Edwards v R

Court of Criminal Appeal (NSW)|2017-06-30|Before: Hoeben CJ, Fullerton J, Garling J

Judgment

HOEBEN CJ at CL: I agree with Garling J.
FULLERTON J: I agree with Garling J.
GARLING J: On 23 May 2017, the applicant Lesley Edwards, filed an application for leave to appeal against a sentence imposed on her in the District Court. Her appeal was argued before this Court on 30 June 2017. At the conclusion of the appeal, I proposed that the Court make the orders set out at the end of this judgment. Those orders were made. The Court indicated that reasons would be delivered in due course. These are my reasons for proposing the orders which the Court has made.
The applicant was arrested on 14 November 2015, and charged with 3 offences. The first was an offence contrary to s 94 Crimes Act 1900 of robbery which took place at Surry Hills. The second and third charges involved offences of damaging property and larceny which took place shortly after the robbery.
On 2 August 2016, at the Central Local Court, the applicant entered a plea of guilty to the offence of robbery against s 94 of the Crimes Act, and the other two offences were placed on a Form 1. She was remanded for sentence to the District Court.
On 13 December 2016, the applicant was sentenced in the District Court (Berman DCJ) to a term of imprisonment with a non-parole period of 18 months, to date from 14 May 2016 and expire on 13 November 2017, with a total term of 3 years, to expire on 13 May 2019.

Remarks on Sentence

His Honour referred to, and favourably dealt with, the subjective case of the applicant. He was satisfied that she had a deprived background, and a most disadvantaged upbringing. He noted that she had a challenging relationship with her mother and grandmother and felt ostracised by them. She was sexually abused by an uncle as a child and as she grew up, her sister was viciously sexually assaulted and murdered, with her body being left in the streets of Redfern where the applicant lived.
His Honour noted that since become an adult, the applicant had been in a number of abusive relationships and had become addicted to illicit drugs. His Honour noted that leading up to the offence in question, and after her initial release on parole, the applicant was been living with her step-father. She was forced to leave the flat she was sharing with her step-father because of another visitor, and so, apparently faced with no alternative, she took up accommodation with her former partner.
His Honour found that this change in accommodation arrangements caused the applicant stress, and she relapsed into using drugs. Whilst intoxicated through alcohol or the use of drugs and whilst significantly mentally unwell, the applicant, so his Honour found, committed the offence for which she was being sentenced.
His Honour turned to describe the facts relating to the applicant's offending. In summary, the applicant knocked over a woman who was walking past her and, whilst standing over the victim, pulled her handbag away. She did not go very far. The applicant ran away with the handbag. Police were called. Whilst awaiting the police, the victim and a man who had come to her assistance approached the applicant (who was still nearby) who, upon being confronted, got into her motor car and drove away.
The applicant was found a few minutes later in Redfern undertaking conduct of the kind which comprised the two offences that were taken into account on the Form 1.
The police were called to the scene of those offences and found the applicant. At the time she was found, she was yelling and moaning and was seen to be digging a hole in a garden bed of a nearby apartment block. She was using a service manual from a nearby vehicle as a digging tool. A few metres away from her was a cardboard box containing a number of objects which, no doubt, the applicant intended to bury. One of those objects was the victim's iPhone. The applicant was searched and all of the items that she had stolen from the victim were recovered.
His Honour noted that the facts displayed an offence that was a common form of bag snatching which was serious "… simply because of their prevalence".
His Honour referred to the applicant's subjective case and also referred to principles of the kind articulated in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58. His Honour noted that with respect to those authorities, it was necessary for him to recognise that the applicant's moral culpability, and also her past criminal records, should be assessed against the context of her background.
His Honour noted that the applicant had expressed remorse and noted that she had accepted responsibility for her behaviour. He concluded that because of her mental illness issues, the applicant was not an appropriate vehicle for a sentence which reflected a full measure of general deterrence.
His Honour thought that personal deterrence was of importance and that the sentence which he imposed needed to reflect a measure of personal deterrence.
His Honour noted that there was a real risk deriving from the poor medical condition of the applicant's step-father with whom she was sharing an apartment that he (the applicant's step-father) might die whilst she was in custody for the offence. He regarded that as a significant circumstance to be taken into account in the applicant's favour. He noted that any period of time in custody would be significantly harder because of that circumstance.
His Honour concluded that there were clearly special circumstances in the case, including the constellation of mental health problems from which the applicant suffered and her desire to enter into rehabilitation upon her release from custody.
His Honour noted that: "Were Ms Edwards to have had a better background, a better upbringing, the sentence I impose on her would have been much longer than the one I will now announce."
His Honour then went on to specify the term of imprisonment and the conditions of parole which were to be imposed at the time the applicant was released.
His Honour's Remarks on Sentence made no reference to the fact that the applicant had entered a plea of guilty at all, let alone that it was entered at an early stage.
The applicant's counsel's written submissions that were given to his Honour had drawn attention in three separate places to the fact of the plea of guilty, its ameliorating effect and, in particular, the date of the plea. It was specifically submitted that the timing of the plea should afford the offender "the maximum utilitarian discount". There is little doubt that his Honour would have understood those words to refer to a discount of 25% on any sentence which he would otherwise have imposed to reflect the early plea of guilty, and the value to the administration of justice of the plea.

