Legal Research
Cases
R v Edwards

R v Edwards

Case [2024] NSWDC 497 10 October 2024

Sentencing

Principle of Totality

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Edwards [2024] NSWDC 497
Hearing dates: 2, 8 August 2024
Date of orders: 10 October 2024
Decision date: 10 October 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Aggregate sentence of 7 years with a non-parole period of 3 years, at [268 – 269].

Catchwords:
SENTENCING — Principle of totality — Backdating when offender previously sentenced for related offending and that sentence expired many years prior to charging, arrest and sentencing for index offences — Offender in continuous custody referable to two prior sentences for over 12 years at the time of sentence — Analysis of the Court’s ability to backdate a sentence to a date before the charging and arrest of the offender for the index offences — Court found the discretion in section 47 of the Crimes (Sentencing Procedure) Act1999 allows for the imposition of an appropriate length of sentence, and to then backdate the commencement date into the pre-existing period of unbroken custody, notwithstanding the sentence previously being served was for a different offence and that the charge for the current matter had not yet been preferred.

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Almaouie v R [2021] NSWCCA 274
Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
Caristo v R [2011] NSWCCA 7
Darrigo v R [2007] NSWCCA 9
FL v R [2020] NSWCCA 114
John v R [2015] NSWCCA 5
Kljaic v R [2023] NSWCCA 225
Mill v The Queen [1988] 166 CLR 59
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Cattell [2019] NSWCCA 297
R v DW (No 1) [2020] NSWDC 461
R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260
R v Jenkyns (Court of Criminal Appeal (QLD), 11 June 1986, unreported)
R v McHugh [1985] 1 NSWLR 588
R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v SW (District Court of New South Wales (Wollongong), 10 September 2018, unreported)
R v Thomas [2007] NSWCCA 269
R v Todd [1982] 2 NSWLR 517
R v Tuuta [2014] NSWCCA 40
Refaieh v R [2018] NSWCCA 72
Richards v R [2023] NSWCCA 107
State of New South Wales v Darrego [2011] NSWSC 1449
Wiggins v R [2010] NSWCCA 30
Category: Sentence
Parties: Rex (Crown)
Richard Edwards (Offender)
Representation:
Counsel:
L Hanshaw (Crown)
C Penning (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service NSW/ACT (Offender)

File Number(s): 2023/00108462
Publication restriction: There is to be no publication of evidence that identifies or is likely to lead to the identification of the complainant in accordance with section 578A of the Crimes Act 1900 and section 15A of the Children (Criminal Proceedings) Act 1987.

JUDGMENT

Richard John Edwards appears for sentence following his entering…

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 R v Edwards

Details

AGLC: R v Edwards [2024] NSWDC 497
Case: [2024] NSWDC 497
Decision Date: 10 October 2024

CaseChat Overview and Summary

The case of R v Edwards involved the defendant, who was subject to sentencing following multiple charges. The dispute centred on the principle of totality, particularly concerning the ability of the court to backdate the sentence for the current offences to a date before the defendant was charged and arrested for these offences. The defendant had already been serving a sentence for related offences, which had expired many years before the current charges were brought against him. Despite this, he had been in continuous custody for over 12 years at the time of sentencing for the index offences. The New South Wales Supreme Court was tasked with determining whether the court had the authority to backdate the sentence, considering the defendant's prior sentence for different offences and the fact that the charges for the current offences had not yet been preferred at the time of the prior sentence.

The legal issues before the court revolved around the interpretation and application of section 47 of the Crimes (Sentencing Procedure) Act 1999. Specifically, the court needed to decide if the discretion provided by this section allowed for the imposition of a sentence that could be backdated to a period before the defendant was charged and arrested for the current offences, despite the prior sentence being for a different offence. The court had to consider the principles of justice, fairness, and the overarching goal of achieving an appropriate and proportionate sentence that reflected the totality of the offender's criminal conduct.

