take place". Smart AJ also referred to the more usual situation where an order is made to allow for an offender to pursue and demonstrate rehabilitation in order that that may be assessed when sentence is ultimately determined.

1. The balance of his Honour's reasoning was as follows:

"I am satisfied that the material before me is that important surgery should take place and part of the granting of the Griffith Remand under s 11 is pursuant to subs(1)(c) of the Act to allow the surgery on the offender's hand to take place. I note that there is evidence before me that suggests that if it is not done at some stage in the near future the damage could be permanent and debilitating to him.

Additionally I also have material before me that suggests that it would be appropriate to give him the opportunity to undertake further supervised rehabilitation outside of that available in the correctional services. It has been my experience, particularly since my very short time on the Bench that there is little or no availability of drug rehabilitation programs in custody prior to sentencing. There [are] no appropriate programs for people on remand when one would think this is the most appropriate time for them to be available. Those people suffer an unfair disadvantage to those who have been granted bail and on remand who can undertake rehabilitation and therefore present a far more favourable picture to the Court in sentencing.

The circumstances of the history of Mr Farrell's difficulty with injuries [have] caused a turning by him to excessive use of prescribed medications as well as illegal drugs. In view of the evidence and extensive reports of Dr Woods I propose to rely on that aspect of granting a Griffith Remand as an additional factor."

1. Finally the judge indicated that the respondent should not have any "raised expectations" as to what may be the final sentence that would be imposed. In that context he mentioned his view that the offence was "a serious one".

1. The conditions of bail granted pursuant to s 11 included that the respondent report once a week to police; reside at a nominated address; not associate with anyone belonging to an illegal motorcycle gang; make all feasible arrangements to undergo the surgery; submit to the assessment and supervision of the Probation and Parole Service; and submit to assessment and treatment by the author of the psychological report in respect of mental conditions and for drug rehabilitation.

Material tendered by the respondent on the hearing of the appeal

1. An affidavit affirmed by the respondent's solicitor was read. It included that the surgery had been carried out on 3 February 2014. A letter under the hand of Associate Professor Gumley confirmed this and indicates that the surgery was thought to have been successful but that was something that would need to be assessed through a lengthy healing process. Also tendered was a short report by the psychologist who had confirmed that the respondent had been making progress in terms of drug rehabilitation, rebuilding his familial relationships and avoiding contact with outlaw motorcycle gang associates.

1. The Crown read an affidavit in which it was indicated that there had been an administrative breakdown within the Probation and Parole Service, not through any fault of the respondent, but that arrangements for assessment and supervision had recently been instituted.

Crown submissions

1. Senior counsel for the Crown submitted that the judge had failed to make any assessment of the objective gravity of the offence. Reliance was placed upon R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [38] where Howie J, with the concurrence of Levine and Hidden JJ, said:

"In my opinion the submission that it was unnecessary for his Honour to make findings of facts before making an order under s 11 should be emphatically rejected. How can a court know whether an order adjourning the matter under [s 11] is necessary unless the court knows the objective seriousness of the offence for which the offender is to be sentenced?"

1. It was submitted that there was a basis to infer from various statements made by the sentencing judge during bench and bar exchanges that he appeared to accept the submission of the respondent's counsel as to the offence being at a low level of objective seriousness and that it may well be the case that the time the respondent had served on remand would suffice. I would reject this submission immediately. What was said by his Honour could not be taken as an expression of a concluded view. His comments were more in the nature of being "off the cuff" without having taken the time to reflect and fully consider the seriousness of the offence.

1. It was the Crown's submission that the objective seriousness was such that a sentence with a non-parole period in excess of ten months was clearly called for. This was particularly so given the "frighteningly lethal weapon" the respondent possessed, which was loaded and for which he had additional ammunition. Reference was also made to the respondent being drug affected and having impaired judgment throughout the period of his possession of the item. General and specific deterrence were required to be factored into the assessment of sentence and regard had to the statutory guideposts of the maximum penalty of 14 years and the standard non-parole period of 3 years. Reliance in this regard was placed upon Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 where the seriousness of a similar offence and factors relevant to the assessment of sentence were discussed in the judgment of Johnson J.

