R v Rayment - [2010] NSWCCA 85

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Rayment [2010] NSWCCA 85

FILE NUMBER(S):
2008/18584

HEARING DATE(S):
28 April 2010

JUDGMENT DATE:
7 May 2010

PARTIES:
Regina (Appellant)
Randall James Rayment (Respondent)

JUDGMENT OF:
Tobias JA Johnson J Rothman J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/18584

LOWER COURT JUDICIAL OFFICER:
Coorey DCJ

LOWER COURT DATE OF DECISION:
9 February 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
---

COUNSEL:
Mr F Veltro (Appellant)
Mr J Stratton SC (Respondent)

SOLICITORS:
Solicitor for Public Prosecutions (Appellant)
Mark Rumore & Associates (Respondent)

CATCHWORDS:
CRIMINAL LAW
sentence
Crown appeal
order under s.11 Crimes (Sentencing Procedure) Act 1999
offences of reckless wounding and aggravated detain for advantage
whether error in exercise of s.11 power
held (by majority) error not disclosed

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
R v Trindall [2002] NSWCCA 364; 133 A Crim R 119
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
House v The King (1936) 55 CLR 499
Sayin v R [2008] NSWCCA 307
R v Miria [2009] NSWCCA 68
Spooner v R [2009] NSWCCA 247
R v Elmir [2003] NSWCCA 192
Lovell v R [2006] NSWCCA 222
Barlow v R [2008] NSWCCA 96
R v Swan [2006] NSWCCA 47
R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94
R v Dodd [1991] 57 A Crim R 349
R v Scott [2005] NSWCCA 152
Truss v R [2008] NSWCCA 325
R v Alameddine [2005] NSWCCA 68
R v ABS [2005] NSWCCA 255
R v JW [2010] NSWCCA 39
O’Neil-Shaw v R [2010] NSWCCA 42
Re Coldham Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
R v Gordon (1994) 71 A Crim R 459
Griffiths v R [1977] HCA 44; (1977) 137 CLR 293
HAN, Zhi Qiang v R [2009] NSWCCA 300
R v AN [2005] NSWCCA 239
R v LNT [2005] NSWCCA 307
MJ v R, CPD v R [2010] NSWCCA 52

TEXTS CITED:

DECISION:
Crown appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/18584
TOBIAS JA
JOHNSON J
ROTHMAN J
7 May 2010

R v RANDALL JAMES RAYMENT

Judgment

TOBIAS JA: I have had the advantage of reading in draft the judgments of Johnson J and Rothman J in this matter. As their Honours adopt opposing views as to the outcome of the Crown’s appeal, it falls to me to, in effect, choose between them. This is no easy task for the reasons of each of my colleagues in reaching their respective conclusions are both principled and persuasive.
There seems to me to be three issues of particular relevance to my decision. The first is whether the sentencing judge made a finding with respect to the objective seriousness of the offences for which the offender was to be sentenced. It is apparent that he made no express finding with respect to that matter. However, he did refer to the Crown’s submission that both offences were objectively serious and involved continued violence. With respect to the offence of aggravated detaining for advantage, he referred to the Crown’s contention that it was an act of cruelty and could indeed be described as torture and that it was planned.

His Honour also referred to the Crown’s submission that the reckless wounding offence was objectively serious involving as it did the unprovoked throwing of a glass by the offender and his punching of the victim. Reference was also made to the offender’s submission that this offence could be properly classified below the mid-range of seriousness.

The only express finding of the sentencing judge with respect to the matter of the objective seriousness of the offences was follows:

“I accept the Crown’s submission that these offences normally and rightly attract full-time custodial sentences. I have not overlooked the Crown’s submission in relation to the seriousness of the two offences before me.”

True it is that his Honour did not make express findings as to the point in the range of objective seriousness in which offences fell but in my view there can be little doubt that he was more inclined to accept the Crown’s submissions on this issue than those of the offender, namely, that each offence was indeed objectively serious and deserving of a custodial sentence.

The second issue concerned his Honour’s consideration of s.11. In particular, it is unclear whether his Honour made a finding to the effect that s.11(1)(a) was engaged rather than s.11(1)(b) or that both were engaged. As Johnson J notes at [115] of his reasons, counsel for the offender made application to remand his client to ONE80TC for a period of 12 months under s.11(1)(b) to allow him to demonstrate that rehabilitation had taken place. As his Honour also noted, the sentencing judge’s reasons did not refer to that provision and some of his comments raised the question as to whether some other subsection of s.11(1) was being relied upon.

In my opinion, notwithstanding that the application on the part of the offender was made under s.11(1)(b), it would appear that his Honour was, at least to some extent, seeking to engage s.11(1)(a). I am of this view due to the terms of the final order that his Honour made:

“In this matter the offender is convicted. For the purpose of assessing his prospects of rehabilitation and assessing the value of his rehabilitation, I adjourn these sentencing proceedings to Friday 10 December 2010.”

The terms of that order bespeak s.11(1)(a). If that were so, then the Crown’s appeal may have substance. This is because the evidence in my view clearly established that the offender did have the capacity for rehabilitation and that his prospects were, according to the evidence, good. In this respect his Honour, towards the end of his reasons and before making the order referred to, stated:

“I am satisfied on the evidence of Pastor Freebrey (sic) and the evidence of the offender that the offender has made outstanding, substantial rehabilitative progress in this centre [the latter being a reference to the ONE80TC organisation].”

Nevertheless, the application by the offender was made, and in my view properly made, pursuant to s.11(1)(b). Although not referred to by his Honour, it is reasonably apparent from his remarks that he was not ignoring that provision. Accordingly, the jurisdictional question that arose was whether an adjournment should be granted for the purpose of allowing the offender to demonstrate that rehabilitation “has taken place”.

We were not referred to any authority as to the meaning of the words “has taken place” in the context in which they appear. I do not regard them as synonymous with “has been completed”. The completion of a course in rehabilitation does not necessarily lead to the conclusion that rehabilitation “has taken place”; a fortiori that that purpose has been demonstrated.

In my view, s.11(1)(b) is directed to the offender having the opportunity to demonstrate - ie affirmatively establish – that he or she has in fact been rehabilitated or, as Smart AJ observed in Trindall at [60], that at least the offender’s rehabilitation was “well on the way”.

Of course as both Johnson J and Rothman J point out, rehabilitation can be regarded as an ongoing process and may extend over years. But that is not necessarily so in all cases.

In the present case the evidence which is referred to by Rothman J at [145]-[150] of his reasons was capable of establishing that the offender’s rehabilitation had not yet “taken place” although it had progressed towards achieving that end. The fact that it had not yet “taken place” was supported by Pastor Feebrey’s evidence that to permit the offender to complete the course on which he had then embarked would enable him to “show more resilience to anti-social behaviour” and would make it less likely, as I understand his evidence, that the offender would “go very much backwards” as some do.

The point of the Pastor’s evidence, as I understand it, was that the offender’s rehabilitation had not yet reached the stage where it could be said with confidence that he could necessarily resist the pressures of a custodial sentence in terms of its potential adverse impact upon the undoubted progress he had already achieved.
As the Pastor in effect opined in the passage from his cross-examination recorded by Rothman J at [146] of his reasons, the temptations in prison, where it is not unknown for drugs to be available to inmates, would necessarily be eliminated if the offender was able to temporarily remain in the drug and alcohol free environment in which he had been since May 2008.

In my view the sentencing judge accepted the evidence to which I have referred when he stated that he was satisfied that the offender’s rehabilitation would continue if he were allowed to remain at ONE80TC until November 2010. I accept that this was a poor choice of words by his Honour as the continuation of rehabilitation is not the test required to engage s.11(1)(b) but I am prepared to accept that he was essentially making a finding that rehabilitation had not yet “taken place” and that an adjournment of the offender’s sentencing to the date proposed would enable him to demonstrate that his rehabilitation had truly “taken place”.

The third matter, which generally follows from and overlaps with the second, is that once one or more of the subparagraphs of s.11(1) is engaged, the sentencing judge is then required to exercise his discretion whether to order that the sentencing proceedings be adjourned.

Once it was open to the sentencing judge, as I think it was, to find that the offender’s rehabilitation had further to go before it could be demonstrated that it had “taken place”, then the exercise of his discretion was dependent upon whether his Honour considered than an adjournment would, in the circumstances, be of assistance to him in determining the appropriate sentence to impose.

Although, as I have said, his Honour’s order which I have recorded at [7] above seems to have been couched in the terms of provision of s.11(1)(a), nevertheless it is apparent that his Honour considered that the sentencing process would be assisted by an order that the sentencing proceedings be adjourned to enable the offender to complete the course upon which he had then embarked.

I do not overlook the observations of Johnson J at [117] to the effect that the greatest challenge would occur when the offender is returned to the community and exposed to the prospect of alcohol and drug use and abuse. That will be the ultimate test. But, with respect, that does not mean that the evidence to which reference has been made was incapable of establishing the necessary foundation for the application of s.11(1)(b).

I also acknowledge the force of the remarks of Johnson J at [113] of his reasons. As Rothman J also points out at [172] of his reasons, the offender should be under no illusions as to the outcomes that are available at the final sentencing hearing and which strongly point to a custodial sentence. But ultimately that will be a matter for the sentencing judge.

Even if one considered that a custodial sentence was all but inevitable, nevertheless, as Smart AJ also pointed out in Trindall at [59], the question of rehabilitation arises when considering not only whether an offender should be jailed and the length of the head sentence, but also when fixing a non-parole period. In the present case, the ultimate ability of the offender to demonstrate that rehabilitation has in fact occurred may assume significant weight when the sentencing judge comes, if otherwise he is of the view that a custodial sentence is to be imposed, to determine an appropriate non-parole period.

Finally, I note that in Trindall at [60], Smart AJ said:

“It is so much better for the court to have evidence of what has actually taken place then 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.”

I accept that in the present case the sentencing judge was not required to base his decision upon what had happened over a short period of time as the offender had been in rehabilitation for some 20 months. Nevertheless, I do not understand that Smart AJ was seeking to limit the exercise of the s.11 discretion only to those cases where progress towards rehabilitation has only occurred over a short period of time.

