R v Griffin

[2015] NSWDC 304

District Court

New South Wales

Medium Neutral Citation:	R v GRIFFIN [2015] NSWDC 304
Hearing dates:	12/06/2015
Decision date:	15 June 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Term of imprisonment of 2 years suspended on the offender enter into a good behaviour bond for the period of 2 years.
Catchwords:	Criminal – Sentence, attempted robbery in company, young offender, mental illness or disability.
Legislation Cited:	Crimes Act 1900
Cases Cited:	Attorney General’s Application No 1 (2002) 56 NSWLR 147 BP v R [2010] NSWCCA 159 Barbaro v The Queen [2014] HCA 2 DPP v De La Rosa [2010] NSWCCA 194 R v KT [2008] NSWCCA 51 R v Lattouf (unrep, 1996 NSWCCA) R v Blackman and Walters [2001] NSWCCA 121 R v Henry & Ors (1999) NSWCCA 111 R v Thomson and Houlton [2000] NSWCCA 309 Yardley v Betts (1979) 22 SASR 108 R v Zamagias [2002] NSWCCA 17
Category:	Sentence
Parties:	Director of Public Prosecutions Nathan Terence Griffin - offender
Representation:	Counsel: Director of Public Prosecutions Mr S Bouveng – Offender
File Number(s):	2014/167210 and 356692

SENTENCE

1. HIS HONOUR: Nathan Terence Griffin appears today for sentence in relation to an offence committed contrary to s 97(1) Crimes Act 1900. This is an offence of attempted robbery in company which carries a maximum penalty of twenty years’ imprisonment, but has no standard non-parole period. I am required to take into account on a Form 1 an offence of intentional damage to property in company, contrary to s 195(1A) Crimes Act, the details of which I will refer to shortly in a moment.

2. The plea of guilty entered by the prisoner to the offence for which he is for sentence today was entered at the first reasonable opportunity, it is agreed between the parties, and thus he is entitled to a discount of 25% upon the otherwise appropriate sentence, to recognise the utilitarian value of the plea of guilty in accordance with the guideline judgment of Thomson & Houlton.

3. The matter on the Form 1 is to be taken into account in accordance with those principles set out in the guideline judgment in relation to Form 1 matters from 2002, that is, Attorney General’s Application No 1 (2002) 56 NSWLR 147, particularly in the judgment of the Chief Justice at [18] - [43]. There his Honour talked about the need in the appropriate case, when taking into account a matter or matters on Form 1, to give greater weight to personal deterrence and the community’s entitlement to extract retribution. It may be that the entire point of the process is to impose a longer sentence than would otherwise be appropriate for the principal offence if it had stood alone, or alter the character of the appropriate sentence for the principal offence.

4. The sentencing process is, of course, only concerned with what is described in the Act as the “principal offence”, not to determine an appropriate sentence for matters listed on a Form 1. It is the case, however, in this particular matter, having regard to the contextual circumstances of the offending and the character of the offending on the Form 1, that greater weight upon personal deterrence is not required in this sentencing exercise.

5. Before I turn to the facts of the matter, the sentence matter came before me last Friday when I was involved in assisting the list judge with sentence matters that were listed for hearing on that day. I had originally started a ‘common law’ sentencing matter which could not continue and then the learned Crown Prosecutor in this matter appeared in my court. Ultimately, I took another matter of hers to save her having to go back to the list judge.

6. I was not able to sentence the offender on Friday afternoon, the matter was interrupted by other work that I had which was part heard, but the conduct of the matter, both in the production of the evidence and in the discussion of the relevant issues to be considered in the sentencing exercise with which I am concerned, led me to the conclusion that this was a case in which, notwithstanding the significance of the guideline judgment in the decision of R v Henry & Ors (1999) NSWCCA 111 the prisoner should be given a good behaviour bond. There were a number of relevant issues that fashioned the ultimate determination of the matter.

