Citation: Edwards v R [2009] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 12 August 2009
Judge(s): Allsop P, Kirby J, Johnson J (Johnson J delivered the principal judgment; the others agreed)
Background
The applicant pleaded guilty to stealing from the person under s 94 of the Crimes Act 1900, an offence carrying a maximum penalty of 14 years' imprisonment. In October 2006, Judge Taylor of the Sydney District Court sentenced her to two years' imprisonment with a 15-month non-parole period, but immediately suspended the sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 on condition she enter a 15-month good behaviour bond.
The applicant breached that bond by committing further offences and failing to maintain contact with the Probation and Parole Service. When called up for the breach, Judge Hosking SC in December 2008 directed that she serve the original suspended sentence, backdated to August 2008.
In May 2009, more than two and a half years after the original sentence, the applicant sought both an extension of time to appeal against the 2006 sentence and leave to appeal against the 2008 order activating it.
Legal Issues
- Whether the court should grant an extension of time (approximately two years and seven months out of time) to seek leave to appeal against the 2006 sentence
- What principles govern an extension of time application under s 10(1)(b) of the Criminal Appeal Act 1912, particularly where an original sentence was suspended
- Whether the 2006 sentence was infected by error, including alleged factual errors about the objective seriousness of the offence and a failure to account for pre-sentence custody
- Whether the 2008 order activating the suspended sentence was itself attended by error
Decision
On the extension of time application, Johnson J acknowledged the practical reality recognised in R v Graham (2004): an offender subject to a suspended sentence may not fully appreciate its implications until imprisonment actually looms. That said, the Court declined to treat Graham as a licence to grant extensions freely. The principle of finality of litigation applies in sentencing as elsewhere, and the public interest in prompt, certain outcomes weighs against a "two-stage" approach where appeal points are held in reserve, only deployed if a bond is later breached.
Johnson J was also critical of any approach by defence counsel that treats the original sentencing hearing as a minimal exercise, saving substantive arguments for a later appeal. Counsel appearing at sentence have a duty to the court and to the client to raise all relevant matters at that time, including objective seriousness, subjective circumstances, and the appropriateness of the sentence length, even when urging a suspended sentence.
Turning to the merits of the proposed appeal against the 2006 sentence, the Court found no demonstrated error. Challenges to the sentencing judge's findings about objective seriousness, the applicable sentencing range for the offence, and the treatment of pre-sentence custody were each examined and rejected. Because the proposed appeal lacked sufficient merit, and given the significant delay and the absence of any compelling explanation for it, the extension of time was refused.
On the 2008 appeal, the Court found no error in Judge Hosking's orders activating the sentence. The backdating of the sentence to August 2008 had in fact operated heavily in the applicant's favour, resulting in only approximately six months of the non-parole period being served solely for the original offence. No lesser sentence was warranted in law within the meaning of s 6(3) of the Criminal Appeal Act 1912, and leave to appeal was refused.
Orders Made
- Extension of time to seek leave to appeal against the sentence imposed in the Sydney District Court on 6 October 2006: refused
- Leave to appeal against the sentence imposed in the Sydney District Court on 18 December 2008: refused
Key Takeaways
- The Court of Criminal Appeal confirmed that while R v Graham recognises a practical basis for late appeals following activation of a suspended sentence, that decision does not signal a general willingness to grant extensions in such cases; the merits and justice of each case remain determinative.
- A "two-stage" approach to sentencing, whereby counsel raises only minimal submissions at the original hearing and reserves substantive arguments for a later appeal if the bond is breached, was expressly discouraged by the Court.
- Defence counsel bears a duty to the court and to the client to address all relevant sentencing matters, including objective seriousness, subjective circumstances, and sentence length, at the time of the original hearing, even when the primary goal is a suspended sentence.
- Finality of litigation carries weight in sentencing appeals, and a lengthy unexplained delay, combined with weak prospects of success on the underlying grounds, will ordinarily lead to refusal of an extension of time.
- In dismissing both applications, the Court noted that the backdating of the activated sentence had operated favourably for the applicant, underscoring that no injustice arose from the implementation of the original sentencing order.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 94 (stealing from the person)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspension of sentence)
- Criminal Appeal Act 1912 (NSW), ss 6(3), 10(1)(b)
Cases
- R v Young [1999] NSWCCA 275
- R v Beattie [2000] NSWCCA 201
- R v Graham (2004) 62 NSWLR 252
- Giannarelli v Wraith (1988) 165 CLR 543
- Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379
- Dinsdale v The Queen (2000) 202 CLR 321
- R v MAK (2006) 167 A Crim R 159
- The Queen v De Simoni (1981) 147 CLR 383
- R v Henry (1999) 46 NSWLR 346
- Markarian v The Queen (2005) 228 CLR 357
- Ta v R [2009] NSWCCA 196
- Various additional NSW Court of Criminal Appeal decisions cited in the judgment