R v Moore
[2009] SADC 56
•22 May 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOORE
[2009] SADC 56
Reasons for Decision of His Honour Judge Tilmouth
22 May 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS - SOUTH AUSTRALIA
The defendant applied for a "Griffiths" type remand for a period of about six months in order to complete a rehabilitation program.
Held 1: At common law the power to make a Griffiths remand was not necessarily confined to those cases in which the offender was likely to receive a suspended sentence.
Held 2: There is no basis to confine the terms of s19B of the Criminal Law Sentencing Act to these situations, or to construe it with the preconceived notion that it did no more than declare the common law position.
Held 3: It was appropriate to grant the application in the circumstances.
Criminal Law (Sentencing) Act 1988 (SA) s19B; Crimes (Sentencing) Act 2005 (ACT) s27; Sentencing Act 1991 (Vic) s72; Penalties and Sentences Act 1992 (Qld) s24; Sentencing Act 1997 (Tas) s7(f); Crimes (Sentencing Procedure) Act 1999 (NSW) s11(1); Sentencing Act 1995 (WA) s33A(3); Sentencing Act s10(1m), 10(1b), 10(5); R v Spiero (1979) 22 SASR 543; R v Randall-Smith & Davi (2008) 100 SASR 326; (2008) 254 LSJS 369; R v West (1957) 43 Cr App R 109; R v Nicholson [1951] VLR 273; Canning v Smith [1969] Tas SR 8; Ex parte Rundle; Ex parte Cartledge (1982) 5 A Crim R 408; R v McMillan (2002) 81 SASR 540; Bank of England v Vagliano Brothers [1891] AC 107; Brennan v The King (1936) 55 CLR 253; R v Selleck (2000) 78 SASR 194; R v Trindall (2002) 133 A Crim R 119; R v Palu (2002) 134 A Crim R 174; R v Brown [2009] NSW CCA 6; R v Nguyen [2009] SASC 63, referred to.
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1; Vallance v The Queen (1961) 108 CLR 56, applied.
R v Place (2002) 81 SASR 395; (2002) 128 A Crim R 325; Griffiths v The Queen (1977) 137 CLR 293; Director of Public Prosecutions (SA) v The District Court of South Australia & Jeffrey (1995) 65 SASR 357; R v Tindall & Gunton (1994) 74 A Crim R 275; State of Western Australia v Hatch [2008] WASCA 162, discussed.
R v MOORE
[2009] SADC 56The issue
The defendant is presently before the court for sentence on three counts of aggravated robbery consolidated in one information. He applies for an adjournment effectively postponing the sentencing process until November this year. The questions for determination are whether such an order is authorised in principle or justified on the facts.
On one count he was committed for sentence by the Holden Hill Court in November 2008. He pleaded guilty to the remaining two charges in this court on the 19th January 2009. Each charge carries a maximum penalty of life imprisonment.
The charges
The aggravated robbery for which he was committed for sentence, was committed on the 20th November 2007, at a service station on North East Road, Holden Hill. The console operator, the only employee on duty at the time, was approached at about 12:25 am by the defendant who initially asked for cigarettes. The defendant then produced a syringe containing red fluid, whilst demanding “I’ll have the money out of the drawer as well ... I’ll take it all”. He was urged to “hurry up”, adding “I have Hep C, I will stick it in your neck”. The defendant took $200 and some cigarettes. The robbery was recorded on CCTV from which the defendant was identified.
The two other robberies were committed within an hour of each other on the 21st December 2007, both from service stations. The first was at Bridge Road, Para Hills. At about 1:25 am the defendant pushed a syringe filled with red coloured fluid toward the console operator, told him he was being robbed and demanded cash and cigarettes. He was assisted by an accomplice. They escaped on foot with cigarettes and cash of about $65, and were recorded fleeing on CCTV security film.
The third robbery occurred about 2:15 am, from another service station on Gorge Road, Athelstone. The defendant in company with the same accomplice, confronted a console operator. He then threw a keyboard against a coffee machine and demanded money from the till. As it was being removed he pointed a syringe at the operator and told him he used it every day. Once again cigarettes and about $300 in cash was taken, and once again their escape was recorded on CCTV. The accomplice in the second and third robberies has pleaded not guilty and is due to be tried in the second week of November 2009.