7. I should point out, as the transcript of the proceedings on Friday would reveal, truncated as they were by interruptions and the like, the Crown was very concerned about the character of the material that had been produced by the defence, particularly the reliance upon some historical diagnosis of the young offender. The Crown’s concerns were quite proper. But ultimately the matter was resolved in a very common sense way by the Crown ultimately speaking to a treating doctor of the prisoner who had apparently provided a great deal of information to the psychiatrist whose reports were produced to the Court, setting out some of the mental disabilities suffered by the prisoner.

8. The effect of all of that material was to invoke consideration of what is set out in a number of judgments of the Court of Criminal Appeal, but probably most eloquently in the judgment of McClellan J in DPP v De La Rosa [2010] NSWCCA 194. That was an appeal brought by the Commonwealth Director of Public Prosecutions and involved consideration of a number of significant issues, both constitutional and otherwise, related to the sentencing of Commonwealth offenders.

9. The learned Chief Judge at Common Law in the judgment he gave, amongst a number of judgments given in that case, reflected upon the relevance of mental illness, intellectual handicap or other mental problems which the Courts have developed principles to apply in sentencing, citing a number of judgments well known to practitioners of the criminal law and summarising their effect. His Honour stated at [177] - [178]:

“Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in sentence”.

10. He also said:

“It may also have the consequence that the offender is an inappropriate vehicle for general deterrence, resulting in a reduction of the sentence which otherwise would be imposed. It may mean also that a custodial sentence will weigh more heavily on that person. It may reduce or eliminate the significance of special or specific deterrence. However, conversely, it may be that because of the person’s mental illness or disability, they present more of a danger to the community.”

11. In those circumstances, considerations of specific deterrence may result in an increased sentence, as was the case, for example, in Robert Vincent Veen’s matter, determined by the High Court in 1988.

12. His Honour said at [178]:

“I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity, it may nevertheless be appropriate to moderate the need for general or specific deterrence”.

13. In this particular matter, it is clear in my mind, having regard to the detail of Dr Cassimatis’ reports, which I will summarise shortly, but particularly the history available from the prisoner’s “advocate” who works for Action for People with Disabilities, that the prisoner has suffered from a number of significant mental disorders and disabilities over a long period of time that have very much fashioned his life. The material available to me establishes, at least on balance, that the prisoner suffers from disabilities which make him amenable to manipulation and influence, even from people who are younger than he.

14. It is apparent on the evidence available in this matter that although the prisoner was the eldest, as I understand it, of the offenders who were involved in the primary offence to which the prisoner has pleaded guilty, and whilst it is apparent on the facts that at one point that the group of offenders were travelling in the prisoner’s motor vehicle, it was not the prisoner who could be regarded as the primary mover of relevant events. It is the case that the prisoner’s conditions had let him into the situation where he felt a need to associate with people and go along with what they may suggest, in order to maintain some recognition or respect from the peer group that he had adopted at that particular time.

15. Thus, in the circumstances of this matter, I am satisfied that in respect of those five matters identified by the learned Chief Judge at Common Law, the first four have relevance in this sentencing exercise. The conditions of the prisoner, however, do not present the prisoner as a danger to the community thus requiring greater weight to be given to specific deterrence.

16. Another aspect of the matter requiring consideration is in the context of the relevance of the guideline judgment, as has been advocated by the learned Crown Prosecutor and recognised in the written submissions of counsel for the prisoner, is the need to give full effect to individualised justice.

17. Subsequent to Henry, of course, authorities of the Court of Criminal Appeal have reflected upon the fact that the guideline judgment was precisely that, it was a guideline, not a tram line. It is often forgotten, however, that the learned Chief Justice who gave the primary judgment in Henry also reflected upon the need for ‘individualised justice’, notwithstanding the decision of the Court of Criminal Appeal to effect a guideline for offences of “armed robbery”, having regard to the criteria or common features of armed robberies dealt with in the District Court, for example set out at [162] of the judgment.

18. His Honour adopted with approval what had been said by Mahoney ACJ in the decision of Lattouf, an unreported decision of the Court of Criminal Appeal. In that judgment, the Acting Chief Justice had said,

“General principles must of their nature be adjusted to the individual case if justice is to be achieved. For this reason it is my opinion important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge. There is a public interest in the adoption and articulation of sentencing principles that will deter the commission of serious crime and punish those who commit it...but there are other interests to which the sentencing process must have regard, these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case”.

