Director of Public Prosecutions v Edwards

[2021] VCC 2105

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

KOORI COURT
GENERAL LIST

Case No. CR-21-01348
Indictment No. M10616628

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

REGINALD WALTER EDWARDS

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	15 November 2021
DATE OF SENTENCE:	13 December 2021
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2021] VCC 2105

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentence

Catchwords:              Armed robbery – causing injury intentionally – theft – plea of guilty

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins & Ors (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; DPP v Edwards [2012] VCC 491

Sentence: Convicted and sentenced to a total effective sentence of 419 days’ imprisonment and ordered to serve a Community Correction Order for a period of two years. Pursuant to s6AAA of the Sentencing Act 1991, but for the plea of guilty, the accused would have received a sentence of two-and-a-half years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Moore	Abbey Hogan Solicitor for Public Prosecutions
For the Accused	Ms T Theocharous	Kurnai Legal Practice

HIS HONOUR:

1In this matter, Mr Edwards came before me sitting as the Koori Court on the first day of this sitting, the 15th day of November 2021.  Mr Edwards was 33 at the time of this offending.  He is 34 now, having been born on 24 August 1987.  Mr Moore appeared on behalf of the Director, as he does today.  Ms Theocharous appeared on behalf of Mr Edwards, as she does today.  Involved in the Koori Court were the Elders, Auntie Di and Uncle Lloyd, and our own Koori Court officer, Ms Kylie Spencer.  Exhibit A was tendered by the prosecutor and accepted by the defence as the facts upon which I am to sentence Mr Edwards.  The video footage shown on the CCTV was tendered as Exhibit B. 

2Insofar as the prosecution is concerned, in addition to the victim impact statement which was previously tendered as Exhibit C, today has been tendered as Exhibit D, the Community Correction report called for by the Court, dated 25 November 21; Exhibit E which is the further statement of Mr Finger sought, for which I thank the prosecution, and Exhibit F, the report from Monash Health which clarifies what can only be seen as for this type of offence, relatively limited injuries.  Despite Mr Finger’s worries about fracture, there appears only to have been a mild displacement of the nasal bone, general bruising.  As the learned prosecutor said today, however, the effect of this very unsavoury episode is still being felt by Mr Finger.

3The three charges that came before the Koori Court were the first charge pursuant to s75A of armed robbery, on the 18th day of March 2021. The victim, in this case, was Jason Finger. The items stolen were relatively limited, albeit important to him. The items were money, an iPad and prescriptions. The use of a metal bar was the matter that made it an armed robbery. Being a Category 2 offence, a custodial sentence must be imposed pursuant to the provisions of s5(2H) of the Sentencing Act.  The maximum penalty prescribed for armed robbery is 25 years.

4The second offence was cause injury intentionally.  This was again, carried out in the same circumstances.  The maximum penalty for such pursuant to s18, is imprisonment of 10 years.

5The third charge was a charge of stealing a Toyota key.  This matter was totally unrelated to the other offences and took place on the 19th day of March.  The maximum penalty for stealing is 10 years’ imprisonment.

6I am not quite certain what the relationship of Mr Finger to Mr Edwards is, but it is quite clear that a number of people seem to use Mr Finger's premises.  There were at least three males and two women who came while these crimes occurred.  Certainly, on the CCTV, Mr Edwards was carrying a small jemmy bar at 6.56pm.  The whole circumstances are quite unsavoury in the sense that clearly, Mr Finger appears to be a disabled person with some form of limitation of cognition and his premises appeared to be used by these people.  As I say, it is all set out on the CCTV, Exhibit B, which was CCTV of which Mr Finger had operating in his own premises. 

7At the plea I had not viewed the video.  Subsequently, it is clear that certainly on the video there is no use of the weapon by Mr Edwards.  There is very limited contact of Mr Edwards with Mr Finger; that is physical contact.  It appears that he may well have punched him a number of times.  His role clearly, in fact, was to protect Mr Finger from the co-accused.  The co-accused was punching and kicking Mr Finger and threatening him with a large metal bar.  Each time it appeared to get to a crescendo of such threats, Mr Edwards was holding off the co-accused. 

8Paragraph 8 of the opening suggests there was some contact with the jemmy bar.  I did not see it.  As to the injuries, I accept the injuries are set out in paragraph 25 of the opening.  Although, it is now clear there is no fracture.  The effect from a physical point of view would have been overcome very early.  However, I accept as set out in the victim impact statement, that Mr Finger would have been impacted by the totality of this experience. 

9Mr Edwards’ first prior for violence occurred when I, in fact, sentenced him in July 2012.  He had an altercation with a friend and punched him unconscious.  The circumstances seem very much to be related to the use of alcohol at that time.  They were, given his background, seen by me at the time - and I will talk about this later - as exceptional to the extent that a community correction order was passed.  That matter was upheld when the matter was appealed, on a more technical matter, before the Court of Appeal.

