FEDERAL COURT OF AUSTRALIA

The Queen v Griggs [1999] FCA 1573

CRIMINAL LAW – prosecution appeal against sentence – offences of armed robbery and assault occasioning actual bodily harm – suspended sentence and treatment order on first count – Griffiths bond on second count – whether sentence on first count manifestly inadequate – extraordinary circumstances of offence – significance of offender’s dependence on heroin and prospect of rehabilitation pursuant to treatment order – prevalence of use of heroin in Australian Capital Territory – changing community attitudes to heroin use.

Crimes Act 1900 (ACT), s 429AB, s 429A, s 429B, s 556B(1), s 448

Drug Court Act 1998 (NSW)

Drugs of Dependence Act 1989 (ACT), s 123

Federal Court Act 1976 (Cth), s 24(1A)

R v Hebditch [1999] FCA 1087

The Queen v Irvine [1999] FCA 1286

The Queen v Blaskovic [1999] FCA 1306

Everett v The Queen (1994) 181 CLR 295

R v Tait (1979) 24 ALR 473

R v Jurisic (1998) 101 A Crim R 259

Kovac v R (1977) 15 ALR 637)

R v Henry [1999] NSWCCA 111

Chung Thi Le v R [1997] FCA 1286

R v Jurkovic (1981) 6 A Crim R 215

R v Suen (1987) 25 A Crim R 393

R v Oliver (1982) 7 A Crim R 174

Murrell v The Queen (1985) 4 FCR 168

R v Roberts (1994) 73 A Crim R 306

R v Hodge (unreported, NSWCCA, 2 November 1993)

R v Anderson (1993) 177 CLR 520

R v Capobianco (1978) 20 ACTR 29.

Talbot v The Queen (1992) 59 A Crim R 383

Douglas v The Queen (1995) 56 FCR 465.

R v Griffiths (1975) 1 NSWLR 229

Griffiths v R (1977) 137 CLR 293

R v Tindall (1994) 74 A Crim R 275

R v Jamie Griggs [1999] ACTSC 73

THE QUEEN v JAMIE GRIGGS

A 26 of 1999

MILES, MADGWICK and DOWSETT JJ

12 NOVEMBER 1999

CANBERRA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

MILES J:

1                     This is an appeal by the Director of Public Prosecutions of the Australian Capital Territory (the Director) from a sentence imposed by the Supreme Court of the Australian Capital Territory (Higgins J) upon the respondent pleading guilty to two counts on an indictment, one a charge of armed robbery and the other a charge of assault occasioning actual bodily harm.

2                     The sentence imposed for the offence of armed robbery was as follows:

(a)               Two years imprisonment, suspended after seven months and two weeks (representing time already spent in custody) upon entering into a recognizance, self in the sum of $2,000, on condition to be of good behaviour for four years, to accept the supervision of the Director of Corrective Services (ACT) and to comply with the following order.

(b)               An order under s 123 of the Drugs of Dependence Act 1989 (ACT) (the Drugs of Dependence Act) that the respondent attend for admission to the Odyssey House residential rehabilitation program and, following completion, undergo specified counselling with periodic review, the order to be of 24 months duration.

3                     On the second count his Honour adjourned sentencing for 12 months, the respondent in the meantime to be released on bail, a term of which be that he comply with the above recognizance and treatment order.

4                     His Honour also took into account a number of offences in accordance with Schedule 6 to the Crimes Act 1900 (ACT) (the Crimes Act).

5                     The grounds of appeal amount to the contention that the sentence on the first count was manifestly inadequate.  There was no attempt to appeal, and no application for leave to appeal, against the adjournment of  sentence on the second count.  That aspect is considered later.

6                     The facts constituting the offences were dramatic.  The respondent had been staying in a motel in suburban Canberra for the purpose of detoxifying from the effects of heroin use.  The bill had been paid for some days in advance by a charitable organization.  He wanted to move out into cheaper accommodation.  What happened then was described by his Honour as follows:

“He approached the receptionist, Ms Vesseur, and asked for a refund. She, quite properly, told him that could be done only on the authority of the Society.  The offender did attempt to contact the Society but got only an answering machine.  He demanded a refund again, explaining he could not get in contact with the Society.  He made further calls.  He spoke to the motel manager on the telephone.  The manager reiterated Ms Vesseur’s advice.  By this time the offender was in an extremely agitated emotional state.

Ms Vesseur, understandably became alarmed.  In the face of further demands from the offender she stated she would call the police.  She attempted to do so.  The offender ran around the counter, snatched the telephone from her and pushed her into the counter.  He held her by the wrist and then by the back of the neck.  He produced a syringe from his pocket and placed the needle against the side of her neck.  He says he held the needle so it would not scratch or puncture her neck.  He demanded she open the till.  She could not do so, perhaps because she was frightened and apprehensive.  He punched her to the side of the head several times with his fist.  He then dragged her into the adjoining manager’s office and demanded she get the money from there.  She said that there was only her money there.  He pushed her over and took some money from her handbag.  She believed $100 was taken, but the offender says it was only $50.  The prosecution is prepared to accept that.  He then fled the area. 