19. This leads me to another matter of high principle that has been reflected in a number of judgments of the Court of Criminal Appeal over a number of years. In the decision of R v Blackman and Walters [2001] NSWCCA 121, the then Chief Judge at Common Law Wood J, in an early decision reflecting upon the appropriateness of suspended sentences for serious crime in that matter. Although I draw no comparison with this matter. There were crimes far more serious in those proceedings than the matter with which I am concerned where the learned sentencing judge at first instance had ordered suspended sentences. His Honour reflected upon principles that have been laid down in previous authorities concerning the sentencing of young offenders.

20. One such judgment was Yardley v Betts (1979) 22 SASR 108, particularly at 112-3 in the judgment of King CJ. There the learned Chief Justice had said with the approval later of Wood J:

“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order (sic) to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm.”

21. In this matter the other significant, if I might call it, contextual legal issue to consider is the issue of orders that have been made in relation to co-offenders. In that regard, I note that two of the co-offenders, including a person who as I understand the facts presented to me took some responsibility for providing some leadership in relation to the commission of the offence, are still awaiting sentence or determination by adult courts. However, three of the offenders were young offenders who were dealt with at various times in the Children’s Court throughout 2014. Their names are not important but it is noted that each of them received probation orders without conviction for varying lengths of time between 12 months and nine months.

22. I am mindful of the fact, of course, that they were dealt with under a different sentencing regime than that with which we are concerned at the moment and were thus amenable to a jurisdictional maximum penalty far less than that provided for in this matter. That having been said, of course, there is a great deal of authority that speaks of the need for courts in sentencing offenders not to completely ignore the fact that other offenders have been treated in a particular way even if dealt with, for example, in the Children’s Court where they would be subject to lesser penalties than would be the case if they had appeared in the District Court.

23. One authority I cite in that regard includes KT [2008] NSWCCA 51 [22]-[26]. This issue was also discussed in other authorities dealing with the approach of sentencing of children committing adult crimes such as HJ and MS2, decisions of the Court of Criminal Appeal.

24. What I understand of the medical evidence relating to this particular prisoner reflects the fact that, although he was born in 1993 and thus at the time of the commission of the offence with which I am concerned was 20 years of age, by reason of the various conditions described by Dr Cassimatis he could not be regarded as a mature person for that age. Maturity is a significant matter and it is not confined in its consideration to people that are to be treated as children. This much was discussed by Hodgson JA in the decision of BP [2010] NSWCCA 159. Hodgson JA at [4]-[5] noted that maturity was not something that it was to be identified as falling definitely one side of the age of majority and that it is important to remember that in dealing with young people that: “Emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until early to mid-twenties”. Of course, in this particular matter, that reflection is not the reflection upon a person without burdens to bear in relation to his mental state, but relating to a young person who has significant burdens to bear which he has had to bear for a lengthy period of time.

25. The facts involve an attempted robbery without any real preplanning beyond the fact that a number of the offenders armed themselves with knives, committed upon a man working alone and going about his business at a bakehouse at Collaroy Plateau. The victim was confronted by a number of young offenders as he was having a cigarette as I understand it and heard a noise within the premises. The young offenders were variously described as being between 15 and 17 or 18 years of age. Amongst these offenders was, of course, the prisoner who must have presented as younger than his stated years. The four men or young men that confronted the victim called out for money at which time the victim had the presence of mind to pick up a tray and held the tray above his head and yelled out, “I’ll fucking kill you” at which the males turned around and ran from the premises with the victim giving chase.

26. It is quite clear as an aggravating factor in this matter that the victim was a vulnerable person in that he was alone at the time confronted by a number of young men with a poorly thought out plan to obtain money in circumstances where it is quite clear they had neither the determination, nor the wherewithal to carry out their threats, This is consistent with what one of the co-accused explained to police in a lengthy interview that, whilst they armed themselves with the knives, they had no intention of causing harm with them. That having been said, as with any armed robbery, the threat of violence to the victim must have caused the victim considerable distress. I do not have a victim impact statement but I would assume that he was affected by this. People working alone at night have a real reason to be concerned for their welfare at the best of times and have their security compromised as this victim’s security was compromised obviously would have long term effects upon that person.

