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Court of Criminal Appeal 9 April 2021

Edwards v R

[2021] NSWCCA 57

Assault & violenceTheft & property
CRIMINAL LAW OFFENCES SENTENCE ROBBERY AT A CONVENIENCE STORE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Edwards v R [2021] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 9 April 2021
Judges: Payne JA, Bellew J, Button J

Background

The applicant, an 18-year-old Indigenous man with a significantly disadvantaged upbringing, pleaded guilty in the Local Court to stealing from the person of another and robbery in company. He asked the sentencing court to take into account a further robbery in company offence on a Form 1 (a mechanism by which additional related offences are considered at sentence without separate conviction).

The offending arose from a sequence of events at a convenience store in Waterloo in June 2019. The applicant first snatched a wallet from a customer. He then re-entered the store with a co-offender, produced a large knife, and threatened the proprietors by saying words to the effect that if they did not hand over money, something would happen to their four-year-old child who was standing behind the counter with them. The proprietors complied, handing over approximately $300 in total.

The District Court imposed an aggregate sentence of 4 years and 9 months imprisonment with a non-parole period of 3 years and 3 months. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge was distracted from a proper consideration of the applicant's subjective case by the application of the guideline judgment in R v Henry
  • Whether the sentencing judge failed to properly analyse the applicant's lengthy criminal history
  • Whether the aggregate sentence was manifestly excessive having regard to the applicant's subjective circumstances, including his age and disadvantaged background

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal, quashing the original sentence and substituting a reduced one. However, this outcome was not because the Court found the sentencing judge's reasoning to have been legally erroneous in any identified respect. Payne JA described the District Court's judgment as "thorough, principled and legally correct," and counsel for the applicant accepted as much.

The Court's reasoning on manifest excess turned on the interplay between serious objective facts and the applicant's significant subjective case. The offending was grave: it involved a knife, a threat directed at a young child, and was committed while the applicant was on bail and on probation. Against that, the applicant's background included sustained childhood exposure to domestic violence, the witnessed death of a significant father figure, and other serious trauma. The High Court's decision in Bugmy v The Queen (2013) 249 CLR 57 establishes that such a background does not diminish with each subsequent offence and must be given genuine weight at sentencing.

Bellew J, who wrote the principal judgment, concluded that while the sentencing exercise was genuinely difficult, the original sentence was manifestly excessive when the full weight of the applicant's subjective circumstances was brought to bear. The substituted sentence reduced the aggregate head sentence to 3 years and 9 months imprisonment with a non-parole period of 2 years and 8 months.

Button J agreed with the orders proposed by Bellew J.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence upheld
  • The sentence imposed by Judge Ingram SC on 22 May 2020 is quashed
  • Indicative sentence of 9 months imposed for the stealing from the person offence
  • Indicative sentence of 3 years and 4 months imposed for the robbery in company (taking into account the Form 1 offence)
  • Aggregate head sentence of 3 years and 9 months imprisonment, commencing 11 June 2019 and expiring 10 March 2023, with a non-parole period of 2 years and 8 months, expiring 10 February 2022
  • Commencement date of a separately imposed robbery sentence adjusted from 11 November 2021 to 11 April 2021
  • First possible release date identified as 10 May 2022

Key Takeaways

  • A conclusion of manifest excess does not require identification of a specific legal error in the sentencing judge's reasoning; it is sufficient that the resulting sentence is unreasonable or plainly unjust on the facts, as confirmed by the High Court in Dinsdale v The Queen.
  • Under the Bugmy principle, the mitigating significance of a severely disadvantaged upbringing does not diminish over time or with the accumulation of prior offences; sentencing courts must give it genuine and continuing weight.
  • In dismissing the grounds of specific error, the Court of Criminal Appeal nonetheless found the overall sentence manifestly excessive once the applicant's subjective circumstances were fully weighed against the objective gravity of the offending.
  • A Form 1 offence (an additional offence taken into account at sentence without separate conviction) increases the sentence for the principal offence to which it is attached, but that increment must still reflect proportionate and principled reasoning.
  • The presence of conditional liberty (bail and probation) at the time of offending is a recognised aggravating factor, but does not override the obligation to properly weigh the offender's personal history and individual circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94(b), 97(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 57; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Power and ors v The Queen (1974) 131 CLR 623; [1974] HCA 26
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- R v Amati [2019] NSWCCA 193
- R v Baker [2000] NSWCCA 85
- R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482
- Ryan v R [2009] NSWCCA 183