Notice of Appeal

By a Notice filed on 23 May 2017, the applicant sought leave to appeal on the following two grounds: Ground 1: His Honour erred in failing to apply a discount of 25%, or any discount, to the applicant's sentence in recognition of the applicant's entry of a guilty plea, despite her entitlement to such a discount. Ground 2: As a result of the error in Ground 1, the sentence imposed upon the applicant by the learned sentencing Judge was manifestly excessive.

Ground 1

The applicant submitted that a clear error had been demonstrated because the sentencing Judge failed to refer to, and to apply, a discount of 25%, or any discount at all, in recognition of the applicant's early entry of a guilty plea.
The applicant drew attention to the terms of s 22 of the Crimes (Sentencing Procedure) Act 1999, which relevantly obliges a court to take into account the fact that an offender has pleaded guilty, when the offender pleaded guilty or indicated an intention to plead guilty, and the circumstances in which the offender indicated that intention. Section 22 also then provides that having regard to those matters, a court may impose a lesser sentence than would otherwise have been imposed.
Section 22(2) provides that where a court does not impose a lesser penalty under the section, that fact, together with a record of the reasons for not doing so, must be indicated to the offender.
The applicant submitted that the absence of any reference in the sentencing Judge's Remarks on Sentence to the plea of guilty demonstrated that the his Honour had not had regard to these legislative provisions.
Further, the applicant drew attention to the decision of this Court in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, where at [160], Spigelman CJ (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed), set out a guideline applicable to offences against State laws where a plea of guilty is entered. He said: "(i) The sentencing judge should explicitly state that a plea of guilty has been take into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in particular case eg assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10 to 25% discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case, and it is a matter for determination by the sentencing judge. (iv) In some cases, the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases, a plea will not lead to any discount."
Although not specifically mentioned in the applicant's submissions, it is convenient to note here the decision of the Court of Criminal Appeal in R v Lawrence [2005] NSWCCA 91, where Spigelman CJ (with whom Grove and Bell JJ agreed) said at [15]: "This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused."
The decision of this Court in Woodward v The Queen [2014] NSWCCA 205, at [6], Hamill J (with whom Hoeben CJ at CL, and Fullerton J agreed) is to the same effect. There it was said that a clear statement of the fact that a plea of guilty resulted in a reduction of a sentence "… was usually an important part of a judgment, however brief …".
In response to these submissions, the Crown accepted that there was no specific reference in the Remarks on Sentence to the fact of the guilty plea, any discount given for the plea or any reasons setting why a discount was not given.
The Crown pointed to an exchange which took place in the course of the proceedings on sentence at the end of the evidence given by the applicant when the sentencing Judge confirmed with the applicant that she was asking him to take into account the offences on the Form 1. It is clear from that exchange that his Honour understood that the applicant had pleaded guilty to the principal offence. The Crown also noted that the applicant's written submissions which were handed to the sentencing Judge, and which he said he had read, referred to the fact of the plea of guilty and, as has been indicated above, submitted that the Court should afford the applicant the maximum utilitarian discount.
The Crown accepted that it was uncontroversial before the sentencing Judge that a discount in the order of 25% should be applied given the plea was first entered in the Local Court.
The Crown's principal submission appears to relate to the mathematics of the sentence which was imposed. The Crown noted that on the assumption that a 25% discount was appropriate to be applied, the sentence actually imposed reflected a notional starting point of 4 years and, with a ratio of 50% reflecting special circumstances, the notional starting point of the non-parole period would have been 2 years. On that basis the sentence actually imposed, namely 3 years with a non-parole period of 18 months so the Crown submitted, reflected an obvious discount of 25%.
The Crown submitted that if one applied a discount of 25% to the sentence actually imposed, the resultant periods would be unusual and, inferentially, unlikely to have been what his Honour intended.
The Crown also submitted that one indicator, although not the only one, as to whether the discount for the plea was in fact applied, is whether the sentence actually imposed was manifestly excessive. It submitted that it could not be said that the sentence actually imposed could be so described, particularly because the offence was committed whilst the applicant was on parole and because, having regard to her past criminal history, personal deterrence was a matter of significant importance.