In its reasoning, the court held that section 47 of the Act indeed provided the necessary discretion to impose a sentence that could be backdated into the period of unbroken custody. The court found that the principle of totality was a fundamental consideration in sentencing, which aimed to ensure that the total period of imprisonment reflected the overall criminality of the offender. The court emphasised that the backdating of a sentence to a pre-existing period of custody was permissible, even if the prior sentence was for a different offence and the charges for the current offences had not yet been preferred. The court concluded that this approach was consistent with achieving a just outcome and maintaining the integrity of the sentencing process.

The final orders of the court were an aggregate sentence of 7 years, with a non-parole period of 3 years. The sentence was to be backdated to the date the defendant first entered custody for the prior offences, effectively consolidating the sentences into a single period of imprisonment that reflected the totality of the defendant's criminal conduct.

Orders

Orders of the court

Aggregate sentence of 7 years with a non-parole period of 3 years, at [268 – 269].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Edwards [2024] NSWDC 497

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 24 of 24 shown

Kljaic v R
[2023] NSWCCA 225 Para 243

…In Kljaic v R [2023] NSWCCA 225, the Court of Criminal Appeal found no error of principle in the approach taken at first instance by Colefax SC DCJ where his Honour had backdated a sentence by an additional 30 days on top of the actual time spent in pre-trial custody in recognition of the extra-curial punishment bro…
Richards v R
[2023] NSWCCA 107 Para 252

…In Richards v R [2023] NSWCCA 107, originally relied upon by the Crown in the present proceedings for a different reason, Adamson JA, Beech-Jones CJ at CL and Price J agreeing, said at [76]:…
Almaouie v R
[2021] NSWCCA 274 Para 245

…In Almaouie v R [2021] NSWCCA 274, what had occurred in passing sentence at first instance by Bellew J was “taken” to be an error. Bellew J had sentenced the offender in that matter for firearms offences and also for a conspiracy to do acts in preparation for a terrorist act. With respect to the State firearms offen…
FL v R
[2020] NSWCCA 114 Para 31

…A determination of the objective seriousness requires a consideration of the facts, matters and circumstances of the offending: see FL v R [2020] NSWCCA 114 at [59] to [60].…
R v DW (No 1)
[2020] NSWDC 461

…l v The Queen [1988] 166 CLR 59 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Cattell [2019] NSWCCA 297 R v DW (No 1) [2020] NSWDC 461 R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 R v Jenkyns (Court of Criminal Appeal (QLD), 11 June 1986, unreported) R v McHugh [1985] 1 NSWLR 588 R v Newman…
R v Cattell
[2019] NSWCCA 297

…Kljaic v R [2023] NSWCCA 225 Mill v The Queen [1988] 166 CLR 59 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Cattell [2019] NSWCCA 297 R v DW (No 1) [2020] NSWDC 461 R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 R v Jenkyns (Court of Criminal Appeal (QLD), 11 June 1986, unreported) R v McHugh…
R v Holder
[2019] SASCFC 73

…ustralia (2013) 249 CLR 600; [2013] HCA 38 R v Cattell [2019] NSWCCA 297 R v DW (No 1) [2020] NSWDC 461 R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 R v Jenkyns (Court of Criminal Appeal (QLD), 11 June 1986, unreported) R v McHugh [1985] 1 NSWLR 588 R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R…
Refaieh v The Queen
[2018] NSWCCA 72 Para 249

…In the written submissions on behalf of the offender, reference has been made to Refaieh v R [2018] NSWCCA 72. That was a matter in which Judge Toner SC did not backdate the offender’s sentence to take into account pre-sentence custody which had been served on remand in relation to an unrelated offence. Judge Toner…
Lehn v The Queen
[2016] NSWCCA 255

…bligation in this Court to re-exercise the sentencing discretion as opposed to adjusting the start date to address the identified error (Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] per Bathurst CJ). It does not do so here. The sentence for the firearms offences has now expired. Even though the applicant ha…
Martinez v The Queen
[2015] NSWCCA 5

