R v Palu

[2002] NSWCCA 381

Reported Decision: (2002) 134 A Crim R 174

New South Wales

Court of Criminal Appeal

CITATION:	R v Palu [2002] NSWCCA 381
FILE NUMBER(S):	CCA 60284/2002
HEARING DATE(S):	13/09/2002
JUDGMENT DATE:	17 September 2002
PARTIES :	Regina v Iteni Sivo Palu
JUDGMENT OF:	Levine J at 1; Hidden J at 2; Howie J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/3289
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ

COUNSEL :	P Ingram - Crown C Craigie - Respondent
SOLICITORS:	S E O'Connor - Crown D J Humphreys - Respondent
CATCHWORDS:	Criminal Law and Procedure - Sentence - Adjournment under s 11 of Crimes (Sentencing Procedure) Act unjustified - failure of sentencing judge to find facts before making order - effect of statements by offender in pre-sentence report.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 - ss 11, 86(4) Criminal Appeal Act 1912 - s 5D Crimes Act 1900 - ss 33, 35 Evidence Act 1995
CASES CITED:	R v Trindall [2002] NSWCCA 364 Chow v DPP (1992) 28 NSWLR 593 The Queen v De Simoni (1981) 147 CLR 383 Altham (1992) 62 A Crim R 126 Tindall v Gunton (1994) 74 A Crim R 275 R v Glen (NSWCCA, unreported 19 December 1994) Henderson (NSWCCA, unreported 5 November 1997) R v Qutami [2001] NSWCCA 353
DECISION:	See paragraph 44.

60284/02

LEVINE J
HIDDEN J
HOWIE J

TUESDAY 17 SEPTEMBER 2002

REGINA v ITENI SIVO PALU

Judgment

1 Levine J: I agree with the orders proposed by Howie J and his reasons therefore.

2 Hidden J: I agree with Howie J.

3 Howie J: This is a Crown appeal against what is asserted to be the inadequacy of a sentence imposed by Judge Coorey upon the respondent when he appeared before his Honour on 26 April 2002 for sentence on a charge of maliciously inflicting grievous bodily harm. On that day his Honour adjourned the proceedings to 29 November 2002 and granted bail to the respondent on certain conditions. It is clear that this order was made under s 11 of the Crimes (Sentencing Procedure) Act.

4 It has been recently held by this Court that an order made under s 11 could be the subject of an appeal by the Crown to this Court under s 5D of the Criminal Appeal Act, even though, as was the situation in that case, no date had been fixed for the further hearing of the matter: R v Trindall [2002] NSWCCA 364.

5 The Crown contends that, in light of the seriousness of the offence for which the respondent was to be sentenced and because it was inevitable that a full-time custodial sentence had to be imposed upon him, it was outside the legitimate exercise of his Honour’s discretion to make an order under s 11 adjourning the sentencing proceedings. Before considering the merits of this contention, it is necessary to refer briefly to the history of the matter.

The sentencing proceedings so far

6 On 4 March 2002 the respondent was arraigned before his Honour Judge Sides QC on an indictment containing two counts: the first alleging an offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm contrary to s 33 of the Crimes Act, the second, in the alternative, alleging that he maliciously inflicted grievous bodily harm contrary to s 35 of the Crimes Act. The respondent pleaded not guilty to the first count but guilty to the second. The Crown accepted that plea in full satisfaction of the indictment. The respondent’s legal representative, Mr Massey, initially indicated that there was a dispute as to the facts of the matter, but after a short adjournment his Honour was informed that the dispute had been resolved. A statement of facts was tendered by consent. The matter was then stood over for sentence and a pre-sentence report was requested from the Probation and Parole Service. The respondent’s bail was continued, it being a condition that he report to the Service.

7 The statement of facts tendered disclosed the following matters. At about 9:30 pm on 26 January 2001 the respondent and the victim were seen seated in a park next to the Fairfield Hotel. They had been drinking beer together since about 2 pm that afternoon. At about 10 pm witnesses saw three Islander males coming towards them from the Fairfield Hotel. The respondent and a third male were walking either side of the victim and appeared to be holding him up, helping him to walk. The three men went through the park and into a car park that was out of sight of the witnesses.