Ms Vesseur suffered some bruising to the left side of her head and, despite the offender’s protestations that he attempted to protect her from the needle, three, albeit, superficial, scratch marks to the side of the neck.  The emotional trauma the offender caused was, however, much more serious.  Ms Vesseur was left to wonder whether she might contract Hepatitis or even AIDS.  She has had to consult a psychologist.  The violence, both threatened and actual, make these offences more serious than otherwise.”

7                     Clearly these were serious, even alarming, offences.  His Honour accepted that.  However, there were, as his Honour found, mitigating factors surrounding the commission of the offences.  They were:

·        The respondent’s conduct was totally unpremeditated.

·        The respondent really believed on reasonable grounds that he was entitled to the refund.

·        The respondent was genuinely motivated to continue his detoxification course rather than to abandon it.

·        If the respondent had taken money from the possession of the motel, his action might have been justified by a claim of right.  As it was, he acknowledged that he had no right to Ms Vesseur’s money.

·        Stealing money “in order to get off drugs rather than to buy drugs” is extremely unusual and would normally be met by a non-custodial sentence directed to rehabilitation.

8                     The respondent was born on 20 June 1974.   He had a long history of prior offences which, as his Honour observed, were chiefly drug-related.  He supported his heroin habit, which went back to age 19, by “scamming from welfare agencies”, borrowing and theft, the latter course being by way of “last resort”.

9                     The respondent had not responded positively to more than 40 detoxification and drug rehabilitation programs.  He had not completed any long-term residential rehabilitation and at the time of sentencing did not wish to undergo any.  His Honour found the respondent’s attitude understandable in this regard, as such programs can be more restrictive than full-time imprisonment.

10                  A pre-sentence report prepared by Ms Louise Chia, a probation and parole officer, was not very favourable to the respondent nor optimistic about the prospects of his rehabilitation.  In this respect Ms Chia was critical of past guidance on the part of Mr Ted Monaghan of the Open Family Organization, whom she considered condoned the respondent’s use of heroin.  His Honour, however, rejected the view of Ms Chia and accepted that of Mr Monaghan to the effect that Mr Monaghan’s efforts had resulted in health improvements and a reduction in the respondent’s heroin usage and offending behaviour.  It also appears that his Honour accepted that Mr Monaghan was available for ongoing guidance.

11                  A Treatment Assessment Panel appointed under the Drugs of Dependence Act recommended a treatment order along the lines of that which his Honour eventually made.  A psychologist, Ms Kate Barrelle, concluded that the respondent had a genuine desire to be free of drug addiction and to avoid offending behaviour, but that his capacity to do so was restricted by a borderline personality disorder.  That disorder, linked to his family history, led to his opiate abuse and dependence.  The evidence of Mr Monaghan and of Ms Barrelle, together with the recommendation of the Treatment Assessment Panel and the acquiescence of counsel for the prosecution in that recommendation, appears to have led his Honour to remark that the “only question” was the appropriate length of  custodial sentence necessary to reflect the objective seriousness of the offences.

12                  Certain statistical evidence was put before his Honour by counsel for the prosecution intended to prove the prevalence of armed robbery in the Territory.  Since prevalence has been removed from the statutory list of matters which a sentencing judge is prohibited from taking into account (see Crimes Act, s 429B as amended by Act No 9 of 1998) his Honour was entitled, if not  bound, to consider that evidence.  For reasons which were expressed and are not necessary to repeat, his Honour had reservations about the reliability of the evidence.  Furthermore, his Honour had particular reservations about the value of prevalence as one of the sentencing criteria and was concerned about the danger of making the respondent a scapegoat for offences committed by others.  His Honour also expressed the view that prevalence deserved less weight when a crime was unpremeditated as he found the offences in the instant case to be.

13                  In relation to the treatment order recommended by the Treatment Assessment Panel, his Honour made some observations about the system of drug courts in New South Wales under the Drug Court Act 1998 of that State.  His Honour noted that drug courts exercised a degree of continuing supervision over an offender that was not usually available to courts in the Territory and that under the system in New South Wales offences of violence were excluded from the operation of the drug court.

14                  Finally, before imposing sentence, his Honour indicated that, but for the plea of guilty and mitigating circumstances, he would, because of the use of violence and a syringe, have imposed a sentence of three years for the charge of armed robbery.

Prosecution appeal

15                  The present appeal was one of a number of appeals against inadequacy heard in the same sittings of the Court in Canberra.  As a result, the well-established principles applicable to appeals on sentence by the prosecuting authority were repeated and applied in R v Hebditch [1999] FCA 1087 (10 August 1999), The Queen v Irvine [1999] FCA 1286 (15 September 1999) and The Queen v Blaskovic [1999] FCA 1306 (16 September 1999).  It is not necessary to further repeat the principles.  It is sufficient to refer to the majority judgment of the High Court in Everett v The Queen (1994) 181 CLR 295, where it was laid down at 299 that a court of criminal appeal must in the absence of clear statutory direction continue to recognize that there are very strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case.  Accordingly, this Court as the court of criminal appeal for the Territory would allow an appeal by the Director of Public Prosecutions only after exercising that restraint to which the High Court referred in Everett; R v Tait (1979) 24 ALR 473; Kovac v R (1977) 15 ALR 637.

