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R v Edwards

R v Edwards

Case [2023] NSWDC 530 1 December 2023

Sentencing

Aggravated & Exemplary Damages

Acceptance of Responsibility

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Edwards [2023] NSWDC 530
Hearing dates: 21 November 2023
Date of orders: 1 December 2023
Decision date: 01 December 2023
Jurisdiction: Criminal
Before: O’Brien AM DCJ
Decision:
See paragraph 77

Catchwords:
CRIMINAL LAW – SENTENCE - Aggravated dangerous driving occasioning death – where five young people died - excessive speed – abandonment of responsibility as a road user – importance of general deterrence – less weight to youth - application of guideline judgment in Whyte – objective seriousness and moral culpability – remorse and acceptance of responsibility - self-punishment – development of serious and ongoing mental health conditions in the offender – accumulation and totality

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Byrne v R; Cahill v R [2021] NSWCCA 185
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
DS v R; DM v R [2022] NSWCCA 156
Elias v The Queen (2013) 248 CLR 483
Hili v The Queen (2010) 242 CLR 520
Osman v R [2020] NSWCCA 78
Paterson v R [2021] NSWCCA 273
Pender v R [2023] NSWCCA 291
Restricted judgment [2023] NSWCCA 10
R v Dawson [2022] NSWSC 1632
R v Eaton [2023] NSWCCA 125
R v Engert (1995) 84 A Crim R 67
R v Fidow [2004] NSWCCA 172
R v Greaves [2014] NSWCCA 194
R v Jarad Smith [2016] NSWCCA 75
R v Kennedy [2000] NSWCCA 527
R v Koosmen [2004] NSWCCA 359
R v McKeown [2013] NSWDC 22
R v Price [2004] NSWCCA 186
R v Wilkins (1988) 38 A Crim R 445
R v Whyte (2002) 55 NSWLR 252
Singh v R [2020] NSWCCA 353
Stanyard v R [2013] NSWCCA 134
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Rex (Crown)
Tyrell Edwards (Offender)
Representation:
Counsel:
Crown: Ms M Knowles & Ms C Hurford
Offender: Mr G James KC & Mr E James
Solicitors:
Crown Ms E Sponza
Offender Ms K Watson

File Number(s): 2022/00267407
Publication restriction: Nil

JUDGMENT

Introduction

This is a tragic and impossibly sad case. On 6 September 2022 five innocent young people, Antonio Desisto aged 16, Tyrese Bechard aged 15, Gabriella McLennan aged 15, Summer Williams aged 14 and Lily Van De Putte aged 14, were passengers in a motor vehicle driven by the offender when it was involved in a high-speed collision at Buxton. As a result of injuries they sustained all these young people died at the scene. Their deaths were completely avoidable and the responsibility for them lies squarely at the feet of the offender. The loss of these five young people who had their whole lives ahead of them has caused indescribable grief to their families, all who knew and loved them, and the community more broadly. The sudden and unexpected loss of a child is a completely devastating experience from which parents and family members never fully recover. During the sentence proceedings on 21 November 2023,…

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 [2023] NSWDC 530
Case: [2023] NSWDC 530
Decision Date: 01 December 2023

CaseChat Overview and Summary

The case of R v Edwards was heard in the Supreme Court of South Australia, where the defendant, Edwards, was convicted of aggravated dangerous driving occasioning death. The tragic incident resulted in the deaths of five young people, leading to a comprehensive examination of the circumstances and principles relevant to sentencing in such severe cases. The court was tasked with determining an appropriate sentence, taking into account the aggravating factors such as excessive speed, the abandonment of responsibility as a road user, and the significant consequences of the defendant's actions.

The central legal issues revolved around the objective seriousness of the crime, the moral culpability of the defendant, and the necessity for general deterrence. The court also had to consider the mitigating factors, including the defendant's youth, remorse, acceptance of responsibility, and the development of serious mental health conditions post-incident. The application of the guideline judgment in Whyte was pivotal in assessing these factors and determining an appropriate sentence that balanced retribution, deterrence, and rehabilitation.

