R v Leahy

[2004] NSWCCA 148

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Leahy [2004]  NSWCCA 148 revised - 18/05/2004

FILE NUMBER(S):
60515/03

HEARING DATE(S):               10/05/04

JUDGMENT DATE: 13/05/2004

PARTIES:
Crown
Darren Leahy

JUDGMENT OF:       Hodgson JA Levine J Hidden J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/21/1169

LOWER COURT JUDICIAL OFFICER:     Nicholson DCJ

COUNSEL:
G Rowling - Crown
J Stratton QC - Respondent

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Respondent

CATCHWORDS:
CRIMINAL LAW:  Crown appeal - adjournment under s11 of the Crimes (Sentencing Procedure) Act - serious offence - unfavourable record - prospects of rehabilitation - fulltime custodial sentence still likely.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60515/03

HODGSON JA
LEVINE J
HIDDEN J

Thursday, 13 May, 2004

REGINA v Darren LEAHY

Judgment

1. THE COURT: On 10 December 2003 at Penrith District Court the respondent, Darren Leahy, pleaded guilty before Nicholson DCJ to a charge of armed robbery. His Honour determined that the appropriate course was to adjourn the proceedings pursuant to s11 of the Crimes (Sentencing Procedure) Act, and he gave reasons for his decision on that day.  On the following day he adjourned the proceedings to 12 March 2004 and allowed the respondent bail, conditioned that he submit to the supervision of the Probation and Parole Service and undertake the drug rehabilitation program provided by the We Help Ourselves organisation (WHOS) at Chippendale. 

2. On 12 December 2003 the Director of Public Prosecutions appealed against that order.  On 10 May 2004 we dismissed the appeal, undertaking to give our reasons later.  These are those reasons.

3. On 12 March 2004 the respondent appeared again before Judge Nicholson.  In the light of evidence of his satisfactory progress at WHOS, and also being aware that the Director had lodged an appeal, his Honour adjourned the proceedings to 11 June 2004.  However, it was his Honour’s reasons of 10 December 2003 which were challenged in the appeal.

4. It is unnecessary to recite the facts of the offence in any detail.  It is sufficient to say that in the early evening of 25 June 2003 the respondent went to the Subway restaurant in Mulgoa Road, Jamisontown, disguised by a balaclava and armed with a tomahawk.  The restaurant was staffed at the time by two young women, aged seventeen and eighteen.  The respondent displayed the tomahawk to the seventeen year old woman, demanded money, was given $600 from the cash register and left.  There were patrons of the restaurant present at the time, including children.  The incident caused great distress to the seventeen year old victim, who was terrified and who afterwards had difficulty sleeping, as well as attending to her study for the higher school certificate.

5. The offence was undoubtedly serious, a fact about which his Honour made no bones in his reasons for the adjournment. Moreover, the respondent was thirty five years old at the time of the offence and was by no means a first offender. He has a substantial criminal record, although he has no previous conviction as serious as the present offence. The entries comprise offences of violence and dishonesty, drug offences and driving offences. All were dealt with summarily but for many of them he was sentenced to terms of imprisonment. In this and in a number of other respects his Honour found that there were aggravating factors within the meaning of s21A(2) of the Crimes (Sentencing Procedure) Act.

6. The respondent was arrested on the same day as the offence, made full admissions to police in a recorded interview, and pleaded guilty from the outset.  He committed the robbery to obtain money to buy heroin, and it is his long-standing drug addiction which led his Honour to take the course he did.

7. The respondent had been using heroin and amphetamines since his teenage years.  As is so often the case, his conflict with the criminal law was against the background of this abuse.  However, in the three years prior to the present offence he had tried to address the problem, spending periods of several months at WHOS in 2000 and again in 2001.  He appears to have had a measure of success, moving into a Housing Department flat at Kingswood and avoiding the company of his former associates.  However, he relapsed into drug use after a tragic accident in February 2003 when his flat mate fell to his death from the balcony of the flat.  It was in these circumstances that the armed robbery was committed a few months later.