16                  When the only ground taken on an appeal by the prosecution is the manifest inadequacy of the sentence, the words of McHugh J in Everett at 306 are of assistance:

“… Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task.  What is the range in a particular case is a question on which reasonable minds may differ.  It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. …”

17                  In other jurisdictions, notably New South Wales, a court of criminal appeal may see fit, or be authorised by statute, to lay down “guideline” judgments, thereby giving authoritative guidance which it is expected will assist sentencing judges to maintain consistency of sentencing: R v Jurisic (1998) 101 A Crim R 259; R v Henry [1999] NSWCCA 111.  However, this Court, at least in recent years, has not approached its task in that way.  In Chung Thi Le v R [1997] FCA 1286, a case of drug trafficking, the Court constituted by Foster, von Doussa and Madgwick JJ said:

“Nor do we think that the majority [in Suen] were essaying the task, historically thankless, of attempting to lay down a tariff of, say, 10 years as a head sentence whenever a large quantity of a drug such as heroin is found in the possession of somebody close to the ultimate organisers of the supply of heroin into the ACT.  As will emerge, we think that in the circumstances of the present case, 10 years is an appropriate head sentence.  But by that judgment we intend to bind no other sentencing judge in any other case.  Our decision may or may not be useful in other cases as part of a broad pattern of sentencing to which other sentencers will usually have regard.  While it is proper that sentencing judges value consistency highly, sentencing is a discretionary exercise and the available range of a sound discretion will, inescapably, often by wide.”

18                  To the extent that a “tariff based” approach, based on an acceptable “range” of sentences for an offence, may have been seen in previous decisions of this Court, such as R v Jurkovic (1981) 6 A Crim R 215 and R v Suen (1987) 25 A Crim R 393, it may be taken that the previous approach is now regarded as erroneous.

Maximum penalty and seriousness of offence

19                  It was submitted for the appellant that the “starting point” for a consideration of the objective seriousness of an offence is the maximum penalty prescribed by the legislature for that offence.  Reliance was placed on R v Oliver (1982) 7 A Crim R 174, in which the Court of Criminal Appeal (NSW) said at 177:

“The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question.  The legislature manifests its policy in the enactment of the maximum penalty which may be imposed.  The courts are, of course, absolutely bound by the statutory limited itself as well as by the legislative policy disclosed by the statutory maximum.”

20                  Under s 101 of the Crimes Act the maximum sentence for armed robbery is imprisonment for 25 years.  Under s 24, the maximum sentence for assault occasioning actual bodily harm is imprisonment for five years.

21                  However, whilst the maximum penalty can never be overlooked, it is only one factor.  Its importance varies according to the offence.  The statutory maximum can be an uncertain guide to legislative policy.  For instance, under s 15 of the Crimes Act the maximum sentence for manslaughter is 20 years.  It would be a surprising result if, on the face of it, all armed robberies were to be approached as necessarily more serious than manslaughter.

22                  Mention should be made also of the offences dealt with under Schedule 6 to the Crimes Act.  His Honour, in taking them into account as required by s 448, said that they were “individually and even collectively, of much less seriousness” than those on the indictment.  This may well have appeared so according to the way they were described in the document before his Honour.

23                  On the Schedule were two offences of “contravene restraining order”, two of “failure to answer bail”, one each of “possession of stolen property” and “taking a vehicle without authority” and four of “minor theft”.  The statement of facts admitted into evidence showed that one of the latter involved snatching a wallet from a young woman at an automatic teller machine in the city.  It was disturbingly similar to the armed robbery committed on 7 August 1998 and to describe it as “minor theft” was misleading.  The statement of facts also showed that the armed robbery was committed the day after the respondent had been granted bail on one of the charges of contravening a restraining order, in itself something which could have been regarded as an aggravating factor for the purpose of sentence.

24                 The extent to which offences admitted for the purposes of Schedule 6 should be taken into account is far from clear.  Under the provisions of s 448 they cannot increase the maximum sentence for the offence in respect of which an offender is convicted.  For pragmatic reasons the offender is to be given credit for having admitted them and avoided the need for further investigation and prosecution.  They cannot provide grounds for additional leniency: Murrell v The Queen (1985) 4 FCR 168.

25                  Of course armed robbery is, on the face of it, a serious offence.  It is serious according to the standards of the community, which are, it may be assumed, reflected in the maximum sentence of 25 years.  Armed robbery involves a combination of deprivation of property with violence or the threat of violence by means of a weapon.  In New South Wales it has been said repeatedly that armed robbery is of such gravity that it must carry a full-time custodial sentence, other than in “the most exceptional circumstances”: R v Roberts (1994) 73 A Crim R 306 at 308; R v Henry at [113].

26                  However, this Court has never laid down or recognized so strict a principle.  Rather, the practice has been as stated in R v Achetraretei (1983) 12 A Crim R 327 at 332:

“… to emphasise what seems to us to be a matter of commonsense, that armed robbery with its attendant risks of injury and death to the person or persons robbed is a crime of great gravity to be dealt with on conviction in such a way as to show the community’s abhorrence of it and in accordance with the court’s duty to protect that community.”