1. It was submitted that it was not necessary for the sentencing of the respondent to be deferred so as to ascertain what his response might be to rehabilitation so as to enable a more informed assessment of this aspect in the ultimate sentencing exercise. There was sufficient evidence before the court for this assessment to be made. For example, the psychologist's evidence was to the effect that the respondent had made substantial progress in relation to his drug addiction, managing his pain and adopting a healthy lifestyle since being in custody. His earlier history demonstrated a capacity to rehabilitate as well.

1. A further issue raised by the Crown was the judge relying upon his personal experience about the availability of rehabilitation programs for inmates on remand. Questions were raised about the reliability and accuracy of his Honour's experience when compared to the respondent's actual conditions in custody and it was also contended to have been unfair for his Honour not to raise this issue prior to giving judgment so as to afford the parties an opportunity to address it.

1. This issue may be immediately put aside. There was an opportunity for the Crown in this Court to establish that what his Honour said was incorrect. The Crown did not seek to do so and I infer that this was because it could not. Moreover, in my own experience, concerns being raised about the inability of remand inmates accessing rehabilitation programs are not novel. (The extent to which such concerns are soundly based I do not know.) There is, however, some force in the submission that it would have been better for his Honour to have ventilated the matter in order to give the parties an opportunity to address on it if they had wished. There is also some force in the suggestion that if rehabilitation programs are more readily available to sentenced prisoners, then there was less reason to defer sentencing.

1. Another aspect of the Crown's complaint was that deferral of sentencing so as to facilitate the respondent undergoing the surgery to his hand was unnecessary. There was material before the judge to the effect that necessary surgery would be arranged by Justice Health. The finding of the judge that the respondent's need for surgery supported disposition under s 11 was simply one that was not open to be made.

1. Finally, the Crown submitted that delay in sentencing the respondent was not called for. All the information that was required for there to be a proper assessment of sentence was already before the Court. The respondent had made some progress in terms of rehabilitation and there was material to enable an evaluation of his future prospects in that respect and there was no need for the respondent to be at liberty for him to undergo surgery.

1. The Crown contended that this Court would not exercise its residual discretion but would intervene on the basis that an injustice has been done. It was submitted that the Court should quash the s 11 order and remit the matter to be re-listed before Hanley DCJ at the earliest opportunity. The matter is presently listed to come back before his Honour on 14 April 2014 but that is only for mention in order to fix a date for the continuation of the sentence proceedings. It was submitted that there was utility in bringing the matter on for resolution at a much earlier time.

Respondent's submissions

1. It was submitted that it was inapt for the Crown to appeal on a ground asserting manifest inadequacy when no sentence has been passed at all. That submission may be rejected immediately. Failing to impose a sentence if it is demonstrably obvious that a sentence was called for is clearly a manifestly inadequate exercise of the sentencing discretion.

1. It was observed that no indication has been given by the judge as to what the ultimate sentence might be. Reference was made to his Honour informing the respondent that he should not have any "raised expectations" as to the final sentence.

1. It was also submitted that an appeal such as this simply serves to fragment the sentencing process. No more needs to be said about that submission apart from observing that the process has already been fragmented by the recourse to s 11. The appeal has not served to provide any further interruption or delay.

1. Counsel for the respondent asserted that it is the judgment that must be construed and this Court should not seek to draw conclusions from anything that his Honour said during the course of the submissions on sentence. I accept that submission.

1. It was asserted that the judgment is "unimpeachable" and no error can be discerned in a House v The King sense (House v The King [1936] HCA 40; 55 CLR 499). His Honour demonstrated an awareness of relevant principles concerning s 11 by his reference to authority on the subject.