Sentences in robbery cases
It is immediately apparent from the above summary, that the robberies were committed in strikingly similar circumstances. They are particularly serious because of the nature and content of the threats used and the implication that infected blood was in the syringes. These were quintessential vulnerable soft targets that so often feature for that very reason in robberies of this kind. As such these offences are highly likely to attract lengthy unsuspended terms of imprisonment. Ever since R v Spiero[1] the Court of Criminal Appeal in this State has emphatically stated that robberies in which weapons are used, attract long sentences leaving little scope for leniency, even when mitigating factors are present.
[1] (1979) 22 SASR 543 at 549
In R v Place[2] five judges of the Supreme Court considered an appropriate single sentence for six armed robberies committed over a period of three weeks, was twelve years (before reduction on account of time spent in custody) with a non-parole period of six years. As to the general tariff applicable to armed robberies, the court said this:
[100] This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment.
[2](2002) 81 SASR 395; (2002) 128 A Crim R 325, Doyle CJ, Prior, Lander, Martin and Gray JJ
Later in R v Randall-Smith & Davi[3] the Court of Criminal Appeal dismissed a prosecution appeal against sentences of 16 years imprisonment with a non-parole period of eight years, for six counts of aggravated robbery, one count of attempted robbery (and lesser associated driving offences) committed between December 2005 and August 2006 using a rifle and a shotgun.[4] More recently in R v Bartel[5] that court considered one sentence for three aggravated armed robberies of convenience stores using a loaded firearm of 16 years imprisonment with a non-parole period of 10 years, excessive. It was reduced to 12 years with a non-parole period of 9 years. At a broad level there are distinct parallels between Bartel and this case.
[3] (2008) 100 SASR 326; (2008) 254 LSJS 369
[4] Gray and Layton JJ, Doyle CJ contra
[5] [2008] SASC 289,
These cases indicate that the defendant is almost certainly to be sentenced to a substantial prison term, whatever the mitigating or personal circumstances. Although it remains at least in theory possible that suspended sentences could be imposed, that appears on the face of the allegations as summarised above, to be practically out of the question.
The application to postpone sentence is set against this factual background and the above sentencing “tariff”. Although detailed submissions in mitigation are yet to be heard, it is apparent from what has been said by counsel so far, that Mr Moore had a serious drug problem at the time and these offences were committed in order to feed the habit. He has a number of convictions for offences in the past, essentially relating to motor vehicles. None are likely to be of any particular significance or influence on any sentence that is to be imposed for these quite different charges.
It transpires that in August 2008, he voluntarily embarked upon a long-term treatment program designed to over-come the drug addiction. This is run by a Christian rehabilitation facility in Naracoorte, in the southeast of this State. At this facility he is closely supervised under the strict conditions of his bail, which requires him to reside there. A report from them indicates he will need at least until November in order to “reach his full potential”.
Common law principles
This application has therefore brought into play what was often referred to as a “Griffiths remand”. This process owes its name to the decision of the High Court of Australia in Griffiths v The Queen.[6] In that case a sentencing judge remanded the offender for 12 months on two counts of breaking, entering and stealing and one of being an accessory after the fact. Barwick CJ regarded this course as one “available to the trial judge and, for that matter, regularly exercised”, one “not by any means necessarily a disservice to the community”, and as a course reserved for:[7]
..cases in which the guilty person will accept the delay in the determination of the sentence and submit to the compulsion towards reformation with that delay in the terms of a reconnaissance may involve and in which there is a real expectation founded upon solid ground and not on mere sentimentality that such reform is likely to occur”.