No doubt, with some offenders rehabilitation will be a slower process than with others. Each case must be determined on its own circumstances. The discretion cannot be confined provided that the sentencing judge considers that an adjournment, for example, for the purpose of an offender demonstrating that rehabilitation has taken place, will be of assistance in determining the appropriate sentence to impose. In my view this is so even if a custodial sentence is inevitable.

I find the present case delicately balanced. I am not assisted by some of the language adopted by the sentencing judge or by his failure to precisely indicate the subsections of s.11(1) that he sought to engage. Nor does it assist that there are no explicit findings of the nature of those which I would have expected.

Nevertheless, after considering the evidence and otherwise accepting the objective seriousness of the offences in question, I am not persuaded that the sentencing judge erred in engaging in his sentencing discretion by engaging s.11 and ordering an adjournment of the sentencing proceedings to 10 December 2010.

For the foregoing reasons in my opinion the Crown’s appeal should be dismissed.
JOHNSON J: The Crown appeals from an order of Coorey DCJ made on 9 February 2010 adjourning sentencing proceedings involving the Respondent, Randall James Rayment, until 10 December 2010 and granting him conditional bail. The order was made under s.11 Crimes (Sentencing Procedure) Act 1999. An adjournment under s.11 is a sentence for the purpose of s.5D(1) Criminal Appeal Act 1912: s.2.
Notice of Appeal was signed by the Director of Public Prosecutions on 18 February 2010 and served upon the Respondent the next day.

The Respondent had pleaded guilty to reckless wounding, an offence under s.35(4) Crimes Act 1900 bearing a maximum penalty of imprisonment for seven years with a standard non-parole period of three years. In addition, the Respondent pleaded guilty to a charge of aggravated detain for advantage, an offence under s.86(2)(b) Crimes Act 1900, which carries a maximum penalty of imprisonment for 20 years.
Facts of Offences
The determination of the Crown appeal requires a statement of the facts of the offences for which the Respondent stood for sentence in the District Court.
In his remarks on sentence of 9 February 2010, Coorey DCJ did not recite the facts of the offences, but incorporated by reference the agreed statements of facts which had been tendered in the sentencing proceedings. They disclosed the following events.
The Reckless Wounding Offence
At about 10.20 pm on Saturday, 8 March 2008, the Respondent (then aged 21 years) and a male associate attended the Pendle Hill Inn where they began drinking, initially purchasing alcohol from the main bar. The Respondent and his associate moved to the bistro and poker machine area of the premises. The two men played the poker machines for a period of time and engaged in conversation with a female patron.
While the Respondent and his friend were talking to the female patron, the victim, Adam Ankrett, entered the poker machine area and sat down in front of one of the poker machines formerly used by the Respondent and his friend. The victim activated the machine with $20.00 and began playing the machine. The Respondent’s associate approached Mr Ankrett and picked up a beer that was next to the machine being used by him, and then returned to where the Respondent was in conversation with the female patron. At this point, the Respondent was seated on a stool next to the victim.
The Respondent turned and began an argument with the victim over who should have control of the poker machine. The Respondent’s friend attempted to intervene, suggesting that they leave. The Respondent stood up and continued the argument, whilst his friend attempted to push him in the direction of the exit. The victim attempted to move away. At this point, the Respondent was holding in his right hand a schooner-sized glass containing a quantity of beer. He swung his arm back and threw the glass towards the victim’s face. The glass hit the victim on the throat and it smashed. The impact of the glass caused a wound to open and bleed on the left side of the victim’s neck. The Respondent began to punch the victim to the face.
The female patron watched as the Respondent stood over the victim who, by this time, was on the floor. The Respondent’s friend made further unsuccessful attempts to encourage him to leave. The Respondent then knelt on the victim’s chest and repeatedly punched him with a closed right fist to the face, causing blood to come from the victim's nose.
Concerned by the force of the punches and that the Respondent might not stop, the female patron left the area to seek assistance. The Respondent stopped punching the victim and, with his friend, left the area shortly after the female had gone to obtain assistance. The Respondent crossed through the interior of the hotel, coming into contact with a hotel security guard who was on his way to investigate noises associated with the assault. The security guard grabbed the Respondent by his shirtfront and asked him “What’s going on”? The Respondent threw back his hands and replied “Let me go. It’s got nothing to do with me”. The security guard let go of the Respondent’s shirt and continued on his way towards the scene of the incident. At the same time, the Respondent left the hotel and was followed shortly after by his friend.
The victim was taken to Westmead Hospital where he underwent surgery for the wound to his neck, which was described as a four centimetre jaggered laceration. Surgical exploration of the wound was conducted, revealing no significant injury to major vessels nor haemorrhages. The wound had cut through the division strap muscles of the victim’s neck. During surgery, the muscles were stitched back together and the wound was closed up with 10 external sutures as well as numerous internal sutures. The victim reported suffering from scarring to his neck and dizziness, inducing headaches and blurred vision since the assault. He was subject to ongoing medical supervision.
Portions of the incident were recorded by closed-circuit television facilities located in the hotel. During the police investigation, DNA analysis of a baseball cap discarded by the Respondent in the poker machine area was matched to him. As will be seen, the Respondent was charged with the aggravated detain for advantage offence on 15 April 2008. On 5 August 2009, the Respondent handed himself in at Windsor Police Station, declined an interview and was charged with the reckless wounding offence.
The Aggravated Detain for Advantage Offence
The Respondent was born in August 1986 and is the biological son of the victim of the s.86(2)(b) offence, Laurence Rayment (“Laurence”). The Respondent has a half-sister, ET, who was born in 1983. The Respondent and ET have the same mother, but ET is not the biological daughter of Laurence.
For a time up to 2001, Laurence, his wife, the Respondent and ET lived together as a family at a house in Lakemba. In 2001, the father, ET and the Respondent moved into a house at Merrylands. ET lived there for two to three months before moving out. The Respondent and his father continued to live at the premises for about two years. In 2003, the Respondent moved from the Merrylands premises when he was about 16 years of age.
Laurence was still living at the Merrylands premises in April 2008. There was very little contact between the Respondent and his father between 2003 and April 2008.

Whilst ET, the Respondent and Laurence lived under the same roof at Merrylands, ET alleges that she was regularly abused sexually by Laurence and that neither herself nor the Respondent were provided for in terms of adequate food.
Evidence in the sentencing proceedings revealed that the Respondent was employed at Pizza Hut between 2001 and 2003 (during which he undertook TAFE studies) and from January 2004 to April 2008 with Baiada Poultry.
Around 5 April 2008, the Respondent telephoned his father and asked if he could visit him at the Merrylands home. By this time, the Respondent was 21 years of age and was 6’3” tall and well built from having lifted weights regularly. Laurence agreed to the visit. Soon after, the Respondent arrived at the Merrylands home. It was agreed that the Respondent could stay the night. The next day, the Respondent visited friends and then drank alcohol most of the day and into the evening. He left Laurence’s premises and said he was going to stay at his mother’s house.
On the morning of 7 April 2008, the Respondent returned to the Merrylands premises with a case of beer. He told Laurence he was not going back to work. He said he had slept the previous night in an old car parked in the backyard of Laurence’s house, that he had had an argument with his mother and that he moved away from her place. The Respondent asked if he could continue sleeping in the vehicle and Laurence was reasonably happy with this arrangement. Laurence permitted the Respondent to shower and eat inside the house, although he would ask Laurence if he was allowed to come inside the house before he entered.
At about 4.00 pm on 14 April 2008, Laurence saw the Respondent sitting in the Merrylands backyard drinking beer. The two men sat and talked for a while before Laurence went back inside the house.
At about 7.00 pm, Laurence observed the Respondent standing in the hallway and said “Hi Rand, what are you doing”? The Respondent replied “Trying to do a bit of a workout”. The Respondent had a skipping rope around his shoulders and he was using two dumbbells to perform bicep curls. He said “Dad, let’s do a workout” and then walked into a storeroom where a bench press was set up for workouts. Laurence followed the Respondent into the storeroom and watched him use the bench press to lift weights. After the Respondent had done this, Laurence lay on the bench press and started to do lifts with the barbell, with the Respondent standing behind him.
At this point, the Respondent hit Laurence in the head with his fist and then again to the left side of the face. Laurence said “What happened”? He started falling off the bench press, with the Respondent replying “I hit you”. The Respondent then grabbed both of his father’s hands and tied them tightly together around the wrist area with the skipping rope. He took a roll of masking tape and wrapped it around the victim’s wrists over the skipping rope, making the hands numb. The Respondent pushed his father’s legs to either side of the bench press and tightly wrapped the masking tape around his ankles and the leg of the bench press. At this point, Laurence recalled that he and the Respondent had gone to a nearby auto shop during that week and that the Respondent had purchased five different types of masking tape. At that time, Laurence enquired as to the Respondent's purpose for purchasing the tape, with the Respondent replying “Oh dunno, I just thought it might be handy”.
The Respondent then grabbed some black electrical cords and tied them around Laurence’s legs and the bench press and around Laurence’s wrists over the top of the masking tape. He then tied Laurence’s wrists and right leg together so that his hands were crossed with the palms facing down and bound on top of his right leg, just above the knee. This time, the Respondent used some guitar leads taken from a bag in the storeroom. The Respondent said “I have been waiting for this for a long time”. Laurence kept asking him “Why”? to which the Respondent replied “I hate you”.
The Respondent wrapped more masking tape around Laurence’s head and over his mouth so that the victim was struggling to breathe. Laurence said “I can’t breathe”. The Respondent smiled at him and said What? What? Well, you’ll just have to breathe out your nose”. The Respondent then grabbed another skipping rope and tied Laurence around the neck to the upper part of the bench press, restricting him from moving his head. The Respondent continually said “You’re fucking dead, you know, you’re not going to get out of here. No one’s going to help you”. The Respondent said “You’re fucking dead” many times. He said “I’ve been planning this for weeks. Since I’ve been here I’ve been planning this”. He said “If you do what you’re told you might live or I’ll just break your fingers”. The Respondent told the victim that the reason that he had asked if he wanted to work out was so that he could get him to the bench press. He told him that he thought of hitting him at the computer on an earlier occasion, but it would have been difficult to drag him to the bench press from the lounge room. The victim could not move. He was frightened and he thought he was going to be killed.
The Respondent kept the victim tied to the bench press for the entire night. During the night, the Respondent assaulted him in a variety of ways - by punching him, kicking him, holding a knife to his throat, cutting off parts of his hair and making verbal threats to injure parts of his body and by threatening his life. The Respondent told Laurence on a number of occasions that he was a “dirty paedophile”.
During the evening, the Respondent told Laurence that he was assaulting him as he had abused both the Respondent and ET by withholding food, hitting them and not attending the Respondent’s football matches and by inappropriately touching ET.

