The Director of Public Prosecutions for the State of South Australia v the District Court of South Australia and Billy-Jo Jeffrey the Director of Public Prosecutions for the State of South Australia v the District..

[1995] SASC 5354

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Criminal law - jurisdiction - practice and procedure - bail - recognizances - Imposition by District Court of so-called Griffiths remand - two persons convicted and remanded on bail, one for six months and the other for twelve months - whether court acted without jurisdiction - consideration of conflicting views on use of Griffiths remands. Griffiths v The Queen (1975) 1 NSWLR 299; (1977) 137 CLR 293; Pham and Ly (1991) 55 A Crim R 128; Tindall and Gunton (1994) 74 A Crim R 275; R v Spittle (1976) Crim LR 698; The Queen v Carngham (1978) 140 CLR 487; The Queen v Robinson (1986) 60 ALJR 580; Rona v District Court of South Australia and Another (1994) 63 SASR 223; Thomas: Principles of Sentencing 2nd Edn pp 379-383; Daunton-Fear: Sentencing in South Australia pp7-8 considered.

HRNG ADELAIDE, 8 November 1995 #DATE 1:12:1995 #ADD 15:1:1996

Counsel for plaintiff:             Mr M G Hinton

Solicitors for plaintiff:         DPP (SA)

Counsel for defendant Jeffrey:     Mr T M McRae

Solicitors for defendant Jeffrey: Legal Services Commission

Counsel for defendant Healey:     Mr M J Sykes

Solicitors for defendant Healey:    Sykes Bidstrup

ORDER
Application for judicial review dismissed.

JUDGE1 MATHESON J The Director of Public Prosecutions for the State of South Australia ("the DPP") has applied for a judicial review of orders made in the District Court of South Australia. Each application relates to the imposition by the same judge of what is called in New South Wales a "Griffiths bond or remand", (see Griffiths v The Queen (1975) l NSWLR 229 and on appeal, (1977) 137 CLR 293). The Crown Solicitor has accepted service on behalf of the first defendant in each application, and has indicated that the first defendant will abide by any orders made by the court. It is convenient here to set out the orders sought in the summons is the first application. They included:
    "2. Orders in the nature of certiorari quashing the
    following decisions of His Honour Judge Lunn made on the
    13th June, 1995:-
    2.1 Adjourning the sentencing of the 2nd defendant for 12
    months upon the imposition of a "Griffiths Bond".
    2.2 That the plaintiff was to contact the Clerk to His
    Honour in the event that the 2nd defendant re-offended.

3. A declaration that the only power to impose a bond in
sentencing a prisoner is that to be found in section 36 of
the Criminal Law (Sentencing) Act, 1988.

4. An order in the nature of mandamus directing the
    District Court of South Australia to sentence the 2nd
    defendant forthwith."

2. On 13 June, 1995, Billy-Jo Jeffrey, the second defendant in the first application, pleaded guilty in the District Court to the offences of larceny and assault occasioning actual bodily harm. The allocutus was given, and then an antecedent report, victim impact statement and a psychological assessment were tendered. His Honour said:
    "In this matter I intend to adopt a somewhat unusual course,
    it is one of those matters where I do not feel terrible
    confident with it.

I do not like cases where violence is used by a group of
    people confronting someone and, in effect, a show of force
    being used to enforce a use of legal right. Also, I am
    mindful this man has not had a previous custodial sentence,
    and if he can show me he can keep out of trouble for a
    period of time, my view, at the moment, would be for a
    suspended sentence.

What I intend to do is what is (known) in New South Wales,
    is give him a Griffith bond. I simply adjourn this matter
    for 12 months. If this man gets into further trouble with
    the law in that period, I invite the prosecution to contact
    my clerk and the matter will be relisted and I will then
    proceed to deal with him in the light of the fact that he
    has been in further trouble.

If, when it comes on again in 12 months time, he has kept
    out of trouble and has shown me that he can lead a
    worthwhile law abiding life, then I am prepared to extend to
    him considerable leniency. It may be, in view of Dr
    Balfour's recommendation, that perhaps your client might
    voluntarily care to approach the Management Assessment Panel
    for Behaviourly Disordered Persons. I think, I believe, it
    can be done. I don't think it has to be done under an order
     ...

Mr Jeffrey, I hope you understand what I have done in this
    matter. I'm simply adjourning it for 12 months. If you can
    keep your nose clean in that 12 months, you have nothing
    particularly to worry about. If, however, you get in more
    trouble in the next 12 months, matters of dishonesty or
    violence, it will then come back to me and I will proceed to
    sentence you in a severe manner. Bail will continue in the
    meantime ...

You will be notified of a date somewhere in the middle of
    next year. It will depend on when I'm sitting again in that
    period. The computer gives us a reminder of that and I say
    if, in fact, there is any further trouble in the meantime, I
    invite prosecution to request that it be relisted before
    me."