10Since that time, unfortunately, Mr Edwards seems to have continued to be involved in street crime; continues to have been involved in dealing with life with both alcohol and drugs.  In August of 2013, he received a 42-day sentence for a theft matter and resist arrest.  In May of 2016, he was sentenced to six months for aggravated burglary, assault and deception.  In May 2016, before the County Court, was sentenced to three months for reckless cause injury and then a community correction order for a breach of a family violence order which was passed on February 2020, the same time as an aggravated burglary and assault police.  His most recent sentence is in March 2020, when he received the gaol sentence of 10 days.  Although there is a number of pages of priors, as I point out, the actual priors for violence are limited. 

11The prosecution's view was, given the seriousness of this charge, that the only sentence appropriate was one of gaol and parole, but indicated to the Court that the prosecution would reconsider the matters when a number of items were given to the Court. Such occurred today and I appreciate the professional view of the prosecution, that given the totality of the material now before the Court and a proper assessment of community correction order, that there is reduction in culpability appropriate and in those circumstances, it would not be inappropriate to pass a combined sentence, provided the provisions that relate by way of s5(2H) of the Sentencing Act do not apply.

12Being a Koori Court, we had a sentencing conversation.  It was quite clear that insofar as Uncle Lloyd was concerned, he expressed disappointment and disgust at the behaviour of Mr Edwards.  He expressed to Mr Edwards that he must stop the drugs and alcohol, to use Mr Uncle Lloyd's statements, they were simply not doing it for him.  He was disappointed at the manner in which this victim had been treated in his own house.  He said that Mr Edwards needs to be seeing good people.  He needs to become responsible for his children and follow on the role that is expected in the community.  And that is expected that he has to affect the change.  The choice of change is very important in his life.

13Auntie Di was equally disgusted with Mr Edwards.  She reminded him that he was dealing with someone's life and that it was not in their culture to treat Mr Finger in the way he was treated.  She advised Mr Edwards, the sorry business that he is still dealing with needs to be settled so he can get on with his life. 

14Mr Edwards acknowledged those comments and indicated that he wanted to call as part of the sentencing conversation his Uncle Kutcha Edwards and his wife, or partner.  As he described it, coming before the Elders was for him a shame job.  He expressed sorry to his own family and to his community.  He said what you see on that CCTV is not me, and what you are seeing is the effects of drugs and alcohol.  He understands that he has been having a long journey and looking back he is still carrying grief.  Unfortunately, he is carrying a lot of pride and stubbornness and he needs to learn that not everyone is against him.  He acknowledged the role of change in his life, because if it is not affected then he will not be able to assist the children that he has responsibility for.  In particular, the four that have been born since I last sentenced him.

15As part of the sentencing conversation, Uncle Kutcha gave evidence.  He saw himself as an extended father in regard to Mr Edwards.  He said that Mr Edwards had to have respect for himself and, indeed, very emotionally sang a song in the language of their grandfather as part of the sentencing conversation.  He said to Mr Edwards, that it was very important that he listens to the words of that song. 

16The final participant in the sentencing conversation was Ms Kylie Spencer as I said, our own Koori Court officer.  She thought what we had seen as part of the sentencing conversation to be very powerful.  She, herself, said she was very frightened when she watched the CCTV.  She spoke of Mr Edwards' reputation in the community; his representative work as a dancer, that she could not make sense of the actions that he had carried out at this time and that his actions were disrespectful of himself, family and community.  She also strongly expressed the need for Mr Edwards to change his lifestyle.

17His wife or partner, Leatisha, spoke of the grief of not having him home.  How badly it has affected her.  The fact that the children need their father home and, of course, that is something that must rest very strongly on Mr Edwards. 

18In consideration of all those matters, I take into account the documents tendered on behalf of the defence.  The first of those was the outline plea submissions made by Ms Theocharous.  In addition, we had two reports.  Exhibit 2 was the neuropsychological report of Loretta Evans dated 26 November 2011.  Exhibit 3 was a report of Dr Lauren Fitzpatrick.  That report was dated 5 April 2016.  Dr Fitzpatrick also being a clinical neuropsychologist. That is a report as well that was tendered earlier on, but both reports were relied on as part of the submission.

19Counsel stressed that the remorse expressed by Mr Edwards for these crimes is genuine, that his behaviour in prison indicates that he is prepared to change his life; clearly, we all hope that that is so. As she set out in paragraph 9, the drugs have been affecting him for some time, as has the alcohol. She relied on issues of his own cognitive impairments and mental illness in regard to the submission as to s5(2H) and also in regard to the principles set out in Bugmy v The Queen (2013) 249 CLR 571, [37] and R v Verdins & Ors (2007) 16 VR 269 as to sentencing. She reminded the Court that her client had pleaded guilty. She reminded the Court the principle of Worboyes v R [2021] VSCA 169 [39] applies as to the additional amelioration of sentence brought about by the utilitarian benefit in pleading, and submitted that there were good prospects of rehabilitation. It was her ultimate submission that a community correction order was the appropriate disposition and, in that regard, the report that has been tendered to today was sought.