During the time when the victim was tied up, the Respondent took a number of digital photographs that captured himself and Laurence. In addition, the Respondent asked Laurence a number of questions. If he did not answer in the way the Respondent wanted, Laurence would again be assaulted until he answered “correctly”. At times, the Respondent provided Laurence with a pen and pieces of paper and then asked him questions. The victim could not speak, with the masking tape over his mouth and he would write out the answers. The Respondent told him “If you write this way that I am happy with I will let you live”.
At one stage, the Respondent held some side cutters to a toe on the victim’s right foot. He said “This is what’s going to happen. I am going to cut off your little toe. It’s only little. It won't bleed much because as soon as I cut it off I’m gonna stop the blood by burning it”. He held the blade to Laurence’s toe. Later, the Respondent held a knife to the top of the victim’s foot and continually moved it up and down with the point against the foot. The victim was barefooted throughout the entire night. The Respondent took the knife away from the victim’s feet when he answered questions “correctly”.
At another stage, the Respondent grabbed a speaker and some power leads from a bag in the storeroom. He rolled the leads around the speaker and hit Laurence on the face, causing it to bleed. He kicked Laurence to the side of the abdomen a number of times in succession.
Neither man slept throughout the entire night. At times, the Respondent left the house through the back door and was away for about five minutes. On several occasions, the victim asked if he could have some water or use the toilet and the Respondent replied in the negative on each occasion. The Respondent was at times drinking beer, but Laurence stated that the Respondent did not appear drunk nor affected by alcohol at any time.
During the night, the Respondent forced Laurence to write a “confession” which detailed the alleged abuse. In addition, the Respondent wrote “pedafile” on the masking tape across the victim’s head.
At about 11.30 am on 15 April 2008, Laurence asked the Respondent for a sip of water. The Respondent cut a hole in the masking tape covering the victim’s mouth and gave him a sip of water. At that point, the mood of the Respondent changed. He placed $150.00 on the end of the bench press and said “There’s money for a train ticket out of Sydney. Get out within two weeks or I’m going to come back and burn the house down”. Laurence said “Can you please cut my hands loose”? and the Respondent used a kitchen knife, side cutters and scissors to cut away the rope, masking tape and leads from his wrist saying “You’ll be right from here”. Laurence tried to lift his head, but it was still tied to the bench press so he said “Rand, can you please do my neck”? The Respondent cut the skipping rope from around the victim’s neck and then cut off the binding from around his legs and feet. The Respondent then lent down and kissed his father on the head, saying “I’ll see you in five year’s time. Love you Dad”. The Respondent walked out the back door with a knapsack on his back.
The Respondent took a number of items belonging to his father when he left, including cameras, a mobile phone, CD players, multi-track recorders, a drum machine, a microphone and personal items. Throughout the night, Laurence had heard the Respondent rummaging through his things in the house. Almost all items removed from the house were retrieved within two days from a Wentworthville residence that was frequented by the Respondent, and then returned to Laurence. The Crown accepted that the taking of these items was part of the intimidation intended for Laurence to feel, rather than an act done with the intention to permanently deprive him of the property.
Laurence untied himself completely and walked next door. His neighbour opened the door to see Laurence with blood on his face, a very swollen and bruised left eye and masking tape stuck to his face and hair. The neighbour observed redness around his ankles and wrists and that Laurence was shaking and in shock. Laurence told him that the Respondent had hit him, tied him up all night and had just left. The neighbour drove around the area looking for the Respondent, but did not see him. The neighbour called the police and an ambulance.
Police attended the Merrylands home and observed injuries on the victim and the area of the bench press and its surrounds. A 15 centimetre knife was found at the entrance of the room and $150.00 was found inside the room. The words “dirty pedafile” and “Laurie” written in texta pen were observed on a cabinet door inside the room. A pair of pliers and a pair of side cutters were found on the table in the dining area and two empty beer bottles were found on the kitchen sink. Police officers noted many bruises and cuts to the victim’s face and head and red welts on his legs and around his wrists and ankles.
An ambulance took the victim to Westmead Hospital where he received medical treatment. A one centimetre laceration under the left eye was sutured and bruising was noted under the left eye with subconjunctival bleeding in the left eye. There were multiple welts of varying sizes on the lower parts of the leg and ligature marks on the feet, ankles and wrists. The victim was kept under observation for a number of hours and then discharged from hospital.
Following the offence, the Respondent had gone to the residence of ET, who then called their mother. The Respondent told his mother he had “an altercation” with Laurence. She rang Merrylands Police Station and was advised that police wanted to speak to him. She drove the Respondent to the police station arriving at about 7.30 pm on 15 April 2008. The Respondent was arrested and declined to answer questions during an ERISP interview. He participated in a forensic procedure to obtain a buccal swab.
On 3 May 2008, ET attended the police station and handed over Laurence’s digital camera. Police downloaded the memory card from the camera and found a number of photographs taken by the Respondent during the course of the offence, including one of the Respondent posing with a smile on his face and Laurence tied to the bench press. Photographs of notes which the Respondent had forced Laurence to write that night were also in the memory card. The camera had also recorded some comments made by the Respondent during the course of detaining his father, including “OK, family, people that are watching stuff, um, I’ve fucking done it. I’ve done what I said I wanted to do to move and fuck get over this fucking speed bump in my life”.
On 25 November 2008, ET made a statement in relation to the proceedings. She gave an account of Laurence being an emotionally abusive father to both herself and the Respondent. She stated that Laurence had sexually abused her when she was 16 years of age and that there were occasions when he was physically violent towards her. She stated that, on one occasion when she was 17 years of age, the Respondent (then about 14 years old) intervened and pushed Laurence away and said “If you want to hit her you’re going to have hurt me, I’m sick of what you’re doing to us”. ET stated that Laurence had manipulated her into sleeping in his bedroom when she was about 17 years of age, and that he had sexually abused her on many occasions before she moved out of the Merrylands premises by 2002.
ET stated that, some time after February 2007, she had told the Respondent that she had been sexually abused by Laurence. The Respondent told ET that he blamed himself for not stopping the victim sexually abusing her. ET observed that the Respondent was very emotional at this time. He kept repeating words to the effect “I could have stopped it. This is my fault”. ET responded that it was “No one else’s fault except for Laurie”.
The Course of Proceedings Against the Respondent
As mentioned, the Respondent was arrested and charged with the aggravated detain for advantage offence on 15 April 2008. Bail was refused. On 26 May 2008, conditional bail was granted in the Supreme Court requiring the Respondent to undertake a course of drug rehabilitation at ONE80TC, a program conducted from premises at Yarramundi, near Richmond. The Respondent has resided at the ONE80TC premises since that time.
On 22 October 2008, the Respondent was committed for trial on the aggravated detain for advantage charge.
A trial date of 14 April 2009 was fixed for the aggravated detain for advantage charge. The trial date was vacated on the application of the Respondent.
As mentioned earlier, the Respondent was charged with respect to the reckless wounding matter on 5 August 2009.
A second trial date of 17 August 2009 had been fixed for the aggravated detain for advantage charge. On that day, the Respondent pleaded guilty to that charge. The Crown no billed an associated charge of stealing from a dwelling, relating to Laurence’s property taken from the Merrylands premises on 15 April 2008 (see [61] above).
On 30 September 2009, the Respondent pleaded guilty in the Local Court to the reckless wounding charge and was committed for sentence.
On 16 November 2009, the two matters were listed for sentence at the Campbelltown District Court, but were adjourned on the application of the Respondent.
On 14 December 2009, the sentence proceedings commenced before Coorey DCJ at the Parramatta District Court. The statements of agreed facts were tendered together with presentence reports dated 12 November 2009 and 3 December 2009 prepared by the Probation and Parole Service for the purpose of the proceedings. Reports dated 1 June 2009 and 25 November 2009 from Dr Bruce Westmore, forensic psychiatrist, were tendered in the sentencing proceedings. In addition, reports dated 23 September 2008 and 10 December 2009 from representatives of the ONE80TC organisation were tendered. References were tendered, as well as clear drug screen urinalysis reports dated July and September 2008. The Respondent gave evidence in the sentencing proceedings as did Pastor Malcolm Feebrey from the ONE80TC organisation. Sentencing submissions commenced and continued on 5 February 2010. The proceedings were further adjourned with submissions continuing on 9 February 2010. A further letter from Pastor Feebrey dated 5 February 2010 was tendered in the sentencing proceedings.
On 9 February 2010, the sentencing Judge determined to take the course proposed by the Respondent’s counsel, namely an order under s.11 Crimes (Sentencing Procedure) Act 1999 adjourning the proceedings until 10 December 2010. That order was made with his Honour providing (unrevised) remarks on sentence explaining why that course was being taken.
The Respondent's Subjective Circumstances
Before turning to the remarks on sentence, it is appropriate to refer to the Respondent's subjective circumstances as revealed by the substantial body of evidence before the District Court by 9 February 2010.
By February 2010, the Respondent was 23 years old. He had a prior criminal history. On 3 May 2004, he appeared in the Children's Court for offences of aggravated robbery, common assault and damaging property. On the aggravated robbery charge, a 12-month control order was imposed with the Respondent released on conditions, including that he accept juvenile justice supervision, attend anger management and drug and alcohol counselling. Probation and community service were ordered for the other offences. On 1 August 2005, the Respondent was fined in the Fairfield Local Court for possession of a prohibited drug and possession of equipment for administering a prohibited drug.
The Respondent's employment history between 2001 and 2008 was mentioned at [45] above.
In his reports, Dr Westmore recounted the Respondent's history of binge drinking and cannabis and amphetamine use, together with his unhappy family history. Dr Westmore diagnosed the Respondent as having suffered from substance abuse, episodic alcohol abuse and depression. He thought it unlikely that the Respondent suffered from antisocial personality disorder. Dr Westmore observed that the Respondent was "making extremely good progress" and that a "significant degree of maturation" had occurred "over the last 12 to 18 months" (before 25 November 2009) so that "if he can remain free of drugs and alcohol, then his long term prognosis both from a forensic and a psychiatric perspective will be extremely good". Dr Westmore observed that the Respondent "revealed a very philosophical attitude towards the outcome of the matters now before the Court" and that he understood "that he had done the wrong thing in relation to his father and the stranger in the hotel". The Respondent seemed to accept that "even if there is a custodial outcome, it is something that he will manage to deal with but he would then hope to continue with his rehabilitation".Dr Westmore observed that "obviously a custodial sentence will interrupt his rehabilitation".
The presentence reports stated that the Respondent had been accepted into the ONE80TC program on 27 May 2008 and "successfully graduated on 12 October 2009". The author considered that the Respondent "appeared to express genuine remorse" for the reckless wounding offence. He "appeared to show very little emotion" when discussing the aggravated detain for advantage offence and believed that his father "deserved it" because of his abuse of ET and the Respondent.
Pastor Feebrey described the 12-month fulltime residential training program which the Respondent had completed. He stated that the Respondent was now in the ONE80TC intern program, being trained to act as a mentor. Pastor Feebrey acknowledged that similar TAFE courses to those being undertaken by the Respondent (as part of the intern program) could be offered to persons in full-time custody (T39.27-32, 14 December 2009). He considered that it was in the Respondent's interests to stay at the ONE80TC Centre (T37.21, 14 December 2009).

