R v KS

[2022] ACTSC 133

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KS

Citation:

[2022] ACTSC 133

Hearing Date:

29 April 2022

DecisionDate:

20 May 2022

Before:

McCallum CJ

Decision:

(1)       Stand the matter over to 3.00 pm on 18 November 2022;

(2)       The offender’s bail is continued to 18 November 2022            on the following conditions:

[REDACTED]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order – Griffiths remand – deferred sentence – whether the Court has the power to order Griffiths remand – whether s 27 of the Crimes (Sentencing) Act 2005 displaced the common law power to order Griffiths remands

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) ss 108, 110

Crimes (Sentencing) Act 2005 (ACT) ss 10(2), 12(3), 12A, 27
Criminal Code 2002 (ACT) s 324(1)
Firearms Act 1996 (ACT) s 43(1)(a)(iii)

Legislation Act 2001 (ACT)

Cases Cited:

Griffiths v The Queen [1977] HCA 44; 137 CLR 293

High v Willis [2008] ACTSC 88
R v Kelly [2021] ACTSC 143

R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23

Texts Cited:

Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT)

Parties:

The Queen (Crown)

KS (a pseudonym) (Offender)

Representation:

Counsel

K Lee (Crown)

P Edmonds (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Paul Edmonds (Offender)

File Numbers:

SCC 108 of 2020

SCC 109 of 2020
SCC 110 of 2020
SCC 59 of 2022
SCC 60 of 2022

McCallum CJ:

1. KS has pleaded guilty in the Magistrates Court to two offences: an offence of possessing two firearms whilst not authorised by a licence or permit to possess or use the firearms, contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT), and an offence of having property on premises that is reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to s 324(1) of the Criminal Code 2002 (ACT). Upon conviction for those offences, he will be in breach of five good behaviour orders imposed by Loukas-Karlsson J on 15 February 2021: R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23. Three of those are good behaviour orders simpliciter which, in the event of their breach, are governed by s 108 of the Crimes (Sentence Administration) Act 2005 (ACT). The other two, however, were good behaviour orders made upon the suspension of a sentence in accordance with the requirement of s 12(3) of the Crimes (Sentencing) Act 2005 (ACT). Those orders are governed, in the event of their breach, by s 110 of the Crimes (Sentence Administration) Act. 

1. It is not necessary for present purposes to rehearse the facts of the offences for which Loukas-Karlsson J dealt with the offender save to say, in short, that it involved a conspiracy on the part of a number of inmates at Bimberi detention centre to escape from their detention.  What is more pertinent for today's purposes is to record something of what her Honour said as to the offender's subjective circumstances. 

1. Loukas-Karlsson J had before her a Pre-Sentence Report dated 25 January 2021 which included information about KS, particularly as to his upbringing.  He was said to be the youngest of three children of separated parents.  He lived with his father on a full-time basis for a considerable period of time but, at the age of 15, chose to live with his mother.  The author of the Pre-Sentence Report stated that, whilst at his mother's house, KS frequently witnessed violence and drug use and was himself a victim of family violence.  KS reported having a positive relationship with his father and a turbulent relationship with his mother.  The Pre-Sentence Report recorded that KS began using methamphetamine on a daily basis.  His father provided information confirming that KS was exposed to negative peers at that time and began engaging in criminal activity shortly thereafter.  He has been diagnosed with attention deficit hyperactivity disorder (ADHD) and was medicated whilst in custody at Bimberi.

1. The facts of the new offences for which the offender now stands to be sentenced are set out in an agreed statement of facts provided to the Court.  The background to the offences was that a person in Kambah who owns a number of registered firearms held in safes had his garage broken into on a number of occasions and firearms stolen.  There is no evidence or suggestion that the offender was involved in either the burglaries or the theft of any of those items.  Evidently, on information conveyed to police by the offender's mother, police were tipped off that the offender had been storing rifles in his vehicle and bedroom at an address in Macgregor.  A search was executed and the firearms the subject of the present charges were found.  The offender was arrested on 25 November 2021 and granted bail the following day.  The offences, however, were committed some months earlier, on 22 June 2021, a little over four months into the good behaviour orders imposed by Loukas-Karlsson J. 

