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Court of Criminal Appeal 25 May 2022

Edmonds v R

[2022] NSWCCA 103

Fraud & dishonestyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE DENIAL OF PROCEDURAL FAIRNESS “TYPICAL” CASE NOT NECESSARILY A MID RANGE CASE

Citation: Edmonds v R [2022] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 25 May 2022
Judges: Macfarlan JA, Rothman J, Dhanji J

Background

The appellant pleaded guilty in the District Court to two counts of doing an act intending to pervert the course of justice under s 319 of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 14 years imprisonment. The offences involved forging two medical letters, purportedly signed by a Queensland specialist, which falsely described a co-offender as suffering terminal brain cancer and other serious illnesses. Those letters were faxed to the co-offender's lawyers and ultimately tendered in Supreme Court bail proceedings, where bail was granted on the strength of them.

The sentencing judge in the District Court imposed an aggregate term of 4 years and 6 months imprisonment, with a non-parole period of 3 years and 4 months. That sentence reflected indicative terms of 3 years and 9 months for each offence (after a 25% guilty plea discount), with 9 months of cumulation applied between them.

The appellant sought leave to appeal on three grounds: denial of procedural fairness in how the sentencing judge dealt with her subjective case, error in assessing the objective seriousness of the offences, and manifest excess in the aggregate sentence.

  • Whether the sentencing judge denied the appellant procedural fairness by rejecting evidence in the psychological report without alerting the appellant that this was in issue
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences by treating a "typical" case as necessarily a mid-range case
  • Whether the aggregate sentence was manifestly excessive, including whether cumulation between the two offences was warranted

Decision

Procedural fairness (Ground 1): The Crown conceded, and the Court of Criminal Appeal accepted, that the sentencing judge denied the appellant procedural fairness. The judge rejected evidence contained in the psychological report about the appellant's subjective circumstances without giving any indication to the appellant that this was a live issue. The Court confirmed that even where a concession is made, it must itself be satisfied the ground is established, and here it was.

Objective seriousness (Ground 2): The Court found error in the sentencing judge's approach to objective seriousness. The judge appeared to treat the offences as sitting in the mid-range of seriousness by reasoning that they were "typical" examples of this kind of offending. The Court of Criminal Appeal affirmed the established principle that a "typical" case is not automatically a mid-range case: the range of offending may itself be skewed toward more or less serious examples, and that characterisation must reflect the actual range of conduct captured by the offence.

Cumulation (Ground 3): The Court held that no cumulation was warranted between the two sentences. Although the appellant prepared two letters, the evidence indicated they were created at the same time and intended to be read together as part of a single scheme to secure bail for the co-offender. The Court reasoned that each individual sentence was capable of encompassing the overall criminality, drawing on the principle in Johnson v The Queen and R v XX that separate acts arising from a single criminal enterprise do not necessarily require accumulated sentences. The Court resentenced the appellant to 3 years imprisonment for each offence, with a non-parole period of 2 years, to be served concurrently from the date of first entering custody.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by the District Court on 6 November 2020 quashed
  • In substitution, on each count: imprisonment for a non-parole period of 2 years commencing 6 April 2020 and concluding 5 April 2022, with a balance of term of 1 year expiring 5 April 2023
  • The appellant became eligible for parole on 5 April 2022

Key Takeaways

  • A sentencing court denies procedural fairness where it rejects evidence tendered by a defendant in support of their subjective case without first alerting the defendant that the reliability or weight of that evidence is in contention.
  • Describing conduct as "typical" of a particular offence does not, without more, establish that it falls in the mid-range of objective seriousness. The court must examine where the actual range of that offence type sits before characterising individual conduct within it.
  • Where two criminal acts form part of a single, contemporaneous scheme directed at a single purpose, the Court of Criminal Appeal confirmed that cumulation is not automatically required; one offence's sentence may be capable of capturing the overall criminality of both acts.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), special circumstances may be found where psychological issues and evidence of rehabilitative progress in custody support a longer parole period relative to the head sentence.
  • Resentencing by an appellate court following established errors at first instance may produce a substantially shorter sentence even where the nature of the offending is treated as serious, particularly where cumulation is removed and subjective factors are properly weighed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes Act 1914 (Cth), s 43
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Evidence Act 1995 (NSW), s 4
- Migration Act 1958 (Cth), s 501(3A)

Cases:
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 47
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Edmonds [2020] NSWDC 687
- Gould v R; R v Gould [2021] NSWCCA 92
- Lloyd v R [2022] NSWCCA 18
- Ke v R [2021] NSWCCA 177