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Court of Criminal Appeal 1 July 2020

Edwards v R

[2020] NSWCCA 141

Assault & violenceTheft & propertyFirearms & weapons
APPEAL SENTENCE APPEAL WHERE APPELLANT SELF REPRESENTED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Edwards v R [2020] NSWCCA 141
Court: Court of Criminal Appeal, New South Wales
Date: 1 July 2020
Judge(s): Johnson J, Harrison J, Hamill J

Background

The appellant was convicted by a jury in the District Court at Newcastle 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 (NSW). The offence carried a maximum penalty of 20 years imprisonment. The attack occurred in January 2018, when the appellant grabbed a lone female university worker from behind in a pedestrian tunnel, held a knife near her throat, and demanded money.

The District Court sentenced the appellant to four years imprisonment, commencing 27 December 2018, with a non-parole period of two years and six months. The sentencing judge found that the offending fell in the "low medium range" of objective seriousness, that it had been planned roughly 24 hours in advance, and that it was committed in breach of conditional liberty.

The appellant, who was 21 at the time of the offence, appeared for himself in the Court of Criminal Appeal, participating via audio visual link from a correctional facility. He argued that the sentence was simply too long, pointing to his relative youth, his limited prior history of violence, and the personal impact of imprisonment on his relationship with his young daughter.

  • Whether the sentence of four years imprisonment with a non-parole period of two years and six months was manifestly excessive
  • Whether the sentencing judge's exercise of discretion produced a sentence that was unreasonable or plainly unjust

Decision

Harrison J, with whom Johnson J and Hamill J agreed, dismissed the appeal. The Court confirmed that to succeed on a sentence appeal, an appellant must establish that the sentence was unreasonable or plainly unjust. The mere fact that appellate judges might theoretically have arrived at a different sentence is not sufficient to warrant intervention.

The Court acknowledged the appellant's difficult personal circumstances, including a deprived childhood marked by parental substance abuse and family violence, and his concerns about missing significant milestones in his young daughter's life. However, these factors had been considered by the sentencing judge and reflected in the sentence already imposed.

The Court emphasised that the appellant had planned the offence in advance, positioned himself at the location to intercept the victim, and armed himself with a knife. Against the backdrop of a maximum penalty of 20 years, and taking account of the sentencing judge's findings on the guideline judgment, the appellant's prior record, the absence of remorse, and the breach of conditional liberty, the Court found no error in the sentence. It was neither unreasonable nor plainly unjust.

Hamill J noted personal sympathy for the appellant, particularly regarding the impact of the sentence on his daughter, but nonetheless agreed with Harrison J's orders and reasoning in full.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed the well-established threshold for sentence appeals: a sentence will not be disturbed unless no reasonable exercise of the sentencing discretion could have produced that outcome.
  • Appellate judges theoretically preferring a different sentence is insufficient, on its own, to justify intervention in a sentencing decision.
  • Planning an offence in advance, arming oneself, and committing the offence in breach of conditional liberty are significant aggravating factors that a sentencing court is entitled to weigh heavily, even where objective seriousness is assessed as moderate.
  • In dismissing the appeal, the Court reinforced that a four-year head sentence with a two-and-a-half-year non-parole period for an armed assault with intent to rob, assessed in the low-to-medium range of objective seriousness, fell within the acceptable range of sentencing outcomes.
  • Compelling personal hardship, including the impact of imprisonment on a young child, does not of itself render a sentence manifestly excessive where those circumstances were already before the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob whilst armed with an offensive weapon)

Cases:
No specific cases were cited by name in the judgment text. The Court referred to a guideline judgment relating to offences of robbery whilst armed with an offensive weapon, though that judgment was not identified by name in the available text.