3. It is necessary to set out the bail agreement which was entered by the second defendant on 3 January, 1995 in the Magistrates Court of South Australia at Elizabeth (he was originally charged with robbery with violence):
    "I, the undersigned defendant, being charged with Robbery
    With Violence AGREE to be present at the MAGISTRATES COURT
    OF SOUTH AUSTRALIA at 15 Frobisher Road, ELIZABETH, SA 5112,
    on the lst day of March, 1995, at 2:15 p.m., or at any other
    time when called upon, AND TO BE PRESENT THROUGHOUT ALL
    PROCEEDINGS RELATING TO THIS MATTER UNTIL THE MATTER IS
    DISPOSED OF.

I AGREE TO COMPLY WITH ALL OF THE CONDITIONS OF BAIL LISTED
    IN THIS AGREEMENT.

I UNDERSTAND THAT IF I DO NOT APPEAR WHEN REQUIRED, OR I
    FAIL TO COMPLY WITH A CONDITION OF BAIL, THEN I MAY BE -
    - LIABLE TO BE ARRESTED WITH OR WITHOUT A WARRANT
    - LIABLE TO PAY ANY MONEY THAT I HAVE AGREED TO PAY TO THE
    CROWN IF I BREACH THIS AGREEMENT
    - CONVICTED OF AN OFFENCE

CONDITIONS OF BAIL

I AGREE -

1. Not to leave the State for any reason without lawful
    permission under the Bail Act, 1985.

2. To forfeit to the Crown the sum of $500.00 for failing
    to comply with a term or condition of the bail agreement.

3. Guarantors to be his sister and mother

4. To reside at 19 Bagot Road, Elizabeth South

5. To provide a guarantee in the sum of $500.00. Guarantor
    Vivienne OREILLY, 5 Alvaro Street, PARALOWIE, SA 5108.

6. To provide a further guarantee in the sum of $500.00.
    Guarantor --, 2/10 Amery Road, PARALOWIE, SA 5108. Debra
    O'Connor"

4. Paragraphs 6 and 7 of the affidavit in support of the application for judicial review read:
    "6. The grounds upon which relief is sought are that the
    power to impose a bond is contained in the Criminal Law
    (Sentencing) Act 1988. The imposition of a 'Griffiths Bond'
    is not within the purview of this Act and His Honour acted
    without jurisdiction when purporting to impose the same.
    Nor is it within the jurisdiction of the 1st Defendant to
    make the plaintiff responsible for the supervision of an
    accused person.

7. I now seek orders of this Honourable Court as follows:-

1. Orders in the nature of certiorari quashing the
    following decisions of His Honour Judge Lunn made on the
    13th June, 1995:-
    a) Adjourning the sentencing of the 2nd defendant for 12
    months upon the imposition of a 'Griffiths Bond'.
    b) That the plaintiff was to contact the Clerk to His
    Honour in the event that the 2nd defendant re-offended.

2. A declaration that the only power to impose a bond in
sentencing a prisoner is that to be found in section 36 of
    the Criminal Law (Sentencing) Act, 1988.

3. An order in the nature of mandamus directing the
    District Court of South Australia to sentence the 2nd
    defendant forthwith."

5. Steven John Paul Healey, the second defendant in the second application, pleaded guilty to a charge of shop breaking and larceny in the District Court on 13 June, 1995. The allocutus was given and he was remanded on bail. The matter came on before his Honour again on 7 August, by which time his Honour had an antecedent report, a pre-sentence report, and a letter from the Parole Board of South Australia. The transcript reads:
    "In this matter, having looked at it again and considered
    these reports, I am sympathetic towards your client's
    position but not convinced.

I think at the moment what I am prepared to do is to take
    the step of what I believe in the(sic) New South Wales is a
    Griffiths bond which is to adjourn the proceedings for a
    time to see if your client can continue his rehabilitation
    and, most importantly, keep off heroin.

At the moment I think what I am disposed to do is to adjourn
    this for six months but on a variation of his bail terms to
    include a condition that he does not take any heroin or,
    indeed, other illegal drug. If he takes any further heroin,
    he will be in breach of his bail and, therefore, liable to
    come back before the court and to be incarcerated, in
    effect.

I have had these sort of cases before, as every judge has,
    and every barrister, where some people who say they can
    overcome their drug problems can and some can't. I have
    taken the step with at least one other offender in recent
    times where my optimism was not well placed and the victim
    of further crimes he has perpetrated has properly, with some
    justification, said 'Why did the judge let him go and allow
    our houses to be broken into and our property stolen?'

In the light of the information before me, I believe there
    is sufficient reason here to believe that your client may be
    able to rehabilitate himself and that other people are
    obviously doing their best to assist him to justify me in
    taking that risk. However, I am sure, as both your client
    will understand and you will explain to him, if my
    confidence is misplaced, he can certainly not expect any
    leniency when he comes back before the court. The matter is
    now part-heard before me. It will come back before me.
    Perhaps if you could indicate to me whether your client
    would be prepared to accept that variation to his bail
    conditions.

MR SYKES: Yes, he is quite prepared to do that.

