Deferral for rehabilitation or other purpose

[5-400] Preliminary

Following a finding of guilt a court may make an order adjourning the proceedings for a maximum of 12 months (s 11(1) Crimes (Sentencing Procedure) Act 1999) for a number of specific purposes set out in s 11(1):

(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:

(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.

Proceedings must not be adjourned under s 11 unless bail for the offence is or has been granted or dispensed with under the Bail Act 2013: s 11(1A) (inserted by Sch 2.13[2] Bail (Consequential Amendments) Act 2014). Therefore, an adjournment under s 11 cannot be made for offenders remanded in custody at sentence unless the court formally grants the offender bail for the offence(s) pursuant to the Bail Act.

At the expiration of the period of remand the defendant is required to reappear for sentencing. The defendant’s progress during the adjournment is assessed and the court may take this into account when he or she comes back to court for sentencing. This (common law) procedure was said to be a valid one by the High Court in Griffiths v The Queen (1977) 137 CLR 293.

The rationale for a s 11 adjournment

The rationale for deferring proceedings is that it may aid in the final determination of an appropriate sentence: R v Farrell (2014) 239 A Crim R 212 at [58] quoting R v Rayment (2010) 200 A Crim R 48 at [18], [25], [159]. This rationale bears upon the decision of whether to exercise the discretion afforded by s 11: R v Farrell at [61]. There must be good reason for concluding that a s 11 adjournment is likely to assist the court in determining whether a custodial sentence should be imposed and, if so, in assessing the length of the sentence or non-parole period: R v Farrell at [51]. Before consideration can be given to making an order under s 11 there must be some assessment of the objective gravity of the offence: R v Farrell at [27], [52]; R v Palu (2002) 134 A Crim R 174 at [38].

In R v Trindall (2002) 133 A Crim R 119, Smart AJ (Spigelman CJ and Grove J agreeing), explained the purpose behind and object of s 11 at [60]–[61]:

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.

The addition in s 11(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 [significant risk of suicide]. 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.

The examples cited in R v Trindall above would not necessarily require an adjournment under s 11 for the purpose of determining the final sentence: R v Farrell at [61].

A failure on the part of the court to set an adjournment date is not such a defect as to render the order invalid. It is a slip capable of restoration by remitting the matter to the judge for a date to be fixed: R v Trindall at [39].

Section 11 adjournments and full-time custody

The fact that a full-time custodial sentence is inevitable does not preclude, in exceptional cases, the grant of an order under s 11: R v Brown (2009) 193 A Crim R 574 at [22]; R v Rayment (2010) 200 A Crim R 48 at [22], [160]. A s 11 remand is not confined to cases where the court contemplates a sentence other than full-time imprisonment if rehabilitation is successful: R v Farrell (2014) 239 A Crim R 212 at [55]. This is in contrast to a common law Griffiths remand. In R v Trindall (2002) 133 A Crim R 119, Smart AJ (with whom Spigelman CJ and Grove J agreed) stated at [62], [64]:

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 … After all, going straight to gaol gives them no opportunity of avoiding that devastating experience or reducing the extent of that experience. …

…

The granting of a Griffiths remand [that is an order under s 11] 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. (Emphasis added.)

R v Trindall has been quoted with approval in: R v Farrell at [55]; R v Di Gregorio [2004] NSWCCA 9; R v Williams [2004] NSWCCA 64; R v Leahy [2004] NSWCCA 148; R v Kipic [2004] NSWCCA 452; R v Brown [2009] NSWCCA 6 at [22].

The court still, however, persisted with a strong cautionary note about the use of s 11. In R v Palu Howie J (Levine and Hidden JJ agreeing) said at [29]:

… 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.

The judge in R v ABS [2005] NSWCCA 255 erred by suggesting that some form of sentence other than full-time custody might well be available at the end of the remand period. Rather, the serious objective criminality of the offences required significant full-time custodial sentences.