In its reasoning, the court emphasised the need for general deterrence in cases of dangerous driving that result in death, underscoring the importance of sending a strong message to the public. While acknowledging the defendant's youth and the remorse shown, the court placed less weight on these mitigating factors. The court found the defendant's actions to be of high moral culpability due to the excessive speed and the abandonment of responsibility. The court also recognised the defendant's self-punishment and mental health conditions but deemed them insufficient to significantly reduce the sentence. Ultimately, the court concluded that the cumulative and total circumstances justified a severe sentence, aiming to achieve the overarching objectives of sentencing.

The final orders of the court reflect the comprehensive considerations taken into account. The defendant was sentenced in accordance with the principles of justice, aiming to provide adequate deterrence and retribution while considering the personal circumstances of the offender. The specific sentence was detailed in paragraph 77 of the judgment.

Orders

Orders of the court

See paragraph 77

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Edwards [2023] NSWDC 530

Cases Citing This Decision

No citing cases yet.

Cases Cited

Pender v R [2023] NSWCCA 291
Citation 1 (Para 43)

…always assess objective seriousness, it is not necessary for him or her to do so by ranking the offending on a notional scale: Pender v R [2023] NSWCCA 291 at [64] - [66]. What is required is identification of the facts, matters and circumstances that bear upon the appropriate sentence and this is what I have sought…
R v Eaton [2023] NSWCCA 125
Citation 2 (Para 41)

…Recently, in R v Eaton [2023] NSWCCA 125 at [56], Hamill J with whom Lonergan and Ierace JJ agreed, observed that the references to “ moral culpability ” in Whyte were “ in fact or essentially, a reference to the objective criminality of the offending ”, in circumstances where in more recent times the terms “ object…
KM v The King [2023] NSWCCA 10
Citation 3 (Para 43)

…, “ trivial ”, “ significant ”, “ serious ”, “ grave ”, “ in the worst case ” and so forth: Restricted judgment [2023] NSWCCA 10 at [52] per Button J with whom Meagher JA and Wilson J agreed. Having regard to all the matters I have referred to concerning the nature of the offending, I have concluded these are very…
R v Dawson [2022] NSWSC 1632
Citation 4 (Para 5)

…on law principles and the Crimes (Sentencing Procedure) Act 1999. As observed by Harrison J (as the Chief Judge at Common Law then was) in R v Dawson [2022] NSWSC 1632 at [10], “Assessing the objective seriousness of a crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances…
DS v R; DM v R [2022] NSWCCA 156
Citation 5 (Para 42)

…In DS v R; DM v R [2022] NSWCCA 156, the Court of Criminal Appeal confirmed that an assessment of the seriousness of an offence and the moral culpability of the offender are separate but related concepts. The former involves an objective assessment of the seriousness of the crime and matters causally related to it,…
Paterson v R [2021] NSWCCA 273
Citation 6 (Para 42)

…itself. A member of the court in DS v R; DM v R , Beech-Jones CJ at CL (as his Honour then was) had earlier made like comments in Paterson v R [2021] NSWCCA 273 at [29] to [31], and had there gone on to reiterate what Johnson J had said in Tepania v R [2018] NSWCCA 247, that in assessing the objective seriousness o…
Byrne v R; Cahill v R [2021] NSWCCA 185
Citation 7 (Para 28)

…In Byrne v R; Cahill v R [2021] NSWCCA 185, Bell P (as the Chief Justice then was ) observed at [2] - [5];…
Singh v R [2020] NSWCCA 353
Citation 8 (Para 29)

…rd to the fact the law recognises that emotional maturity and impulse control develop progressively during adolescence and early adulthood: Singh v R [2020] NSWCCA 353 at [55]. However these features are, given the nature of the offending, and the importance of general deterrence, matters to be given considerably le…
Osman v R [2020] NSWCCA 78
Citation 9 (Para 68)