8 The witnesses heard noises coming from that area that sounded like fighting and screams. One of them was able to look over the fence and saw the victim lying on his back on the ground with blood on his shirt and face. The respondent was yelling at the victim in a foreign language and then kicked him once or twice. The witness then contacted the police. The respondent and the other male returned to the hotel.

9 When police arrived the witnesses identified the respondent to them and they arrested him. The next day the respondent participated in an interview in which he gave an account of the circumstances in which the victim was injured. He told police that the victim initiated a fight during which the respondent punched him to the ground. The victim then threatened the respondent with a bottle and it was suggested by a third person that they should go somewhere else to fight “so that if anyone of us passed away or died as a result of the fight and that no one would take notice or take care of what would be happening, if we were to do the fighting again”. They went to the car park where the respondent punched the victim four times to the head and then returned to the hotel. He denied kicking the victim.

10 The victim’s injuries were described as follows:

The victim was taken by ambulance to Liverpool Hospital, suffering a ten centimetre right occipital skull fracture with underlying extradural haematoma and right frontal lobe contusions. The following day he was given a right occipital craniotomy and was taken to intensive care. He developed Meningococcal Meningitis in early February, which was treated with antibiotics. On 18 February he came out of Post Traumatic Amnesia. He has severe hearing loss in his right ear as a result of the head injury and meningitis and is expected to have permanent cognitive and physical problems as a result of the injury.

11 An antecedent history report was tendered that revealed that the respondent’s only criminal record was that in May 1998 he had been fined for traffic infringements and fined and disqualified from driving for 2 years for high range PCA.

12 On 26 April 2001 the matter came before Judge Coorey. Initially the Crown’s representative indicated that there would be no objection to a non-custodial sentence. The Crown also conceded that, because the respondent had indicated a willingness to plead guilty to the alternative count on the first occasion it had been offered to him, the plea was entered “at the first available instance”. His Honour was advised of the nature of the injuries suffered by the victim and Mr Massey volunteered that they were “quite serious injuries”. Mr Massey also informed Judge Coorey that the injuries were inflicted as a result of a fight between best friends and confirmed that the respondent and the victim remained friends notwithstanding the offence. The Crown then tendered numerous statements from the Crown brief of evidence including the record of interview with the respondent

13 The Crown also tendered a pre-sentence report that disclosed the following information. The respondent was born on 28 February 1958 in Tonga. He came to this country in 1996 with his wife but in 1999 they separated and she returned to Tonga where she now resides with their three children. The respondent does not have any immediate family or close relatives living in Australia and he is staying with friends. He is normally employed in labouring positions but had been unemployed for the three months prior to his appearance before the court. However, he occasionally obtains casual labouring work. The respondent’s command of the English language is very limited. The officer found the respondent to have little insight into his offending behaviour in that he had difficulties accepting that his actions were unacceptable and seemed to lack regard for the injuries sustained by the victim. However, he did indicate that he regretted his actions. The opinion was expressed that the respondent could benefit from anger management and alcohol counselling programs.

14 In relation to the circumstances of the offence, the following was contained in the report:

"That the offender stated that he knows the victim as they drank together on other occasions at the local tavern. In relation to the offence, he stated that he had been very intoxicated at the time and had been consuming alcohol for a prolonged period of time (3 days). He stated that the victim had tried to hit him with a bottle earlier in the evening, at the hotel and he was not sure why. He said he was then challenged by the victim to a fight. He said they went to the park for a fist fight to settle their differences. However, he admitted it got out of hand. Mr Palu appears to have difficulties accepting that his actions were highly inappropriate despite the victim first challenging for a fight.

Mr Palu stated that he had met up again with the victim after he was out of hospital in February 2002 at a local tavern in Fairfield and they drank together. He claimed that the victim told him that if he had visited him at the hospital he would not have pressed charges against him.

15 When after a number of adjournments of the matter throughout the day the proceedings resumed apparently to be heard to finality, his Honour made the following statement:

Mr Massey what's the best thing to do with your matter? I’ll tell you what I am thinking, I’m thinking that your client probably needs counselling in anger management and he needs counselling in alcohol control doesn't he? And I'm just wondering if it's a proper case for a Griffiths remand, I'm just thinking. He's certainly - from what I can see from the pre-sentence report he's a friend of the victims and they were both drinking together and the victim apparently wouldn't have pressed charges had he gone to see him in hospital, which he didn't do.