MS SHEPPARD: My comment at this stage would be how it ought
    to be monitored. I wonder whether your Honour has given
    some thought to testing and so forth that should occur
    during that period.

HIS HONOUR: I am not quite sure of the mechanics of that.
    Have you any particular proposal?

MS SHEPPARD: I hadn't had much opportunity to consider
    this. If the prisoner is part of a methadone program,
    perhaps it also could be made a condition of his bail that
    he attend all appointments and submit himself to urine
    testing for the purpose of indicating whether or not he is
    complying with your Honour's direction.

HIS HONOUR: Certainly it's my intention, Mr Sykes, that
    your client should continue on the methadone program and
    should comply. Is there any problem with what Ms Sheppard
    proposes?

MR SYKES: No.

HIS HONOUR: There will be a bail variation inserting
    conditions, firstly, that the defendant not take any heroin
    or other illicit drug during continuation of his bail and,
    secondly, that he continue on the methadone program and
    submit to all urine and other testing as required by persons
    administering that program during the continuation of his
    bail.

The Bond is normal for 12 months. What I am disposed to do
    is to adjourn it for six months and review it in six months
    and decide, in the light of what the situation then is,
    whether I am prepared to continue it for a further six
    months. Also if your client should come before the courts
    for any reason, for bail breaches or other offence, I would
    expect the matter to be referred back to me and, by
    arrangement with my staff, I will accommodate it into my
    list. The date of the adjourned hearing will be notified in
    due course because my roster commitments aren't yet known.
    It will make it effectively February next year.

BAIL VARIATION ACKNOWLEDGED"

6. The second defendant had entered into a bail agreement at the City Watchhouse on 24 March, 1994 which read:
    "I Steven John Paul HEALEY of 2 Hibiscus Court, PARAFIELD
    GARDENS being charged with Shop Break with Intent, AGREE to
    be present at the ADELAIDE MAGISTRATES COURT at 2 ANGAS
    STREET, ADELAIDE on the 24th day of MARCH 1994, at 2.15
    p.m., or at any other time when called upon, and to be
    present throughout all proceedings relating to this matter
    until the matter is disposed of.

I AGREE TO COMPLY WITH ALL OF THE CONDITIONS OF BAIL LISTED
    IN THIS AGREEMENT. I UNDERSTAND THAT IF I DO NOT APPEAR
    WHEN REQUIRED, OR IF I FAIL TO COMPLY WITH A CONDITION OF
    BAIL, THEN I MAY BE -
    - LIABLE TO BE ARRESTED WITH OR WITHOUT A WARRANT
    - LIABLE TO PAY ANY MONEY THAT I HAVE AGREED TO PAY TO THE
    CROWN IF I BREACH THIS AGREEMENT
    - CONVICTED OF AN OFFENCE

CONDITIONS OF BAIL
    1. I agree that I will not leave the State for any reason
    without lawful permission under the Bail Act, 1985.

2. I will forfeit to the Crown the sum of $1000.00 if I
    fail to comply with a term or condition of this bail
    agreement."

7. The learned Judge wrote the following on the back of the bail agreement, and he and Healey signed where shown:
    "Monday 7th August '95 before Judge Lunn:

Bail varied:

1. To not partake in the taking of heroin or any illicit
    drug during bail continuation

2. To continue on the Methadone program and submit to all
    and other testing as required by persons administering that
    programme during bail continuation

DISTRICT COURT JUDGE
    7th August, 1995

person on bail
    (Signed S J Healey)
    (Signed R M Lunn DCJ)"

8. Paragraphs 6 and 7 of the affidavit in support of this application read:
    "6. The grounds upon which relief is sought are that the
    power to impose a bond is contained in the Criminal Law
    (Sentencing) Act 1988. The imposition of a 'Griffiths Bond'
    is not within the purview of this Act and His Honour acted
    without jurisdiction when purporting to impose the same.

7. I now seek orders of this Honourable Court as follows:-

1. Orders in the nature of certiorari quashing the
    following decisions of His Honour Judge Lunn made on the 8th
    August, 1995 adjourning the sentencing of the 2nd defendant
    for 6 months upon the imposition of a 'Griffiths Bond'.

2. A declaration that the only power to impose a bond in
sentencing a prisoner is that to be found in section 36 of
    the Criminal Law (Sentencing) Act, 1988.

3. An order in the nature of mandamus directing the
    District Court of South Australia to sentence the 2nd
    defendant forthwith."