[6] (1977) 137 CLR 293
[7] (1977) 137 CLR 293 at 305-306
The authority to defer sentence has its origin in the power of justices to “respite or defer judgment on a conviction”: Griffiths v The Queen.[8]In addition the courts retain a long standing inherent power to adjourn proceedings for a reasonable time upon reasonable grounds, whereas an adjournment for an unreasonable time or upon extraneous grounds, would be treated as reviewable neglect to exercise the jurisdiction: Boettcher v Boettcher,[9] Matheson v. Matheson,[10] Lee v Saint,[11] R v Kelly; Ex Parte Harvey,[12] DPP(SA) v Kobelt & Ors.[13]
[8] At 321-323 per Jacobs J
[9] [1948] St R Qd 73; 42 QJP Rep 112
[10] [1952] VLR 27
[11] [1958] VR 126
[12] (1985) 38 SASR 93 at 95-96
[13] (2007) 248 LSJS 387
The capacity of a court to defer or “respite” sentence or judgment at common law was recognised long ago in R v Keen[14] and affirmed over a century ago in R v Southampton Justices; Ex parte Lebern,[15] although it was not always approved of: R v Wall.[16] The situation was one tolerated but as a general rule the position was at one time considered to be that cryptically summarised by Parker LCJ in R v West:[17]
If the prisoner was thought to be fit to put on probation, let him be put on probation. If it is not a matter of probation let him be sentenced there and then, but it is highly objectionable to postpone sentence…
[14] (1847) 10 QB 928
[15] (1907) 96 LT 697 at 700
[16] (1957) 41 Cr App R 97 at 98-99
[17] (1957) 43 Cr App R 109 at 110
Furthermore, according to the guidelines subsequently developed by the Court of Appeal in R v George,[18] when a defendant “substantially conformed or attempted to conform with the proper expectations of the deferring court … the defendant may legitimately expect that an immediate custodial sentence will not be imposed”. It was also said that power should only be exercised for salutary reasons: R v Gilby,[19] with the proviso that whatever changes may occur in the offender’s conduct or circumstances after conviction, the power should not be exercised at all when a substantial custodial sentence was probable: R v Crosby and Hayes.[20]
[18] [1984] Cr LR 504
[19] (1975) 61 Cr App R 112
[20] (1974) 66 Cr App R 234
The existence of such a power was implicitly acknowledged in R v Nicholson[21] and later accepted to form part of Australian jurisprudence by Burbury CJ in Canning v Smith.[22]The practise appears to have gained more currency in New South Wales than it did in other jurisdictions: R v Pham & Ly,[23] but was one nevertheless sanctioned with some “misgivings” by Matheson J in South Australia in Director of Public Prosecutions (SA) v District Court of South Australia & Jeffrey.[24] Indeed in Ex parte Rundle; Ex parte Cartledge[25] Cox J observed that although there “may be exceptional cases in which such a defendant is released on bail pending sentence … I have no doubt that it is a routine part of the sentencing process in all superior trial courts in Australia.”
[21] [1951] VLR 273 at 274
[22] [1969] Tas SR 8 at 14
[23] (1991) 55 A Crim R 128 at 131
[24] (1995) 65 SASR 357 at 371
[25] (1982) 5 A Crim R 408 at 411
Remand only when non-custodial sentence open?
Mr Ford for the prosecution opposed the application, submitting this course was only appropriate when a non-custodial sentence was open or otherwise appropriate. His submission proceeded, tacitly at least, on the premise that the common law position continued to apply. In R v McMann[26] Perry J was critical of the use of such remands altogether on the grounds that they were not a reliable indicator of the prospects of rehabilitation, might furnish an unjustified expectation that a suspended term of imprisonment might be imposed, and so should only be used when “unusual factors” outweigh those “negative features” his Honour referred to. On the other hand as Gray J pointed out in Germain v Police[27] “Griffiths remands … have been considered an appropriate tool for use in determining whether a defendant can be successfully rehabilitated from drug abuse,” citing R v Griggs.[28]
[26] (1997) 70 SASR 1 at 9
[27] [2006] SASC 340 at [53]
[28] (1999) 95 FCR 490
There is support for the proposition contended for by the Director of Public Prosecutions in R v Tindal & Gunton.[29] By that time the courts of New South Wales had available to them the power conferred by the Crimes and Other Acts (Amendment) Act 1974 (NSW) contained in s 558 of the Crimes Act, enabling the Court, “if it thinks fit”, to defer passing sentence.