A discussion then ensued between his Honour and the respondent's solicitor as to the facts of the matter and the relevance of the respondent’s assertion to the probation officer that he had been drinking alcohol for three days.

16 The Crown then indicated that it cavilled with the facts asserted by the respondent in the pre-sentence report and maintained that the attitude of the victim was irrelevant to the sentencing proceedings. The Crown submitted that a Griffiths remand was not appropriate. There then followed a discussion between the sentencing judge and the legal representatives of both parties as to the right of the Crown to dispute matters contained in the pre-sentence report. The sentencing judge expressed the view that the Crown could not object to material that was contained in a report that the Crown had tendered, although he somewhat begrudgingly accepted that the Crown might make submissions as to the weight to be given to that material.

17 After his Honour indicated that he thought the matter was a case for a "Griffiths remand" and that it should be adjourned for further hearing on 29 November next, the following exchange occurred:

HIS HONOUR: 29/11. See one of the things in a Griffiths remand Mr Massey is if at the end of the day would be a situation where there would be or would not be a full-time custodial sentence, what's your argument? What do you say?

Massey: M y submission would be that there shouldn't be a full-time custodial sentence .

His Honour : There should not.

Massey : I think the Crown's attitude is there should be. I think we're the epitome of poles apart myself and my friend your Honour.

His Honour : What will you be arguing, you say it's a case for periodic or you say -will you be saying it's a periodic situation?

Massey : I think so your Honour and if your Honour was against me on that, home detention. I suppose following Dinsdale, the next step up would be a suspended sentence.

18 The sentencing judge then convicted the Respondent and made the following order under s 11:

For the purpose of assessing his capacity and prospects for rehabilitation, I will adjourn the proceedings to 29 November 2002.


The Respondent was then granted bail on conditions including that he was to report to the Probation and Parole Service.

The proceedings in the District Court were flawed

19 It should be observed at this point that the proceedings before his Honour were conducted in a manner that was a long way short of satisfactory. I appreciate that a Friday in the District Court can present a judge hearing, what are euphemistically called, “short matters” with pressures to deal with those cases expeditiously and unnecessary procedural formality can result in an undue waste of valuable court time. But the matter with which the respondent was charged was clearly very serious and even his legal representative acknowledged that some type of custodial sentence had to be imposed. Yet the proceedings were constantly interrupted, the representatives of both parties were often not available when the matter was called on leaving persons with apparently little knowledge of the matter standing in their stead, and ultimately the sentencing judge had an unreasonable time constraint imposed upon him when the matter recommenced after lunch because the Crown representative was not available after 3 pm as she had to interview a witness for a trial the following week.

20 A particular defect in the proceedings, which is now of significance, is that it was never made clear by the parties with any particularity at all the extent of the factual disputes that had to be resolved by his Honour. This was largely because there was a degree of procedural informality that was inappropriate once it was clear that the parties were not ad idem as to the factual basis upon which the respondent was to be sentenced or the appropriate sentencing disposition. Disputes and issues that arose were determined in an ad hoc fashion, if at all. The prosecutor, who finally had carriage of the matter, complained at one stage that she had not had access to the pre-sentence report and was not aware of what had been said earlier in the proceedings when she was not present. Ultimately the order under s 11 was made without his Honour ever ascertaining the extent of the factual matters in dispute between the parties or attempting to resolve them.

21 It behoves the parties, especially after a “plea bargain”, to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP, above at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case.

The submissions before this Court

22 Section 11 of the Act relevantly provides:

11 Deferral of sentencing for rehabilitation and other purposes
(1) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date, and granting bail to the offender in accordance with the Bail Act 1978 :
(a) for the purpose of assessing the offender’s capacity and prospects for rehabilitation, or
(b) for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or
(c) for any other purpose the court considers appropriate in the circumstances.
(2) The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the finding of guilt.