27                  It can hardly be doubted that to carry out a robbery by means of the threatened use of a syringe against the person of the victim is, on the face of it, a very serious crime indeed.  There can be no disagreement in principle with the remarks of Allen J, with whom Hunt CJ at CL and Loveday AJ agreed in R v Hodge (unreported, New South Wales Court of Appeal, 2 November 1993):

 “It is time for this court to say very firmly and very bluntly, that those who use syringes with blood, or apparently filled with blood to inflict dread upon their victims of the fear of being inflicted with AIDS, can expect appropriate punishment from this Court.  It must be punishment which will reflect the terror which that weapon creates, punishment which will reflect that in the circumstances of modern society the fear of such a weapon understandably is growing.  The sentence should reflect also that that type of terror weapon is used in most cases by persons who are associated with drug taking.  The use, or threatened use, of that weapon has to be stopped.  It is the duty of this court, within the proper principles of sentencing, to play its part to see that sentences which are imposed are objectively deterrent to any who might consider adopting that easy and terrifying method of imposing their will on others.”

28                  That said in general terms, one turns to the present case where it must be acknowledged that the facts of the offence as found by his Honour are extraordinary in that they reduce what would otherwise be regarded as “easy and terrifying” offences to something substantially less culpable.  Those findings were open to his Honour and the appellant does not seek to overturn them.

Aggravation: actual bodily injury

29                  Actual physical injury to a victim at the time of a robbery is an aggravating factor which is essential to be taken into account if the degree of criminality is to be properly assessed.  It need not be charged as a separate offence, but if it is disputed, it can be relied upon by the prosecutor as an aggravating factor only if proved beyond reasonable doubt: R v Anderson (1993) 177 CLR 520; R v Capobianco (1978) 20 ACTR 29.

30                  By charging assault occasioning actual bodily harm on the same indictment, the prosecution made it clear to the respondent that it was relying on the physical injury.  The respondent suffered no prejudice in that regard.  His Honour appears to have taken the physical injury into account as an aggravating factor on the robbery notwithstanding that it was charged as a separate count on which sentencing was not completed.  Clearly he was entitled to do so.  It would have been unfair for the sentence for the separate offence on the second count to be made cumulative upon that on the first count if the facts in relation to the second count had already been taken into account as part of the aggravating factors in relation to the first count.  However, the plea of guilty to the second count, although conceding actual bodily harm, did not deprive the respondent of the right to dispute, as he did, the degree to which the victim did sustain actual bodily injury.

31                  On the issue of physical injury, his Honour again made findings which were remarkably favourable to the respondent.  The victim claimed in a victim impact statement signed by her and admitted pursuant to s 429AB of the Crimes Act as follows:

“On Friday 7 August 1998, a man came into the Motor Inn and held me up.  He punched my face and held a syringe to my face and throat.  He told me that the syringe contained the hepatitis B virus.

The needle was pushed into my face and throat.  The physical pain was from being beaten and then struck by the needle was bad enough but then I had this life threatening [disease] to contend with.”

32                  The statement goes on to deal with the victim’s worries about AIDS and loss of self esteem and confidence, which do not go to the issue of actual bodily injury.

33                  The victim did not give evidence.  His Honour accepted that there was bruising from the punches.  Otherwise his Honour appears to have preferred the version given by the respondent in evidence that he held the needle so that it would not scratch or puncture her neck, the result being that she suffered three superficial scratch marks to her neck.  The effect of the finding was that the injury was itself only just within the scope of actual bodily harm and that as a potentially aggravating factor in relation to the armed robbery it added very little.

Drug addiction

34                  The assessment of the Treatment Assessment Panel under the Drugs of Dependence Act is set out in full in the appeal book and it is not necessary to reproduce it.  It is important, however, to recognize its significance.  The Treatment Assessment Panel had interviewed the respondent on five occasions.  It had before it information from the Drug Referral and Information Centre, a body sponsored by the Australian Capital Territory Government.  It assessed the respondent to be a drug dependent person under s 123 of the Act, and dependent on heroin.  He was participating in a methadone program at the time of sentencing. It investigated and arranged for a place to be made available in a residential treatment program at Odyssey House in Sydney, a program known by the sentencing judge to impose a rigorous regime.  The residential program was expected to be of nine to 12 months duration, and to be followed by a program of counselling in Canberra, the whole treatment to be implemented over a period of 24 months.

35                  There was also the evidence of the assistance available from Mr Monaghan.  It is not clear exactly what that assistance was or would be.  What is clear is that his Honour rejected the evidence of Ms Chia that the assistance had been counterproductive in the past.

36                  Thus his Honour was faced with, as Spender J described it in Blaskovic at [9] “a very stark choice” between accepting or rejecting the recommendation of the Treatment Assessment Panel.  The recommended course of treatment, which counsel for the prosecution accepted as appropriate, could not be put into effect if there was to be an immediate term of imprisonment.  His Honour was compelled to consider whether there was any way consistent with accepting the recommendation of the Treatment Assessment Panel that was also consistent with imposing a custodial sentence sufficiently substantial “to reflect the objective seriousness of the offences”.

