Edwards v The King - [2023] NSWCCA 313

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Edwards v R [2023] NSWCCA 313
Hearing dates: 24 November 2023
Decision date: 08 December 2023
Before: Ward P at [1];
Button J at [2];
Ierace J at [25]
Decision:
1) Leave to appeal against sentence granted.
2) Appeal against sentence dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – where applicant convicted of affray and two counts of assaulting police – where applicant on conditional liberty at the time of offending – parole revoked – imposed sentence partially cumulative upon balance of parole to very small degree – whether sentence imposed failed to reflect sentencing judge’s finding of special circumstances when regard is had to the total effective sentence and total minimum period to be served by the applicant in custody – suggestion that applicant lost the opportunity to be re-released on parole purely hypothetical in the circumstances – no error on part of sentencing judge – appeal dismissed

Cases Cited:
R v Close (1992) 31 NSWLR 743; (1992) 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

Category: Principal judgment
Parties: David Edwards (Applicant)
Rex (Respondent)
Representation: Counsel:
I McLachlan (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/337977
Decision under appeal

Court or tribunal:

District Court Orange

Jurisdiction:

Criminal

Date of Decision:

13 December 2022

Before:

Musgrave DCJ

File Number(s):

2021/00337977

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 13 December 2022, Mr Edwards (the applicant) was sentenced to a term of imprisonment for two counts of assaulting a police officer while in the execution of the officer’s duty (contrary to s 60 of the Crime Act 1900 (NSW)), and one count of affray (contrary to s 93C of the Crimes Act). He was sentenced to an aggregate term of 2 years 3 months, with a non-parole period of 1 year 6 months, backdated to commence on 15 July 2022.

At the time of this offending the applicant was also on bail for a number of property and wholly summary drug offences. The applicant was also on parole after serving 2 years 3 months non-parole for serious offences dealt with in the District Court. By the time the applicant came to be sentenced by her Honour for the offending under discussion, his parole had been revoked on 15 December 2021, the revocation having been “backdated” a few months to the date of these offences, and the reincarceration of the applicant, on 28 November 2021.

The applicant sought leave to appeal against the sentence imposed on a single ground: that the sentencing judge erred in imposing a sentence that failed to reflect the finding of special circumstances when regard is had to the total effective sentence to be served by the applicant.

Though her Honour found that the applicant’s compelling…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edwards v The King

Details

AGLC: Edwards v The King [2023] NSWCCA 313
Case: [2023] NSWCCA 313
Decision Date: 08 December 2023

CaseChat Overview and Summary

In the case of Edwards v The King, the applicant appealed against the sentence imposed by the lower court following his conviction for affray and two counts of assaulting police. The applicant was on conditional liberty at the time of the offending, and his parole was revoked. The sentence imposed by the sentencing judge was partially cumulative upon the balance of the parole, to a very small degree. The appeal focused on whether the sentence failed to reflect the sentencing judge’s finding of special circumstances when considering the total effective sentence and the total minimum period to be served by the applicant in custody.

The legal issues before the court included whether the sentence imposed by the sentencing judge failed to adequately reflect the special circumstances of the case, and whether the applicant had lost the opportunity to be re-released on parole. The court had to determine if there was an error on the part of the sentencing judge. The applicant argued that the sentence imposed was not appropriate due to the cumulative effect on the balance of parole and the total effective sentence.

The court found that there was no error on the part of the sentencing judge. The suggestion that the applicant lost the opportunity to be re-released on parole was purely hypothetical in the circumstances. The court held that the sentencing judge’s consideration of the special circumstances was adequate and that the sentence imposed was appropriate. The appeal was dismissed, and the original sentence was upheld.

Orders