Edwards v R

Court of Criminal Appeal (NSW)|2020-06-09|Before: Johnson J, Harrison J, Hamill J

Judgment

JOHNSON J: I agree with Harrison J.
HARRISON J: Jessy Edwards seeks leave to appeal against a sentence imposed upon him by his Honour Judge Gartelmann SC on 29 March 2019 in the District Court at Newcastle. Mr Edwards had been found guilty on 1 February 2019 following a trial before his Honour and a jury of one count of assault with intent to rob whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment.
His Honour sentenced Mr Edwards to imprisonment for 4 years commencing on 27 December 2018 and expiring on 26 December 2022 with a non-parole period of 2 years and 6 months expiring on 26 June 2021.
Mr Edwards appeared for himself without legal assistance in this Court and did not file submissions in support of his single relevant ground of appeal that was to the effect that his Honour's sentence was manifestly excessive. That ground of appeal complains that the sentence was too long. The appeal to this Court was limited to a challenge to the sentence imposed: an additional ground of appeal drawing attention to the fact that, in Mr Edwards' words, the case against him was purely circumstantial was understandably not pursued.
The Crown opposes the grant of leave to appeal.
His Honour described Mr Edwards' offending in the following terms: "On 5 January 2018 the victim was working at Newcastle University's Callaghan campus. At about 7pm she left the campus and began to walk home alone. Her route took her through a complex of tunnels beneath an overpass. As she travelled through a tunnel, she passed the offender walking in the opposite direction. Shortly afterwards, the offender ran up behind her. He grabbed her around the neck and held a knife near her throat. The victim described the knife as small and like a pocket knife. The offender asked the victim if she had any money. She said she had none but had a card. He asked what else she had. She said, 'Nothing'. The offender gave her a push, then left. The victim said in evidence she was scared by what had occurred, particularly because no one else was around."

Mr Edwards' subjective case

Mr Edwards was born in July 1996. He was 21 years old at the time of the offence and 22 years old when he was sentenced.
Mr Edwards had prior convictions. On 15 September 2014 in the Local Court, he was fined for entering inclosed land without lawful excuse, given a Community Service Order for throwing a missile at a police officer executing duty and placed on a s 9 bond for possessing an offensive weapon in a place of detention. Between 3 March 2015 and 25 April 2017, Mr Edwards was placed on a series of s 9 bonds for possessing prohibited drugs and a goods in custody offence. The offence the subject of this appeal was committed while Mr Edwards was subject to the s 9 bond imposed on 25 April 2017.
Mr Edwards was the third in a family of 11 children. His parents both abused alcohol and substances and he and his siblings were subjected to physical and emotional violence. When he was 7 years old, Mr Edwards was placed in foster care.
Mr Edwards has a young daughter. He reported to Mr Nolan that before he was arrested, he and his daughter's mother had planned to marry. Those plans were set aside until after his sentencing, and he and his former fiancée had nevertheless agreed to share parental responsibilities equally.
Mr Edwards reported to Mr Nolan that he finished Year 12 but was expelled two weeks before the Higher School Certificate examinations. After leaving school, Mr Edwards had been employed in various capacities, including in a car wash, in sandblasting, in cabinet making and in welding. At the time of the offence, he was unemployed.
Mr Edwards denied having a current alcohol or illicit drug problem. His Honour noted however that there was evidence at trial and in the sentencing assessment report that he had consumed alcohol "at or about the time" of the offence. His Honour also noted that there was evidence at trial that indicated that Mr Edwards had been very concerned to obtain cannabis at or about the time of the offence. He considered that substance abuse issues were at least indirectly related to the offending.
The psychologist found no indication of mental illness at the time of his assessment of Mr Edwards. He considered that Mr Edwards would benefit from focussed therapy on resolving the grief of his lost childhood and his feelings of abandonment, and that a treatment plan should address his concerns that he is following in his father's footsteps.
Mr Edwards continued to maintain his innocence. There was no evidence of remorse and apparently no insight into his behaviour or its impact on the victim. The author of the sentencing assessment report considered that Mr Edwards was a medium to high risk of reoffending. Mr Nolan was of the opinion that Mr Edwards' rehabilitation prospects were good and that the probability of him reoffending was low.