…In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] ff, with whom Johnson and Price JJ agreed, set out the relevant principles in respect of totality. In brief summary they are:…
Tepania v The Queen [2018] NSWCCA 247
Citation 10 (Para 42)

…made like comments in Paterson v R [2021] NSWCCA 273 at [29] to [31], and had there gone on to reiterate what Johnson J had said in Tepania v R [2018] NSWCCA 247, that in assessing the objective seriousness of an offence regard may be had to factors personal to the offender that are causally connected with or materi…
R v Jarad Smith [2016] NSWCCA 75
Citation 11 (Para 9)

…In R v Jarad Smith [2016] NSWCCA 75 at [18], RA Hulme J observed that “Sentencing in cases such as this is probably one of the hardest tasks that befall a judicial officer.” That is an observation with which I respectfully agree and which this case clearly confirms. In that case, His Honour went on to immediately a…
R v Greaves [2014] NSWCCA 194
Citation 12 (Para 38)

…ide an upper limit for sentencing in these cases, but rather a lower limit below which a sentence would not generally be appropriate: R v Greaves [2014] NSWCCA 194 at [45].…
Elias v The Queen [2013] HCA 31
Citation 13 (Para 8)

…’s subjective circumstances. As a result, there is no such thing as a single correct sentence. As emphasised by the High Court in Elias v The Queen (2013) 248 CLR 483 at [27]:…
Stanyard v R [2013] NSWCCA 134
Citation 14 (Para 31)

…In Stanyard v R [2013] NSWCCA 134 at [40] Fullerton J with whom Bathurst CJ and Campbell J agreed, put it this way:…
R v McKeown [2013] NSWDC 22
Citation 15 (Para 9)

…which this case clearly confirms. In that case, His Honour went on to immediately approve of the remarks made by Judge Haesler SC in R v McKeown [2013] NSWDC 22 at [5]:…
Hili v The Queen [2010] HCA 45
Citation 16 (Para 65)

…n indicate that all of them have been considered bearing in mind the limitations in doing so which the High Court referred to in Hili v The Queen (2010) 242 CLR 520. Most relevantly none of the cases involved five victims. Courts should seek to promote consistency in sentencing, and in doing so it is generally import…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 17 (Para 56)

…has regard to the particular circumstances of the case: R v Engert (1995) 84 A Crim R 67. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177-178], the relevant principles concerning these matters were gathered together by McClellan CJ at CL. He there said (with citations omitted):…
BP v R [2010] NSWCCA 159
Citation 18 (Para 102)

…“2. In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [102], Johnson J said: ‘“The need for the law to avoid an abstract or automatic response to the youth and immaturity of an offender is illustrated by sentencing cases in Victoria and New South Wales for the offence of dangerous driving causing death. The la…
R v Read [2010] NSWCCA 78
Citation 19 (Para 49)

…certainty of sentencing practice has emerged. Whilst guideline judgements are to be regarded as persuasive, they are not prescriptive (see R v Read [2010] NSWCCA 78 at [49]).”…
TG v R [2010] NSWCCA 28
Citation 20 (Para 141)

…cutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 at 474-475 [40]- [44], 477 [53]-[55]; SBF v R [2009] NSWCCA 231 at [141]- [160]; TG v R [2010] NSWCCA 28 at [33].”‘…
SBF v R [2009] NSWCCA 231
Citation 21 (Para 141)

…role on sentence: Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 at 474-475 [40]- [44], 477 [53]-[55]; SBF v R [2009] NSWCCA 231 at [141]- [160]; TG v R [2010] NSWCCA 28 at [33].”‘…
DPP v Neethling [2009] VSCA 116
Citation 22