37                  Furthermore, the possibility of imposing a custodial sentence and suspending it in whole or in part clearly could not be overlooked.  Allowing for the seven months and two weeks already spent in custody awaiting sentence, the course of immediate release on recognizance and subject to the terms of a treatment order was clearly a possible solution to the problem that could not be ignored.  Could it be said that by proceeding that way, the sentencing judge imposed a sentence that was manifestly inadequate?  Before ultimately answering that question, it is necessary, to look at three further factors.  The first is the extent to which drug addiction which gives rise to criminal conduct may be regarded as a mitigating factor for the purpose of sentencing.  The second is the proper role of a treatment order under the Drugs of Dependence Act for the purpose of sentencing.  The third is the decision by his Honour not to carry the sentencing process to completion and to adjourn sentencing on the second count for a period of 12 months.

38                  Community attitudes to drug addiction are in a state of change and have certainly changed since Jurkovic and Suen.  Heroin use remains a criminal offence.  But the fact is that it is very rarely prosecuted.  To the extent that sentencing is expected to control the incidence of crime, it must be acknowledged that the sentencing policies of the past have failed altogether as far as the use of heroin is concerned.  The use of heroin is now so prevalent in the Territory that the government supports needle distribution programs and “peer-managed” schemes to keep heroin users as healthy as possible.  The community no longer demands that heroin users be punished as such, and there is an emerging, if not predominant, community attitude that the socially adverse effects of heroin use are best met by a response in the public health system rather than by mere punishment in the criminal justice system.  That is not to say that trafficking in heroin on anything but a small scale remains a serious offence for which punishment and deterrence are important elements for the purposes of an appropriate sentence.  But we are not dealing with an offence of drug trafficking and the present respondent has no convictions for drug trafficking.

39                  Until very recently the use of mind altering drugs such as heroin was regarded with such abhorrence that it could not possibly be accepted as a mitigating factor in the commission of crime.  That is no longer the case.  The dilemma of denying that moral responsibility is reduced by the effect of an addiction to a mind altering substance whilst insisting on heavy sentences for serious offences by a drug dependent person has been addressed by looking at the circumstances in which the person concerned became so dependent: R v Henry; Talbot v The Queen (1992) 59 A Crim R 383; Douglas v The Queen (1995) 56 FCR 465.

40                  It is in the context of the changing attitudes to the use of illicit drugs, particularly heroin, that the Drugs of Dependence Act was enacted and is to be applied.  The option of ordering a drug addicted offender to undergo treatment recommended by a Treatment Assessment Panel is not to be lightly dismissed.  It must not be overlooked that the legislation gives the sentencing court power to order treatment with or without a sentence of imprisonment suspended in whole or in part on condition that the offender comply with the order and any other condition that may be attached to a recognizance: Drugs of Dependence Act, s 123(6).  It is true as Dowsett J said in Blaskovic that understandable compassion for addicts must not be allowed to cloud our judgment as to the seriousness of drug motivated offences.  It is also as true that judgment would be clouded if it did not recognize that most serious crime these days is drug-related and often explicable by dependence on drugs.  However, it would be an error to regard treatment orders as just another sentencing option, and a “soft” option at that.

41                  Furthermore, it is of significance to have regard to the fact that his Honour did not proceed to final sentence on the indictment presented against the respondent.  On the second count, the respondent was remanded for a period of 12 months.  Bail was granted on condition that he comply with the treatment order and the recognizance on which the sentence of imprisonment on the first count was suspended.  The reason for taking that course was not clearly articulated but may be spelled out from the rest of the circumstances as well as from his Honour’s brief reference to the Drug Court Act 1998 (NSW) under which treatment of drug addicted offenders is supervised by a court rather than by a Treatment Assessment Panel as under the Drugs of Dependence Act.  It is not difficult to infer from what his Honour said that he foresaw difficulties in the carrying out of the treatment order and the supervision of the respondent and he judged that such difficulties were best met by placing the respondent on bail for a lengthy period at the end of which final sentencing on the indictment could take place.

42                  This was, it must be acknowledged, an unusual course.  It does not fit easily into the traditional role of a court (R v Griffiths (1975) 1 NSWLR 229) and it is in the face of a general principle that an offender should not be kept waiting to be sentenced.  On the other hand, the appellant did not submit that it was beyond the power of the Supreme Court to impose a sentence on the first count (to be executed according to its terms forthwith) and adjourning sentencing on the second count to a later date.  The appellant did not seek leave to appeal from the decision to adjourn sentencing on the second count.  Nor was it argued on behalf of the respondent that, whilst sentencing on the indictment as a whole remained incomplete, the appeal by the Director against the sentence on the first count was incompetent.  Because those issues were not addressed in submissions, it is not necessary to express a view on them here.