[29] (1994) 74 A Crim R 275
Hunt CJ at CL said of remands of this kind:[30]
There are occasions -- whether or not they are frequent it is unnecessary here to determine -- where it is appropriate to delay imposing a sentence in order to compel, by the terms of the remand, some course of conduct by the offender conducive to his rehabilitation and reform. Such a remand should only be granted where there is a real expectation, founded upon solid grounds rather than upon mere sentimentality, that such consequences are likely to be achieved: cf Griffiths (at 306). More importantly, such a remand should only be granted where, in the event that rehabilitation and reform are achieved, it would be appropriate to impose a non-custodial sentence (at 325-326). I have no doubt as to the validity of the Crown's argument in this appeal that an offender would have a justifiable sense of grievance if a custodial sentence were to be imposed after he had complied with all the terms of a Griffiths remand.
Carruthers J agreed with the latter sentiment in particular.[31] The latter reference to Griffiths no doubt had in mind a comment by Jacobs J to “the likelihood or probability … [of the offender] … might have been spared a prison sentence.”
[30] (1994) 74 A Crim R 275 at 276-277
[31] (1994) 74 A Crim R 275 at 283
Statutory power
The power to delay sentence is now provided for in this State by s 19B of the Criminal Law Sentencing Act 1988 (SA), first introduced in 2005 and effective since the 19th of December of that year:[32]
[32] Hereafter the “Sentencing Act”
19B—Deferral of sentence for rehabilitation and other purposes
(1) A court may, on finding a person guilty of an offence (whether or not it proceeds to conviction), make an order adjourning proceedings to a specified date, and granting bail to the defendant in accordance with the Bail Act 1985—
(a)for the purpose of assessing the defendant's capacity and prospects for rehabilitation; or
(b)for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place; or
(c)for the purpose of assessing the defendant's eligibility for participation in an intervention program; or
(d)for the purpose of allowing the defendant to participate in an intervention program; or
(e)for any other purpose the court considers appropriate in the circumstances.
The balance of s 19B proceeds to confine, although not exclude, the power to remand for more than 12 months, in far more limited circumstances than permitted in the case of remands under the section of less than 12 months. As a remand of that length is not sought here, those provisions are not relevant to the present questions.
It is at once obvious that this legislation says nothing about confining the exercise of the powers it confers to cases where a non-custodial sentence is contemplated. The criteria enlivening the power are the capacity and prospects of rehabilitation. The reference to intervention programs confirm this impression. These programs are defined in s 3 to include programs providing for supervised treatment or behaviour management, designed to address behavioural problems of the offender.
Such programs were established in order to facilitate a restorative and rehabilitative philosophy “with a view to their long-term rehabilitation and the prevention of further offending”: R v McMillan.[33]That end is promoted by s 10(5) of the Sentencing Act, to the extent that it permits the court to treat a “defendant's participation in the program, and the defendant's achievements in the program, as relevant to sentence”. As appears from the Second Reading Speech, s 19B was inserted into the Sentencing Act having such programs consciously in mind.[34]
[33] (2002) 81 SASR 540 per Gray J at 553
[34] House of Assembly 22 September 2005 p3556
It is a mistake to assume this section simply gives effect to the common law. Equally it is a mistake to begin the process of construction by applying the law as it stood beforehand. It is the most basic of the principles of statutory construction that the language of a statute should be construed according to its natural meaning, without any presumption that it was intended to do no more than restate the existing law: Bank of England v Vagliano Brothers,[35] Brennan v The King.[36]In Sungravure Pty Ltd v Middle East Airlines Airliban SAL[37] Mason J said:
Yet within the ambit which it seeks to cover the Act is a code which is expressed by its long title "to state and amend the law relating to defamation". Its meaning therefore is to be ascertained in the first instance from its language and the natural meaning of that language is not to be qualified by considerations deriving from the antecedent law (Bank of England v. Vagliano Brothers). An appeal to earlier decisions can only be justified if the language of the statute is itself doubtful or if some other special ground is made out, e.g. if words used have previously acquired a technical meaning.
Here the ordinary meaning of the words is clear and it is not suggested that they previously acquired a technical meaning. Accordingly, it is not to be presumed that the section was intended to reiterate the antecedent law or to conform as closely as possible to that law. Here there is even less reason for making such a presumption because it is accepted that the part of s. 5 which has relevance for present purposes represents an advance upon the common law. [footnote omitted]
[35] [1891] AC 107 at 144-145
[36] (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ
[37] (1975) 134 CLR 1 at 22
Whether the Sentencing Act is properly to be regarded as a Code, opinions remain divided: R v Selleck.[38]But as s 19B is exhaustive so far as Griffiths remands are concerned, as Windeyer J bluntly expressed matters in Vallance v The Queen:[39]
It comes to this: The Code is to be read without any preconception that any particular provision has or has not altered the law.