27. I have had regard to the detail of the interview given by the co-accused. The prisoner himself was apparently identified as a suspect. There was an operation undertaken to obtain evidence surreptitiously which included what as I understand it was an admission made by the prisoner to another person. The prisoner was arrested on 4 June 2014. As I understand the matter, he spent no time in custody.

28. Three days after the commission of the offence, which I have described as the principal offence, the prisoner on 27 February for no reason that provides any form of explanation, in company with other people smashed the window of a hairdressing salon in Balgowlah. This was just a wanton act of vandalism. There is no suggestion the prisoner and the co-offenders were seeking to obtain money and why they set about doing what they did is not fully explained beyond as I have earlier pointed out a level of maturity at least reposing in this particular prisoner.

29. I have a presentence report which reflects upon the background of the prisoner. He lives with his family but without going into the detail of it, it would appear both his mother and father suffer from significant mental illnesses or disorders. The prisoner has had a history of disrupted education, primarily arising from him being bullied at school apparently since early childhood and has changed high schools on at least two or three occasions.

30. He has had other traumatic events referred to in various histories, including what apparently was a serious assault committed upon him by his brother and a significant motor vehicle accident in 2013 when he was an apprentice motor mechanic which cost him his employment because of his inability to continue the apprenticeship. He currently has employment working on a casual basis he said in his evidence before me for 32 hours a week, earning what I would take to be for his age a considerable amount of money. He is undertaking a horticultural course at TAFE.

31. He has a background of drug and alcohol abuse and that includes regular use of cannabis. It would appear that cannabis use or drug use and alcohol use is relevant to understanding the context in which he and his co-offenders committed the offence with which I am concerned, that is the principle offence. In that regard what Wood J said in the judgment of Henry, to which I earlier referred, at [273]. Particularly reflecting upon the impulsiveness of offending, the circumstances of assessing the progress of the rehabilitation of the prisoner, are of particular pertinence.

32. What has emerged from the report from the Community Corrections Service and from the evidence of the prisoner is that after a number of false steps since his arrest in relation to this matter, the prisoner has turned his life around considerably. Apart from obtaining the employment to which I have referred, the prisoner has been drug free for quite a number of months and has now a far more settled situation. Firstly, there has been the effect upon him of the curfew that was part of his bail conditions. Secondly, there has been his involvement in surf lifesaving, the fact he is working, the fact he apparently is in a stable relationship at the moment and most importantly the fact he is now taking his medication, which he was not taking regularly in February 2014. This was medication that he had been required to take for many years before.

21. He is involved in study endeavouring to better himself and obtain qualifications and also not associating with members of his peer group, who are the subject of various comments in the advocate’s extensive letter to the Court. The evidence reveals that after his commission of the offences with which I am concerned, but before his arrest on 4 June, the prisoner established a therapeutic relationship with a psychiatrist and has an ongoing relationship with a psychologist. Each of whom have been able to stabilise the condition of the prisoner, particularly by ensuring that the prisoner maintains his regime of medication.

22. The prisoner, when he was six years old, was diagnosed with epilepsy and he has in the past been under the care of a paediatrician, Dr Duffy, the doctor who spoke to the learned Crown Prosecutor after being contacted by counsel for the prisoner during the course of proceedings on Friday. The prisoner has been diagnosed as a child with Attention Deficit Hyperactivity Disorder (ADHD) and also Autism Spectrum Disorder. There was reference to the prisoner suffering from post-traumatic stress disorder but my reading of the report revealed that to be an “acute” condition, as I understand it, either in reaction to or as a consequence of the assault committed upon him or the motor vehicle accident in which he was involved and in which he was lucky to survive.

23. He has since his arrest in relation to this matter been admitted to Manly Hospital when suffering symptoms of depression and feeling suicidal. However, there is, as I said, a stabilisation of his circumstances, particularly with his taking of medication Concerta and Epilim for his epilepsy. Concerta, as I understand it, is a drug designed to quell the symptoms of his ADHD in the manner that Ritalin would be expected to do.