43                  The propriety of adjourning sentencing for a lengthy period in order to allow an offender a chance to prove himself or herself whilst on bail was challenged in Griffiths v R (1977) 137 CLR 293 and a disposition of that nature has become well known in New South Wales and the Territory as a “Griffiths bond”.  The Griffiths bond appears to have been the subject of disapproval by two Judges of this Court in Irvine and Blaskovic, on the apparent understanding that such bonds are commonly granted.  In fact the practice in the Territory is observed only infrequently, although perhaps not as infrequently as it once was, for reasons to which reference will be made.

44                  In Griffiths two Justices of the High Court approved and two disapproved of the practice, although the grant or withholding of approval did not affect the outcome of the appeal, since there was a unanimous view that there was no jurisdiction in the Court of  Criminal Appeal of New South Wales to entertain an appeal against an order remanding for sentence.

45                  Barwick CJ said at 306:

“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.”

46                  Murphy J said at 328-329:

“The Judge took a course which was lawful (R v Spratling [1911] 1 KB 77) and which, from his experience and that of his colleagues in the District Court, had often succeeded in the permanent reform of persons who would otherwise spend much of the rest of their lives in prison at a great loss to themselves and families and at great expense to the community.  His attempt to explore an alternative to imprisonment was in accordance with the general disillusionment with imprisonment as a means of either deterrence or rehabilitation (see Report of the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1975); O’Leary, Gottfredson and Gelman “Contemporary Sentencing Proposals” Criminal Law Bulletin, vol. 11 (1975), p.555) and was designed to safeguard the community by effecting Mr. Griffiths’ rehabilitation.  A prison sentence would not have achieved this and, as the Judge realized, would probably have confirmed him in a life of crime.  The Court of Criminal Appeal accepted that Judge Goran did not always follow this course but selected with considerable care the cases in which he felt it might be justified.”

47                  Jacobs J relying heavily on a report of a Task Force in the United States published in 1976 and entitled “Fair and Certain Punishment” and the perceived need to avoid disparity in sentencing concluded that a prison sentence could not have been avoided by the device of a lengthy remand.  Stephen J agreed.

48                  Aickin J, the fifth member of the High Court in Griffiths, expressed no view on the appropriateness of the course taken.

49                  In New South Wales the Court of Criminal Appeal has criticised the practice of remanding offenders on Griffiths bonds: see R v Tindall (1994) 74 A Crim R 275, but has stopped short of declaring that they are never appropriate.

50                  It should be recognized that crime in the Australian Capital Territory at the present time is overwhelmingly drug-related, and related mainly to heroin, a drug which is in widespread use in the community, not to mention prisons.  The connection between crime and drug use justifies sentencers taking new approaches.  Those approaches must of course be within the law.  But the legislature itself has spoken.  Relatively recent alternatives to full-time imprisonment such as community service orders and periodic detention require sentencers to consider those alternatives.  The Drugs of Dependence Act is expressly directed to establishing a regime of response to crime which cannot be overlooked in the case of drug dependent persons.  Of course rehabilitation is not the prime objective of sentencing and decisions must not be clouded by sympathy for addicts.  The traditional criteria for sentencing are enshrined in the Crimes Act at s 429A and s 429B.  Sentencing should not be (and is not) postponed simply because it is difficult.  Experience indicates that if a treatment order is recommended the facts of the case may suggest that the order is likely to be more effective if it is combined with conditions attached to a recognizance, and sometimes those conditions may be appropriately made part of conditions of bail.  In the event of a Griffiths bond being considered appropriate in itself, it is difficult to see why the recommendations of a treatment assessment panel should not be implemented during the period on bail.  In other words, a Griffiths bond and a treatment order may be complementary to each other.

51                  In general terms it should be stated that until the majority of this Court declares otherwise, a sentencing judge (or magistrate) in the Australian Capital Territory should continue to be free, in appropriate circumstances, to grant a Griffiths bond and, again in appropriate circumstances, to impose as a condition of the bond a requirement that the offender comply with a treatment order under s 123 of the Drugs of Dependence Act.

Attitude of Director of Public Prosecutions

52                  In his Honour’s reasons it was stated that “the prosecution did not ultimately contend that there should not be a treatment order made” and “that the only question was the appropriate length of a custodial sentence necessary to reflect the objective seriousness of the offences”.  This description of the attitude of prosecuting counsel before his Honour was not challenged.

53                  When counsel for the prosecution has taken a particular attitude before the court below which is favourable to an offender, that will be taken into account by a court of criminal appeal in deciding whether or not to allow an appeal by the prosecuting authority against a decision to which that attitude is relevant: Tait at 476-477.

54                  His Honour’s remarks suggest that prosecuting counsel, in accepting that a treatment order should be made, also accepted that an immediate custodial sentence was inappropriate, since it could hardly be suggested that the prosecution thought that the residential treatment recommended by the Treatment Assessment Panel could be put into effect whilst the respondent was in prison.  No doubt prosecuting counsel would have also had in mind that the respondent had already spent seven months and two weeks in custody on remand.