1. There could have been no doubt as to the nature and seriousness of the respondent's offending conduct. The matter proceeded by way of agreed facts so there was no dispute calling for his Honour's resolution. His remark that the offence was "a serious one" demonstrated his awareness of the objective seriousness of the offence.

1. The need for surgery was said to be a proper basis, in part, for the s 11 adjournment. There was nothing said in Trindall about surgery not being available in the custodial environment. The utility of the s 11 adjournment had been vindicated in the sense that the surgery had been carried out.

1. It was asserted that at the time the matter was before Hanley DCJ, "the respondent had not been permitted to undergo the surgery". That submission should be rejected. There was no evidence that the surgery had not been "permitted". In fact, there was no evidence that the respondent had done anything to draw to the attention of Justice Health any need for surgery. He bore the onus of proof of persuading the judge that this was a relevant matter to be taken account in his favour.

1. As to the other basis for the judge's decision to defer sentencing, it was submitted that "affording an offender an opportunity to demonstrate his ability to rehabilitate himself is a classical reason for deferring the imposition of sentence".

1. It was submitted that even if a sentence that would involve a longer non-parole period than the time already spent on remand was called for, that was not a bar to a judge deferring sentence under s 11. Reliance in this respect was placed upon R v Brown [2009] NSWCCA 6; 193 A Crim R 574 at 577-8 [22] (James J) and R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 at 53 [22] (Tobias JA) and 80 [160] (Rothman J).

1. Finally it was submitted that the appeal should be dismissed at least in the exercise of the Court's residual discretion. The sentence proceedings were due to come back before the judge in the relatively near future. Bringing the date forward by a small margin would simply amount to "tinkering".

Principles

1. Principles relating to Crown appeals against sentence are well-established and do not requirement restatement: see, for example, Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462.

1. As to s 11, it is in the following terms:

11 Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes

(1) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date, and granting bail to the offender in accordance with the Bail Act 1978:

(a) for the purpose of assessing the offender's capacity and prospects for rehabilitation, or

(b) for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or

(b1) for the purpose of assessing the offender's capacity and prospects for participation in an intervention program,

or

(b2) for the purpose of allowing the offender to participate in an intervention program, or

(c) for any other purpose the court considers appropriate in the circumstances.

(2) The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the finding of guilt.

(2A) An order referred to in subsection (1) (b2) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

Note. Section 36A of the Bail Act 1978 enables a court to grant bail to a person on either or both of the following conditions:

(a) that the person enter into an agreement to subject himself or herself to an assessment of the person's capacity and prospects for participation in an intervention program or other program for treatment or rehabilitation,

(b) that the person enter into an agreement to:

(i) participate in an intervention program and to comply with any intervention plan arising out of the program, or

(ii) participate in any other program for treatment or rehabilitation.

(3) 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.

(4) Subsection (1) (b1) and (b2) do not limit the kinds of purposes for which an order may be made under subsection (1), so that an order may be made under that subsection for the purpose of allowing an offender to participate in a program for treatment or rehabilitation that is not an intervention program, or to be assessed for participation in such a program.

1. It would appear (I say that because it was not explicitly stated) that the judge had in mind the provisions of s 11(1)(a) and (c) in determining to order the s 11 remand.

1. In Trindall, supra, Smart AJ referred to the rehabilitation issue in a s 11 remand:

[60] Often a Court experiences difficulty when sentencing an offender in determining the offender's prospects of rehabilitation and whether the foreshadowed rehabilitation will occur. In many instances it will be of great assistance to the sentencing judge if there is an adjournment to enable the offender to demonstrate that rehabilitation has taken place or is well on the way.

1. However, his Honour later added:

[64] The granting of a Griffiths [i.e. a s 11] remand 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.