1. There is before the court for the present matters a further Pre-Sentence Report dated 27 April 2022.  It is not clear whether the authors of that report are the same as the authors of the report provided to Loukas-Karlsson J over a year earlier.  What is clear is that their assessment of the offender's engagement with supervision by Corrective Services and drug and alcohol counselling in particular is considerably less favourable. The author of the Pre-Sentence Report before me describes the offender's compliance with supervision by ACT Corrective Services as inconsistent, particularly in relation to reporting for scheduled appointments.  Concern is also expressed as to the offender's half-hearted engagement with counselling to address his drug use and mental health concerns.  Officers of Corrective Services attempted to encourage the offender to resume his medication for his ADHD; at the time of writing the report he had failed to do that.

1. On the other hand, there is also before the Court a letter from the offender's employer dated 27 April 2022 which provides a more optimistic assessment.  The letter is written under the hand of Brett Summerfield, the director of a building company.  Mr Summerfield had also provided a reference to Loukas-Karlsson J which spoke favourably of the offender's engagement with his employment at a time when the offender, Mr Summerfield and other employees of the company were all living in a shared household out of the ACT for the purposes of a particular construction project. It appears that project has come to an end and that, coinciding with his return to Canberra, the offender has in a few instances slipped in his engagement with his rehabilitation.  That said, it is appropriate to observe that the author of the Pre-Sentence Report accepts that, to the offender's credit, his attendance with scheduled supervision improved as the date for the present matters approached.

1. There can be no doubt that the offence of possession of firearms is a serious one. The Crown contends, and on behalf of the offender it is conceded, that the threshold in s 10(2) of the Crimes (Sentencing) Act is crossed. Possession of firearms, as the authorities referred to by the Crown demonstrate, is always a matter of concern because of the harm they can produce if used for wrong purposes. On behalf of the offender, however, it was submitted that the Court should defer sentencing him, either by making a deferred sentence order under s 27 of the Crimes (Sentencing) Act or by invoking the common law power that inspired the enactment of that provision.

1. The difficulty is that, for what may be regarded as a somewhat technical reason, the power under s 27 is not enlivened in the present case. So much was conceded on behalf of the offender at the hearing before me. In light of that concession, the parties proceeded, both at the hearing and in further material provided to the Court after the hearing, to address the Court as to whether the common law power to impose what is known as a Griffiths remand has survived the enactment of s 27. That power was long recognised at common law as a course the Court could take, in the interests of encouraging rehabilitation, to defer sentence in a case where an offender would otherwise have been sentenced to a term of imprisonment.

1. In explaining the nature of such an order, I do not think I can improve upon the words of Goran J, the judge who conceived it as a permissible course, as ultimately held by the High Court in Griffiths v The Queen [1977] HCA 44; 137 CLR 293. In sentencing the offender in that case, Goran J said:

“I won't deal with you today. I will deal with you in 12 months’ time.  During that 12 months, you are going to be on a trial period to see what you can do to keep out of crime, and you are going to be under the supervision of the Probation and Parole, and I am going to ask them to give me a report about you each three months to see how you are going, and I am going to ask them to help you.  That means, of course, that you will be at large during that time.  If you can satisfy me - I won't give you any promises, but if you can satisfy me at the end of that time that I should not send you to gaol, that you have made good, then I won't send you to gaol at all.”

1. The parties drew my attention to two authorities which it was apprehended might suggest that a Griffiths remand is no longer available in the ACT following the enactment of s 27 of the Crimes (Sentencing) Act.  The first was the decision of Penfold J in High v Willis [2008] ACTSC 88, published in September 2008. In that case, her Honour said at [28]:

I indicated in imposing a deferred sentence in the matter of R v Brianna Arioli [2008] ACTSC SCC 34/08 (unreported, 24 April 2008) that Part 3.5 of the Sentencing Act appears to have been intended to replace the Griffiths remand. Others may take a different view, and certainly there are attractions in using the Griffiths remand instead of having to work through the statutory requirements (I have already mentioned the learned Magistrate’s reference to Connolly J’s email about these requirements).

1. Those remarks raised but decidedly did not determine the question whether the provisions of Part 3.5 of the Crimes (Sentencing) Act operate to the exclusion of the Griffiths remand.  Parliament can consolidate the law to simplify it or, indeed, make it more prescriptive without displacing the common law.