23 The thrust of the Crown’s contention on this appeal is that, as the only sentence that could be imposed upon the respondent was one of full-time custody, there was no purpose to be served in adjourning the matter under s 11 in order to have an assessment made of the respondent’s capacity and prospects for rehabilitation. In support of that submission the Crown relies upon the extent and nature of the injuries caused to the victim and the manner in which those injuries were inflicted by the respondent.

24 The Crown asserts that the sentencing judge gave far too much weight to the reported statements made by the respondent to the probation officer concerning the circumstances of the offence as mitigating the seriousness of the objective facts which were otherwise before the Court in the statement of facts and the witness statements. The Crown also contends that his Honour was too much influenced by the purported attitude of the victim to the offence. Further, the Crown submitted that there was insufficient material before the sentencing judge to indicate that there was “a real expectation, founded upon solid grounds rather than mere sentimentality” that an adjournment would compel some course of conduct to rehabilitate or reform the respondent, see Tindall and Gunton (1994) 74 A Crim R 275 at 276.

25 On behalf of the respondent it is argued that the Crown’s appeal is premature because this Court lacks the material before it to be able to intervene even if it wished to do so. It is pointed out that the sentencing judge had not made any findings as to the circumstances in which the injuries were sustained by the victim and yet there appeared to be two, somewhat contradictory versions given in the statement of facts. It was submitted that the only step taken by his Honour toward sentencing the respondent was to adjourn the matter to obtain evidence to leave open all available sentencing options.

26 In answer to the Crown’s contention that nothing but a full-time custodial sentence was open on the objective facts and therefore, there was no purpose in adjourning the matter, it was submitted that there is nothing in an order made under s 11 which suggests that a particular sentence will be imposed on the adjourned hearing date.

27 It was further submitted that there was no requirement that the sentencing judge determined disputed issues of fact before determining to make an order under s 11. It was conceded however that in light of the attitude presently taken by the Crown such a course would have been, in retrospect, desirable.

The nature of an adjournment under s 11

28 The purpose and effect of an order made under s 11 was considered in R v Trindall, above, where Smart AJ extensively reviewed the authorities concerned with the use of a Griffiths remand and then compared that sentencing option with that now available under s 11. In his judgment, with which Spigelman CJ and the Grove J. agreed, Smart AJ stated:

59. While the prospects of rehabilitation arise for consideration when considering whether an offender should be gaoled and the length of the head sentence they are also of great importance when fixing the non-parole period. That represents the court's view of the minimum period an offender must spend in gaol. The Parole Board in sentences exceeding three years mostly acts on the non-parole period fixed by the court.

60. Often a Court experiences difficulty when sentencing an offender in determining the offender's prospects of rehabilitation and whether the foreshadowed rehabilitation will occur. In many instances it will be of great assistance to the sentencing judge if there is an adjournment to enable the offender to demonstrate that rehabilitation has taken place or is well on the way. That was the present case. It is so much better for the court to have evidence of what has actually taken place than to have to base its decision on the opinions of experts, assertions by the offender and what has happened over a short period of time, that is, since the commission of the offence or the offender's arrest.

61. The addition in s11(1)(c) of any other purpose which may be appropriate as the basis for granting a Griffiths remand extends the generally understood purposes for which such a remand may be granted. I have earlier referred to one example. Another is to enable recommended and important surgery to take place. There would be other instances where it would be appropriate to grant a Griffiths remand.

62. I do not share the view that it necessarily imposes undue hardship on the offender to grant a Griffiths remand and warn him that he may still go to gaol, or that he will go to gaol and that the remand is for the purpose of determining a non-parole period. From my experience many offenders prefer to take their chances. Most believe that they will be able to demonstrate marked improvement or rehabilitation, for example, defeating a drug habit, obtaining employment, taking their medication regularly to keep a troublesome condition under control or as the case may be. After all, going straight to gaol gives them no opportunity of avoiding that devastating experience or reducing the extent of that experience. For many, almost anything is better than that experience. Given the unattractive alternative a period of waiting and uncertainty is preferred. A Griffiths remand is not granted against the will of an offender.

63. As the maximum period for which a Griffiths remand can be granted is 12 months, this option can be adequately controlled. That is an important additional provision.

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.