In R v MRN [2006] NSWCCA 155 at [114], the court held that the judge should have explained to the applicant that despite the grant of bail for rehabilitation purposes he should expect a substantial period of full-time custody.

Requirement to consider the effect of delay

The court must be satisfied that the delay that will inevitably result from an adjournment is wholly justified in order to ensure proper exercise of the sentencing discretion: R v Farrell [2014] NSWCCA 30 at [53]. The court must take into account any unfairness that may be caused by the delay.

In R v Palu Howie J (Levine and Hidden JJ agreeing) said at [30]:

The exercise of the power given under s 11 will inevitably result in delay in the finalisation of the prosecution of the offender. On many occasions, as in the present case, that delay will be substantial. Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. Time and again sentencing courts are asked to have regard to the delay in sentencing an offender as a matter of mitigation because of the adverse effects of delay upon the well-being of the offender and the disruption it causes to his or her everyday life. Delay unavoidably results in unfairness: unnecessary delay results in injustice. Steps have been taken throughout the criminal justice process to eliminate unnecessary delay wherever possible. Unless delay in the sentencing of the offender is essential in order to ensure a just result, the court has failed in its duty both to the offender and the community.

Crown appeals

Section 5D(1) Criminal Appeal Act 1912, provides that the Attorney General or Director of Public Prosecutions may appeal to the Court of Criminal Appeal against “any sentence pronounced by the court of trial in any proceedings to which the Crown was a party”. The definition of “sentence” in s 2 of that Act includes any order made by the court of trial in respect of a person under s 11.

It is trite that the question as to whether an order is made under s 11 depends on the facts of the case. The following are some examples of Crown appeals. In R v Pulliene [2009] NSWCCA 47 the court held that it was within the sentencing judge’s discretion to make an order under s 11 where the offender, who had committed an armed robbery, was “at the crossroads”. This was because, although her prospects were difficult to predict, she was a young person with a troubled background who had showed signs of rehabilitation: R v Pulliene at [27]. The court in R v Rayment (2010) 200 A Crim R 48 held at [27], [173] that it was within the sentencing judge discretion to make an order under s 11 where the offender had committed an aggravated detain for advantage (inflict actual bodily harm) offence. Johnson J dissented (see [123]–[124]). In R v Farrell [2014] NSWCCA 30 at [67], the judge failed to fully consider the objective seriousness of the offence; to properly assess the evidence relating to the respondent’s surgery; and, to adequately take into account the rationale for a s 11 disposition for the purpose of rehabilitation. The Crown appeal was dismissed because the intervention of the court would have served no practical purpose given the scheduled date of sentencing proceedings: R v Farrell at [68].

[5-410] Terms and conditions

When deferring sentence pursuant to s 11 Crimes (Sentencing Procedure) Act 1999, the court may impose such terms or conditions and also in accordance with the Bail Act 2013.

[5-420] Breach

If the bail is breached during its term, the matter is governed by the Bail Act 2013. The court can issue a warrant for the apprehension of the offender. When the offender appears before the court, the court can then proceed to deal with the matter immediately and sentence the offender or re-release him or her on bail, subject to the 12 month limit from the date of the finding of guilt: s 11(2).

[5-430] Intervention programs

The law relating to intervention programs is set out in Ch 7, Pt 4 Criminal Procedure Act 1986. The Diversionary programs on JIRS explains the main features of each intervention program and provides links to additional information. The objectives of such programs are contained in s 345 of the Act. In summary, intervention programs are intended to provide a framework for the recognition and operation of certain alternative measures for those who have committed or are alleged to have committed an offence; such programs should apply fairly to participants and be properly managed and administered, and participation in the programs is intended to reduce the likelihood of future offending. A court may adjourn proceedings to allow the accused person to be assessed for, or to participate in, an intervention program: see s 350 Criminal Procedure Act 1986.

Section 350(1A) provides proceedings must not be adjourned unless bail for the offence is or has been granted or dispersed with under the Bail Act 2013.