1. The second decision drawn to my attention by the parties is the decision of Refshauge J in R v Kelly [2021] ACTSC 143. The issue in that case was whether a foreshadowed Griffiths remand would render the offender ineligible for a drug and alcohol treatment order. Section 12A of the Crimes (Sentencing) Act, which is the source of power to make such an order, does not apply if the offender is subject to a “sentencing order” for another offence.  Refshauge J concluded at [42] that a Griffiths remand is a “sentencing order” within the meaning of that section.  His Honour did not determine the question that arises in the present case.  Indeed, his Honour’s reasons proceed on the premise, albeit untested, that Griffiths remands remains an option for sentencing judges alongside deferred sentence orders.

1. As very fairly pointed out by Counsel for the offender in the present case, the Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT) referred to by Refshauge J in Kelly at [33] said:

Deferred sentencing orders are a codification of an existing power available to the Court known as Griffiths remands following the High Court's decision in Griffiths v The Queen.

1. However, the term “codification” is not an accurate description of the relevant provisions.  It is by no means clear from a consideration of the relevant parts of the Act or, indeed, the Act as a whole, that Parliament did intend to codify the law concerning the power to defer sentence.  The objects of the Act stated in s 6 refer only to the consolidation of legislation relating to the imposition of sentence. Section 9 expressly contemplates the continued application of any other “territory law”, a term defined in the Legislation Act 2001 (ACT) to include the common law.

1. The Crown noted in its further submissions provided to the Court that it did not wish to be heard in relation to the ongoing availability of Griffiths remands in the Australian Capital Territory.  In my view, it is clear that the authority at common law to impose a Griffiths remand survived the enactment of the Crimes (Sentencing Act).

1. Griffiths remands remain an important and flexible option available to the Court.  In the decision of Kelly to which I have referred, Refshauge J referred to the fact that such orders were used widely and creatively in earlier times by Gallop J, a former judge of the Court.  They are a boon to encouraging rehabilitation in exactly the kind of case that comes before the Court now where a young offender, having committed an offence that is serious but not at the highest end of the range of seriousness for that offence, has had a mixed experience in rehabilitation of what appears to be a developing drug addiction originally contributed to during his childhood by the circumstances of his upbringing.  Such persons should, in my view, be given every opportunity to address a drug addiction by rehabilitation before the ultimate sanction of imprisonment is imposed.  In reaching that conclusion in the present case, I have not overlooked the authorities that consider the desirability of responding to a clear breach of good behaviour obligations with sterner punishment, lest the procedure of imposing bonds be brought into disrepute.  I am nonetheless satisfied that the offender is an appropriate candidate for a Griffiths remand and that is the course I propose to take. 

1. There are good reasons for taking that course in the present case.  It is not opposed by the Crown and, indeed, I understood the Crown rather to embrace the prospect of a further opportunity for rehabilitation for this offender.

1. As I have said, the offender has had a mixed experience of rehabilitation, but it has not been all bad.  He has the ongoing support of his employer, who appears to be well-aware of his mixed fortunes.  A Griffiths bond will provide him with supervision while making it clear, as it did not appear to clear to him before, that he must engage, in particular, with drug and alcohol rehabilitation and medication for his mental illness.  The prospect of a gaol term hanging over his head will, I think, provide good incentive for such engagement. 

1. I am mindful of the fact that, where a court proceeds under s 27 of the Crimes (Sentencing) Act, there is a requirement under s 118 of the Act to indicate the sentence that might be imposed at the end of the remand according to whether the conditions of the order are complied with.

1. I am not inclined to do that with any specificity in the present case because it is such a complex sentencing exercise.  I will indicate that, if the course of the Griffiths remand is not favourable, the offender can expect to be sentenced to a term of imprisonment of at least six months whereas, if the course of the remand is favourable, he should expect that he will not be sentenced to a term of full-time imprisonment.  That said, it will obviously be necessary to hear any further evidence about the course of his experience before making a final sentencing decision.

1. For those reasons, I make the following orders:

1)    Stand the matter over to 3.00 pm on 18 November 2022;

2)    The offender’s bail is continued to 18 November 2022 on the following conditions:      

[REDACTED]

**************

Amendments

3 November 2022      Replace “s 43(1)(a)(3)” with “s 43(1)(a)(iii)”              Paragraph [1]

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum.

Associate:

Date: