Edwards v R

1. [1]

   WARD P: For the reasons given by Button J, with which I agree, leave to appeal against sentence should be granted and the appeal dismissed. The submission that the applicant should have spent less than two months in custody solely referable to the three offences in question cannot be accepted. I agree with Button J that a lesser extension of the balance of parole would not reflect the objective seriousness of the offences and the applicant’s degree of moral culpability.

2. [2]

   BUTTON J:

Introduction

1. [3]

   Because that ground is not more than a circumscribed attack upon the sentence structure and length of the overall time in custody ultimately imposed, and because the submission for the applicant before this Court on 24 November 2023 was that he should be released forthwith, I shall be concise.

Chronological overview

1. [4]

   The applicant had admitted in the Local Court that, on 28 November 2021 in Orange, he committed three indictable offences.

2. [5]

   In a nutshell, early that morning he had been detected by two police officers riding a motorcycle that was unregistered. When they sought to apprehend him, he resisted physically. During a struggle, he punched one police officer to the left thigh, causing him immediate pain (assault police, maximum penalty of imprisonment for five years). Moments later, he punched a second police officer to the face, and furthermore bit her hand, causing her immediate pain, including significant pain to her face (offence and maximum penalty as above). Finally, the applicant called out to friends who happened to be nearby, encouraging them to “flog” the two police officers. The friends responded in such a way that, by their words and actions, they placed the two officers in extreme fear. Eventually, when sirens were heard, the friends decamped, the applicant expressing his dissatisfaction by saying “Fuck those cunts for not helping me”. All of that led to a charge of affray (maximum penalty of imprisonment for 10 years).

3. [6]

   Clearly enough, the offending was serious, albeit spontaneous and part of a quickly escalating situation.

4. [7]

   Subjectively, the applicant was then aged 30 years. An Aboriginal man, he had endured an upbringing of significant disadvantage and deprivation which, one could readily infer, damaged his mental health, played a significant role in his problem with prohibited drugs, and overall was undoubtedly criminogenic.

5. [8]

   As for the latter, sadly by the time he came before the learned sentencing judge, the applicant had a long criminal record that had commenced in 2007, including for violence and negative interactions with police. He had spent significant periods in custody, at first in children’s detention centres and thereafter in gaols.

6. [9]

   At the time of the offences under discussion, he was on bail for destroying or damaging property, and also for some wholly summary drug offences committed on 20 October 2021 (the latter of which ultimately led to the imposition of Community Correction Orders in the Local Court on 1 February 2022).

7. [10]

   He was also on parole. That related to an aggregate sentence that had been imposed in the District Court at Orange on 21 July 2020 for some serious offending, not least being armed with intent to commit an indictable offence and taking or detaining a person with intent to obtain advantage. The aggregate sentence was imprisonment for 4 years 6 months, with a non-parole period of 2 years 3 months, commencing on 17 April 2019. In fact, the applicant had been released on parole at the conclusion of his non-parole period on 16 July 2021, a little over four months before the offences under consideration occurred.

8. [11]

   By the time the applicant came to be sentenced by her Honour on 13 December 2022, his parole had been revoked by the State Parole Authority (SPA) on 15 December 2021, the revocation “backdated” a few months to the date of these offences and the reincarceration of the applicant, 28 November 2021.

Aspects of sentence

1. [12]

   Ultimately, her Honour imposed an aggregate sentence, having provided an indicative sentence for the first count of imprisonment for 8 months; for the second count, 10 months; and for the affray, 1 year 11 months. The aggregate sentence comprised a head sentence of imprisonment for 2 years 3 months, with a non-parole period of 1 year 6 months. That aggregate sentence commenced on 15 July 2022.