20Ms Theocharous reminded the Court that she relies on the positive comments of Uncle Kutcha Edwards; the partner of Mr Edwards as well and the comments made in regard to the children; courses that he has undertaken while in gaol to try and alleviate a dependency of drugs when he gets out and the steps that will need to be taken to overcome the grief that he has been fighting with insofar as the deaths of his brother and his father; the need for assistance in prison.  As I said, the positive report, Exhibit D, from the community corrections order notes, however, that there is a high risk of re-offending.  The need has already been put by his counsel for him to overcome his grief issues, drugs and alcohol to ensure there is no further re-offending. 

21The offending as submitted by Ms Theocharous, was at the lower end of this type of offending.  As I had said in my sentence in 2012,[1] up ’til that stage, he did not have any priors for such activity.  If I go, indeed, to that sentence, in particular, paragraph 23, at the time he was supported by a Ms Lee Hunt.  She was a teacher and had known his family for many, many years and she said to the Court 20 years.  She was well connected to the indigenous community.  She described Mr Edwards as a gentle soul with a good heart.  You did not look too gentle on this video, Mr Edwards.  She thought you had done particularly well in your life considering your background and she noted you as a gifted performer in regard to indigenous art and that you represented your people well.  Apparently, while you were at TAFE you had won a scholarship. 

[1]        DPP v Edwards [2012] VCC 491

22I also referred to the report at that stage, of Dr Loretta Evans that was before the Court and I described your history as follows.  It is clear that as a result of your upbringing you are essentially illiterate and suffer cognitive dysfunction.  The report of Dr Evans tendered in that hearing described you as being subject to an abusive situation in your childhood which was consistent with the earlier evidence which described issues in regard to your own support of your own daughter.  It describes your drinking from the age of 17 and your attempts since to stop drinking.  As to your psychiatric history, Dr Evans noted your problems as a child and at school and by way of formal testing, noting, in particular, the borderline intellectual problems. 

23In that regard, I stated, at paragraph 31:

“What it is clear to the Court is that despite what might be described as a gross history and the psychological profile described, you have, [at that stage], managed … not to commit a violent offence.”

24I also found subsequently, at paragraph [41], that a crime involved was a direct result of the impact upon you of alcohol.  Coming then to the two reports that I have referred to, insofar as your current situation, firstly, the updated Loretta Evans’ report, that is Exhibit 2 probably does not take things much further than the earlier report.  But noted at p7 that you demonstrate a cognitive profile, specifically the unilateral nature of memory impairment, slow cognitive process and impaired lateral reasoning skills, to suggest mild to moderate cognitive deficits thought to be primarily due to head trauma and a background of poor literacy skills.  There were various recommendations made.  Then, the report Exhibit 4, received from Dr Marsh at paragraph [47] under the heading ‘Cognitive Status’, noted:

“Current performances on general intellectual ability skills broadly fall within the borderline to low average intellect range.  This is consistent with the 2016 assessment findings.  He does not have an intellectual disability, but his level of intellect falls still well below the average of his age-group … .”

25Then, finally at paragraph [56]:

“… The severity and frequency of violence and subsequent trauma predisposes him to mental illness, vulnerable personality style … emotion dysregulation, poor anger control and substance use.”

26She noted, at paragraph [57]:

“… Preceding custody, the severity of his substance use is noteworthy …  It is considered that chronic substance use interact with his mental health symptoms, cognitive impairment, underlying psychological trauma, vulnerable personality style and poor anger management skills.”

27There is a positive note, which is at paragraphs [59] and [60]:

“… Mr Edwards has some ability to rehabilitate based upon the following.  In custody [particularly] abstinence from substance use.  …

At the same time, a barrier to his rehabilitation is … [his] alcohol and drug use behaviour, which is clearly entrenched.  … .”

28Insofar as the considerations required under s5(2H) and given the totality of that material, I am satisfied that at the time of the commission of the offence Mr Edwards did suffer from impaired mental functioning that was causally linked to the commission of the offences and such substantially and materially reduces his culpability. He had impaired mental functioning that would result in him being subject to substantially and materially greater than the ordinary burden of the risks of imprisonment. On these bases, I find on the balance of probabilities that the exceptions in ss(c)(i) and (ii) have been established, and therefore s5(2H) does not apply in this case.