…The Queen [2013] HCA 387; (2013) 249 CLR 571 Caristo v R [2011] NSWCCA 7 Darrigo v R [2007] NSWCCA 9 FL v R [2020] NSWCCA 114 John v R [2015] NSWCCA 5 Kljaic v R [2023] NSWCCA 225 Mill v The Queen [1988] 166 CLR 59 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Cattell [2019] NSWCCA 297 R v DW (N…
R v Tuuta
[2014] NSWCCA 40

…ourt of New South Wales (Wollongong), 10 September 2018, unreported) R v Thomas [2007] NSWCCA 269 R v Todd [1982] 2 NSWLR 517 R v Tuuta [2014] NSWCCA 40 Refaieh v R [2018] NSWCCA 72 Richards v R [2023] NSWCCA 107 State of New South Wales v Darrego [2011] NSWSC 1449 Wiggins v R [2010] NSWCCA 30 Category: Sentence Pa…
Munda v Western Australia
[2013] HCA 38 Para 185

…In Munda v Western Australia [2013] 249 CLR 600 at [54] the High Court referred to the role of the criminal law as including “the longstanding obligation of the State to vindicate the dignity of each victim of violence.”…
Bugmy v The Queen
[2013] HCA 37 Para 41

…evel of violence from various of his stepfathers and was “in and out” of boys’ homes. Details of the relevant Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 factors have been referred to in various of the sentence proceedings to which I will refer in due course. The Crown acknowledges the relevance of Bugmy fac…
State of New South Wales v Darrego
[2011] NSWSC 1449 Para 116

…nders) Act 2006 . That order imposed 54 conditions on the offender. The judgment of Fullerton J has been tendered: State of New South Wales v Darrego [2011] NSWSC 1449. The legislative scheme under the Crimes (Serious Sex Offenders) Act 2006 provided for the extended supervision and continuing detention of serious s…
Caristo v R
[2011] NSWCCA 7

…NSW) Crimes Act 1900 (NSW) Cases Cited: Almaouie v R [2021] NSWCCA 274 Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 Caristo v R [2011] NSWCCA 7 Darrigo v R [2007] NSWCCA 9 FL v R [2020] NSWCCA 114 John v R [2015] NSWCCA 5 Kljaic v R [2023] NSWCCA 225 Mill v The Queen [1988] 166 CLR 59 Munda v Western Austr…
Wiggins v R
[2010] NSWCCA 30 Para 240

…the sentence imposed by a period equivalent to the period of pre-sentence custody, rather than reducing the sentence imposed. In Wiggins v R [2010] NSWCCA 30, Howie J restated that “preferable course” and referred to a number of earlier authorities commencing with R v McHugh [1985] 1 NSWLR 588 where Chief Justice…
R v Thomas
[2007] NSWCCA 269 Para 187

…I take note of the observations of Basten JA (Latham J agreeing), in R v Thomas [2007] NSWCCA 269. I will give relevant weight to the victim impact statement which has been read.…
Darrigo v Regina
[2007] NSWCCA 9 Para 101

…In February 2007, the Court of Criminal Appeal granted leave to appeal against the severity of that sentence: Darrigo v R [2007] NSWCCA 9.…
R v Newman
[2004] NSWCCA 102 Para 241

…Howie J also referred to his own remarks in R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361, where his Honour had dealt with the position when pre-sentence custody did not continue unbroken to the date of sentence. His Honour had followed the practice of selecting a “notional” date being a date when the o…
Regina v Philips; Regina v Simpson
[2002] NSWCCA 167

…way on more than one occasion. See R v McDonald (NSWCCA, unreported, 12 December 1995); R v Howard [2001] NSWCCA 309, and R v Phillips and Simpson [2002] NSWCCA 167. There is nothing in s 47 of the Act that would suggest that a court could not make such an order. [27] In my view, although there is an element of fic…
R v Howard
[2001] NSWCCA 309