24. Dr Cassimatis, as I said, prepared two reports, one dated 29 May 2014 obviously prepared before he was arrested in relation to the current matters, the other more pertinent to these proceedings in a direct sense being dated 10 March 2015. Of course the significance of a report prepared before he was arrested in relation to these matters is that it shows conditions of the prisoner existing that have not been fashioned to meet the exigencies of forensic difficulties. In other words, the prisoner does suffer from genuine conditions that have not been reflected upon after the prisoner has been charged with serious criminal offences as often happens with reports provided to this Court. His ADHD I hasten to say gives effect to various symptoms. These include impulsivity, inattention to detail and other conduct activities which are reflected in his participation in the current offence.

25. He is a person who is said to be, by Dr Cassimatis, amenable to medical treatment and particularly medication. He notes in the most recent report that there was at one point some suggestion the prisoner might also suffer from schizophrenia. He had a very bad reaction, as a lot of people did, to the Lindt Cafe siege although of course he had nothing to do with that but it is not believed that he suffers from schizophrenia. On reflection, throughout late 2014 and 2015 there have been improvements in his sleeping and his willingness to obey directions from his psychologist and his medical practitioner.

26. I have an analyst’s report that was obtained from late May indicating that there was no evidence of cannabis or other prohibited drugs in his system. I mention the fact the prisoner has involvement with lifesaving. I have some references from people involved in the lifesaving movement. It would appear as though the prisoner’s grandfather is well known in the Freshwater Lifesaving Club and has received a medal of the Order of Australia for his services to lifesaving and is a life member of the club. I am mindful of the fact that the advocate in her lengthy report which has been most helpful reflected upon his involvement in lifesaving as being somewhat superficial. However, one of the referees confirms that in the last two years he has completed 150 patrol hours, he has developed good relationships within the club and is a valued member of the club. It seems as though a lot of his involvement in the club has improved and increased since he has embarked upon the treatment regime recommended by his doctor along with the counselling from his psychologist.

27. The prisoner wrote a letter to the Court expressing his apology for his involvement in this matter. He gave reasons for what he believed to be his involvement in the matter, particularly reflecting upon the fact that he believes he was “quite easily led”. He wrote in my view, quite perceptively, “I have lost courage in myself as a person and I would also do things to impress my friends.” This is a matter, as I said earlier, where the advocate, who has had involvement with the prisoner for it appears over ten years, has identified as one of his many problems. Her letter or report reflects upon domestic circumstances which have not been dwelt upon in submission but suggests there are environmental factors at work adversely affecting the prisoner.

28. The young prisoner in giving evidence, notwithstanding his limitations and disabilities, to my mind was impressive. I obtained the impression from him that he had turned a corner. In Wood J’s judgment in Henry he spoke about offenders being “at the crossroads”. A matter that, as was discussed in the South Australian decision of Osenkowski, is to be considered in reflecting upon the appropriate disposition of a matter one way or the other. In this matter when I refer to one way or the other I refer to either imposing an order that would not require the prisoner to serve an immediate term of imprisonment as opposed to the imposition of full time custody.

29. The expression “at the crossroads” is one of course that judges are confronted with from time to time. Many times of course the offender about whom that expression is used is not only not at the crossroads. But not even travelling on the same road towards the crossroads but the overwhelming weight of the evidence in this matter suggests the prisoner is a person at the crossroads who can be aided in the manner discussed in Yardley and Betts to be persuaded to attend upon the responsibilities he now has and progress in a way from a life of offending.

30. I was impressed by the prisoner’s commitment to his psychologist and his involvement in the organisation Headspace, an organisation of which I have some knowledge. I am impressed by the fact the prisoner has endeavoured to stop the use of cannabis and the use of alcohol, although he does drink occasionally. He understands of course that alcohol is not appropriate to be consumed, given the medication he has taken and I am impressed by the fact he has been able to find employment.