The Reasons of the Sentencing Judge for the s.11 Order

The remarks on sentence on 9 February 2010 included incorporation by reference of the agreed facts (page 2) followed by a summary of the evidence of the Respondent (pages 2-4) and Pastor Feebrey (pages 4-5). Thereafter, his Honour summarised the submissions of the Crown and counsel for the Respondent (pages 5-10). His Honour then made the following short findings and comments before determining to adjourn the proceedings by way of a s.11 order (pages 10-11):
“I accept the offender as a credible witness. The offender’s sister was in court when the offender described his father’s assault upon his sister. I am satisfied that the offender gave an accurate account of his father’s misbehaviour towards his sister. I am satisfied that the offender was deeply distressed by this incident and that his father’s misbehaviour was the central motivation for the offender’s offence against his father; that is I am satisfied that his central motivation or his primary motivation was to try and obtain a confession from his father in relation to his misbehaviour upon his sister.
I accept the Crown’s submission that these offences normally and rightly attract full time custodial sentences. I have not overlooked the Crown’s submission in relation to the seriousness of the two offences before me. I am satisfied on the evidence of Pastor Feebrey and the evidence of the offender that the offender has made outstanding substantial rehabilitative progress in this centre and I am also satisfied that that rehabilitation will continue if the offender is allowed to remain in the centre for the balance of this year, that is up to November 2010.
I have only a snapshot view of the prisoner from the evidence that I see and hear. But I do have the benefit of the evidence of Pastor Feebrey and the report of the probation and parole officer and the report of Dr Westmore. I rely very heavily upon that material and I rely in particular upon the evidence of Pastor Feebrey.
Mr Rumore, I think, this course finishes some time in November. It seems to me that the proper time to come back would be probably some time in December.
RUMORE: Yes, your Honour.
HIS HONOUR: I will just have to put it in for a date in December because I will need another report then from the centre so I might put it in for December.
DISCUSSION AS TO AVAILABLE DATES
HIS HONOUR: In this matter the offender is convicted. For the purpose of assessing his prospects for rehabilitation and assessing the value of his rehabilitation, I adjourn these sentencing proceedings to Friday 10 December 2010.”
Bail was granted to the Respondent on condition that he:
“(a) attends Court for sentence on 10 December 2010;

(b)resides at 180T Rehabilitation Centre and that he participates in its programme;

(c)is permitted to attend functions and programmes as arranged by the Centre;

(d)accepts the supervision and guidance of the Probation and Parole Service in Windsor; and

(e)reports to Windsor Police Station by telephone each Wednesday between 8:30am and 6:00pm.“

Reference should also be made to some further comments of the sentencing Judge which were the subject of submissions in this Court. In the course of discussion after orders were made, his Honour said to the Respondent (page 16):
“HIS HONOUR: ……see in this case before me today I have relied heavily upon Pastor Feebrey. To put it bluntly, without Pastor Feebrey’s evidence, there was a very strong chance you would just be going to gaol today. Do you understand that?
OFFENDER: Yes.”
Section 11 Crimes (Sentencing Procedure) Act 1999
Section 11 Crimes (Sentencing Procedure) Act 1999 is in the following terms:
“11Deferral of sentencing for rehabilitation, participation in an intervention program or 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
(b1)for the purpose of assessing the offender’s capacity and prospects for participation in an intervention program, or
(b2)for the purpose of allowing the offender to participate in an intervention program, 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.
(2A)An order referred to in subsection (1) (b2) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.
Note. Section 36A of the Bail Act 1978 enables a court to grant bail to a person on either or both of the following conditions:
(a) that the person enter into an agreement to subject himself or herself to an assessment of the person’s capacity and prospects for participation in an intervention program or other program for treatment or rehabilitation,
(b)that the person enter into an agreement to:
(i)participate in an intervention program and to comply with any intervention plan arising out of the program, or
(ii)participate in any other program for treatment or rehabilitation.
(3)This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment.
(4)Subsection (1) (b1) and (b2) do not limit the kinds of purposes for which an order may be made under subsection (1), so that an order may be made under that subsection for the purpose of allowing an offender to participate in a program for treatment or rehabilitation that is not an intervention program, or to be assessed for participation in such a program.”
In R v Trindall [2002] NSWCCA 364; 133 A Crim R 119, Smart AJ (Spigelman CJ and Grove J agreeing) stated with respect to s.11 orders, at [59]-[64]:
“[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.”
In R v Palu [2002] NSWCCA 381; 134 A Crim R 174, Howie J (Levine and Hidden JJ agreeing) said at [29]-[30]:
“[29] As Smart AJ identified [in Trindall], the discretion conferred upon a sentencing judge by s11 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 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.”
I will return to R v Trindall and R v Palu later in this judgment.
The Crown Appeal
The Crown submits in this Court (as it did in the District Court) that the proper exercise of sentencing discretion in this case required full-time custodial sentences to be imposed upon the Respondent for serious crimes, and that the time had come for imposition of sentence by 9 February 2010. It was submitted that the reckless wounding offence on its own required a full-time custodial sentence and that, although there were unusual features of the aggravated detain for advantage offence, which shed considerable light upon the motive for that offence, a full-time custodial sentence was required in that respect as well.
The Crown submits that the sentencing Judge was seized of all material concerning the objective circumstances of the offences and the subjective circumstances of the Respondent so that sentence should be passed without further delay. The public interest in the determination of criminal proceedings without delay was emphasised.
The Crown acknowledges the substantial body of evidence concerning the rehabilitative steps taken by the Respondent since 26 May 2008. It submits that the Respondent has completed the rehabilitation program which he commenced in May 2008 and that, since then, he has been undertaking training as an intern or instructor within the ONE80TC program, and studying TAFE courses to that end.
The Crown submits that more than two years have already elapsed since the dates of the offences and that, at the present time, the Respondent has been subject to bail at the residential rehabilitation centre for some 23 months.
It was submitted for the Crown that there was ample evidence, as at 9 February 2010, to demonstrate that the Respondent had already made substantial progress towards rehabilitation. He had overcome his drug and alcohol addiction. The sentencing Judge had before him complete presentence reports, reports from a consultant psychiatrist, various testimonials as well as evidence of Pastor Feebrey. It was submitted that the sentencing Judge already knew enough about the case and the Respondent to impose sentence, and was unlikely to learn any new matter of consequence during the period of adjournment between February and December 2010. Even if the Respondent eventually completed the TAFE certificate course and qualified as an intern with ONE80TC, this was not additional material which could bear properly upon the nature of the sentences to be imposed, nor the length of the non-parole periods to be set. In these circumstances, the Crown submits that the Respondent ought be sentenced without further delay. The Crown submits that the order under s.11 made in this case was manifestly inadequate and lay outside the proper exercise of sentencing discretion.
Having regard to the very limited findings made by the sentencing Judge on 9 February 2010 and the undesirability of this Court becoming the primary sentencing Court for a range of issues in the case, the Crown ultimately submitted at the hearing that the appropriate course was to allow the Crown appeal, but to remit the matter to the District Court, to be relisted before Coorey DCJ at the earliest opportunity for the sentencing proceedings to be concluded. This had been the course adopted in R v Palu ([43]-[44]).
Mr Stratton SC, for the Respondent, submitted that relevant error had not been established in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-5. He submitted that the further adjournment of the proceedings until December 2010 was permissible in accordance with s.11 and decisions of this Court, in particular to assist in the determination of the length of the non-parole period to be fixed in the case. Mr Stratton SC submitted that the Respondent has not been lulled into a false sense of security by the proceedings in the District Court and the approach taken by the sentencing Judge on 9 February 2010. He emphasised the unusual features of the case, in particular by reference to the background and circumstances surrounding the aggravated detain for advantage offence and the very substantial rehabilitative steps taken by the Respondent since May 2008. Mr Stratton SC submitted that the Crown appeal ought be dismissed.
Determination of Crown Appeal
An assessment of the Crown submission that the s.11 order in this case lay outside the legitimate exercise of discretion requires some consideration of the objective seriousness of the offences. The sentencing Judge made no findings in this respect. There was no factual dispute concerning the offences, with the Respondent’s evidence touching upon the circumstances in which the offences were committed, including his motive for the aggravated detain for advantage offence.
This Court has emphasised that findings of fact are required before a sentencing court determines to exercise the s.11 power. As Howie J observed in R v Palu at 184 [38], how can a court know whether an order adjourning the matter under s.11 is necessary unless the court knows the objective seriousness of the offences for which the offender is to be sentenced? With respect, the failure of the sentencing Judge in this case to make such findings is a foundational error which serves to explain what, in my view, is the erroneous conclusion which was reached.
The aggravated detain for advantage offence appears to have become the centre of attention in the sentencing proceedings in the District Court. Passing reference only was made to the reckless wounding offence in the remarks on sentence of 9 February 2010.