…3), this Court has dealt with the matter in this way on more than one occasion. See R v McDonald (NSWCCA, unreported, 12 December 1995); R v Howard [2001] NSWCCA 309, and R v Phillips and Simpson [2002] NSWCCA 167. There is nothing in s 47 of the Act that would suggest that a court could not make such an order. [27]…
R v Qutami
[2001] NSWCCA 353

…al (QLD), 11 June 1986, unreported) R v McHugh [1985] 1 NSWLR 588 R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v SW (District Court of New South Wales (Wollongong), 10 September 2018, unreported) R v Thomas [2007] NSWCCA 269 R v Todd [1982] 2 NSWL…
Postiglione v the Queen
[1997] HCA 26

…t the time of sentencing, the offender is serving a sentence for other offending: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J); [1997] HCA 26.”…
Mill v The Queen
[1988] HCA 70

…CA 7 Darrigo v R [2007] NSWCCA 9 FL v R [2020] NSWCCA 114 John v R [2015] NSWCCA 5 Kljaic v R [2023] NSWCCA 225 Mill v The Queen [1988] 166 CLR 59 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Cattell [2019] NSWCCA 297 R v DW (No 1) [2020] NSWDC 461 R v Holder; R v Johnston [1983] 3 NSWLR 24…

Legislation cited in this decision · 5

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1990 (NSW)
1 mention (from Para 256)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 184)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
1 mention (from Para 116)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v Edwards [2024] NSWDC 497
Hearing dates:	2, 8 August 2024
Date of orders:	10 October 2024
Decision date:	10 October 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Aggregate sentence of 7 years with a non-parole period of 3 years, at [268 – 269].
Catchwords:	SENTENCING — Principle of totality — Backdating when offender previously sentenced for related offending and that sentence expired many years prior to charging, arrest and sentencing for index offences — Offender in continuous custody referable to two prior sentences for over 12 years at the time of sentence — Analysis of the Court’s ability to backdate a sentence to a date before the charging and arrest of the offender for the index offences — Court found the discretion in section 47 of the Crimes (Sentencing Procedure) Act1999 allows for the imposition of an appropriate length of sentence, and to then backdate the commencement date into the pre-existing period of unbroken custody, notwithstanding the sentence previously being served was for a different offence and that the charge for the current matter had not yet been preferred.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Serious Sex Offenders) Act 2006 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Almaouie v R [2021] NSWCCA 274 Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 Caristo v R [2011] NSWCCA 7 Darrigo v R [2007] NSWCCA 9 FL v R [2020] NSWCCA 114 John v R [2015] NSWCCA 5 Kljaic v R [2023] NSWCCA 225 Mill v The Queen [1988] 166 CLR 59 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Cattell [2019] NSWCCA 297 R v DW (No 1) [2020] NSWDC 461 R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 R v Jenkyns (Court of Criminal Appeal (QLD), 11 June 1986, unreported) R v McHugh [1985] 1 NSWLR 588 R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v SW (District Court of New South Wales (Wollongong), 10 September 2018, unreported) R v Thomas [2007] NSWCCA 269 R v Todd [1982] 2 NSWLR 517 R v Tuuta [2014] NSWCCA 40 Refaieh v R [2018] NSWCCA 72 Richards v R [2023] NSWCCA 107 State of New South Wales v Darrego [2011] NSWSC 1449 Wiggins v R [2010] NSWCCA 30
Category:	Sentence
Parties:	Rex (Crown) Richard Edwards (Offender)
Representation:	Counsel: L Hanshaw (Crown) C Penning (Offender) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service NSW/ACT (Offender)
File Number(s):	2023/00108462
Publication restriction:	There is to be no publication of evidence that identifies or is likely to lead to the identification of the complainant in accordance with section 578A of the Crimes Act 1900 and section 15A of the Children (Criminal Proceedings) Act 1987.