Discernment

In my view, a clear error has been demonstrated. It appears that the sentencing Judge has failed to take into account, and has certainly not said that he was having regard to, a most material consideration when determining the relevant sentence. This constitutes an error of the kind identified by the High Court of Australia in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505.
The mere fact that in the course of addressing the applicant at the end of her evidence, the sentencing Judge mentioned the applicant's plea of guilty when satisfying himself about her acceptance of guilt in respect of the Form 1 offences, serves to demonstrate that his Honour was aware of that fact. However, careful regard to that remark does not permit a conclusion that he intended to give the plea any weight when determining the sentence that was to be imposed.
Whilst the "reverse engineering" submission of the Crown has some superficial attraction because of the mathematical elegance which results, it is an inadequate basis, here, for drawing an inference that the sentencing Judge was giving a discount on the sentence. Particularly is this so when the subject matter of the inference, namely a discount for an early plea of guilty, is an important part of a judgment and can be dealt with quite briefly.
It can be accepted that the sentencing Judge was experienced in the criminal law and that he can be taken to have understood the matters to which a judge is obliged to have regard when imposing a sentence, but it seems to me, particularly in light of the decisions of this Court in Convery v R [2014] NSWCCA 93, Woodward v R [2014] NSWCCA 205 and Wei v R [2015] NSWCCA 66, which involve sentences imposed by the same sentencing Judge, the only inference which this Court can draw is that the omission to mention the early plea of guilty meant that his Honour simply did not have regard to it. His failure to attend diligently to his statutory obligation, of which he was well aware, is simply inexplicable unless he determined to give the plea no weight at all.
The plea was entered at a very early stage namely on 26 July 2016, in the Local Court, prior to any committal for trial or sentence. The fact of the early plea was also relevant to a demonstration by the applicant of her remorse.
There was no reason in this case for the early entry of the plea to be disregarded. As the authorities show, there are cases in which no discount is allowed despite a plea of guilty. It is fair to say that these cases are very small in number, and that a proper explanation that accords with the legislation must be given in those circumstances: see R v Robinson [2002] NSWCCA 359 and Milat v R; Klein v R [2014] NSWCCA 29.
None of the authorities purport to define a closed category of cases in which it will be appropriate not to allow a discount consequent upon a plea of guilty. However, it should be noted that the cases in which a discount will not be allowed are rare and are likely to involve quite exceptional circumstances. On any view, this case does not fall within that category.
His Honour ought to have allowed a discount for the early plea of guilty and ought to have quantified it, and he ought to have said so however briefly, in his Remarks on Sentence. His failure so to do is an error of law.
In those circumstances, it is unnecessary to consider the second ground, and it is necessary for this Court to exercise the sentencing discretion afresh in a way which takes into account the purposes of sentencing and the factors which the relevant legislation requires or permits, together with any relevant common law principles: see Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42].

Re-sentence

It is convenient to commence by noting that none of the trial Judge's findings about the nature of the offence, the factual description of it, and the applicant's subjective case are the subject of any challenge. They ought be accepted as providing a proper basis for the commencement of the consideration by this Court of the exercise of sentencing discretion.
On the appeal, in the event that the applicant came before the Court for re‑sentencing, additional material was tendered.
It is apparent from that material that the applicant has taken positive steps to further her rehabilitation, in particular from her addiction to drugs and alcohol. The applicant asserts, and this is not challenged by the Crown, that she has remained abstinent from illegal drugs since entering into custody after being arrested for this offence. She has also undertaken relevant programs whilst in custody to address her addiction. She has been seeing a psychological counsellor twice a week and has undertaken other courses which will assist her, hopefully, in a crime-free life after her sentence is completed.
This more recent material provides some reasonable hope of rehabilitation for the applicant.
Full regard must be given to the objective seriousness of the offence. Robbery of the kind to which the applicant pleaded is a prevalent offence, and is a serious one. However, it is fair to say that this particular robbery engaged in by the applicant fell towards to the lower end of the range of seriousness. It seems to have been committed on the spur of the moment, and at a time when the applicant was affected by alcohol or drugs and was suffering a degree of mental illness which required, shortly after her remand into custody, a prescription of antidepressant an antipsychotic medication.
Noting the time at which the applicant offered to plead guilty for this offence, she is entitled to a discount of 25% on any sentence which would otherwise have been imposed.
Having regard to all of the matters to which I have referred, and those to which the sentencing Judge referred, in my view the proper sentence for the applicant is a term of imprisonment comprising a non-parole period of 14 months to date from 14 May 2016 and expire on 13 July 2017, with a total term of 2 years and 3 months, to expire on 13 August 2018.
Accordingly, for these reasons on 30 June 2017 I proposed the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed in the District Court on 13 December 2016. 4. In lieu, sentence the applicant as follows: 1. a term of imprisonment comprising a non-parole period of 14 months commencing on 14 May 2016, expiring on 13 July 2017; 2. a balance of term of imprisonment of 13 months, expiring on 13 August 2018; 3. the applicant is to be released upon the expiry of the non-parole period on13 July 2017.

Amendments 10 July 2017 - Amendment to release date DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2017

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