The reckless wounding offence involved the propulsion by the Respondent of a glass towards the victim with sufficient force that it shattered and cut open his neck. At the time, the victim was minding his own business playing a poker machine and did nothing to draw the aggressive attention of the Respondent to him. The Respondent’s friend attempted to restrain the Respondent from attacking the victim, without success. The victim was obviously injured to the neck with blood flowing from the wound. Despite this, the Respondent continued the attack by kneeling on the prone victim and punching him to the head, causing further injury to him. The Respondent left the scene without disclosing any concern for what he had done. The victim suffered significant injury which required surgical intervention. He has been left with scarring to the neck.
The use of a glass as a weapon during a violent incident in licensed premises has attracted particular comment by this Court. In Sayin v R [2008] NSWCCA 307, Howie J (McClellan CJ at CL agreeing) said, at [47], in the context of a wounding offence committed without any other provocation or chance for the victim to take evasive or protective action:
“The offence, popularly known as ‘glassing’, is becoming so prevalent in licensed premises that there are moves on foot to stem the opportunity for the offence to be committed by earlier closing times and the use of plastic containers. The courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty.”
In R v Miria [2009] NSWCCA 68, this statement by Howie J was referred to by the Court at [16]-[17], with the additional observation that the element of general deterrence looms large in such a case. See also, Spooner v R [2009] NSWCCA 247 at [20].
In my view, these observations remain apt in a case such as this where a glass is used as a weapon during a violent incident in licensed premises, although the glass was not shattered and used as a cutting instrument by the Respondent. A significant element of general deterrence must be taken into account in the imposition of sentence for this offence. A standard non-parole period of three years applies for this offence and is to be taken into account as a guidepost given the Respondent’s plea of guilty. The Respondent’s strong subjective case provides less assistance to him with respect to this offence. The Respondent had a history of prior offences, including an offence of aggravated robbery dealt with in the Children’s Court in May 2004 for which he received a suspended 12-month control order with conditions including juvenile justice supervision, drug and alcohol counselling and anger management. Accordingly, the Respondent is not standing for sentence for the first time before a criminal court for a serious offence. The Respondent had the assistance of community supervision and counselling as part of conditional liberty granted in May 2004 as part of a sentencing order. Thereafter, the Respondent came to commit this serious offence of violence on 8 March 2008.

It is not in dispute that the s.86(2)(b) offence was planned by the Respondent. He acquired the masking tape and gave thought over a period of days (if not longer) to the steps which he would take with respect to his father. The offence itself involved the infliction of actual bodily harm and the making of threats to kill. The offence took place over an extended period of time. The Respondent’s acts may be rightly characterised as acts of torture. Weapons were used in the course of inflicting physical injury and psychological torment upon the victim. The taking of photographs by the Respondent of himself (smiling) and his father during the course of the crime emphasised the element of punishment which the Respondent desired to inflict upon the victim during the protracted period in which the victim was subjugated.
The finding by the sentencing Judge concerning the Respondent’s motive for this offence is not challenged by the Crown. Indeed, the very nature of the offence, including the acts and statements of the Respondent emphasise that, in the Respondent’s mind, he was punishing the victim for past acts of abuse towards ET and himself. This Court has emphasised that resort to criminal conduct as a response to some misconduct or crime committed (or believed to have been committed) by the victim is to be severely discouraged. As Adams J observed in R v Elmir [2003] NSWCCA 192 at [20], it is not correct to characterise such conduct as the offender taking “the law into his own hands” - conduct of this type is criminal: Lovell v R [2006] NSWCCA 222 at [70]. In Barlow v R [2008] NSWCCA 96, McClellan CJ at CL observed at [2]:
“The offence committed by the applicant was serious. Motivated by the wrong she believed was previously done to her and accompanied by a male friend, she took the law into her own hands. The victim was punched, dragged, hit with kitchen tongs and threatened with death and generally put in terror for at least two hours. Whatever be the crime committed by the victim, a civilised society cannot condone such conduct. The rule of law requires that offenders be tried by the appropriate authorities and, if convicted, punished in accordance with accepted principle. In our society crime is dealt with by the courts.”
107 In the same case, Hall J (McClellan CJ at CL and Price J agreeing) said at [40]:
“The nature of the conduct by the applicant could be correctly identified in the remarks on sentence as having been in the nature of ‘vigilante’ conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenge for the alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms.”
In R v Swan [2006] NSWCCA 47, the Court of Criminal Appeal determined that where the motivation for an offence is retaliation for prior sexual abuse and to prevent abuse of others, the need for personal deterrence and protection of the community is considerably lessened, unless prior offences indicate that the behaviour is not isolated. In R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94, Howie J (Giles JA and Fullerton J agreeing) said at 101-102 [30]-[32]:
“30… I accept that it was a relevant factor that the respondents believed that the victim had been guilty of sexual activity to the respondent Mitchell: R v Swan [2006] NSWCCA 47. But a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value.
31The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan, the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence. But because of Mitchell’s prior offence of violence and because he was on a bond at the time, the significance of motive in this respect was reduced and it was appropriate to consider personal deterrence as a relevant factor notwithstanding his remorse.
32It is importance therefore to understand that the existence of a motive for the commission of a crime and the nature of that motive may be important factors in the exercise of the sentencing discretion but may in some cases point in different directions. It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence. In some cases, as where the use of illegal drugs explains the commission of the offence, it offers no mitigation of the objectives seriousness of the offence, yet may allow significance to be given to rehabilitation of the offender: see generally Wood CJ at CL in R v Henry (1999) 46 NSWLR 346.”
It is necessary to consider s.11 in its statutory context. It lies within a sentencing statute where the purposes of sentencing are set out in s.3A as follows:
“3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a)to ensure that the offender is adequately punished for the offence,
(b)to prevent crime by deterring the offender and other persons from committing similar offences,
(c)to protect the community from the offender,
(d)to promote the rehabilitation of the offender,
(e)to make the offender accountable for his or her actions,
(f)to denounce the conduct of the offender,
(g)to recognise the harm done to the victim of the crime and the community.”
There must be a reasonable proportionality between a sentence and the circumstances of the crime and it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively. The relative importance of the objective facts and subjective features of the case will vary. However, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: R v Dodd [1991] 57 A Crim R 349 at 354.
The promotion of the rehabilitation of the offender (s.3A(d)) is but one of the purposes of sentencing which include, consistently with the principle recited in R v Dodd above, ensuring that the Respondent is adequately punished for the offence (s.3A(a)).
In R v Scott [2005] NSWCCA 152, Howie J (Grove and Barr JJ agreeing) said at [15]:
"[15]There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. This principle arose under the common law: R v Geddes (1936) SR (NSW) 554 and R v Dodd (1991) 57 A Crim R 349. It now finds statutory expression in the acknowledgment in s 3A of the Crimes (Sentencing Procedure) Act that one of the purposes of punishment is ‘to ensure that an offender is adequately punished’. The section also recognises that a further purpose of punishment is ‘to denounce the conduct of the offender’."
Making due allowance for the strong subjective case which the Respondent can advance by reference to rehabilitative steps taken by him since 26 May 2008, taken together with the motive for the aggravated detain for advantage offence, there remains the inevitability that a significant full-time custodial sentence is required, in the proper exercise of sentencing discretion, having regard to the objective gravity of the two serious crimes of violence committed by him on two separate occasions against two different victims.
I am satisfied that this point had clearly been reached by 9 February 2010 in the sentencing hearing. Any adjournment of the hearing by way of s.11 order could not bear properly upon the form of sentence which the law required to be passed in this case. Nor, in my view, could the proper exercise of sentencing discretion involve the setting of the length of the non-parole period being affected by such additional steps which the Respondent may take between February and December 2010. The evidence demonstrated that the Respondent had completed the rehabilitation component of the program and was undertaking a form of retraining as an intern with associated TAFE studies. The evidence also indicated that these TAFE studies could be undertaken by a person in custody.
Counsel for the Respondent in the District Court made application to remand the Respondent to ONE80TC for a period of 12 months under s.11(1)(b) to allow him to demonstrate that rehabilitation had taken place (T40.45, 14 December 2009). The sentencing Judge's reasons did not refer to s.11(1)(b) and some of his comments raise a question as to whether some other subsection was being relied upon.
Given the uncertainty concerning the particular part of s.11 relied upon by the sentencing Judge, it is appropriate to refer to the various subsections. The Respondent's counsel in the District Court did not rely upon s.11(1)(a), and for understandable reasons. In the circumstances of this case, the Court had ample material to assess the Respondent's capacity and prospects for rehabilitation.
The further adjournment of the sentencing proceedings until December 2010 would not serve the purpose of allowing the Respondent to demonstrate that rehabilitation has taken place. At one level, it might be said that the process of rehabilitation of an offender never ends. In circumstances where an offender has been involved in a residential rehabilitation program, it might be said that the greatest challenge will occur when the offender returns to the community and is exposed to the prospect of alcohol and drug use and abuse. I note, in any event, the 12-month outer limit provided for in the section. No proper foundation existed for a s.11(1)(b) adjournment.
This was not an "intervention program" for the purposes of s.11(1)(b1) or (b2). "Intervention program" is defined in s.346 Criminal Procedure Act 1986 as a program of measures declared to be an intervention program under s.347 of that Act. The circle sentencing intervention program, the forum sentencing program and the traffic offender intervention program are declared programs for the purpose of s.347: cl.19-19B Criminal Procedure Regulation 2005. Interestingly, an intervention program may not be conducted for an offence under s.35 Crimes Act 1900: s.348(2)(a) Criminal Procedure Act 1986.
The residual provision in s.11(1)(c), permitting adjournment for any other purpose the Court considers appropriate in the circumstances, must be read in its statutory context. Section 11 is to be used sparingly. In R v Trindall, it was observed (at [58] and [61]) that the s.11(1)(c) power might be exercised, for example, if a significant risk of suicide existed if the offender remained in custody arising from severe depression or important surgery was to be undertaken on the offender. These examples serve to emphasise that a further 10-month adjournment in the circumstances of this case, after the Respondent's very lengthy residence at the ONE80TC premises, could not properly be justified by s.11(1)(c) of the Act.
Reference was made in submissions to the state of preparation or readiness of the Respondent to experience a prison sentence. The sentencing Judge did not refer to this as the rationale, in whole or in part, for the order. I observe that part of the evidence suggested that the Respondent was ready to face a prison sentence, although other evidence suggested that further delay might make him better prepared. I have difficulty with this consideration being a relevant factor to found a s.11 order in the absence of most exceptional circumstances involving, for example, a current but passing serious illness on the part of the offender (see R v Trindall at [58] and [61]). It is sufficient to say that, on any view of it, that is not the present case.
The facility of adjourning proceedings by way of a s.11 order is a useful measure in an appropriate case. However, the s.11 power is not to be used to delay the imposition of sentence beyond a point of time when a court is sufficiently seized of all relevant material. In particular, the delay implicit in the s.11 order must be kept in mind so that the Court is not itself creating circumstances where an argument may be put that delay constitutes a factor which ought operate in an offender’s favour on sentence. The Crown submitted here that a further delay of sentence in this case until December 2010 would give rise to such a scenario. By that time, more than two-and-a-half years would have passed since the commission of the offences. Although some delay would assist the sentencing Court by allowing the Respondent to demonstrate that rehabilitation had occurred, the Crown submitted (in my view, correctly) that the evidence concerning steps taken by the Respondent between 26 May 2008 and 9 February 2010 provided ample foundation for the Court to make findings in the Respondent’s favour with respect to rehabilitation. That, however, is but one of the factors relevant to sentence. Consistent with principle, that factor cannot become the dominant or controlling factor on sentence in circumstances where objectively serious crimes have been committed which must attract appropriate punishment.
The Respondent will be entitled to call in aid on sentence, the authorities which provide for some discount by way of quasi-custody in a residential rehabilitative program. To qualify for a discount, conditions must bear some of the features of imprisonment and thus impose a form of punishment on the offender. However, the sentence cannot be reduced to a level insufficient to reflect the objective seriousness of the Respondent's crimes: Truss v R [2008] NSWCCA 325 at [21].
It is sufficient for the purpose of determining the present Crown appeal to conclude that the making of an order under s.11 lay outside the proper exercise of discretion in the circumstances of this case. Fairly read, the evidence before the sentencing Judge revealed that the Respondent had completed the rehabilitation program and was undertaking a form of retraining. Although this served the interests of the Respondent, it did not serve the interests of the community in the timely imposition of appropriate punishment for serious crimes. In my view, the only reasonable view available and consistent with authority as at 9 February 2010 was that the Court should have proceeded to sentence the Respondent.
I am satisfied that the Crown has demonstrated error in The House v The King sense and that the order made on 9 February 2010 involved the imposition of a manifestly inadequate sentence. A s.11 order was clearly inappropriate in the circumstances of this case: R v Alameddine [2005] NSWCCA 68 at [14]-[15]; R v ABS [2005] NSWCCA 255 at [31].
If this point was reached, Mr Stratton SC submitted that the Court would consider dismissing the Crown appeal in the exercise of its discretion, a course which remains open: R v JW [2010] NSWCCA 39 at [95]. An affidavit of the Respondent sworn 22 April 2010 was read in support of this submission. I am not persuaded that the Court should exercise its discretion to dismiss the Crown appeal in this case. I am satisfied that a clearly erroneous order has been made which delays significantly, for a further seven months, the sentencing of the Respondent. This delay is entirely inconsistent with the public interest in the Court proceeding to sentence without delay. The delay is not justified under s.11 nor is it supported by other sentencing principle. The Crown brought this appeal promptly, with the hearing being delayed as the unrevised remarks on sentence did not become available to the parties until 7 April 2010. I am not persuaded that the Court should decline to intervene in this case in the exercise of its discretion.
If this point was reached in the appeal, the parties agreed that the appropriate order would be to remit the matter for sentence before Coorey DCJ in the District Court. This course will permit a first-instance Judge to make findings and impose sentence. The parties will thereafter have their appeal rights under the Criminal Appeal Act 1912 with respect to sentence: R v Palu at 185 [43]; O’Neil-Shaw v R [2010] NSWCCA 42 at [57].
Before concluding this judgment, I observe that a fair reading of the transcript of 9 February 2010 would have left the Respondent with the false expectation that periodic detention was an available sentence in the circumstances of his case. In my view, this was clearly wrong and serves to exemplify, once again, the vice of a s.11 order where the offender is not told in clear terms the limited purpose of delaying sentencing.
I propose the following orders:
(a)Crown appeal allowed;
(b)order made on 9 February 2010 by Coorey DCJ under s.11 Crimes (Sentencing Procedure) Act 1999 adjourning the matter to 10 December 2010 is quashed;
(c)the matter is remitted to the District Court to be relisted before his Honour at the earliest opportunity so that the Court may proceed to sentence the Respondent;
(d)the Respondent’s bail should be continued on existing conditions to the date fixed by the District Court for the further hearing of the sentencing proceedings.
Since preparing this judgment, I have had an opportunity to consider the draft judgment prepared by Rothman J. I remain of the view that the Crown appeal ought be allowed. I make the following comments concerning the matters raised by Rothman J.

