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Court of Criminal Appeal 8 December 2023

Edwards v R

[2023] NSWCCA 313

Assault & violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE PAROLE REVOKED NO ERROR ON PART OF SENTENCING JUDGE APPEAL DISMISSED

Citation: Edwards v R [2023] NSWCCA 313
Court: Court of Criminal Appeal, NSW
Date: 8 December 2023
Judge(s): Ward P at [1]; Button J at [2]; Ierace J at [25]

Background

The applicant was sentenced in the District Court at Orange on 13 December 2022 for two counts of assaulting a police officer in the execution of duty and one count of affray. The offences arose from an incident on 28 November 2021, in which the applicant physically resisted police, punched two officers, and called on bystanders to assault them. The bystanders responded in a way that placed both officers in extreme fear.

At the time of the offences, the applicant was on bail for property and drug matters and was also on parole following an earlier District Court sentence for serious offences including armed robbery-related conduct. His parole was subsequently revoked by the State Parole Authority and backdated to 28 November 2021, the date of reincarceration.

The sentencing judge imposed an aggregate sentence of 2 years and 3 months, with a non-parole period of 1 year and 6 months, commencing 15 July 2022. She also found special circumstances in relation to the new sentence, reflecting the applicant's significant subjective factors including his Aboriginal background, childhood disadvantage, and associated mental health and drug issues. The applicant sought leave to appeal on the basis that the sentence structure failed to give proper effect to that finding.

  • Whether the sentencing judge erred by imposing a sentence that failed to reflect her finding of special circumstances, having regard to the total effective sentence and the total minimum period to be served in custody.
  • Whether, when considering special circumstances globally (across both the new sentence and the balance of parole), the applicant was deprived of a meaningful opportunity to be re-released on parole.
  • Whether the sentencing judge was required to address special circumstances in relation to the overall custodial term, not just the newly imposed aggregate sentence.

Decision

Button J, with whom Ward P and Ierace J agreed, granted leave to appeal but dismissed the appeal. While the ratio of the non-parole period to the head sentence for the new aggregate term was exactly two-thirds (reflecting the special circumstances finding), the ratio across the total effective sentence, including the balance of parole, was slightly under 75 percent. The applicant argued this indicated the finding of special circumstances had not been given sufficient effect globally.

The Court rejected the argument that the applicant had lost a genuine opportunity to be re-released on parole as a result of the sentence structure. Between the date of his reincarceration on 28 November 2021 and the date of sentencing on 13 December 2022, the applicant had been bail refused on the charges before the Court. Any suggestion that he might have been released on parole during that period was therefore entirely hypothetical.

On the question of whether the sentencing judge should have considered special circumstances globally, across both the new sentence and the balance of parole, the Court noted that neither party had asked her Honour to do so. Her failure to address the issue could not constitute error in those circumstances. The Court relied on the principle from Zreika v The Queen that hypothetical outcomes which were never placed before the sentencing judge cannot form the basis of appellate error.

Finally, the Court held that any further reduction in the overall custodial period would not have adequately reflected the objective seriousness of the three offences or the applicant's degree of moral culpability. Button J described the extension of the balance of parole as already lenient, though appropriately so. The result was that the applicant would have spent less than two months in custody solely referable to the three offences, a consequence Ward P also regarded as a significant consideration.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A finding of special circumstances in relation to a new sentence does not automatically require a court to reduce the overall non-parole period across a combined sentence structure that includes a balance of parole.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an argument based on lost parole opportunity will not succeed where, as a matter of objective reality, re-release on parole during the relevant period was impossible due to the applicant being bail refused.
  • No error arises from a sentencing judge's failure to address special circumstances globally where neither party raised the issue during proceedings on sentence, consistent with the principle in Zreika v The Queen.
  • The overall objective seriousness of the offences and the offender's moral culpability remain relevant constraints on the extent to which a special circumstances finding can reduce the minimum period to be served in custody.
  • Sufficient overlap between a revoked parole period and a new sentence does not, without more, establish that the sentence structure miscarried, particularly where the effective custodial result already reflects leniency.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 60 (assaulting police in execution of duty)
- Crimes Act 1900 (NSW), s 93C (affray)

Cases:
- R v Close (1992) 31 NSWLR 743; 65 A Crim R 55
- Simpson v R (1992) 61 A Crim R 58
- Zreika v The Queen (2012) 223 A Crim R 460; [2012] NSWCCA 44