Outcome

55                  In the light of the above, and there being no identifiable error on the part of the sentencing judge, the appeal should be dismissed.  The facts, shocking as they appear and terrifying as they no doubt were to the victim, were accepted by his Honour as being explicable by circumstances which substantially reduced the respondent’s culpability.  His Honour’s findings on the facts put the offence about as far towards the bottom of the scale of seriousness of armed robbery as it is possible to go.  Two years imprisonment for armed robbery must be regarded as very lenient, but it is not unprecedented: see for instance the recent decision of this Court in Hebditch in which sentences of two years imprisonment were upheld on two separate counts of armed robbery, to be served concurrently, suspended forthwith having served 67 days.  In the light of his Honour’s findings, it is not so far outside the bounds of a sound discretionary decision that it is appropriate for this Court to interfere.

56                  The release of the appellant after only seven months and two weeks imprisonment is also to be seen in the light of his Honour’s extraordinary optimism, based on his view of the evidence, that the respondent was a positive candidate for immediate residential treatment for his heroin addiction pursuant to the recommendation of the Treatment Assessment Panel.  By accepting and putting into effect that recommendation by suspending the term of imprisonment after the period of seven months and two weeks already served, his Honour has not been shown to have vitiated the sentence by making it manifestly inadequate.

57                  Subsequent events may have cast doubt on his Honour’s cause for optimism.  The Court was properly informed that the respondent was brought back to the Supreme Court on 13 May 1999 on a warrant issued pursuant to an information laid by Ms Chia under s 556C of the Crimes Act for failure to comply with a condition of the recognizance entered into as a condition of the suspension of the sentence of imprisonment.  The alleged breach was that the respondent had absented himself from the residential treatment at Odyssey House contrary to directions on behalf of the Director of Corrective Services.  Higgins J found that the breach was not proved in that the respondent had received a direction from those in charge of Odyssey House which conflicted with that given on behalf of the Director of Corrective Services: R v Griggs [1999] ACTSC 73 (12 July 1999).  No steps were taken in respect of any breach of the treatment order or the conditions of bail.

58                  Whatever may have occurred since the date of sentence on the first count, the question for this Court is whether the sentence was manifestly inadequate in the light of the evidence as it stood on that date.  The prosecution case on appeal cannot be strengthened by events which have taken place since.

59                  The appeal should be dismissed with costs.

Associate:

Dated:  12 November 1999

REASONS FOR JUDGMENT

MADGWICK J:

60                  The facts have been stated by Miles J.  The reasons given by Miles and Dowsett JJ demonstrate that this case may be validly analysed in two ways.  Each of these analyses show that the appeal cannot succeed.

61                  I outlined my views as to sentencing considerations apt for many drug-related offences in Blaskovic.  What I said there is consistent with what Miles J has said in this case.  Indeed, it seems to me that each of our separate expositions is supported by the other.

The Griffiths remand order

62                  A major matter dealt with by Miles J here and by Spender and Dowsett JJ in Blaskovic is whether the Supreme Court can or should impose a "Griffiths remand".  In neither case was either of these questions argued.  The Director for Public Prosecutions (“DPP”) had taken the view that he could not appeal against such orders.  Having regard to the provisions of the Federal Court Act 1976 (Cth) (see s 24(1A)) which enable appeals against "interlocutory" decisions, that view may or may not be correct.

63                  What is often done in the name of Griffiths is to adjourn the further consideration of sentence on one or more counts in an indictment until a future time, bail being allowed on conditions designed to bring about the rehabilitation of an offender, and/or to test the genuineness or utility of attempts at such rehabilitation.  Sometimes this is sought by counsel for the prisoner, sometimes it is done by the sentencer of his or her own motion.  There are two steps involved in such an order:  first, the sentencer declines to exercise to finality, at the point of the decision, the court's sentencing jurisdiction, and second, conditional bail is granted.  It is the former of these that is the crucial decision, the latter being merely the machinery to give effect to the sentencer's approach to the case.

64                  The Supreme Court of the ACT has available to it, in addition to powers to order early release on parole, the statutory sentencing options of the “deferred sentence bond” and the “suspended sentence”:  see ss 556B(1)(a) and (b) of the Crimes Act 1900 (ACT) respectively.  In the case of a breach of a condition of a deferred sentence bond or a suspended sentence, until the Court is apprised of the supposed breach, and determines that there has been such a breach, no action may be taken against the offender including his or her possible arrest.  In practice breaches are sometimes not reported to the Court.  What the usual form of the Griffiths remand imposes on a prisoner (albeit usually with his or her eager consent) which the suspended and deferred sentences, at least as a matter of practice, do not, is the necessity that the offender again face the Court.  This provides the Court with an opportunity to re-examine his or her progress towards rehabilitation or the lack of it.  Consequently, there may well be a greater prospect of an offender, who has wasted an opportunity for rehabilitation granted by the Court, being returned before the Court for further consideration of his or her fate.  The attractions of a sentencer having such greater assurance of flexibility are obvious - it is patent that there are considerable risks in giving offenders access to proposed rehabilitative processes rather than imprisoning them.  In general, that which increases the scope for flexibility on the part of a sentencer, and which is not itself antithetical to the liberty of the subject, should be supported.  A statutory construction or a view of the common law which limits that flexibility ought, in my view, only be adopted when it is plainly necessary.