At [141], Rothman J observed that the reckless wounding offence was committed some time after the conversation between the Respondent and ET. The conversation is said to have taken place some time after February 2007. The reckless wounding offence was committed on 8 March 2008 and the aggravated detain for advantage offence on 14-15 April 2008. The evidence does not support a conclusion that there was a close temporal connection between these events.

With respect to the observations of his Honour concerning the reckless wounding offence at [144], it is a significant feature of this case that the Respondent, having used a glass as a weapon which wounded the victim (and despite his friend’s efforts to drag him away), thereafter continued with a sustained attack to the head of the victim. It is necessary for a sentencing court to determine where the offence lay on the range of objective seriousness by reference to all of the Respondent’s aggressive acts which form part of the offence.

His Honour refers to the evidence of Pastor Feebrey and notes at [148] that the Respondent had finished the theoretical aspect of the curriculum, but was currently undertaking the practical outworking of the theory, including respect for and acknowledgement of authority. In my view, it is important to bear in mind that the Respondent, as noted in the presentence reports (referred to at [82] of my judgment), had graduated successfully on 12 October 2009 from the rehabilitation program which he undertook as part of his bail conditions entered into in May 2008. At present, the Respondent is undertaking a retraining program for internship. Although, in one sense, every step taken by the Respondent for the indefinite future may bear upon his rehabilitation, the present program is a retraining one, which is separate from the already completed rehabilitation program undertaken over a 17-month period between May 2008 and October 2009. It should also be kept in mind that the extended opportunity to undertake the ONE80TC rehabilitation program was assisted by the significant delay in the Respondent entering a plea of guilty to the aggravated detain for advantage charge, with a plea of guilty being entered on 17 August 2009 against the background of adjournments revealed at [70]-[73] of my judgment.

With respect to observations of his Honour at [164]-[165], the age of the Respondent is, of course, relevant to the exercise of sentencing discretion. However, the Respondent was 21 years of age at the time of the subject offences and is now 23 years of age. The offences committed by him involved serious acts of violence against different victims on different occasions. It is also pertinent, in my view, that the Respondent had a prior criminal history, including an aggravated robbery offence for which a suspended control order was imposed on 3 May 2004, subject to Juvenile Justice supervision and the requirement to attend anger management and drug and alcohol counselling (see [79] of my judgment). The present sentencing proceedings are not the first occasion on which the Respondent has appeared for sentence for a serious offence. For the purpose of the Respondent’s appearance in the Children’s Court on 3 May 2004, the provisions of s.6 Children (Criminal Proceedings) Act 1987 had direct application and were no doubt taken into account by the Court. Those provisions have no application to this case. Of course, the Respondent’s age and life experiences are relevant to the question of the exercise of the sentencing discretion. However, the present offences were committed when he was three years beyond the age of adulthood for the purpose of the criminal law.

Insofar as Rothman J has emphasised the interlocutory nature of the order, it is important to bear in mind that an order under s.11 is prescribed by s.2(1) Criminal Appeal Act 1912 as a “sentence” and is thus susceptible to a Crown appeal under s.5D of that Act. The order made on 9 February 2010 involved imposition of sentence. A s.11 order ought not be characterised as a mere interlocutory order by way of an adjournment. Further, as stated in R v Palu at 184 [38] (referred to at [99] of my judgment), a court should make findings concerning the objective seriousness of the offences as part of the process of determining whether the s.11 power ought be exercised. In reality, the sentencing Judge in this case had all material before him to pass sentence upon the Respondent with the Respondent having completed a rehabilitation program and then commenced a retraining program over a period of 21 months from May 2008 to February 2010.

This Court observed in R v Palu at 182 [30] that, unless the further delaying of the sentencing of an offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. I remain satisfied that the s.11 order in this case was not justified, in the circumstances of the case, so that the appropriate course is that the Respondent ought be sentenced without further delay. The sentencing court has all relevant information which bears legitimately upon the objective and subjective circumstances of the case, and there is no warrant for further delay in passing sentence.
ROTHMAN J: I have had the advantage of reading the judgment, in draft, of Johnson J. I regret that I do not agree with his Honour’s conclusion.

Facts

Generally, the facts surrounding the offence, and the subjective features of the respondent, appear in the judgment of Johnson J. There are a number of additional matters to which I draw attention. Otherwise, it is unnecessary to repeat those facts to which Johnson J has referred. The facts, to which reference is now made, deal with both offences and emphasise the chronological relationship between the subjective and objective features.

The evidence before Coorey DCJ, as already stated, included an Agreed Statement of Facts and further additional material that largely dealt with the subjective circumstances of the offender.

As already recited, the offender was informed of the sexual abuse of his sister some time after February 2007. The Agreed Facts, in that regard, are in the following terms:

“33.Sometime after February 2007 [his sister] told the offender that she had been sexually abused by the victim. The offender told [his sister] that he blamed himself for not stopping the victim sexually abusing his step sister. During this conversation the offender walked out of the kitchen of his mother’s home (where he was residing at that time) and into his bedroom with his sister following him. His sister observed that the offender could barely talk and was very emotional. The offender started sobbing. The offender kept repeating words to the following effect:-

‘I could have stopped it. This is my fault.’