Offenders or alleged offenders may be referred to intervention programs at several points in criminal proceedings, these points are described by a note to Ch 7, Pt 4 Criminal Procedure Act 1986, as follows:

(a)

a court that grants bail to a person may impose a bail condition requiring the person to be assessed for, or to participate in, an intervention program or other program,

(b)

a court may adjourn criminal proceedings against a person before any finding as to guilt is made and grant bail to the person for the purpose of assessing the person’s capacity and prospects for participation in an intervention program or to allow the person to participate in an intervention program (and to comply with any plan arising out of the program) under this Act,

(c)

a court that finds a person guilty of an offence may make an order requiring the person to participate in an intervention program (and to comply with any plan arising out of the program) under s 10(1)(c) of the Crimes (Sentencing Procedure) Act 1999,

(d)

sentencing of an offender may be deferred for the purpose of assessing an offender for participation in an intervention program, or for allowing an offender to participate in an intervention program (and to comply with any plan arising out of the program) under s 11 of the Crimes (Sentencing Procedure) Act 1999.

[5-440] Declaration and regulation of intervention programs

The regulations may declare certain programs to be intervention programs: s 347 Criminal Procedure Act 1986.

The purposes of intervention programs are enumerated under s 347(2) Criminal Procedure Act 1986 and, in summary, include promoting:

treatment or rehabilitation of offenders
respect for the law
maintenance of a just and safe community
remedial action to victims and the community
the acceptance of accountability and responsibility for the behaviour
the reintegration of offenders into the community.

The following intervention programs have been declared under the Criminal Procedure Regulation 2017: circle sentencing intervention program (Pt 7) and traffic offender intervention program (Pt 9). Former Pt 8, dealing with the forum sentencing intervention program, was repealed as from 29 June 2018.

The processes involved in referring an offender for participation in the circle sentencing and traffic offender intervention programs are summarised below.

Circle sentencing intervention program: Pt 7 Criminal Procedure Regulation 2017

A suitability assessment order is made.
A Program Officer convenes a meeting of the Aboriginal Community Justice Group.
The Aboriginal Community Justice Group assesses the offender.
A court determines whether a program participation order should be made.
The offender enters into an agreement to participate.
The Program Officer convenes a circle sentencing group.
The offender must comply with the program and any intervention plan.
The court may pronounce a sentence.

Traffic offender intervention program: Pt 9 Criminal Procedure Regulation 2017

A court determines whether an offender may be referred for participation.
A court makes a program participation order.
A traffic offender enters into an agreement to participate.
A traffic offender must comply with the requirements of an approved traffic course.

[5-450] Restrictions on the power to make intervention program orders

Generally, offences for which an intervention program may be conducted are summary offences and indictable offences that may be dealt with summarily: s 348(1) Criminal Procedure Act 1986. Subsection 348(2), however, lists the following offences that may not be the subject of intervention programs:

(a)

an offence under section 35 (Malicious wounding or infliction of grievous bodily harm) or 35A(1) (Maliciously cause dog to inflict grievous bodily harm) of the Crimes Act 1900,

(b)

an offence under Division 10 (Offences in the nature of rape, offences relating to other acts of sexual assault etc) or 15 (Child prostitution and pornography) of Part 3 of the Crimes Act 1900,

(c)

an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900 (Stalking or intimidation with intent to cause fear of physical or mental harm),

(d)

an offence under section 91H (Production, dissemination or possession of child pornography), 578B (Possession of child pornography) or 578C(2A) (Publishing child pornography) of the Crimes Act 1900,

(e)

any offence involving the use of a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996,

(f)

an offence under section 23(1)(b) or (2)(b) (Offences with respect to prohibited plants), 25 (Supply of prohibited drugs) or 25A (Offence of supplying prohibited drugs on an ongoing basis) of the Drug Misuse and Trafficking Act 1985,

(g)

any other offence prescribed by the regulations for the purposes of this subsection.