29 As Smart AJ identified, the discretion conferred upon a sentencing judge by s 11 can be a valuable sentencing tool when used in an appropriate case for the purpose of arriving at a sentence which is just both for the offender and for the community. But the section can only be utilized in a principled way and upon proper material placed before the court otherwise it becomes an instrument of injustice, either by raising false expectations in the mind of the offender as to the sentence which will ultimately be imposed upon him or by becoming the justification for the imposition of a sentence which fails to meet legitimate expectations of the community as to the punishment to be imposed upon the offender.

30 The exercise of the power given under s 11 will inevitably result in delay in the finalisation of the prosecution of the offender. On many occasions, as in the present case, that delay will be substantial. Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. 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.

The proceedings miscarried

31 In the present case the offence was committed in January 2001. Despite the fact that the respondent was arrested immediately after the commission of the offence, that he was expeditiously charged and prosecuted, and that he pleaded guilty at a timely stage in the proceedings in the District Court, he remains unsentenced as at September 2002. On its face that situation is completely unacceptable especially where a custodial sentence of some sort is the inevitable consequence of the sentencing proceedings. Unfortunately, the conclusion is inescapable that the course adopted by his Honour was completely unwarranted on whatever view is ultimately taken of the facts and whatever be the outcome of the adjournment.

32 A miscarriage of justice has occurred in the present case because his Honour had Insufficient regard to the seriousness of the step he was proposing in adjourning the matter for a lengthy period. The only basis upon which his Honour seemed to have concluded that an order under s 11 was warranted was because he thought that the respondent “probably needs counselling in anger management and he needs counselling in alcohol control". In so far as his Honour also appears to have taken into account the alleged attitude of the victim as reported from the bar table and in the pre-sentence report, I shall return to that matter shortly. But there was simply nothing in the material before his Honour that suggested that any further investigation or procedure was warranted at that stage in the proceedings to promote the rehabilitation of the respondent.

33 The respondent was aged forty-four with no prior relevant record except that he had an alcohol-related traffic matter some years earlier. The facts of the present charge revealed no more than that on one occasion he had, while under the influence of alcohol, over-reacted to a threat by his drinking partner and proceeded to attack him with such violence that the victim was left suffering from a severe and permanent brain injury. The adjournment was for the purpose of “assessing [the respondent’s] capacity and prospects for rehabilitation”. But what, on the material before his Honour, indicated that it was necessary to undertake that assessment before an appropriate punishment was inflicted upon him? In particular, how could that material justify a delay in sentencing for over six months for such a purpose?

34 The respondent was entitled to have taken into account that the offence was an isolated instance of violence and that it occurred while he was intoxicated. The probation officer had reported that the respondent maintained he had no problem with alcohol and usually drank up to six cans of beer a week. The respondent had told the probation officer that he was not normally an aggressive person and there was nothing to suggest otherwise. Nor was there anything to suggest that the probation officer’s assessment that the respondent could benefit from anger management and counselling in respect of his alcohol use was erroneous or unjustified. These were matters that were clearly relevant both to an assessment of the appropriate custodial order to be made and the relevant non-parole period. This material itself suggested that the respondent had good prospects for rehabilitation to the extent that such a consideration was relevant in determining the nature of the sentence to be imposed upon him. His Honour clearly had all the information before him that he needed in order to determine an appropriate sentence to impose upon the respondent. I venture to suggest that, when regard is had to the objective seriousness of the offence, the need for the sentence to assist in the rehabilitation of the respondent was not of any great significance given his age, his lack of significant criminal record, and the contents of the probation report.

35 The fact that the respondent had told the probation officer that he had consumed alcohol for three days loomed large in his Honour's mind and in the relatively short debate before the proceedings were adjourned. But even if that assertion were true (and it conflicted with what he told police the next day after the offence), what possible effect could that fact have on either the respondent's culpability or the appropriate measure of his punishment? What possible relevance did it have to the task before his Honour whether the respondent had been drinking for three days or three hours before he viciously assaulted the victim? His Honour seems to have been under the mistaken impression that this asserted fact justified the court placing the respondent's rehabilitation at a premium,

36 His Honour seems also, with respect, to have been unduly influenced by the fact that the victim and the respondent were still friends and that the prosecution of the respondent was in some way attributable to his failure to visit the victim in hospital. Even if these assertions were true, they had little relevance to the sentencing of the respondent and none at all in the exercise of the power to adjourn the proceedings under s 11.