I knew that the offender was referring to my sexual abuse as I had opened the conversation with this topic. His step sister said to the offender:-

‘No. It’s no one else’s fault except for ‘Laurie’ (that is the victim).’

The offender said:-

‘Do you remember when you got really drunk that night and Laurie came and picked you up? I got up and saw your light on in your room and I knew you were out. I stuck my head in and saw Laurie with your jeans down. I couldn’t see what he was doing. He did have a tissue in his hand though. I said to Laurie, ‘What are you doing?’ I could see you were passed out. Laurie told me, ‘I am cleaning her up because she has been out having sex all night. That is what you have to do when you have sex’.”

[Note: Laurie is a reference to the father, and the sister and stepsister are the same person. Technically, she is the father’s stepdaughter and the appellant’s half-sister and I have referred to her as his sister.]

An inference available from the foregoing incident, relayed by Mr Rayment to his sister, which inference I draw, is that, on Mr Rayment’s view, it was his father, the victim in the Aggravated Detain for Advantage Offence (hereinafter “the second offence”) that had, at the time, sexually assaulted Mr Rayment’s sister and was seeking to dispose of the evidence.

Sometime after the aforesaid conversation between Mr Rayment and his sister, the Reckless Wounding Offence (“the first offence”) was committed, and within a further month the second offence was committed.

Because of the comparison with the situation in R v Palu, supra, to which comparison I will return, it is appropriate to point out that the first offence is an offence of recklessness and wounding which requires neither an intention to injure nor serious physical injury. By that description, it is not intended to underestimate the seriousness of the incident described in the reasons for judgment of Johnson J, but it is a significantly less serious offence than Maliciously Inflict Grievous Bodily Harm under s.33(1)(b) of the Crimes Act 1900, which carries with it a maximum penalty of imprisonment for 25 years, and requires proof, beyond reasonable doubt, of both the intent to injure seriously and the occasioning of a really serious injury. The latter was the offence with which this Court was dealing in Palu.

Notwithstanding the comparison with the offence committed in Palu, as earlier stated, the first offence is a serious one. The seeming tension between the standard non-parole period of three years’ imprisonment and the maximum term of seven years’ imprisonment is no doubt a reflection of the community’s attitude to the seriousness and incidence of “glassing offences”, to which Johnson J has referred. If one were to apply the statutory ratio in s.44 of the Crimes (Sentencing Procedure) Act 1999, a standard non-parole period of three years would result in a head sentence of four years’ imprisonment for the hypothetical mid-range offence and offender. Of course, s.44 of the aforesaid Act does not require the remainder of the sentence to be one-third, only that it must not exceed one-third.

In the instant case, the offender has thrown a glass at the victim from a distance and done so with sufficient force to cut the interior layer of the skin, causing the victim to bleed through the wound. But the offence is a significantly different one from those glassing offences in which the offender, with or without initially breaking the glass, uses it as a weapon held in the hand, necessarily involving a greater risk of much more serious injury. As already described, the action of throwing the glass was followed by Mr Rayment punching the victim, after the victim was on the ground. This conduct must be taken into account in assessing the gravity of the offence. While there is a lack of clarity in the evidence as to whether the subsequent punching, of itself, caused actual bodily harm, or whether it aggravated the injury sustained from the glass, the punching aggravates the criminal culpability of Mr Rayment that would otherwise arise from the throwing of the glass alone.

It is also necessary to deal further with some of the evidence relating to the rehabilitation and courses undertaken by Mr Rayment. The ONE80TC program was the subject of evidence from Pastor Malcolm Feebrey, who provided reports and gave oral evidence. The course is a residential program that does not allow residents to leave the premises, other than in the company of or with the permission of resident staff. One of its conditions is that residents must be and remain alcohol and drug free during their stay. TAFE courses in which residents are enrolled are provided at the premises, diminishing the necessity to leave the premises for any purpose. Pastor Feebrey was called by the legal representative of Mr Rayment and cross-examined by the Crown. During examination-in-chief the following exchange occurred:

HIS HONOUR
“Q:        Pastor, do you feel that it is in Randall’s interests to stay in the centre, do you think that’s good for him, what do you think, at the moment?
A:           I think, for where he’s at, he’s got some good momentum happening. I think he’s got a lot to offer. I think, as far as his maturity and his growth, the curve that he’s on at the moment, I sort of think, like he’s really starting to soar a little bit and that’s after, like a lot of work on the ground of, you know, ignition before he took off, but he’s starting to soar and he’s starting to learn and he just makes – I just think he’s – his ability to engage in the students and his now teachability to really want to get on and do something with his life, this is just a springboard to his future. If he can sort of graduate from this program I reckon the sky’s the limit with this guy.
MR RAYMENT’S REPRESENTATIVE
Q:           I want you to compare the next 12 months between – and adopting where he’s at in his maturing and adopting what benefits he’s got so far and what benefits he can get in the future, if he were to go to prison full-time, as opposed to staying in the program for another 12 months, what, in your view, would be the outcome of both of those scenarios?
A:           Well I’ve dealt with both of those scenarios. I’ve found a lot of guys sort of getting into that soaring rate of being plucked out and going into prison and I know the severity of what happens where there’s been an injustice and society needs to sort or be repaid and things like that. I see all that. At the same time, I see on the receiving end of bringing a young man back who actually, I think, in prison can go very much backwards. I’m not sort of saying they all go backwards but I’m saying in probably far too many cases they go backwards. You know, they can access things in prison. There’s the movability, I just sort of like, even sort of thinking that you’re in gaol, you’re in gaol, but I’m saying it’s the stability of being in a program and it’s no walk in the park where we are because if he wants to make life tough for himself, let me tell you, we’ll make life tough for him. It’s not a walk in the park but I was just saying, if he could stay where he is, for instance, now for some period of time, if that were the court’s wish, I just think the momentum would carry him across the line to bigger and better things. …
Q:           Just look at it from this perspective. If he were to spend another 12 months with you and the have to go to gaol for some time, would he be better prepared for gaol and for the life after gaol as a result of that next 12 months or would you say that wouldn’t make any difference?
A:           … I’m sort of saying I think this guy will show more resilience to antisocial behaviour if he was to stay put, learn, show that he is teachable, get a few – I’m talking about esteeming himself now with, say, a few certificates. Like he’s now sort of aspiring to say maybe a future trade in the field. He might even go on and do college, become a psychologist, a counsellor, whatever, like the sky’s the limit but I’m saying I think it’s a groundwork that would really establish this young man, given the fact of – you see, he’s done double the time nearly, that a lot of boys do, already, without really a hiccough. So that hasn’t been easily achieved but, at the same time, he’s got a lot to gain too. …” [Transcript, 14 December 2009, page 37-38].

In cross-examination, the theme was continued:
“CROWN
Q:           What’s this certificate for, for next year, is that part of the intern program?
A:           Part of the intern program means that we offer a program to students. Like, if they want to become part of the intern program, just to further and develop them a little bit more, they’re going to learn a lot more by doing things like looking at drug and alcohol, like counsel and skill yourself. … once they start getting skilled and get a certificate, say Certificate IV in drug and alcohol, that will move in and start equipping them with counselling skills so they can actually start moving on sort of a career path perhaps. … you’re actually whetting their appetite or rekindling their desire to want to learn. …
…
Q:           And you’re aware that similar kind of programs can be offered to people in fulltime custody?
A:           I’m aware of that but, given the fact that – I’m talking about - … looking at the opportunity of which sort of environment would help him thrive. He’d be in an environment where he’s at where other guys that he sort of shares lodgings with have done the program themselves. I’m talking about it’s a dry house, I’m talking about it’s a drug free house, I’m talking about it’s everything that’s familiar and I think an environment which is a little bit more conducive to study and the learning would be better facilitated in something like a ONE80TC. I’m not discounting – I think they try very hard in prison and I’m not discounting that at all.
…
HIS HONOUR
…
Q:           Is Randall still involved in any sessions, group sessions and things like that?
A:           Yes, yes.”

The cross-examination by the Crown did not qualify the evidence given by Pastor Feebrey that Mr Rayment’s rehabilitation would be significantly improved (and completed) if the intern program into which Mr Rayment had been invited were completed. Pastor Feebrey provided three reports on the progress of Mr Rayment, the last of which was dated 5 February 2010. In part, it states:

“Randall Rayment entered the ONE80TC program on 27 May 2008. At present he is involved in our intern program. Randall fully resides at the campus of ONE80TC where he volunteers his help in the intern program.
To be in our intern program there are certain commitments and key performance indicators that are set up. Interns as such are expected to complete certificate IV in alcohol and other drugs with the option of further study by completing certificate IV in mental health.
…
Randall has benefited immeasurably by putting into practice endurance and skills. Not everybody puts their hand up to this program as is a true test of putting responsibility and accountability to the test. It is a massive learning curve for young men who are willing and serious about embracing change.
Within the realm of this intern program, we identify the intern program as a potential ‘honours’ program and up until this date he has not dropped the ball. He is generous with his time, accountable and most importantly teachable. …
The intern program is a program of transparency, it’s not just what you learn in theory, and it’s a practical outworking of the theory being willing to compromise, grow and learn to really respect authority.”

The other reports are dated 23 September 2008 and 10 December 2009 respectively. It is clear from the totality of the evidence of Pastor Feebrey that Mr Rayment has finished the theoretical aspect of the curriculum, but is currently undertaking the practical outworking of the theory, including respect for, and acknowledgement of, authority.