9. References to the case of Griffiths v The Queen have already been given. Griffiths pleaded guilty before a magistrate to offences of breaking and entering and was committed for sentence to the District Court at Sydney. He came before Judge Goran on 20 September, 1974 and maintained his plea of guilty. The judge accepted the plea, though he did not expressly convict him. He remanded him for sentence for one year allowing him to go free provided he entered into a bond in the sum of $200 to appear for sentence on 19 September, 1975. A condition of the bond was that he was to be of good behaviour and under the supervision of a parole officer, who was required to give reports to the judge every three months. The remand could be broken at the instance of Griffiths or the parole officer. The judge said that if at the end of that year Griffiths could satisfy him that he should not be sent to gaol and that he had made good, he would not send him to gaol at all. Griffiths entered into the recognisance and went free (see (1975) l NSWLR at p231). The Attorney General appealed to the Court of Criminal Appeal on the ground that "the sentence" was inadequate. That Court imposed a sentence of imprisonment for six years. Griffiths applied for special leave to appeal to the High Court. Leave was granted, the appeal was unanimously allowed and the order of the New South Wales Court of Criminal Appeal set aside. In lieu thereof, the High Court ordered that the appeal to the Court of Criminal Appeal be dismissed as incompetent because Griffiths had not been sentenced within the meaning of s5D of the Criminal Appeal Act.

10. The joint judgment of the New South Wales Court of Criminal Appeal (Street CJ and Lee and Slattery JJ) was delivered by Street CJ. Before quoting therefrom, it is necessary to set out s558(1) of the Crimes Act (NSW) which provides:
    "558. (1) A court before which a person comes to be
    sentenced for any offence may if it thinks fit defer passing
    sentence upon the person and order his release upon his
    entering into a recognizance, with or without sureties, in
    such amount as the Court directs, to be of good behaviour
    for such period as the Court thinks proper and to come up
    for sentence if called upon."

11. Judge Goran did not invoke that provision, but it is referred to in judgments of both appellate courts.

12. At p232 ((1975) l NSWLR), Street CJ said:
    "We turn, then, to the validity of the course followed by
    the learned judge in the present case. It is to be observed
    that such a sentencing practice takes the judge who embarks
    upon it significantly beyond the ordinarily accepted
    judicial role. It places him, in effect, in a supervisory
    relationship with the man or woman who may have been dealt
    with according to this practice, and it commits to the judge
    who follows this course a degree of involvement with the
    progress of the criminal during such period as may be
    specified in accordance with the practice. The sentencing
    of a prisoner, whether by way of a period of imprisonment or
by way of a deferment under s.558 is an act of adjudication.
    The judge must determine what course is to be followed and
    proceed accordingly. If a period of imprisonment is imposed
    the position is relatively straightforward. If an order
under s.558 is made there is still a definitive act of
    adjudication: the substance of such an order is that, if
    the prisoner fulfils the conditions of his release, then he
    will not go to gaol. There is a clear contrast with the
    practice followed in the present case under which the
    criminal is told that he may or may not go to gaol; in
    effect the judge adopts a 'wait and see' attitude, without
    deciding whether or not, even if all prescribed conditions
    are fulfilled, he will order a gaol term.

In our view, this is not a permissible sentencing procedure.
    It cannot be supported as a mere exercise of the undoubted
    power of adjournment. Such a power is ancillary and is
    exercisable, inter alia, if the judge wishes to deliberate
    or to obtain further information such as a psychiatric
    report. But the power of adjournment is not properly
    exercised, if the adjournment is ordered as an integral part
    of the sentencing process in the way in which it is involved
    in the practice under consideration.

We turn accordingly to the facts and the other
    considerations relevant to be taken into account in
    determining the sentence to be passed in the present case.
    The respondent is entitled to have us approach the case as
if he had had the benefit of a bond under s.558. This is
    the nearest approximation to the course which his Honour
    sought to achieve."

13. On appeal, Barwick CJ said at p305:
    "... the trial judge did not purport to compel the entry
    into a recognizance as a means of 'preventive justice' or as
    itself a sentence, in the sense of a definitive disposal of
    the consequence of the proven offence. What he did, it

    seems to me, was to decide that he would remand the
    applicant for sentence. It cannot be doubted that that is a
    power available to the trial judge and, for that matter,
    regularly exercised. The judge can remand the prisoner in
    custody until brought before the court again to be dealt
    with at the end of the period of remand. But, also, it
    cannot be doubted that, instead of remanding the prisoner in
    custody, he may set him at large during the period of the
    remand. The prisoner may be set at large immediately and
    unconditionally or only upon his entry into a recognizance.
    It matters not whether the latter course is described as a
    grant of bail. The power to condition the setting at large
    during a period of remand upon entry into a recognizance of
    a stipulated kind is, in my opinion, beyond question.

The trial judge in this case decided, for the reasons he
    expressed in the passage from his remarks which I have
    quoted, to set the applicant at large during the period
    which would elapse before he was called up for sentence,
    i.e. the period of the remand, rather than to leave him in
    custody during that period. He decided that he would only
    set him at large on the acceptance by the applicant of the
    conditions which he the judge, expressed and which he
    required to be included as conditions of a recognizance in a
    money sum. Although he did not expressly seek the
    applicant's consent so to be dealt with, as well he might
    have done and which in my opinion it would be good practice
    to do, it is clear to my mind that the entry into the
    recognizance by the applicant indicated his consent to the
    course pursued.