Findings on sentence

His Honour's findings relevantly included the following matters: 1. Text messages from Mr Edwards to his brother indicated that he was planning to commit an offence to obtain money for about 24 hours before the offence was committed. However, the facts and circumstances of the offence did not indicate any significant organisation was involved. 2. The offence was committed for financial gain, albeit in circumstances where Mr Edward was experiencing financial strain. 3. The objective seriousness was in the "low medium range". 4. The guideline judgment relating to offences of robbery whilst armed with an offensive weapon was of some assistance as a reference point in determination of the appropriate sentence. The offence in the present case was moderately less serious than that of the typical case identified in the guideline judgment. 5. Mr Edwards' record of prior convictions did not indicate that particular weight was warranted for considerations of protection of the community, retribution or specific deterrence. Conversely, Mr Edwards was not entitled to the leniency appropriate to a first time offender. 6. It was an aggravating feature that the offence was committed in breach of conditional liberty. 7. There was insufficient evidence to suggest that Mr Edwards' mental condition was related to the offence in any way that reduced his moral culpability, nor did it indicate that less weight should be given to general deterrence. However, the evidence did indicate that Mr Edwards' psychological issues warranted some treatment which would affect his prospects of rehabilitation. 8. Mr Edwards maintained his innocence and there was no evidence of remorse. 9. Mr Edwards' prospects of rehabilitation were reasonable, but not "demonstrably good". 10. General deterrence warranted weight in sentencing for offences of this kind. The harm the offence caused the victim, and thus the community, must be fully recognised. Retribution, specific deterrence and protection of the community are not irrelevant considerations, notwithstanding the absence of prior convictions for offences of the same kind, because of the record of prior convictions for other offences. Emphasis on rehabilitation was warranted because of Mr Edwards' relative youth and the prospects of rehabilitation. 11. There were special circumstances, on the basis that supervision of Mr Edwards over a longer period would promote his prospects of rehabilitation, allowing for monitoring of his abstinence and engagement in relapse prevention courses, programmes and/or counselling, and referral for psychological intervention with respect to unresolved grief issues.

Mr Edwards' submissions

Mr Edwards appeared at the hearing of his appeal by audio visual link from a correctional facility. That was a less than ideal way for him, particularly as an unrepresented person with no legal training, to present his arguments. I have attempted as far as possible to make due allowance for this difficulty in assessing the things that Mr Edwards clearly wished to emphasise in this Court.
Mr Edwards maintained that his sentence was simply too long. His history of offending was minor in relative terms. It did not include offences of this kind in particular or of violence in general. That submission was made notwithstanding his conviction for throwing an object at a police officer. He emphasised that he was relatively young and that his Honour had formed an optimistic view about his prospects of reoffending.
Mr Edwards also placed significant emphasis upon the fact that his daughter was young and that one consequence of his current sentence was that he would not be released in time to be with her for her third birthday. This was understandably a matter of considerable concern to Mr Edwards. He suggested that a variation of his sentence structure would be in order so that his non-parole period was reduced and his parole period was extended without altering the length of his total effective term.
Mr Edwards did not in terms address his Honour's sentencing remarks or the reasoning that led him to impose the sentence under challenge. I take it to be one of Mr Edwards' contentions that the view formed by his Honour as to the objective seriousness of his offending, and the sentence that followed, although properly matters for him to decide, produced an outcome that was plainly unjust and unreasonable in all of the circumstances. I anticipate in this respect that Mr Edwards' difficult background and his strong subjective case are matters upon which he would ask this Court to place particular emphasis.
In the nature of things, Mr Edwards' submissions did not focus sharply on the ways in which it could be said that his Honour's sentence was erroneous in the sense that no reasonable exercise of the sentencing discretion could have resulted in a sentence as long as his.

Crown's submissions

The Crown submitted that his Honour's sentence was neither unreasonable nor plainly unjust and that the appeal should be dismissed.

Consideration

Clearly in order to succeed, Mr Edwards must satisfy this Court that the sentence imposed on him was unreasonable or plainly unjust. In making an assessment of the sentence that was imposed on Mr Edwards, he should appreciate and understand that there is no such thing as a single correct sentence. Opinions about the proper sentence to impose on him might be expected to vary within a range of possible outcomes. It is only when it appears that no reasonable exercise of the sentencing discretion could have produced the sentence in question that this Court is able to intervene. In particular, and simply by way of example, even if the judges of this Court might theoretically have come to a different sentence in the first place, that alone is not a matter that entitles it to interfere with the sentence which his Honour imposed in fact. It is only if this Court concludes that no judge properly exercising his or her sentencing discretion could have arrived at the same result that it is able to give any consideration to quashing the sentence and imposing a different one.
In my view, his Honour did not impose a sentence that was erroneously long. To put that in context for Mr Edwards, having regard to the flexibility afforded to a sentencing judge such as his Honour, he could well have imposed a sentence that was slightly longer or slightly shorter without leading inevitably to the result that his decision was "wrong". I appreciate that Mr Edwards considers that a non-parole period of 2 years and 6 months for what he did is excessive. However, it must be remembered that Mr Edwards planned what he was going to do, arranged to be at the location where the victim was assaulted and armed himself with a knife. The maximum penalty for his offence is imprisonment for 20 years. I do not consider that his Honour's sentence was unreasonable in the circumstances. It was certainly not plainly unjust.
Although I would grant Mr Edwards leave to appeal against his sentence, I consider that his appeal should be dismissed.

Orders

In these circumstances I consider that the following orders should be made: 1. Grant leave to appeal. 2. Dismiss the appeal.
HAMILL J: In spite of the sympathy I have for Mr Edwards, particularly arising from the fact that he will miss his daughter's third birthday, I agree with the orders proposed by Harrison J and all that his Honour has written.

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