1. I referred earlier to what was said by Howie J in Palu about the need for there to be some assessment of the objective gravity of the offence before consideration can properly be given to making an order under s 11. I have referred to the judge having commented that the offence was "a serious one". But it does not appear that he had formed any concluded view of just how serious it was. In saying that the respondent should not have any "raised expectations of what maybe the final sentence", his Honour immediately added:

"That will be a sentence determined by me in accordance with an assessment of the offence which is a serious one and all the other factors that will be taken into account including what you do in the meantime." (Emphasis added)

1. Howie J also spoke in Palu of a concern about delaying sentencing proceedings:

[30] The exercise of the power given under s 11 will inevitably result in delay in the finalisation of the prosecution of the offender. On many occasions, as in the present case, that delay will be substantial. Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. ... Delay unavoidably results in unfairness: unnecessary delay results in injustice. Steps have been taken throughout the criminal justice process to eliminate unnecessary delay wherever possible. Unless delay in the sentencing of the offender is essential in order to ensure a just result, the court has failed in its duty both to the offender and the community. (Emphasis added)

1. It was held in Palu that the sentencing judge had all the information before him that he needed in order to determine an appropriate sentence to imposed upon the respondent. The appeal was upheld and the matter remitted for re-listing at the earliest opportunity.

1. One of the concerns ventilated by the Crown on this appeal was that by making an order under s 11 the judge must have it in mind that a sentence will be imposed that will not involve any further incarceration. I am not satisfied that this is so. I have mentioned what the judge said about the offender not holding out any false hope and he has referred to the offence as being "a serious one". Further, a s 11 remand is not confined to cases where something other than a full-time custodial sentence is contemplated by a sentencing judge if rehabilitation is successful: Trindall at [64] (Smart AJ); R v Brown, supra, at [22] (James J).

1. R v Rayment, supra, involved the first judgment being written by Johnson J in which his Honour held that a sentencing judge's discretion had miscarried by ordering a s 11 remand. The respondent in that case had pleaded guilty to two very serious crimes of considerable violence. By the time of sentence he had, as part of his bail conditions, completed a 12-month drug rehabilitation program and was about to embark on a training program to act as a mentor in that program. There was some issue about whether the judge had ordered the remand pursuant to s 11(1)(a) "for the purpose of assessing the offender's capacity and prospects for rehabilitation" or pursuant to s 11(1)(b) "for the purpose of allowing the offender to demonstrate that rehabilitation has taken place". Nothing turns on that for present purposes.

1. Johnson J favoured upholding the Crown appeal on the basis that further delay was not called for and that the matter should have proceeded to the imposition of final sentences. Rothman J was of the view that the sentencing discretion had not miscarried. Tobias JA, with the casting vote as it were, agreed with Rothman J that the appeal should be dismissed.

1. One unifying aspect of the three judgments, notwithstanding the dissent of Johnson J, is the unanimity to the effect that the exercise of the discretion to make an order under s 11 was appropriate where an adjournment would "be of assistance to [the judge] in determining the appropriate sentence to impose": Tobias JA at [18], [25]. Rothman J put it in these terms:

[159] ... But s 11 of the Act is intended to aid in the final determination of an appropriate sentence, which reflects the intuitive synthesis of those conflicting goals. The fundamental issue posed by an exercise of the discretion in s 11 is whether the adjournment of the imposition of the final sentence to be imposed, assuming satisfaction of the jurisdictional preconditions, assists in the proper determination of that final sentence. (Emphasis added)

1. Johnson J adopted the same reasoning in dealing with facts of the case:

[114] ... Any adjournment of the hearing by way of s 11 order could not bear properly upon the form of sentence which the law required to be passed in this case. Nor, in my view, could the proper exercise of sentencing discretion involve the setting of the length of the non-parole period being affected by such additional steps which the respondent may take between [the date of the adjournment and the scheduled resumption of the hearing].

1. Their Honours were expressing themselves consistently with what had been said by Smart AJ in Trindall at [60] and [64] which I have extracted above. This is also consistent with what had been said by Howie J in Palu.