I am quite unable to agree with the Court of Criminal Appeal
    in thinking that the power to remand pending sentence is
    limited to such period as is necessary to enable the judge
    to be better informed as to the physical or mental condition
    of the accused. Of course, that is usually the purpose of
    the remand for sentence, the period of the remand being at
    least in part determined by the time expected to be taken to
    obtain the desired information. But it is erroneous to
    conclude that therefore the power itself is limited to such
    occasions and to such periods. I can find no decided case
    which suggests that the power to remand for sentence is so
    limited. Further, the presence of s.588 in the amended
    Crimes Act, like s.19 of the Powers of Criminal Courts Act
    1973 (U.K.), (I think his Honour meant to refer to s1.)
    indicates that neither such a power nor its exercise is
    inconsistent with the due administration of criminal
    justice.

But, even if such a restriction as the Court of Criminal
    Appeal sought to enforce on the power to remand pending
    sentence were thought to exist, I would be prepared to
    accept the view that to remand the accused for such a period
    as would enable the jury(sic) to have observations made of
    his behaviour and of his capacity to be rehabilitated is
    well within even such a restricted power. Again the terms
    of s.1 of the Powers of Criminal Courts Act (U.K.) may be
    regarded as confirmatory of the acceptability of such a use
    of the power.

During the course of argument, I indicated from time to time
    to counsel for the applicant that we would not propose to
    enter into the question of what was the proper sentence if a
    gaol sentence had to be imposed upon the applicant if we
    found that the Attorney-General's appeal was competent.
    But, it seems to me, I can properly say that, in my opinion,
    the interests of the community are not by any means
    necessarily disserved by a judge taking the course which the
    trial judge took in this case. It is a course which must be
    reserved for proper cases, cases in which the guilty person
    will accept the delay in the determination of the sentence
    and submit to the compulsion towards reformation which that
    delay and the terms of a recognizance may involve: and in
    which there is a real expectation founded upon solid ground
    and not on mere sentimentality that such reform is likely to
    occur. It is a course which one would expect to be taken
    only by those who have had experience in this field and who
    have heard and evaluated the convicted person.

I am unable to accept the view expressed by the Court of
    Criminal Appeal in their solicitude for the prisoner that it
    was unfair to leave him uncertain as to his fate. It is
    enough to dispose of that suggestion to say that the
    applicant under the terms of the bond into which he
    voluntarily entered could have ascertained at any time what
    his fate would be by terminating the period of remand.
    Indeed, he could have preferred to be dealt with and know
    his fate immediately by refusing to enter into the
    recognizance: but, evidently motivated by a desire to
    reform which his subsequent conduct appears to have
    confirmed, he chose to accept the opportunity made available
    to him by the trial judge."

14. Stephen J agreed in general with the judgment of Jacobs J, and neither he nor any of the other justices commented on the passages I have quoted from the judgments of Street CJ and of Barwick CJ.

15. Jacobs J said at p319:
    "It is first submitted that the order made by Judge Goran
    was no more than an adjournment of the trial for a period of
    a year and was essentially different from the so-called
    'common law bond' where a convicted person is bound over to
    be of good behaviour for a certain period and to come up for
    sentence if called upon during that period in the event of
    any breach of the condition for good behaviour."

16. His Honour then carefully considered the essential nature of a common law bond, and ultimately at p323 he said:
    "... it is not easy to distinguish the order made by Judge
    Goran from a 'common law bond' in any essential respect.
    It was certainly a deferment of sentence. It was clearly a
    recognizance for good behaviour during the period of
    deferment. It differed from the ordinary form in that it
    required appearance before the Court to receive judgment on
    a day certain or when earlier called on in the meantime,
    instead of requiring appearance if and when called on at any
    time during a stated period. This, of itself, is not a
    sufficiently distinguishing feature. A recognizance to keep
    the peace or for good behaviour could, and in earlier times
    regularly did, require the person to attend at a later
    sessions. However, Judge Goran did not promise that at the
    end of the twelve months the applicant would not be sent to
    prison. Since a common law bond does not in law prevent a
    judgment for penal servitude even if its conditions are
    kept, this also is not a distinguishing feature. Moreover,
    if this applicant had kept the conditions of the
    recognizance it would hardly have been just to have kept him
    hoping and trying for a year and then to have sent him to
    prison. Be that as it may, it does not constitute a legal
    difference between the two forms of recognizance."

17. Murphy J at p238 said that the course taken by the Judge was lawful.

18. At p344, Aickin J said:
    "In his reasons for judgment Jacobs J deals with the nature
    and history of the common law bond, ... I respectfully
    agree with that analysis and with the conclusion that it
    demonstrates that there is no essential legal difference
    between the requirement of a common law bond and Judge
    Goran's order ... No doubt Judge Goran retained formal
    power to impose a term of imprisonment on the applicant
    coming before him at the expiration of one year, no breach
    of the condition having occurred. However, in practical
    terms all that could be done would be to release the
    applicant. It is true that no promise was made but any
    course other than release would not be proper or just."