29When I sentenced Mr Edwards in 2012, the principles that were espoused in that sentence essentially reflect what was formally set out by the High Court subsequently in Bugmy and the considerations of reduced moral culpability, which are set out in Verdins.  Those principles being very important to an assessment of this particular sentence.  Having made the determination necessary to bring a combined sentence into consideration, the next question is what sentence do I impose?  I stress again that I take into account the comments made during the sentencing conversation.  I note your comments, Mr Edwards, about the ongoing problems of grief that you have; your feelings of everyone being against you, your pride, that to be overcome. 

30It is fundamental, obviously, for you if you are going to have any chance in life of looking after the children that you tell the Court you want to; of being with your wife; of being a good and functioning member of your community, that you must give up, once you get out of prison, your use of drugs and grog.  My problem, of course, is do you have the make-up to do that?  At the time when I originally sentenced you, I asked that question.  Unfortunately, since that time, problems have continued.  Not problems of this degree, of course.

31As I said in looking at the March report – that is Exhibit 4 – in particular, paragraph [59] points out the issues that you have, and the abstinence in gaol.  But, of course, as I have already read out, the barrier to your rehabilitation is what will you do once you get out of gaol. 

32Ms Theocharous, it makes me wonder sometimes in these cases whether it is in your client’s interest to grant a community correction order?  Sometimes I think maybe it is simply better to impose a gaol term.  But can I tell you that I am prepared to give a combined order.  There will be a further period of gaol, however.  The community correction order will be for a period of two years.  Before I do that, I need you to get specific instructions that he is prepared to take that on and do what he says he has got to do.  But there is going to be more gaol.  It is simply too serious an offence not to have more gaol.  Albeit that he has served now 176 days.  Do you want me to stand down while you get those instructions?

33MS THEOCHAROUS:  Yes, Your Honour.

34HIS HONOUR:  Or do you already have them?

35MS THEOCHAROUS:  I have the instructions that Mr Edwards will consent to a corrections order.

36

HIS HONOUR:  All right.  Well, taking into account those instructions. 

Mr Edwards, just stressing to you that when you get out you have just got to stop the drugs and grog, otherwise, your life is going to be continually before the Courts and in gaol.  It is not an enjoyable experience to have you before me again.  Especially, when I take into account the sentence in 2012 and the comments made by the Court of Appeal.  However, in the totality, especially, looking at the offences and your role, I am prepared to pass an aggregate sentence. 

37In regard to Charges 1 and 2, you will be sentenced to an aggregate sentence of eight months and 176 days, together with, pursuant to s44 a two-year community correction order, such order having the conditions as set out in the report.  That is, treatment and rehabilitation for drugs; treatment and rehabilitation for alcohol; treatment and rehabilitation for mental health and programs reducing offending and, indeed, supervision. 

38I do not intend to impose judicial monitoring.  I think that supervision is quite sufficient in the circumstances.  I note in the report that you said to the assessor you need help, not gaol.  Well, despite me taking into account reduced culpability and the issues of Bugmy, the fact is that these are very serious charges and the proper balancing of the sentence requires me to give you further gaol, but I have given you also a two-year community correction order, on the Boulton principles, and I would hope that this leads to a change in your life. 

39In regard to Charge 3, I impose a period of imprisonment of two months.  I do not make any order as to cumulation. 

40The total effective sentence will, therefore, be a sentence of eight months and 176 days’ gaol with a two-year community correction order. 

41The PSD will be declared pursuant to s18 at 176 days, and I declare that that period has been served as part of this sentence. 

42Therefore, to just make it clear to you, Mr Edwards, you will have a further eight months’ gaol to serve and a two-year community correction order after today. I am required pursuant to s6AAA, to indicate what would have been the sentence had you not pleaded guilty. Clearly, it is very difficult when there is a multitude of factors. However, the sentence would otherwise have been two-and-a-half years’ gaol. Hence, the benefit of the plea of guilty. Yes, are there any other matters that I need to attend to?

43Are there any other matters, Mr Prosecutor?

44MR MOORE:  I don’t think so.  I’m just checking whether there a fourth -

45HIS HONOUR:  What of the - maybe of the metal or something?

46MR MOORE:  Of the bar.  The bar.

47HIS HONOUR:  Paragraph 44 says a disposal order will not be sought.

48MR MOORE:  Right.

49HIS HONOUR:  Given Mr Glass's matter has not been resolved.

50MR MOORE:  Well, that answers it, Your Honour.

51HIS HONOUR:  Yes.

52MR MOORE:  That completes the matter.

53HIS HONOUR:  Thank you.  Given we are still essentially in COVID conditions, Ms Theocharous, there are two options.  We either send the community correction order to your client or what we have been doing in COVID is having you seek his - well, you indicate on his behalf that he consents.

54MS THEOCHAROUS:  I can indicate that he does consent, Your Honour.

55HIS HONOUR:  Right.  Thank you.  Yes, thank you. 

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