Director of Public Prosecutions v Edgar

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION
GENERAL LIST

Revised
Un-Restricted
Suitable for Publication

Case No. CR-23-01531

DIRECTOR OF PUBLIC PROSECUTIONS

EDGAR, Joshua

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JUDGE:	His Honour Judge Palmer
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2024, 3 February 2025
DATE OF SENTENCE:	6 March 2025
CASE MAY BE CITED AS:	DPP v Edgar
MEDIUM NEUTRAL CITATION:	[2024] VCC 234

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Recklessly causing injury – false imprisonment – robbery – serious offending – unprovoked attack
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Emberton [2022] ACTSC 286; DPP v Atalay [2024] VCC 2100; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 171 A Crim R 227
Sentence:2 years imprisonment with a Community Corrections Order of two years
6AAA: 4 years imprisonment with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Devlin	Office of Public Prosecutions
For the Accused	Mr C Thompson	Emma Turnbull Lawyers

HIS HONOUR:

Circumstances of offending[1]

[1] The detailed circumstances of offending are set out in the Amended Prosecution Opening on Plea (30 August 2024). I have also read and considered the written submissions of the parties as supplemented by their oral submissions, and supported by tendered material, including Defence Plea Submissions (17 September 2024); Dr Warwick Brewer, Confidential Psychological Report (13 August 2024); prisoner education summary report; and bundle of certificates; Dr Joseph Sakdalan (Forensicare), Psychology Court Report (29 January 2025); Department of Justice and Community Safety, Extended Pre-Sentence Assessment – Outcome Report (January 2025); Defence Further Plea Submissions (10 February 2025); and (Updated) Prosecution Outline on Plea (12 February 2025).

Joshua Edgar, on 22 January 2023, at around 2 am, you started a text conversation with Robin Salcedo,[2] after viewing her listing on a website called escortsandbabes.com.au. As her listing reveals, Ms Salcedo is a transgender person advertising sexual services under the name Jackie,[3] who prominently and repeatedly advertises that she has a penis.[4]
[2] A pseudonym.
[3] A pseudonym.
[4] Depositions, Exhibit 24.
During the conversation Ms Salcedo provided you with her work address – an apartment in Southbank – and you arrived at the building just before 3 am. Ms Salcedo buzzed you into the building and you took the lift to her apartment. She let you in. You commented “you’re not a woman”, and said you did not know this. Ms Salcedo immediately asked you to leave. You refused, and asked Ms Salcedo to sit down and have a chat.
You both sat down. You asked if you could take your shoes and socks off. Ms Salcedo said you could but also said you would be putting them back on again soon. You started to talk about problems in your life, but Ms Salcedo said that that was not what she gets paid for. You asked Ms Salcedo what she did get paid for. She pointed out that you had not paid her anything. You put a $50 note on the coffee table (well below Ms Salcedo advertised rates). You then asked if you could take your shirt off. Ms Salcedo again asked you to leave. This time you agreed.
About 10 minutes later you knocked on the apartment door, and said you would pay Ms Salcedo to talk to you. Ms Salcedo, fearing a noisy scene, let you back in. You transferred an additional $150 to Ms Salcedo using your phone. You then disappeared into the bathroom for twenty minutes.
When you came out, you were holding the toilet brush. You jumped on top of Ms Salcedo on the bed, pinned her down, and punched her in the face with your closed fist. She was also hit in the face with the toilet brush. Ms Salcedo yelled at you to stop. Still pinning Ms Salcedo down, you demanded money. When she said she didn’t have any, you punched her in the face twice more (charge 1).
You got off the bed and began pacing up and down. You told Ms Salcedo not to move, saying “if you want to live tonight you won’t fucking move”. She began crying and asked you to stop, and to let her go. You continued to demand money and to tell Ms Salcedo not to move (charge 2).
In fear, Ms Salcedo said she could transfer money to you using her phone. You returned with Ms Salcedo’s phone. She provided her PIN. You opened her banking app and transferred $500 to yourself (charge 3).
You began going through the apartment, while holding on to Ms Salcedo’s phones. At some point, one of them rang. You asked Ms Salcedo who it was, and she said “that’s my trans friend Madison”.[5] You responded by suggesting that Ms Salcedo “set [you] up with a threesome and [she] will be safe”. By now, Ms Salcedo’s face was becoming swollen. You apologised. You then put on one of Ms Salcedo’s wigs and items of her clothing.
[5] A pseudonym.
During the course of your time in Ms Salcedo’s apartment you engaged in a number of sexual acts with her. These are not the subject of any charges.
At around 4.10 am, you used Ms Salcedo’s phone to contact Madison to try and set up a threesome. You then used Ms Salcedo’s phone to call a taxi. You both went downstairs, while you tried to get a taxi. By now it was after 4:30 am. Ms Salcedo was eventually able to separate herself from you such that the doors of the building closed and you were locked out.
Ms Salcedo then sought help from the security guard, who called 000. Police attended, and she was taken to hospital by ambulance with nasal bone fractures and soft tissue swelling to the face. [6] You were arrested on 24 January 2023.
[6] See photographs in Depositions, Exhibits 1 and 10.
You have pleaded guilty to three charges:
a.Charge 1: recklessly causing injury, contrary to s 18 of the Crimes Act 1958, the maximum penalty for which is five years imprisonment;
b.Charge 2: false imprisonment, contrary to the common law and s 320 of the Crimes Act 1958, the maximum penalty for which is ten years imprisonment; and
c.Charge 3: robbery, contrary to s 75 of the Crimes Act 1958, the maximum penalty for which is 15 years imprisonment.