19. A later decision is the judgment of the New South Wales Court of Criminal Appeal in the cases of Pham and Ly (1991) 55 A Crim R 128. By that time, the Criminal Appeal Act (NSW) had been amended and the word "sentence" had been given a much wider definition. The trial Judge did not follow precisely the same course as Judge Goran did in Griffiths, but remanded the defendants on bail for twelve months. His Honour said at pp129-130, (addressing the prosecution):
    "'Mr Crown, why would not the future of these ... young men
    be better served by me remanding them, part heard, granting
    them bail for a period of 12 months with very, very
    stringent conditions about reporting, submitting to the
    Probation and Parole Service and giving each one of them an
    opportunity of showing their family and me, and through me
    the Australian community generally but more particularly
    showing themselves whether or not they have decided to turn
    the corner.'

He said (addressing the defendants):
    'Do you want to be heard against this course? Before you
    start, you can take it as read that in the ordinary course
    of events I show very little sympathy for anybody who wants
    to produce a weapon, particularly against females and
    particularly in the dead of night when they are at home
    tucked up in their beds lawfully asleep. That is the
    attitude that I have for people who have had what I regard
    as a normal upbringing.

These young men, at a time when their counterparts in this
    country have been listening to television sets and pop music
    and in groups at football stadiums, these young men have
    come through a horrendous lifestyle to get to this country.
    If there is any chance at all of them demonstrating to their
    host country that they are going to be worthwhile citizens,
    today's the day isn't it?'

(They) were then remanded to 7 December, and on that day his
    Honour dealt with each by remanding him for a period of a
    year on conditions as to reporting, placing himself under
    the Probation and Parole Service, handing in his refugee
    visa and undertaking to enrol in an English language
    course."

20. The Crown appealed, and Lee CJ at Common Law said at p131:
    "A practice had grown up amongst some judges of remanding a
    person for a lengthy period, for example a year, during
    which the person concerned had the opportunity to
    demonstrate, by observing the conditions of the remand, that
    he could be law-abiding, and thus worthy at the end of the
    period of a sentence of a non-custodial nature. Such
    procedure came to be referred to as a 'Griffiths bond' or a
    'Griffiths remand'.

21. I also refer to Tindall and Gunton (1994) 74 A Crim R 275. In that case each respondent was granted bail by the Supreme Court of New South Wales on the following conditions:
    "(1) That he reside at Odyssey House, Eaglevale.
    (2) That he report by facsimile to the officer in charge of
    the Campbelltown Police Station once on each day between the
    hours of 8 am and 8 pm.
    (3) That he undertake and complete a course of drug
    rehabilitation at Odyssey House and give undertakings in
    writing to obey any lawful command given by the person for
    the time being in charge of that institution until the
    rehabilitation course has been completed, except for the
    purpose of conferences with his legal advisers or attending
    court.
    (4) One acceptable person enter into an undertaking,
    without security, to forfeit $5,000 if the bail conditions
    were breached."

22. Each respondent subsequently came before Judge Dent at Penrith and Sydney District Courts, and each was granted a Griffiths remand in similar terms to the bail conditions in the Supreme Court. At p276-277, Hunt CJ at Common Law said:
    "But a Griffiths remand is not otherwise a sentence, it is a
remand for sentence: Griffiths (1977) 137 CLR 293 at 307,
    311-312, 325, 330, 336. At the eventual conclusion of the
    period of the remand, one of three things must happen: a
    sentence will be imposed, or sentence will be deferred
pursuant to s558 of the Crimes Act 1900 (NSW), or the charge
    will be dismissed without proceeding to a conviction
    pursuant to s556A of that Act. Only then will the
    consequences of the conviction (or of the finding of guilt)
    be definitively disposed of (at 304-305, 307).

Sight is often lost of what is to happen at the end of a
    Griffiths remand. Despite what was decided by the High
    Court in the case from which it takes its name, such a
    remand often tends to be regarded as the punishment itself,
    and it is easy (but incorrect) to form the opinion that, as
    such a punishment, it is inadequate. There are occasions -
    whether or not they are frequent it is unnecessary here to
    determine - where it is appropriate to delay imposing a
    sentence in order to compel, by the terms of the remand,
    some course of conduct by the offender conducive to his
    rehabilitation and reform. Such a remand should only be
    granted where there is a real expectation, founded upon
    solid grounds rather than upon mere sentimentality, that
    such consequences are likely to be achieved: cf Griffiths
    (at 306). More importantly, such a remand should only be
    granted where, in the event that rehabilitation and reform
    are achieved, it would be appropriate to impose a non
    custodial sentence (at 325-326). I have no doubt as to the
    validity of the Crown's argument in this appeal that an
    offender would have a justifiable sense of grievance if a
    custodial sentence were to be imposed after he had complied
    with all the terms of a Griffiths remand." Later his Honour said at p277:
    "The judge in any event clearly misdirected himself in
    determining to grant such a remand in each of these cases,
    by taking into account the grant of bail to the respondents
    by the Supreme Court pending the appearance by each of them
    in the District Court for sentence . The period for which
    bail may be granted by any court in such circumstances is
limited by s6 of the Bail Act 1978 (NSW) to conclude upon
    the date of the appearance in the District Court for that
    purpose. The Supreme Court has no authority to say what
    must or should happen to the offender when he so appears.
    For anyone with any knowledge of the provisions of the Bail
    Act, it is obvious why it is not even appropriate that the
    Supreme Court should have that authority. The main purpose
    of bail is to ensure that the applicant for bail appears as
    required, and a subsidiary purpose is to ensure that he will
    not re-offend in the meantime. The Supreme Court is not
    given the information upon which anything more than the most
    general idea of the likely sentence can be gained, and then
    only for the very limited purpose of assessing the
    probability of the applicant for bail appearing for sentence
    (s32(1)(a)(iii))." At pp282-283, Carruthers J said:
    "The grant of a Griffiths type remand is an unsatisfactory
    practice. Indeed in Griffiths' case, itself, ((1975) l
    NSWLR 229), this Court adverted in no uncertain terms to the
    undesirability of the practice. (His Honour then quoted from
    the judgment of Street CJ, supra)