31. It was in this context of course, that I considered the position of the parties. The matter was of the subject of lengthy submission from either the Crown or the defence. The learned Crown is, in the context of the Barbaro decision, limited in what she can say about the matter. Of course, nothing she says about the matter, binds the Director in his ultimate view of it. The truth is the Crown’s approach was both appropriate and realistic insofar as she submitted the Crown was not far removed from the submissions of the prisoner’s counsel about the ultimate disposition of the matter.

32. Accepting that the offence fits within the criteria of the guideline but noting, in the fixing of the guideline, the Court was anxious to ensure that purposes of sentencing now reflected in s 3A of the Act, particularly general deterrence and personal deterrence, were recognised, the principles that are set out in, for example, De La Rosa and Hemsley cited in the written submissions of the prisoner speak of lesser weight being given to them. Thus, providing a proper basis for departure from the guideline as the judges of the Court of Criminal Appeal recognise could occur even in the decision of Henry.

33. It was conceded in the written submissions that the aggravating factors under s 21A(2) of the Act involve the use of weapons and the fact the victim was vulnerable. These aggravating factors, as well as mitigating factors, set out in s 21A were promulgated by the legislature well after the guideline judgment of Henry was handed down. Ultimately, in the absence of any evidence from the victim and noting what I have said earlier about what might have been to be expected as the effect upon him, I have concluded that there are many mitigating features, including the fact that the injury emotional harm suffered by the victim was not substantial, the prisoner had no record of previous convictions, I am prepared to accept that in the context of his peer relationships he was a person of good character shown in the testimonials that have provided.

34. At this point I am prepared to accept the prisoner is unlikely to reoffend and given the steps he has taken since his arrest he has good prospects of rehabilitation. From his oral evidence and the written document provided to the Courts, I accept that he has shown relevant remorse by taking responsibility for his actions. His plea of guilty, of course, is a mitigating factor but he receives a discrete discount for that.

35. With regard to his criminal history, as I understand his criminal history at the time of the commission of this offence he had no prior criminal convictions, I note, however, that he was it would seem subsequent to being charged in relation to the current matter, charged with an offence for possession of prohibited drug for which he received an order under s 10. My understanding of the chronology and the evidence is that there was some hiatus, for want of a better word, after his arrest when he continued to use drugs and abuse alcohol and the stability that has come to his life is something that has come some months after being charged in relation to the current matter. But having said that as I said there were a number of matters that emerged from the evidence which were to his credit and have been taken into account.

36. So far as the purposes of sentencing are concerned, of course, s 3A sets out a number of matters to be taken into account. Of course, some weight must be given to general and personal deterrence but as I said for reasons I have outlined that might be ameliorated in this matter to some extent. Furthermore, the promotion of the prisoner’s rehabilitation is a relevant matter, he has to be denounced for his conduct and made accountable. The order that I propose will, in my view, give effect to that. In that regard, I note what Howie J said in the decision Zamagias from 2002 as to the proper approach in imposing a term of imprisonment that might otherwise or ultimately be suspended. In that regard, his Honour cited, of course, the decision of the High Court in Dinsdale v The Queen (2000) 202 CLR 321. The approach that his Honour outlined is the approach that I have taken in this matter. First of all, I have determined what the appropriate sentence should be for the principal offence having regard to the matter on the Form 1, applying the relevant discount and then having determined what the appropriate sentence should be, I have turned my mind to whether in fact having regard to s 5 of the Act the sentence of imprisonment I impose could be served by some other means other than full time custody. At this point of the prisoner’s life it is my view that imprisonment is not the appropriate order to make although it still remains an option available to the Court at some future time over the next two years.