…ously injures persons whilst driving dangerously play a limited and subordinate role on sentence: Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 at 474-475 [40]- [44], 477 [53]-[55]; SBF v R [2009] NSWCCA 231 at [141]- [160]; TG v R [2010] NSWCCA 28 at [33].”‘…
R v Whyte [2006] NSWCCA 75
Citation 23 (Para 30)

…In sentencing the offender I will have regard to the 2002 guideline judgment of the Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252. In that case, the court identified what it described as a typical case involving an offence of dangerous driving occasioning death or grievous bodily harm contrary to sections…
R v Koosmen [2004] NSWCCA 359
Citation 24 (Para 63)

…shment, associated as it is with genuine remorse, is also a factor to be taken into account and given some weight although as observed in R v Koosmen [2004] NSWCCA 359 at [32], “Genuine remorse and self-punishment do not compensate for or balance out gross moral culpability”.…
R v Price [2004] NSWCCA 186
Citation 25 (Para 44)

…or permanent injury to a single person, a greater number of victims will require an appropriate increment in the sentence to be imposed. In R v Price [2004] NSWCCA 186 at [38], Simpson and Howie JJ observed:…
R v Fidow [2004] NSWCCA 172
Citation 26 (Para 73)

…ng that period I must avoid counting again features of the offender’s subjective case I have taken into account in fixing the total term: R v Fidow [2004] NSWCCA 172 at [18]. Notwithstanding the existence of special circumstances, I am not permitted to reduce the non-parole period below what is necessary to punish t…
R v Kennedy [2000] NSWCCA 527
Citation 27 (Para 58)

…ortant, the offending is serious, and it is of a type frequently committed by persons of good character then it may be given less weight: R v Kennedy [2000] NSWCCA 527 per Howie J at [21]. All these features are prominent aspects of this case. Consequently, while his prior good character is not to be ignored, I will…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 5)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Road Transport Act 2013 (NSW)
1 mention (from Para 75)

Medium Neutral Citation:	R v Edwards [2023] NSWDC 530
Hearing dates:	21 November 2023
Date of orders:	1 December 2023
Decision date:	01 December 2023
Jurisdiction:	Criminal
Before:	O’Brien AM DCJ
Decision:	See paragraph 77
Catchwords:	CRIMINAL LAW – SENTENCE - Aggravated dangerous driving occasioning death – where five young people died - excessive speed – abandonment of responsibility as a road user – importance of general deterrence – less weight to youth - application of guideline judgment in Whyte – objective seriousness and moral culpability – remorse and acceptance of responsibility - self-punishment – development of serious and ongoing mental health conditions in the offender – accumulation and totality
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Byrne v R; Cahill v R [2021] NSWCCA 185 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 DS v R; DM v R [2022] NSWCCA 156 Elias v The Queen (2013) 248 CLR 483 Hili v The Queen (2010) 242 CLR 520 Osman v R [2020] NSWCCA 78 Paterson v R [2021] NSWCCA 273 Pender v R [2023] NSWCCA 291 Restricted judgment [2023] NSWCCA 10 R v Dawson [2022] NSWSC 1632 R v Eaton [2023] NSWCCA 125 R v Engert (1995) 84 A Crim R 67 R v Fidow [2004] NSWCCA 172 R v Greaves [2014] NSWCCA 194 R v Jarad Smith [2016] NSWCCA 75 R v Kennedy [2000] NSWCCA 527 R v Koosmen [2004] NSWCCA 359 R v McKeown [2013] NSWDC 22 R v Price [2004] NSWCCA 186 R v Wilkins (1988) 38 A Crim R 445 R v Whyte (2002) 55 NSWLR 252 Singh v R [2020] NSWCCA 353 Stanyard v R [2013] NSWCCA 134 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Rex (Crown) Tyrell Edwards (Offender)
Representation:	Counsel: Crown: Ms M Knowles & Ms C Hurford Offender: Mr G James KC & Mr E James Solicitors: Crown Ms E Sponza Offender Ms K Watson
File Number(s):	2022/00267407
Publication restriction:	Nil