8. At the time he appeared before his Honour he had been in custody for over five months.  He told a psychiatrist who provided a report to the court that he had not used illicit substances on a regular basis during that period, but that he still felt the urge to do so.  While he was making a personal effort to remain abstinent, he was willing to undergo a further six month period of residential rehabilitation.

9. Judge Nicholson said of the respondent that the “principal threat to his rehabilitation is his drug abuse.”  Nevertheless, his Honour saw hopeful signs of rehabilitation in the history which I have outlined.  In addition, he had resolved differences with members of his family and enjoyed their support, and had developed his skill as a guitarist and songwriter.  His Honour recognised that the objective criminality of the offence and the need for deterrence called for “a substantial period of custody …”  However, he added that “the question of what weight is to be given to his rehabilitation prospects is an important factor.” 

10. His Honour referred to the examination of s11 of the Crimes (Sentencing Procedure) Act by Smart AJ, with whom Spigelman CJ and Grove J agreed, in R v Trindall (2002) 133 ACrimR 119 at [41] ff. He concluded:

    “… it would be so much better for me to have evidence of what has actually taken place than to seek to sentence on some sense of false euphoria as to progress that has thus far been made. For that reason I have determined that it is appropriate to have regard to the two matters to which s11 allows me to have regard. I am entitled to adjourn proceedings for the purpose of assessing the offender’s capacity and prospects of rehabilitation and I intend to do so.

    I am entitled to give him an opportunity to demonstrate that his rehabilitation is taking place.”

11. His Honour’s reference to “the two matters to which s11 allows me to have regard” was derived from the opening words of s11:

    “(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, …”

12. The Crown prosecutor before us submitted that his Honour’s resort to s11 amounted to an error warranting this Court’s intervention. Put shortly, he argued that the case was one in which a substantial custodial sentence was inevitable and that no purpose would be served by further evidence of rehabilitation in determining either the head sentence or the non-parole period.

13. In Trindall Smart AJ examined s11 against the background of authorities dealing with the common law procedure of the Griffiths remand:  Griffiths v The Queen (1977) 137 CLR 293. It is unnecessary to set out his Honour’s observations, which have been cited in a number of subsequent cases. It is sufficient to say that his Honour concluded that an adjournment under s11 is not confined to cases in which, if the offender maintained progress towards rehabilitation, a non-custodial sentence might be expected. The adjournment may be appropriate in cases, such as the present, where a fulltime custodial sentence remains the most likely outcome even if rehabilitation has been achieved. The sentencing court still has the advantage of a more reliable assessment of the offender’s prospects of rehabilitation in determining both the head sentence and the non-parole period. The same approach was endorsed by this Court in  R v Di Gregorio [2004] NSW CCA 9 and R v Williams [2004] NSW CCA 64.

14. This is not to deny that the s11 procedure is one which should be used sparingly. In most cases the sentencing court will be adequately informed about the offender’s rehabilitation prospects, and to adjourn the proceedings under the section would be merely to delay the inevitable for no good purpose. In Trindall Smart AJ said at [64]:

    “The granting of a Griffiths 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.”

    By the expression “a Griffiths remand” his Honour was, of course, referring to an adjournment under s11.

15. In R v Palu (2002) 134 ACrimR 174 at [30], Howie J (with whom the other members of the Court agreed) said:

    “The exercise of the power given under s11 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. Time and again sentencing courts are asked to have regard to the delay in sentencing an offender as a matter of mitigation because of the adverse effects of delay upon the well-being of the offender and the disruption it causes to his or her everyday life. 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.”

16. It is apparent from his reasons, including his reference to passages from Trindall, that his Honour was well aware of these principles.  It is also apparent from those reasons, and from the transcript of the preceding discussion between his Honour and counsel, that the respondent was left in no doubt that he would most probably be facing a fulltime custodial sentence at the end of the adjournment period.  His Honour’s decision was a discretionary one.  In our view, it was open to him to conclude that the adjournment would be of material assistance in the sentencing process and was in the interests of justice.  In any event, given the well recognised constraints upon this Court’s intervention in a Crown appeal, we were not persuaded that his Honour’s order should be set aside.

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LAST UPDATED:               18/05/2004