[38] (2000) 78 SASR 194 Ollson J in favour, Gray J contra, Wicks J expressing no view
[39] (1961) 108 CLR 56 at 75
The interstate position
Most jurisdictions now have their own legislation on the statute books dealing with the Griffiths remand situation, see for example Crimes (Sentencing) Act 2005 (ACT) s 27, Sentencing Act 1991 (Vic) s 72, Penalties and Sentences Act 1992 (Qld) s 24 and the Sentencing Act 1997 (TAS) s 7(f).
The situation in New South Wales is now governed by s 11(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the terms of which are for all practical purposes identical to our own.[40] The use of an earlier but not materially different version of s 11 was considered in R v Trindall:[41]
[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. If the latter be the case, the judge should, as here, make it clear to the offender that he will be going to gaol and that the purpose of the remand is to assist the court in fixing the non-parole period. This Court should not seek to circumscribe the wide statutory discretion given to the sentencing judge.
[40] The only difference in the opening words of the section are in a slightly different order, but having precisely the same meaning.
[41] (2002) 133 A Crim R 119 Smart AJ, Spigelman CJ and Grove J agreeing at [28]. This version did not have provisions relating to intervention programs at this time.
This decision was subsequently followed in R v Palu[42] and in several later decisions of the New South Wales Court of Criminal Appeal differently constituted, the most recent being R v Brown.[43]Although this line of authorities is criticised for too narrowly construing the section: Judge Nicholson QC “When Sentencing Becomes a Walk into the Future with the Offender: The Griffiths Remand - Compulsion in Rehabilitation”,[44] they are for practical purposes binding on this court. These decisions supersede the earlier decision in R v Tindal,[45] which was decided before legislation of the kind now in question was passed.
[42] (2002) 134 A Crim R 174 Howie J, Levine and Hidden JJ concurring
[43] [2009] NSW CCA 6 at [22], R v Pulliene [2009] NSW CCA 47 at [24], R v ABS [2005] NSW CCA 255 at [30], R v Kipic & Elias [2004] NSW CCA 452 at [57]. R v Leahy [2004] NSW CCA 148 at [13], R v Williams [2004] NSW CCA 464 at [19], R v Di Gregorio [2004] NSW CCA 9 at [52]
[44] (2008) 32(3) Crim LJ 142
[45] Gunton (above)
The statutory scheme in Western Australia is materially different. In State of Western Australia v Hatch[46] the accused pleaded guilty on two counts of possession of cannabis, two counts of possession of heroin and one count of breaching bail. The sentencing judge imposed a pre-sentence order with a programme and supervision requirement, including urinalysis and remanded her for approximately eleven months for sentencing. That order was made under s 33A(3) of Sentencing Act 1995 (WA). According to the second reading speech,[47] the purpose of such orders (“PSO” orders) was to give an offender facing a term of imprisonment an opportunity to take steps to address their offending behaviour prior to sentence. Section 33A(3) provides:
If this section applies, the court may make a PSO in respect of the offender if it considers -
(a)that the seriousness of the imprisonable offence or offences warrants the imposition of a term of imprisonment under Part 13;
(b)that a PSO would allow the offender to address his or her criminal behaviour and any factors which contributed to the behaviour; and
(c)that if the offender were to comply with a PSO the court might not impose a term of imprisonment under Part 13 for the offence or offences.
[46] [2008] WASCA 162
[47] For the Sentencing Legislation Amendment and Repeal Act 2003 (WA) which inserted this provision
The court considered the power to impose a PSO was only enlivened once the sentencing judge formed an opinion in the terms of each matter contained in paragraphs (a), (b) and (c) of s 33A(3).[48] There is no equivalent to these in the South Australian provision. As to the outcome in Hatch, as the principles applicable to sentencing drug traffickers dictated that ordinarily a sentence of immediate imprisonment was the only appropriate option,[49] the court concluded it was not open to take the view that a term of imprisonment might not be imposed, so it set aside the order and remitted the case for sentence.