... It should be emphasised that there is adequate power in
    a sentencing judge to defer sentence pursuant to the
provisions of s558 of the Crimes Act in the appropriate
    circumstances. This section allows for 'judgment to be
    given in instalments', to use the expression of Jacobs J in
    Griffiths (at 325). The instant case was, of course, by
    reason of the objective seriousness of the crime
inappropriate for the application of s558, and the device of
    the Griffiths remand was (wrongly, in my view) accordingly
    adopted.

I agree with the submission of the Crown on this appeal that
    the grant of a Griffiths remand would leave an offender with
    a justifiable sense of grievance if he or she were later
    sentenced to imprisonment." At p289, Bruce J said:
    "The learned primary judge was wrong to defer the sentencing
    of the respondents. The primary function of the Court is to
    hear and determine cases and impose sentences. It is only
    in the most unusual circumstances that the Court may proceed
    on a 'wait and see' basis, by adjourning proceedings from
    time to time to ascertain the progress of the accused in
    rehabilitative programmes.

Bail is not to be used for the purpose of delaying
    sentencing although any period of bail may be used to start
    on a process of rehabilitation. The fact that a Supreme
    Court judge has granted bail with a condition of attendance
    at Odyssey House does not in any way mean that the
    sentencing judge should feel bound to defer imposing a
    custodial sentence. It is the sentencing judge's duty and
    obligation to proceed to sentence based upon his assessment
    without regard to any understanding which he may have of the
    views of any other judicial officer who may have dealt with
    the matter."

23. Counsel for the DPP sought to rely on section 36 of the South Australian Criminal Law (Sentencing) Act, 1988 which provides:
    "36. Notwithstanding any other Act or law to the contrary,
    a defendant may not enter a bond except under and in
    accordance with this Act."

24. The word "bond" is defined in s3(l) to mean:
    "... an agreement (not being a bail agreement) entered into
    pursuant to the sentence of a court under which the
    defendant undertakes to the Crown to comply with the
    conditions of the agreement."

25. What the learned Judge ordered in each of the two cases before me was not a sentence, but a remand for sentence. Accordingly, I do not think s36 has any relevance having regard to the definition of "bond".

26. There have been many relevant decisions in England. Some of them are referred to in D A Thomas "Principles of Sentencing" 2nd Edn pp379-383. At p379, the learned author said:
    "The Crown Court has power at common law to adjourn after
    conviction before passing sentence, or to delay the
    imposition of part of a sentence. This power, which is not
    limited to any specific period of time, should be exercised
    only for the purposes of obtaining social inquiry reports or
    other reports which are not available at the time of
    conviction, to await the outcome of the trial of an
    accomplice, or 'in circumstances of a very special nature'.
    It should not be used to see whether the offender's
    expressed intention to pay compensation is genuine. Where
    the court adjourns under its common law powers for a
    substantial period of time, it should make clear that it is
    exercising those powers rather than its statutory powers to
    defer sentence."

27. One of the cases he referred to was R v Spittle (1976) Crim LR 698, the commentary on which at p699 read:
    "The scope of the power to postpone passing sentence under
    the court's inherent jurisdiction is at best vague, and
    there might be considerable advantage if the Court of Appeal
    would indicate its proper limits. It is submitted that the
    best course for a court postponing sentence for any period
    longer than four weeks, and for any reason other than the
    preparation of reports on the defendant or the completion of
    other proceedings in which he is involved or which may
    affect his position, is to proceed under Powers of Criminal
    Courts Act 1973, s.1 by statutorily deferring sentence.
    (That was the provision referred to by Barwick CJ in
    Griffiths.)