2. [13]

   Bearing in mind the undoubted overlap between the revocation of parole and the commission of the offences leading to the new sentence, the question of commencement date had been a point of dispute between the parties, as follows. The Crown had submitted that the new sentence should commence on 15 September 2022, that being the date upon which the applicant had entered his pleas of guilty in the Local Court. Defence counsel had submitted that the new sentence could commence any time between 28 November 2021 and 2 December 2022. As can be seen, the sentencing judge ordered the aggregate sentence to commence two months before the date proposed by the Crown, and within the range proposed by defence counsel.

3. [14]

   All of the important parts of the above sketch, I hope, are captured by the diagram attached to this judgment. As it shows, the ratio between the non-parole period and the head sentence of the new, aggregate sentence is exactly two thirds. That was surely intended, and in fact during the proceedings on sentence it was her Honour who first suggested that the compelling subjective factors could readily found a finding of special circumstances. Indeed, her Honour said:

4. [15]

   What is also noteworthy from the diagram, however, is that the relationship between the “total head sentence” of 2 years and 10½ months and the total non-parole period of 2 years and almost 2 months is just a little under 75%. That outcome is readily explicable arithmetically, because the aggregate sentence commenced 7½ months after the applicant returned to custody and commenced serving his balance of parole on 28 November 2021. And since the decisions of Simpson v R (1992) 61 A Crim R 58 and R v Close (1992) 31 NSWLR 743; (1992) 65 A Crim R 55, this Court has been drawing attention to the phenomenon whereby cumulation on a pre-existing custodial sentence can lead to a variation in ratio founded upon a finding of special circumstances being set at naught, when one thinks of the total continuous head sentence and compares it to the total continuous mandatory period of incarceration.

5. [16]

   On the other hand, it can be seen that, for this serious offending committed by a person with an adverse criminal record, the balance of parole was extended by her Honour by very slightly less than three months.

Submissions for the applicant

1. [17]

   In that context, it was said for the applicant that: this kind of outcome is often encountered; it was surely an oversight (bearing in mind the readiness of the sentencing judge to find special circumstances, and her, with respect, appropriate recognition of the compelling subjective circumstances in this case); and finally that it would be in the interests of nobody for the applicant not to have an extended period on parole available to him.

2. [18]

   As I have said, the submission was that he should have been released forthwith on 24 November 2023, with the result that he would have spent less than two months in custody solely referable to these three offences.

3. [19]

   Although I see the force in the submissions for the applicant, I do not accept them, for the following reasons.

4. [20]

   First, on one analysis the imposition of the aggregate sentence from 15 July 2022 meant that, from then on, he lost the opportunity to be released again on parole by the SPA. That is because a person subject to balance of parole can be released again during its currency, and indeed the documentary evidence before her Honour showed that he had another parole review date upcoming of 20 January 2023.

5. [21]

   But the objective reality was that the applicant had not been released on parole by the time he came before her Honour for sentence on 13 December 2022, not only because of his service of balance of parole but also because he was bail refused on these charges. In other words, the possibility that he could have been released on parole again between 28 November 2021 (the date of re-incarceration) and 13 December 2022 (the date of imposition of sentence) is completely counter-factual.

6. [22]

   Secondly, it is impossible to know with certainty whether, having found special circumstances with regard to the new sentence, her Honour would also have been prepared to find them globally. That may have been the case. But because her Honour was never asked to do so, and therefore did not discuss the topic in the remarks on sentence, her failure to do so can hardly be characterised as an error. That approach of mine is not, I hope, too harsh an application of the oft-applied principal in Zreika v The Queen (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81]. It is simply recognition of the fact that, again, it is impossible for this Court to determine hypotheticals.

7. [23]

   Thirdly, in any event, the extension of the balance of parole by a period of less than three months was, in my respectful opinion, lenient – not inappropriately, and not in a way that leads to criticism of the learned sentencing judge. But I cannot accept that an extension less than that would reflect the reasonably significant objective seriousness, and degree of moral culpability, underpinning these three offences.

Conclusion

1. [24]

   For those reasons, I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal against sentence dismissed.

2. [25]

   IERACE J: I also agree with Button J.