1. The rationale of deferring sentence in order to gain assistance in the proper formulation of the appropriate sentence must be understood as bearing upon the exercise of the discretion afforded by s 11 in the relation to the question of rehabilitation (s 11(1)(a) and (b)). Smart AJ gave examples in Trindall of situations in which s 11(1)(c) might apply: where there is a "significant risk of suicide if the offender remained in custody, for example, arising from severe depression" (at [58]) and "to enable recommended and important surgery to take place" (at [61]). Such matters would not necessarily require deferral to enable a proper determination of the final sentence.

Determination

1. In some of the cases there is discussion of what the ultimate sentence might be; a non-custodial sentence if an offender's progress towards rehabilitation is successful or an inevitable full-time custodial sentence with the length of it, and/or the non-parole component, being assessed in the light of such progress. In this case, as I have observed, the judge has given no clear indication of what he contemplated was the possible final outcome. (I do not suggest that this is necessarily required before disposition under s 11.) Moreover, aside from the remark about the offence being "a serious one" he has given no indication of just how serious it was.

1. Relevant matters to take into account in an assessment of the objective seriousness of the offence will include the nature of the weapon; the circumstances attending the respondent's possession of it; the fact that it was loaded and its identification information had been defaced; and that further ammunition was found with it. Obviously relevant as well is the seriousness with which Parliament has indicated that such offences are, given the prescription of a 14 year maximum penalty and a 3 year standard non-parole period.

1. I deliberately refrain from saying anything about the gravity of the respondent's offence or about what sentence might be imposed upon the final hearing. These are matters that do not fall to this Court to determine and remain in the purview of the District Court. Nothing in this judgment should be interpreted as indicating what the final sentence should be. It will be necessary for the primary judge to determine these matters.

1. I am persuaded that his Honour was wrong to have concluded that deferral of sentence and granting the respondent bail was necessary to enable the surgery to be performed. All that that was before the court was that (a) the surgery had not been carried out and (b) that Justice Health would attend to arranging any necessary surgery for an inmate. The only conclusion available upon that material was that no-one, the respondent or anyone on his behalf, had asked Justice Health to take steps to arrange the surgery. It fell to the respondent to establish otherwise and he has not sought to do so, either in the District Court or this Court. The implicit suggestion in the submissions of Mr James QC of reversing the onus should be rejected.

1. I accept the submissions for the Crown that there was no real benefit in deferring sentencing to enable the respondent "to undertake further supervised rehabilitation outside of that available in the correctional services" (ROS 2). There was ample evidence before the District Court last November to enable an informed assessment of the respondent's rehabilitation prospects. Indeed, the sentencing judge did not suggest that monitoring the respondent's progress with respect to rehabilitation was necessary to enable him to determine the appropriate sentence to impose.

1. The sentencing discretion clearly miscarried in this case. With unfeigned respect, it appears that the judge too hastily arrived at a conclusion before giving measured consideration to the level of gravity of the respondent's crime (and the additional offences he asked to be taken into account); failed to properly assess the evidence relating to the surgery aspect; and overlooked the principles relating to s 11 disposition that I have referred to above.

The residual discretion

1. Error having been established, it remains open to the Court to refrain from intervention in the exercise of its discretion. In this case, practical considerations arise. The order in question was made on 21 November 2013. The Crown's notice of appeal was filed and served promptly. Unfortunately, the listing of the hearing had to be deferred for longer than would ordinarily have been the case because of the Court's summer listing arrangements. This judgment will be handed down in March 2014. The matter is due to come back before Hanley DCJ on 14 April 2014. There is simply nothing practical to be achieved by making the orders the Crown seeks; that is, it seems inconceivable that the final determination of the sentence proceedings will occur at any time appreciably earlier than presently scheduled.

1. It is only for the foregoing reason that I propose that the Crown appeal be dismissed.

Proposed order

1. I propose the following order:

Crown appeal dismissed.

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Decision last updated: 14 March 2014