37. This brings me to really the major matter of debate and it was a matter that took a great deal of the Court’s time. The learned Crown Prosecutor in her submissions to me pointed out that while the Court may consider a consider a term of imprisonment that might permit alternatives to full time custody. The Court might consider whether, in fact, the term of imprisonment might be served by way of intensive correction order. I have considered the matter in the appropriate way as I have said, not concerned with outcomes, but more concerned with an appropriate penalty and then turning to the alternatives that arise. In considering whether in fact I should order that the offender be assessed for an intensive correction order I have determined that given the regime the prisoner is presently subject to and given the progress that he has made, given the fact that he has full time employment, the strict requirements of an intensive correction order may not serve the purpose of rehabilitation of the prisoner as much as supervision by the Community Corrections Service ensuring the prisoner pursues the current regime of work and medical treatment and counselling that he has. In other words, in my mind at this point the advantages of the prisoner being subject to perhaps the less rigorous regime of supervision under a good behaviour bond would be the better course. Of course, I gave very close consideration to what the Crown said about the matter and it was as it turned out the major matter of struggle in determining the ultimate disposal of the case.

38. The facts of the matter are that by placing the prisoner on a bond the prisoner’s supervision in part will still remain with the Court. If the prisoner was given an intensive correction order then the supervision of the prisoner falls to the Commissioner for Corrective Service as is well known and the matter passes from the hands of the Court. I am not suggesting in the appropriate case that that is a bad thing but in this particular case I believe the supervision of the prisoner remaining with the Court is a preferable option. I can be informed by Community Corrections on progressive bases as to the progress of the prisoner and, of course, the prisoner should understand that if he fails to be of good behaviour or he fails to comply with conditions of the bond he runs the risk of the bond being revoked and being sentenced to a term of imprisonment.

39. I have been very grateful to counsel for the prisoner, very extensive written submissions. The ultimate assessment of the matter does not require further elucidation of what is set out in those written submissions much of it was not in dispute from the position of the Crown.

40. Just stand up thanks very much, Mr Griffin. In relation to the offence for which you have pleaded guilty taking into account the matter on the Form 1 you are convicted. You are sentenced to a term of imprisonment of two years. That term of imprisonment, however, is suspended on you entering into a bond to be of good behaviour for the period of two years. Conditions of that bond will be as follows: You will be required to be of good behaviour. Secondly, you will be required to appear before this Court if called upon to do so. Thirdly, you will advise the Registrar of the Sydney District Court or the Registrar of the Criminal Listing Directorate of the District Court of any change of residential address. Fourthly, you will be required to be subject to the supervision of the Community Corrections Service for the period of the bond and obey all reasonable directions of the Service particularly directions in relation to medical and psychological treatment and counselling. Fifthly, you will be required to report to the officer-in-charge of the Community Corrections Service at Dee Why within seven days of today to give effect to that supervision. Just take a seat thanks very much.

41. HIS HONOUR: Madam Crown, any technical matters from you?

42. SWEENEY: Just noting that is dated from today.

43. HIS HONOUR: The order obviously dates from today. It commences from the moment he enters the bond.

44. Anything from you sir?

45. HEFFERNAN: No your Honour.

46. HIS HONOUR: Mr Griffin, I will permit you to leave the dock and you can go and take a seat behind your counsel. Are you able to take your client up to level 3?

47. HEFFERNAN: Your Honour, I will.

48. HIS HONOUR: In the context of giving these remarks, I take into account, of course, the assessment of the Community Corrections Service, which I neglected to refer to earlier which reflected upon his history of mental health issues and drug dependency and his acknowledgment of the gravity of his actions and his intent to continue engaging in intervention that supports his path towards rehabilitation. The Community Corrections Service noted that expressed intent along with ongoing family support offers some encouragement toward the view that he may yet overcome his challenges in day to day lawful community living. Yes, thank you.

49. Now, what you have got to understand, Mr Griffin, is I will receive reports from Community Corrections about your progress, I have the power to call you up, that is, to bring you back to court, send out a notice, ask you to come back to court to get you to explain yourself and if needs be revoke the bond that I have given and then determine whether you should be committed to prison or not as the case may be so you must understand that it obligatory for you to be of good behaviour. Secondly, to comply with the conditions of the bond and primarily obey the reasonable directions of the Community Corrections Service. Thanks very much, just take a seat, thank you. I will just sign those order now if you will bear with me and I will send those up to the Registry and if you can take your client to level 3. I wish you well, Mr Griffin, but you have got to remember this, that this is the last opportunity you will get from this Court, you can be assured of that.

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Decision last updated: 17 December 2015