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37
Court of Criminal Appeal 5 October 2001

R v Edigarov

[2001] NSWCCA 436

Also reported as (2001) 125 A Crim R 551
Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEALS CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY LENIENT COMMON ASSAULT KIDNAP

Citation: R v Edigarov [2001] NSWCCA 436
Court: NSW Court of Criminal Appeal
Date: 5 October 2001
Judge(s): Wood CJ at CL; Studdert J; Bell J

Background

The respondent was sentenced in the Sydney District Court on 19 April 2001 for a series of violent offences committed against his wife and police officers across two separate incidents in 1999 and 2000. The offences included common assault of his wife, assault of a police officer causing serious leg and ankle fractures, and kidnapping his wife by forcing her into the boot of his car on a hot day while threatening to kill her.

At first instance, Mahoney DCJ imposed sentences that resulted in the respondent serving only approximately six months and twelve days in custody, with the remainder of his sentences either suspended or to be served on parole. The District Court found special circumstances based on the view that the offences were by-products of the respondent's anger and frustration at the breakdown of his marriage.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly lenient and affected by multiple errors of law and fact.

  • Whether the suspended sentence for assaulting the police officer was imposed in breach of s 12(2) of the Crimes (Sentencing Procedure) Act 1999, given the respondent was already subject to an unsuspended term of imprisonment at the time of sentencing
  • Whether the objective seriousness of the offences was such that the criminality could not appropriately be dealt with by way of suspended sentence
  • Whether the objective seriousness of the kidnapping offence required a cumulative, rather than concurrent, sentence
  • Whether the sentencing judge gave inappropriate weight to subjective circumstances at the expense of the objective criminality of the offences
  • Whether, if error was established, the Court should exercise its discretion to intervene, and what discount should apply by reason of the principle of double jeopardy

Decision

The Court of Criminal Appeal upheld the Crown's appeal, finding that the sentences imposed at first instance were affected by both legal error and manifest inadequacy. The suspended sentence for the assault on the police officer was found to have been imposed in breach of s 12(2) of the Crimes (Sentencing Procedure) Act 1999, because the respondent was already subject to a sentence of imprisonment that had not been suspended. This constituted an error of law on the face of the sentencing exercise.

The Court found that the objective seriousness of the offences, particularly the kidnapping (which carried a maximum of 20 years imprisonment) and the assault causing the police officer serious physical injury, could not properly be addressed by a largely non-custodial outcome. The sentencing judge had given undue weight to subjective circumstances and insufficient weight to the gravity of the conduct, including that it involved sustained domestic violence, a breach of an apprehended domestic violence order, and serious injury to a police officer in the course of his duties.

On the question of discretion, the Court accepted that the double jeopardy principle applied. Because the respondent had been living in the community without re-offending since sentence was imposed, the sentences substituted on appeal were stated to be substantially less than those the Court considered should have been imposed originally.

Orders Made

  • Appeal allowed in relation to the sentence for assault of the police officer (Constable Ward): substituted with a fixed term of six months imprisonment commencing from the date of the appeal, structured as an effective accumulation upon the sentence for the assault of the respondent's wife.
  • Appeal allowed in relation to the kidnapping sentence: substituted with a term of two years and six months imprisonment commencing from the date of the appeal, expiring 4 April 2004, served partly concurrently and partly cumulatively with the assault sentence.
  • Non-parole period of 18 months fixed for the kidnapping sentence, commencing from the date of the appeal and expiring 4 April 2003.
  • On release on parole, the respondent to be subject to supervision by the Probation and Parole Service, standard conditions under the relevant regulations, and a condition requiring anger management counselling and such other counselling as directed by the Probation and Parole Service.
  • A 15 per cent discount applied for the utilitarian value of the guilty pleas.
  • Special circumstances found, based on the respondent's return to custody requiring a longer supervisory period to ease re-entry into the community.
  • The sentence for common assault of his wife (six months, already served) was left undisturbed.

Key Takeaways

  • Under s 12(2) of the Crimes (Sentencing Procedure) Act 1999, a court cannot lawfully impose a suspended sentence on an offender who is already subject to an unsuspended term of imprisonment. Doing so constitutes an error of law that will enliven a Crown appeal.
  • Where offences involve serious physical injury and sustained, escalating domestic violence including a kidnapping, the objective criminality ordinarily demands meaningful actual custody, and subjective circumstances cannot displace that consideration entirely.
  • The double jeopardy principle operates in Crown appeals to reduce the sentence ultimately substituted below what the appellate court would otherwise have imposed, where the offender has served time in the community without re-offending between the original sentence and the appeal.
  • Special circumstances justifying a longer parole period can be found not only in the offender's pre-existing rehabilitation needs, but also in the disruption caused by a Crown appeal returning an offender to custody after a period of community-based supervision.
  • A guilty plea entered on the day fixed for trial attracted only a 15 per cent discount for its utilitarian value, reflecting the limited practical benefit to the justice system at that late stage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 60(2), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12(2), 55(4)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 132
- Criminal Appeal Act 1912 (NSW), s 5D

Cases: No cases were cited in the provided text.