65                  On the other hand, one of the purposes of sentencing is to bring to a timely conclusion the legitimate societal response to proven criminality.  There are, in the current jargon, many stakeholders in this process.  They include the DPP as the embodiment of the state or government; any victims; people close to the victims; the community at large; the offender, and the sentencing court.  The government (via the DPP), victims and the community have a legitimate interest in knowing, in a timely way, the full extent of an offender's punishment.  When there are, as in the ACT, statutorily sanctioned means of monitoring post-sentence behaviour and, if necessary, reviewing aspects of the appropriate sentence, and where the legislature has not also created a discrete sentencing disposition that provides for lengthy, conditional, actual postponement of the sentencing process, can or should the courts do so, however desirable a court may consider such a disposition to be?  If executive capacity to bring to the court's attention breaches of conditions imposed by way of suspended sentence or deferred sentence bonds in a timely way should be lacking, can or should the court, on that account, delay the conclusion of the sentencing process in order to circumvent that incapacity?  If the matter goes only to the discretion of the Court, and not its power, when all that is involved is an interlocutory decision, ought this Court intervene?

66                  These or like questions may be taken to have underlain the equal division of the four Justices of the High Court in Griffiths and the disapproval of the use of Griffiths remand by the NSW Court of Criminal Appeal in Tindall.  Such questions are not easy.  They are important.  Their resolution should await full argument.

Appellate sentencing “guidelines”

67                  Miles J has referred to Chung.  That case does not deny that there is a "range of appropriate sentences with respect to a particular offence", to use the language of McHugh J in Everett at 306.  It does deny that appellate courts have any business to try to limit in advance the general discretion of sentencing judges by any formula such as, "for offence ABC, other than in exceptional cases, a sentence of between x and y years is appropriate".  Such a formula may fairly be called an attempt to impose a "tariff".   The occasional efforts of appellate courts to enter into this area have soon proven "historically thankless", as was noted in Chung:  the capacity of cases to differ soon enough throws up so many exceptions that the tariff becomes meaningless and is quietly forgotten.  But Chung did not dispute that previous cases may show "a broad pattern of sentencing to which … sentencers will usually have regard".  Chung recognised what McHugh J had said in Everett at 306 in the passage quoted by Miles J:

“What is the range in a particular case is a question on which reasonable minds may differ.  It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.”

68                  Nor does Chung deny that an appellate court may properly indicate, in some kinds of cases, what is little more than common sense, that their seriousness is such that, ordinarily, imprisonment for a substantial period will attend conviction.  Likewise Chung affirms that the desirability of consistency, though not necessarily uniformity, in sentencing is something that sentencers should bear firmly in mind.

Weight to be given to “scheduled” offences

69                  As to the extent to which offences taken into account "in the Sixth Schedule" under s 448should be given weight, the NSW Court of Criminal Appeal has long applied a rule that the criminality disclosed by such offences should be "fully taken into account".  This must, in my respectful opinion, be right.  Otherwise the offender would get a double benefit: he or she has already benefited by the available maximum sentence being that for the single offence in relation to which the scheduled offences are taken into account.  However, little or no complaint was made about this aspect of the matter before us and it would not be right for us, without such an issue having been clearly raised, now to act adversely to the respondent on that score.

Associate:

Dated:    12 November 1999

REASONS FOR JUDGMENT

DOWSETT J:

70        I have read the reasons prepared by Miles J and in so far as those reasons deal with the facts of this appeal and comment upon those facts, I am content to adopt them.  As to the relevant sentencing principles in connection with drug-related offences and the so-called Griffiths Bond, I do not wish to add anything to my judgment in The Queen v Blaskovic [1999] FCA 1306.  I consider that the offences in question ought be viewed as constituting an unpremeditated response to unexpected frustration.  Further, the respondent was an addict involved in the difficult process of rehabilitation.  Whether one accepts that he intended to use the money for cheaper accommodation rather than to obtain drugs may depend upon one’s point of view. 

71        Serious as his misconduct was, once it is accepted that it was unpremeditated, there is room for some leniency in his treatment.  Given his lengthy record, a period of imprisonment was inevitable.  Although a sentence of two years was on the lenient side, it was not so lenient as to justify intervention on appeal, having regard to the approach to such appeals prescribed by the High Court in Everett v The Queen (1994) 181 CLR 295.  Similarly, I would not upset the suspension of the balance of the sentence, having regard to the fact that the respondent had already served seven months and two weeks.  My attitude to both the “head” sentence and to the period actually served is influenced by the realization that unless there is to be a very substantial increase in the sentence, then the effect of any intervention will be to return the respondent to prison for a relatively short period of time.  This is unlikely to assist in his long-term rehabilitation.  In the circumstances, I agree with the orders proposed by Miles J. 

72        I wish only to add one further comment with respect to the evidence now available as to the respondent’s conduct since sentence  as set out in the reasons prepared by Miles J.  Although such evidence could not be used in deciding whether or not there had been a miscarriage of the sentencing discretion, it may have been relevant in re-sentencing the respondent had such a miscarriage been demonstrated.

Associate:

Dated:    12 November 1999