The other matter that should be noted in terms of Mr Rayment’s rehabilitation and progress is the series of reports from Dr Bruce Westmore, Forensic Psychiatrist. Dr Westmore reported on 1 June 2009 and again on 25 November 2009. The difference in the reports is startling. The later report contains the following opinion

“Based on his history, this young man is making extremely good progress, much better than most young people I have seen recently, particularly considering the nature and extent of his previous problems.
I think a significant degree of maturation has occurred over the last 12 to 18 months and if he can remain free of drugs and alcohol, then his long-term prognosis both from a forensic and a psychiatric perspective will be extremely good.
Towards the end of the assessment he revealed a very philosophical attitude towards the outcome of the matters now before the court. He understands and he acknowledged spontaneously that he had done the wrong thing in relation to his father and the stranger in the hotel. He seems to accept that even if there is a custodial outcome, it is something that he will manage to deal with but he would then hope to continue with his rehabilitation.
I am not certain what sentencing options the court might consider in this particular matter but obviously a custodial sentence will interrupt his rehabilitation.” [Emphasis added]

In his earlier report, Dr Westmore, after reciting a troubled history and the facts giving rise to the Report, expressed the following view:

“Realistically a long history of abuse and poor parenting cannot be reversed or overcome in a matter of days, weeks or even months. He is receiving counselling and he feels he is benefiting from that.
I cannot state whether any of the allegations he has made about his father are true and correct but if those allegations are correct then that might at one level account for but not excuse the offending behaviour. His [imbibing of] drugs and alcohol would also have further impaired his judgment and caused greater disinhibition (sic). At the time of the offending behaviour he would have been very angry, probably depressed and distressed as well....
This young man’s prognosis could be good but he will need to stop using all illicit drugs and probably alcohol as well.”

In my view, the proper inference from these reports, and the proper conclusion, is that the intern program in which Mr Rayment is currently enrolled is continuing his rehabilitation, which, although one stage of it has been completed, is yet to be complete. I accept, as stated by Johnson J, that, at one level, rehabilitation may never be complete, but I do not use “complete” in that ethereal sense.

Further, the necessary inference from the timing of the offences and the opinions of the experts is that, at the time of these offences, Mr Rayment possessed significant built-up anger, which found expression in the offending conduct.

The last matter to which I would refer is the age of the Respondent. Mr Rayment was 21 years of age at the time of the offences. There are aspects of the offences in question that disclose substantial immaturity. The increase in maturity enjoyed by Mr Rayment, since that time, is, as has been recited, a matter of comment by both Pastor Feebrey and Dr Westmore.

Principles of Sentencing and s. 11 Order

The Crimes (Sentencing Procedure) Act 1999 (the Act), by s.11, allows a sentencing court that has found a person guilty of an offence to adjourn proceedings before imposing the final sentence, to grant bail to the offender, and to sentence finally on the adjourned date. There is no statutory qualification or limitation on the offences for which such a process may be undertaken.

Before dealing with the particular order of the sentencing judge in this case, it is appropriate to restate some basic principles of sentencing. Sentencing is an exercise in discretion, often referred to as an intuitive synthesis. It requires the consideration of conflicting goals to arrive at a just and appropriate sentence, taking into account all of the circumstances.

His Honour Justice Johnson has recited the provisions of s.3A and s.11 of the Act. Section 3A of the Act gives statutory force to the oft-cited purposes of criminal punishment. Those purposes include protection of society, deterrence of the offender, deterrence of others who may be tempted to offend, retribution and reform. Those purposes overlap and cannot be considered in isolation from each other, or in a two-step process. They often point in different directions: see Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. Rehabilitation takes on a more prominent role, when one is dealing with young offenders, but the objective features of the crime and the requirement to impose a sentence that properly reflects personal and general deterrence cannot be reduced by reason of the need for rehabilitation: R v Gordon (1994) 71 A Crim R 459.

The foregoing is trite, but nevertheless important in order to put into context the discretionary exercise undertaken by the sentencing judge. The reasons for judgment of Johnson J recite the terms of s.11 of the Act. It is unnecessary for me to repeat them. His Honour, with great respect, refers to the failure of the sentencing judge, in this case, to make findings as to the objective seriousness of the offences for which the offender is to be sentenced, as a “foundational error”.

The commencement of any analysis of the sentencing judge’s jurisdiction and discretion is the terms of the legislation. The legislature has provided, in s 11 of the Act, a statutory interlocutory procedure the only jurisdictional precondition for which is, relevantly, satisfaction of the sentencing court that the purpose of allowing the adjournment is the assessment of the offender’s capacity and prospects for rehabilitation, or, allowing the offender to demonstrate that rehabilitation has taken place. Otherwise, the exercise of discretion reposed in the sentencing court is constrained by that which, in the opinion of the sentencing judge, is desirable, having regard to the scope and purposes of the legislation: Re Coldham Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at 347 (per Wilson, Deane and Gaudron JJ). The foregoing is not intended to suggest a qualification of any right of appeal or to detract from the need, described by Johnson J, for proper reasons for the making of an order under s.11. But the order, once made, is interlocutory because it does not finally deal with the sentence to be imposed.

The scope and purposes of the legislation are those set out in s.3A and the oft-cited purposes reiterated above. But s.11 of the Act is intended to aid in the final determination of an appropriate sentence, which reflects the intuitive synthesis of those conflicting goals. The fundamental issue posed by an exercise of the discretion in s.11 is whether the adjournment of the imposition of the final sentence to be imposed, assuming satisfaction of the jurisdictional preconditions, assists in the proper determination of that final sentence.

This Court has considered the operation of s.11 of the Act, as already stated, in Palu, supra. In the reasons for judgment of Johnson J, his Honour has recited the most relevant comments, although I would reiterate the appreciation expressed by Howie J of the pressures imposed upon judges of the District Court in “what are euphemistically called ‘short matters’ ... to deal with those cases expeditiously and [without] unnecessary procedural formality” (Palu, supra, at [19]). As made clear in the comments of Smart AJ in Trindall, supra, particularly at [62], cited with approval by Johnson J above and by Howie J in Palu, the mere fact, if it be the fact, that a full-time custodial sentence is inevitable, does not preclude, in exceptional cases, the grant of an order under s.11 of the Act. Indeed, I would reiterate and commend the comments of Smart AJ, at [62] of Trindall, supra, recited in the reasons for judgment of Johnson J.

Section 11 of the Act is the statutory enactment of a Griffiths’ remand (a reference to Griffiths v R [1977] HCA 44; (1977) 137 CLR 293). It is not delay to adjourn proceedings for the purpose of facilitating a proper exercise of the sentencing discretion. Delay is not merely the passage of time; it is the passage of time for other than good purpose.

Some comment should be made on the other general issues relating to the sentencing of Mr Rayment. I confirm my comments (with whom Howie J agreed and with whom, relevantly, Campbell JA agreed) in HAN, Zhi Qiang v R [2009] NSWCCA 300 at [30]:

“It is not for individuals in society to enforce their own debts by the making of threats of physical harm. It is fundamental, to the rule of law and the nature of civilised society, that any allegation that debts are owed, when contested, is resolved independently and by the judicial process.”

A fortiori, it is not for individuals to undertake vigilante activities, purportedly in pursuit of justice, as such activity is inconsistent with the rule of law and the nature of civilised society regulated by it. In that regard, I agree with Johnson J.

I would also refer to the issues of the age of the respondent. While the Children (Criminal Proceedings) Act 1987 applies to minors, the youth of an offender, even if the offender not be a minor, is a relevant factor in the determination of a sentence: R v AN [2005] NSWCCA 239, and the cases cited therein; see also R v LNT [2005] NSWCCA 307 at [32]; MJ v R, CPD v R [2010] NSWCCA 52 at [38] and [70] and [71].

As is made clear by James J in MJ v R, CPD v R, supra, even in the case of a young offender who is no longer a child, youth is not only a relevant sentencing factor, but allows a greater emphasis to be placed on providing rehabilitation and less emphasis on general deterrence and retribution. Of course, as has been made clear in all cases dealing with this issue, where the conduct of the young person is the conduct of an adult, the young person is to be sentenced as an adult.

Conclusion

Generally, I agree with all of the comments of Johnson J as to the proper principles to be applied, if one were finally sentencing Mr Rayment. The sentencing judge however has not, in that sense, sentenced Mr Rayment, he has adjourned the sentencing till later in this year. That adjournment was for the purpose of allowing Mr Rayment to demonstrate that rehabilitation has taken place. The wording of that jurisdictional precondition is unusual and, it seems, although it is unnecessary to decide finally that issue, that it would allow an adjournment for the purpose of demonstrating that rehabilitation has taken place, even though the rehabilitation may have already been completed.

As outlined above, the evidence, in my view, before the sentencing judge, established that rehabilitation was not complete and that the further period ending just prior to the next sentencing hearing will be crucial in establishing a permanent rehabilitation process.

I agree with Johnson J that there are significant problems with the remarks of the sentencing judge. They do not, as adequately as they should, disclose the reasons that the order was made, but inadequacy of reasons is not a ground upon which the Crown appeals.

Ultimately, the question for this Court is whether the discretion of the sentencing judge in adjourning the imposition of a final sentence for these offences has miscarried. The intervention of this Court is constrained by the well-known principles relating to the interference with an exercise of discretion, most regularly cited by reference to House v The King [1936] HCA 40; (1936) 55 CLR 499. That this Court may have exercised the discretion differently is not a basis upon which the discretion should be overturned.

The task of the Court is the correction of error. It is not the function of the Court to embark upon an initial sentencing exercise. In my view, the exercise of discretion of the sentencing judge, while it may be different to that which I would exercise, is not such as to make it manifestly incorrect. Nor is there an identifiable error in its exercise.

One other matter should be the subject of comment. None of the foregoing depends upon sympathy for Mr Rayment. The Court ought not exercise its functions on the basis of sympathy; it must exercise it on the basis of principle, which principle must be based on precedent and the framework of the statute under which jurisdiction is exercised. Sympathy, if it were relevant to anything, would run to the victims of these senseless crimes. The fact, if it be the fact, that Mr Rayment was the subject of abuse as a child or that his sister was the subject of such abuse and/or sexual abuse from one of the victims, does not provide a basis for a departure from the principles of sentencing. Those principles must be implemented when the final sentence is determined. But the sentencing judge had, within the ambit of his discretion, the adjournment of the proceedings, in the quite exceptional circumstances pertaining to Mr Rayment’s rehabilitation.

Lastly, I would note that it is clear from the comments from counsel for the respondent on this appeal (and while less obviously so, from the manner in which the sentencing proceeding was conducted below) that Mr Rayment is under no illusions as to the outcomes that are available at that final sentencing hearing. However, it is not for this Court to pre-empt that final sentence, from which each party would have full rights of appeal.

While I agree with the principles of sentencing outlined by Johnson J in his reasons, I consider those principles more applicable to the imposition of the final sentence and I do not consider that an adjournment was outside the available discretionary options. I propose that the Court orders that the Crown appeal be dismissed.

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LAST UPDATED:
7 May 2010