[48] Hatch at [11] per McLure JA, Pullin and Buss JAA agreeing
[49] The State of Western Australia v Saxild [2008] WASCA 156, The State of Western Australia v Andela [2006] WASCA 77.
Analysis
It is not difficult to envisage cases where a Griffiths remand could be applicable, even though the ultimate outcome must be an immediate term of imprisonment. In my considered view, the present is one of them. Others might be where a victim seeks restorative justice rather than revenge and time is needed for the defendant to implement steps to effect it, or to make restitution: R v Robertson.[50] Another is the case of Aboriginal offenders from remote communities where time is needed to fashion a suitable sentencing regime apt to the unique circumstances: compare R v Scobie.[51]
[50] (1984) 114 LSJS 51
[51] (2003) 85 SASR 77
There is an additional consideration independent of these, pointing to the same conclusion. As mentioned at the beginning of these reasons, a co-offender in two of the three robberies is to be tried in November this year. The court was informed the issue is identity. One should not speculate as to the verdicts, but in the case of guilty verdicts the spectre of a co-accused being sentenced at different times by different judges arises. Given “the desirability of avoiding a situation in which offenders whose cases are linked being dealt with separately”, this factor is relevant to the application: R v Nguyen.[52]
[52] [2009] SASC 63 at [78]
The above analysis demonstrates the common law Griffths remand was not limited to situations in which an offender was almost certainly to receive a non-custodial sentence upon compliance with the accompanying bond, at least by the time R v Tindall & Gunton was decided, although as a matter of practice that appears to have been its main area of operation. Rather the situation was as Jacobs J explained in Carngham v The Queen[53] that such “orders were … essentially releases on bail pending ... sentence.” The statutory changes since have only served to enhance the options open to the courts rather than to confine them to such situations. There is no basis in the language or structure of s 19B, to construe it in that limited way. To do so would offend basic principles of interpretation. Such remands are available in those cases where immediate imprisonment is practically inevitable, providing always the statutory criteria are met. That is a remand in the given circumstances must be justifiable on identifiable grounds related to the defendant's capacity and prospects for rehabilitation, or for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place and provided also 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.
[53] (1978) 140 CLR 487 at 495
A successful and trouble-free completion of the current course certainly has the capacity to influence the view of the court in relation to both the latter questions. In that event it remains desirable to make it clear to the defendant that he will be going to gaol. In this case according to the report before the court, Mr Moore remains successfully attending the Karobran rehabilitation facility where he is said to be a willing and dedicated participant. As it concurrently happens he is also there serving a 320 hour Community Service order apparently for fine default, and he is also bailed to appear on strict conditions reinforcing those obligations.
There is no good to be served in sentencing him now, or to scuttle the process of rehabilitation which has run more than half its course already. As stated in Lattouf[54]:
There is a public interest in the adoption and articulation of sentencing principles which 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; there are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stem punishment for each offender is not merely simplistic; it damages the public interest. A sentencing process which is seen by the public merely as Draconian and not just will lose the support of those whom it is designed to protect....if justice is not individual, it is nothing. [footnote omitted]
[54] (unreported, Court of Criminal Appeal, NSW, No. 06433 of 1996, 12 December 1996) per Mahoney ACJ (Sully J and Adams AJ agreeing) at pg 6 (quoted in R v Clark (1997) 95 A Crim R 585 at 591)
There is no evidence that Mr Moore presents any danger to the community. In these circumstances the triggers to s 19B are satisfied. The further remand therefore comes squarely within the terms of s 19B and serves at the same time to foster the wider objectives of the sentencing process, which are to reform him and thereby to reduce the danger to the public: ss 10(1m), 10(1b), and 10(5) Sentencing Act.
Orders
The court therefore proposes to utilise its powers pursuant to s 19B of the Sentencing Act to remand the defendant to some time convenient to the parties in November 2009, on conditions that he continues the process of rehabilitation at Karobran and he otherwise complies with the terms of bail. If he does not it is open to the DPP to bring him promptly back into court. The defendant should clearly understand that this order does not found any expectation of a disposition other than an immediate term of imprisonment.
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