Seriousness of offending and current sentencing practice

I consider this to be serious offending:
a.You entered a place where a vulnerable person was working alone, late at night;
b.You refused to leave when she asked you to, and after you had left, returned claiming that you only wanted to talk;
c.You then suddenly and violently attacked her, inflicting significant facial injuries;
d.The use of a toilet brush added an element of humiliation to your violence;
e.Under the threat of further violence, you forced your victim to provide you with the code for her banking app, and used that to steal money from her;
f.You then appear to have acted as if you had done nothing wrong;
g.You effectively imprisoned your victim for a period of approximately one and a half hours; and
h.She was only able to get away from you through the use of subterfuge and trickery.
The parties did not put any specific examples of current sentencing practice before me. However, it is clear that general deterrence, public denunciation, just punishment and community protection are important sentencing considerations in cases involving unprovoked violence against vulnerable people, such as a transgender sex worker working alone at night. [7]
[7] Cf R v Emberton [2022] ACTSC 286 at [29] (Kennett J), and DPP v Atalay [2024] VCC 2100 at [95] (Judge Tinney).
The offending underlying the three charges is related and to some degree overlapping: in particular, the conduct on which the charges of recklessly causing injury and false imprisonment is based is the same conduct that supplies the element of force or “fear of force” in the offence of armed robbery. This is relevant to the principle of totality.
The defence submitted that the appropriate sentence was a combination sentence with significant hours of unpaid community work and conditions for treatment of psychological, psychiatric and drug and alcohol issues, and with no further imprisonment. The prosecution conceded that a combination sentence was within the sentencing range; but did not accept that the imprisonment component of such a sentence could be satisfied by the time you have already served.