28. I personally have some sympathy with the views expressed by Street CJ in Griffiths and subsequently by Carruthers J (supra), and the decision of the High Court in Griffiths has been criticised, see, for example, Daunton-Fear "Sentencing in South Australia" pp7-8 and (1977) 1 Criminal Law Journal 334. However, courts in New South Wales have continued to impose Griffiths remands, and two subsequent decisions of the High Court contain no criticism of their use, or of the reasoning of Barwick CJ. See The Queen v Carngham (1978) 140 CLR 487 and The Queen v Robinson (1986) 60 ALJR 580 (although at the time of those decisions, one on appeal from New South Wales, and one on appeal from Queensland, there were relevant statutory provisions in force). A passage in the judgment of Jacobs J in Carngham's case is worth quoting in this context. He said at p495:

    "The majority in the New South Wales Court of Criminal
    Appeal in my opinion mistook the effect of this Court's
decision in Griffiths v. The Queen (1977) 137 CLR 293. It
    was there decided that neither a remand accompanied by
    release upon recognizances to come up for sentence on a
    future day and meanwhile to be of good behaviour nor a
    release upon recognizances to be of good behaviour and to
    come up for sentence when called upon was a 'sentence'
    within the meaning of that word in s.2 of the Criminal
    Appeal Act, 1912 (N.S.W.). This decision was applied by the
    Court of Criminal Appeal in the instant case to s.20 of the
    Crimes Act 1914 (Cth), sub-ss. (1) and (2) of which are set
    out in the reasons of Gibbs ACJ.

The orders envisaged under s.20 are significantly different
    from the kind of orders considered by the Court in Griffiths
    v. The Queen. There the orders considered were essentially
    releases on bail pending a final determination of the matter
    of sentence. If bail were declined by a defendant in such a
    case sentence would have to be passed forthwith or else the
    defendant remanded in custody."

29. Counsel for the respondent in each matter referred me to the District Court's power of adjournment. Section 22 of the District Court Act, 1991 reads:
    "22 The Court may -
    (a) adjourn proceedings from time to time and from place to
    place;
    (b) adjourn proceedings to a time, or a time and place, to
    be fixed; or
    (c) order the transfer of proceedings from place to place."

30. I was also referred to the relevant provisions of the Bail Act, 1985 (SA). The nature of a bail agreement is set out relevantly in s6(1) which reads:
    "6(1) A bail agreement with a person who has been charged
    with, or convicted of, an offence is an agreement under
    which that person makes an undertaking to the Crown -
    (a) to be present throughout all proceedings ...
     (i) ...
     (ii) where the person is convicted of the offence -
     relating to sentencing and to any appeal from, or review
     of, the conviction or any sentence;
    (b) to comply with any conditions as to the person's
    conduct while on bail stipulated in the agreement; and
    (c) if the agreement so provides - to forfeit to the Crown
    a sum stipulated in the agreement if the person fails,
    without proper excuse, to comply with a term or condition of
    the agreement."

31. Section 10(2) provides that "where the applicant has been convicted of the offence in respect of which he or she has been taken into custody, the bail authority has, subject to this Act, an unfettered discretion as to whether the applicant should be released on bail."

32. Section 11(1) states: "Subject to this section, a bail authority may impose one or more of the conditions referred to in subsection (2)." I do not propose to quote the whole of subs(2), but it includes a condition that the applicant agree "to be ... under the supervision of an officer of the Department of Correctional Services, and to obey the lawful directions of the officer; (see ll(2)(a)(iii)(B), and a condition to "comply with any other condition as to the applicant's conduct that the authority considers should apply while on bail". (See ll(2)(a)(vi).)

33. Section 14 provides for the review of decisions of bail authorities. Subsection (2) provides that a "review may be carried out under this section on the application of the Crown ... by the Supreme Court".

34. My attention was also drawn to the following passage in the judgment of King CJ in Rona v District Court of South Australia and Another (1994) 63 SASR
223. At p226, he said at p226 (Mohr J concurring):
    "The District Court is created by statute, namely the
    District Court Act 1991, and its jurisdiction and powers are
    conferred by the statute. It is unable to draw upon 'the
    well of undefined powers which is available to the Supreme
    Court' (Grassby v The Queen (1989) 168 CLR l at 16-17, per
Dawson J) by reason of s17 of the Supreme Court Act 1935."

35. It is true that the learned Judge in both of the two applications before me used the word "bond", but I think the correct analysis of what his Honour did was to adjourn both matters (as he had statutory power to do), and to continue bail in one case, and to continue and vary it in the other. I do not think he was imposing "common law bonds", or any recognizance other than that necessarily involved in an order continuing bail. I have some misgivings about such action, but as Barwick CJ has pointed out, it has had statutory endorsement in both the United Kingdom and New South Wales.

36. The applications for the orders in terms of paragraphs 2 and 4 of each summons are dismissed. I will hear counsel further as to whether an order should be made in terms of paragraph 3. As far as the order sought in paragraph 2.2 of the summons involving Billy-Joe Jeffrey is concerned, I observe that the learned Judge did not order the plaintiff to do anything. It was merely an invitation.