Citation: R v Edwards [2013] NSWDC 329
Court: District Court of New South Wales
Date: 28 February 2013
Judge(s): Cogswell SC DCJ
Background
The appellant had been convicted of three shoplifting offences involving low-value domestic items, each falling within the "property under $2,000" threshold. The matter came before the District Court on appeal from a Local Court sentence that amounted to effectively four months' imprisonment.
The District Court had previously adjourned the matter under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow the appellant to demonstrate progress toward rehabilitation. However, she failed to attend court on multiple occasions, and a bench warrant was ultimately issued. She was arrested and appeared by video link from Dubbo.
At the time of sentencing, the appellant had personal circumstances bearing on the penalty, including a pending Tribunal hearing concerning her Housing Commission tenancy, children who had been removed by state authorities, and a seriously ill father.
Legal Issues
- Whether a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 remained an appropriate sentencing option given the appellant's criminal history and prior failure to appear.
- Whether the overall sentence should be increased above the term imposed by the magistrate, and if so, on what basis.
- How to balance the relatively low seriousness of the offences against an extensive criminal record and the exhaustion of alternative sentencing options.
Decision
His Honour initially inclined toward dismissing the appeal and directing the appellant to serve the balance of the magistrate's sentence. Counsel for the appellant argued that the offences were low in seriousness, that the appellant had previously completed a suspended sentence in 2010 without breach, and that she had strong personal motivation to comply with any bond conditions.
The Crown realistically acknowledged the risk of reoffending given the appellant's criminal history, a concern the court accepted. An earlier concern had also been raised by previous defence counsel that a suspended sentence might set the appellant up to fail, given her pattern of offending.
On balance, the court was persuaded that a suspended sentence remained available and appropriate. However, the court increased the total sentence from the equivalent of four months to six months. The increase reflected the appellant's criminal record and the fact that other sentencing options had been exhausted, even though those factors sat in tension with the finding that the offences themselves were relatively minor.
The court expressly warned the appellant that a breach of the bond would likely result in a period of actual custody exceeding the magistrate's original sentence, given both the increased term and the time already served on remand (approximately one month and seven days).
Orders Made
- For each of the three offences: six months' imprisonment, suspended in full under s 12 of the Crimes (Sentencing Procedure) Act 1999 for the entire six-month period, subject to a good behaviour bond.
- Bond conditions included: good behaviour; notification of any change of residential address to the Registrar at Bourke; attendance at court if required; supervision by the Probation and Parole Service with compliance with reasonable directions; and reporting to the Bourke Probation and Parole office on or before 8 March 2013.
Key Takeaways
- A prior successfully completed suspended sentence can weigh in favour of reimposing that form of penalty on appeal, even where subsequent offending and non-attendance at court have occurred.
- Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend a sentence in full for its entire term, attaching a good behaviour bond with tailored supervision conditions.
- An appellate increase in sentence does not necessarily contradict a finding that the underlying offences were low in seriousness. The District Court here treated the criminal record and exhaustion of alternative options as independent aggravating factors justifying a longer term.
- Where a suspended sentence is increased on appeal beyond the original term, the offender faces greater custodial exposure upon any subsequent breach, a consequence the court considered necessary to explain directly to the offender.
- The relative seriousness of individual offences is assessed in context. Shoplifting low-value domestic items was treated as relatively minor, but that characterisation did not prevent a net increase in the total sentence once the broader sentencing picture was considered.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11 (adjournment for rehabilitation), 12 (suspended sentences)
Cases: No cases cited in the judgment.