Personal circumstances and subjective matters

You were born in New Zealand in 1993. You were sexually abused by your maternal aunt’s partner from around the age of seven to 13. I accept that the abuse you suffered continues to affect you, and give this weight in the sentencing process.[8]
[8] Bugmy v The Queen (2013) 249 CLR 571.
Your parents separated when you were 19. A couple of years later you began a relationship, which lasted three years. You have a daughter from that relationship, who is now 11 years old. After the end of this relationship you began using methamphetamine.
Your father moved to South Australia, and in 2018 you followed him. You initially abstained from drug use, but eventually relapsed. You moved to Geelong in 2022. You are currently living with friends in Geelong. You also have stable employment with Viridian Glass.
About two years ago you suffered a head injury. You appear to meet the criteria for a number of mental health and other diagnoses, including PTSD, ADHD and an acquired brain injury. [9] However, it is unclear how much these issues (as distinct from your substance use) contributed to your offending:
a.Dr Warwick Brewer says that the evidence suggests you were “likely impacted by substance use at the time of the offending”, and that your mental health “vulnerabilities arguably contribute” to your offending, but “they should not be viewed as causal”. [10]
b.Dr Joseph Sakdalan states that “A confluence of different factors, such as alcohol intoxication, in conjunction with undiagnosed ADHD and the compromised cognitive and behavioural functioning due to the acquired brain injury, have contributed to impaired decision-making, consequential thinking and increased impulsivity”. [11]
[9] Forensicare report, [63]; Brewer report, [49]-[50]. However, I note that recent testing failed to confirm that you had received such an injury: bundle of medical documents, Exhibit D10.
[10] Brewer report, [56] (emphasis added).
[11] Forensicare report, [61].
On the basis of this evidence, I am willing to find that your moral culpability is somewhat reduced. [12] I also take your mental health and other issues into account in a number of other ways.
[12] R v Verdins (2007) 171 A Crim R 227, limb 1.
Dr Brewer is equivocal as to whether your mental health issues mean that prison would weigh more heavily on you.[13] However, he does accept that a term of imprisonment is likely to exacerbate your anxiety and untreated trauma. [14] Dr Sakdalan says nothing on either issue. I also accept that your mental health issues make you a relatively poor vehicle for general deterrence. [15] However, your mental health issues are also one of the reasons why you are at moderate risk of violent reoffending.[16]
[13] Brewer report, [57]-[58]; R v Verdins (2007) 171 A Crim R 227, limb 5.
[14] Brewer report, [59]; R v Verdins (2007) 171 A Crim R 227, limb 6. I accept this, notwithstanding your statement during the plea that “it doesn’t actually bother me if I go back into prison”.
[15] R v Verdins (2007) 171 A Crim R 227, limb 3.
[16] Forensicare report, [55]-[56] and [64]; Brewer report, [63]; and Pre-Sentence Assessment, page 5.
Although your criminal record is not unduly lengthy, it includes offending involving drugs, alcohol and driving (often in combination). The current charges represent a significant escalation in violence. There is a need for specific deterrence, albeit this is tempered to some extent by your mental health issues. [17]
[17] R v Verdins (2007) 171 A Crim R 227, limb 4.
I accept that you have made good progress towards rehabilitation, with ongoing work as a glazier with an employer who values you,[18] stable living arrangements, mental health treatment, and much reduced substance use. Your father gave evidence that he felt like he had got his son back since you had stopped using methamphetamine. Your flatmate gave evidence about the positive activities you undertake together.
[18] See undated letter from Travis Johnson (undated); and Employee of the Quarter Award.
The prospects for your continued rehabilitation depend on you continuing to engage in treatment for your mental illness and to avoid alcohol and drug use.[19] I accept that sending you back to prison could interrupt the process of rehabilitation. However, there is no reason to think that you would not be able to return to work as a glazier on your release. Whether or not you go back to prison, I agree that your rehabilitation would be supported by an appropriately conditioned CCO.
[19] Forensicare report, [55] and [64]-[65].
You have expressed some regret for your offending.[20] The value of this as an expression of your remorse is limited by the fact that there are significant discrepancies between the facts as you have accepted them in the summary of prosecution opening (on which I am sentencing you) and the facts for which you are actually willing to take responsibility. During the plea, you were asked about the prosecution summary and testified that “there’s stuff that generally didn’t happen”.
[20] Brewer report, [68]; Forensicare report, [61]; and Pre-Sentence Assessment, page 2, third paragraph.
You also testified that you only assaulted Ms Salcedo after she had triggered you by touching your rectum while you were sleeping. This is completely at odds with the summary. There were similar discrepancies between the summary and the way in which you described the events of 22 January 2023 to Dr Sakdalan for the purposes of the Forensicare report, and during the Pre-Sentence Assessment. [21]
[21] See, in particular, Forensicare report, [32]-[33] and [61]; and Pre-Sentence Assessment, pages 1-2.
Your departures from the summary appear to be an attempt (whether conscious or unconscious) to minimise or excuse your actions. This suggests that you are yet to acknowledge how serious your actions were or to achieve proper insight into your offending.
Your plea of guilty was entered after a s 198B hearing at which Ms Salcedo was cross-examined. Nevertheless, the prosecution accepts that this should be regarded as an early plea and I will treat it as such. By pleading guilty you have taken responsibility for your conduct, and have saved, witnesses, prosecuting agencies and the community as a whole, time, money, inconvenience and uncertainty.
Nevertheless, in my view, the seriousness of your offending demands that your sentence of imprisonment be longer than the period you have already spent on remand. However, the fact that you have served that period on remand means that I can still impose a combination sentence, provided that the sentence to be served after deduction of your pre-sentence detention is less than one year. [22]
[22] Sentencing Act 1991, ss 18(1) and 44(1); Younger v The Queen [2017] VSCA 199 at [64] (Redlich and McLeish JJA and Croucher AJA). I also take into account the Renzella time of 168 days in South Australia acknowledged by the prosecution in an email dated 13 February 2025.
Before I can impose a CCO, you need to consent to it. If I cannot impose a CCO because you do not consent, then the only adequate sentencing option available to me would involve a longer term of imprisonment. The CCO I intend to impose will be of two years duration. I will impose that CCO in respect of all of the charges because they are founded on the same facts. [23] For the same reason, the period of imprisonment I impose will be an aggregate sentence. [24] The conditions of the CCO in addition to the mandatory terms are as follows or as directed by the Regional Manager:
a.You must perform 150 hours of unpaid community work over a period of 2 years. All hours of treatment and rehabilitation that you undertake are to be counted as hours of unpaid community work;
b.You must be under the supervision of a Community Corrections Officer for a period of 2 years;
c.You must undergo assessment and treatment (including testing) for drug abuse or dependency;
d.You must undergo assessment and treatment (including testing) for alcohol abuse or dependency;
e.You must undergo any mental health assessment and treatment that mya include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility; and
f.You must participate in programs and/or courses that address factors relating to the offending.
[23] Sentencing Act 1991, s 40(1).
[24] Sentencing Act 1991, s 9.
If you breach the CCO by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be re-sentenced for the offending which is currently before me. That might include imposing a term of further imprisonment. I will make an order that any breach by you of the CCO be brought back before me.

Orders

If you had not pleaded guilty, I would have sentenced you to four years’ imprisonment with a non-parole period of three years. I am instead sentencing you as follows:
a.On charge 1, recklessly causing injury; charge 2, false imprisonment; and charge 3, robbery: I convict you and sentence you to a period of two years imprisonment and a CCO of two years duration.
b.I declare that you have already served 387 days by way of pre-sentence detention.

[2024] VCC 234

6 March 2025