37 The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (NSWCCA, unreported, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim.

38 In my opinion the submission that it was unnecessary for his Honour to make findings of facts before making an order under s 11 should be emphatically rejected. How can a court know whether an order adjourning the matter under that provision is necessary unless the court knows the objective seriousness of the offence for which the offender is to be sentenced? Orders made in the course of sentencing are not made in a vacuum. They are made in reference to the facts upon which the offender is to be sentenced. If the factual basis upon which the sentence is to be determined is not resolved, the court cannot make any sensible assessment of what weight is to be given to the competing considerations that almost always attend the sentencing process: choosing a sentence which reflects the objective seriousness of the offence while at the same time meeting the needs of the offender. Certainly it cannot determine whether there is any point to be served in investigating the capacity and potential of the offender for rehabilitation let alone determine whether that is an essential step in the sentencing process.

39 Although it is unnecessary for the determination of the present matter to consider the use that is to be made of the assertion of facts in a pre-sentence report, the matter was raised on the appeal and has been canvassed in written submissions of the parties. The suggestion made at one time by the sentencing judge that, the Crown was bound by the material contained in a pre-sentence report because the Crown had tendered the document, cannot stand scrutiny. It is enough to refer to the fact that an application for the preparation of such a report is almost inevitably made by the defence and a report will not be prepared without an order of the court. The report is merely tendered by the Crown as a matter of procedural formality. What weight is to be given to the contents of the report so far as any factual material is concerned is, of course, a matter for the court to assess in the light of the other material before it. But the Crown is clearly entitled to make submissions on the contents of the report including asking the sentencing court to reject some assertion of fact contained in it.

40 Observations made by this Court in relation to statements made by offenders to psychiatrists and psychologists apply equally in the case of assertions by an offender contained in a pre-sentence report. In Regina v Qutami [2001] NSWCCA 353, Smart AJ, stated:

58 There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.

59 There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.

Spigelman CJ said:

79 I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentencing hearings.

41 A probation officer preparing a pre-sentence report merely questions an offender about the offence because it may reveal some matter about the offender's attitude which is relevant to the primary purpose of the report, that is to indicate matters which might be addressed by the service in aiding in the rehabilitation of the offender and to advise on available sentencing options as required by the provisions of the Crimes (Sentencing Procedure) Act, see for example s 86(4) in respect of suitability for a community service order. The officer does not offer an opinion as to the reliability of what is said. Such comments have little evidentiary value if not supported by other material.

42 When the Crown raised objections to the use being made of statements by the respondent about the offence contained in the report a dispute arose as to whether or not the provisions of the Evidence Act applied to the proceedings generally or to the material contained in the pre-sentence report. That was a question the resolution of which was hardly conducive to a proper determination of the issues before the court. With respect, his Honour allowed himself to be deflected from a proper determination of those matters which were relevant to the sentence to be imposed upon the respondent by such considerations which in the end were of limited, if any, significance to the task before him.

The appeal should be allowed

43 Notwithstanding that the proceedings before his Honour miscarried by the order his Honour made under s 11, it is impossible for this Court to intervene and sentence the respondent, as his Honour should have done. Although the material before this Court is more than adequate to permit the Court to undertake that task, His Honour has failed to determine any issue of fact which is in dispute and which must be decided before sentence can be imposed. The resolution of the disputed factual basis for the imposition of sentence is a matter that should not initially be undertaken by this Court, thus depriving a party of the opportunity to appeal against such a finding. The Crown indicated that it was not asking this Court to proceed to sentence the respondent. The matter is before his Honour again in a little more than two months but there is no need for further delay.

44 I would allow the appeal and quash the order made by his Honour adjourning the matter to 29 November 2002. The matter should be returned to the District Court to be re-listed before his Honour at the earliest opportunity convenient to the court and the parties. The respondent’s bail should be continued to the date fixed by the court for the further hearing of the sentencing proceedings. I would order that a pre-sentence report be available for the adjourned hearing date.

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