R v Edwards - [2011] SASCFC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EDWARDS
[2011] SASCFC 33
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
29 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
The appellant was sentenced by a District Court Judge to imprisonment for eight years with a non-parole period of five years for two offences of rape – the District Court Judge allowed a discount of 10 per cent for an early plea of guilty made one week before trial – for an unknown reason the appellant was separately sentenced by a Magistrate, at an earlier hearing, to 18 months imprisonment for the assault that preceded the rapes – the District Court Judge ordered that the sentence and non-parole period for the rapes be cumulative upon the sentence imposed by the Magistrate – whether the sentence imposed by the District Court Judge was manifestly excessive – whether the reduction of 10 per cent was inadequate.
Held (Doyle CJ with Duggan and Gray JJ concurring): appeal allowed – the appeal succeeded only to correct a formal error made by the District Court Judge – the District Court Judge should have directed that the head sentence of eight years operate from the day on which the appellant became entitled to release on parole, rather than on the date of the expiry of the sentence imposed by the Magistrate – in all other respects the appeal against sentence failed.
Correctional Services Act 1982 (SA) s 66, s 68, s 68(4), s 69, s 74A, s 74A(a); Criminal Law (Sentencing) Act 1988 (SA) s 32, referred to.
R v Forrest (1986) 46 SASR 75; R v Byczko and Tichy (1985) 120 LSJS 190, discussed.
R v Hearn (2001) 80 SASR 175; R v Ford (2006) 95 SASR 133, considered.

R v EDWARDS
[2011] SASCFC 33
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: Mr Edwards appeals against a sentence of imprisonment for eight years, in relation to which a District Court Judge fixed a non-parole period of five years. The sentence was imposed in respect of two counts of rape of Ms J. The Judge directed that the sentence be cumulative upon a sentence of imprisonment for 18 months imposed by the Magistrates Court in respect of certain other offences.
Mr Vadasz, counsel for Mr Edwards on appeal, complains that the sentence is excessive, standing alone and when taken in conjunction with the sentence imposed by the Magistrates Court. He also complains that a reduction of 10 per cent on account of Mr Edwards’ guilty plea is inadequate.
Mr Press for the Director of Public Prosecutions acknowledges an error in the form of the sentence, but submits that there is no error of substance.
It is necessary to correct the error of form, which I will identify in due course. Otherwise I would…

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 [2011] SASCFC 33
Case: [2011] SASCFC 33
Decision Date: 29 April 2011

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Mr. Edwards, by a District Court Judge for two offences of rape. The appellant had also been sentenced by a Magistrate for an assault that preceded the rapes. The District Court Judge ordered that the sentence for the rapes be cumulative upon the sentence imposed by the Magistrate. The appellant argued that the sentence of eight years imprisonment with a non-parole period of five years was manifestly excessive and that the 10 per cent discount for his early plea of guilty was inadequate. The appeal was heard by Doyle CJ, Duggan and Gray JJ.

The court was required to determine whether the sentence imposed by the District Court Judge was manifestly excessive and whether the discount for the early guilty plea was insufficient. Additionally, the court needed to address a formal error in the sentencing order concerning the cumulative nature of the sentences.

The court allowed the appeal, but only to correct a formal error. Doyle CJ, with Duggan and Gray JJ concurring, found that the sentence of eight years imprisonment was within an appropriate range and not manifestly excessive, given the brutality and degrading nature of the offences. The court also held that the 10 per cent reduction for the early plea of guilty was not inadequate, considering the timing of the plea and the appellant's lack of prior offences of similar seriousness. The formal error identified was that the District Court Judge should have directed that the head sentence of eight years operate from the date the appellant became eligible for parole, rather than from the date of expiry of the Magistrate's sentence. In all other respects, the appeal against sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

It is necessary to correct the error of form, which I will identify in due course. Otherwise I would dismiss the appeal for the reasons that follow.Facts Mr Edwards and Ms J met in the latter part of 2008. They went out together, and a sexual relationship developed, but they did not live together. In January 2009 Mr Edwards assaulted Ms J, and the relationship came to an end. Mr Edwards was charged with that assault. Ms J still cared for Mr Edwards. This led to his bail conditions on the charge of assault being varied to allow him to be with Ms J, except when he was intoxicated. Mr Edwards was living with another woman. In early July 2009 he separated from her, and moved into the house occupied by Ms J. On 18 July 2009 Mr Edwards telephoned Ms J, and asked her to collect him from a club where he was drinking. She did so. They then spent some time together at the club. Mr Edwards was affected by alcohol. Then they went to a hotel for a short time. Ms J then drove Mr Edwards to her home. Mr Edwards was in an angry mood, apparently as a result of an argument he was having at the time by telephone with the woman with whom he had been living. On arrival at the house, Ms J unplugged the house telephone. There had been a previous incident when Mr Edwards had run up a substantial bill on the phone. Mr Edwards took Ms J’s mobile phone, and used it to make a call or calls. Ms J went to bed. Shortly thereafter, Mr Edwards came into the bedroom and gave Ms J what I can only describe as a severe beating. Nothing she had done provoked this, except her action unplugging the phone, if one can call that an act of provocation. The beating continued over some time, accompanied by verbal abuse, spitting, kicking and biting. This assault was charged in separate proceedings from the rape proceedings, and came before a Magistrate with other charges. I mention this here because for present purposes it is necessary to bear in mind that the assault that I have just described was not to be taken into account in the proceedings before the District Court Judge. I have not gone into all of the details of the assault, but I emphasise that it was severe and particularly nasty. Ms J tried to clean the blood off herself, and then returned to bed. Mr Edwards came into the bedroom again. Over Ms J’s protests and resistance, he had intercourse with her. While this was happening he spat at her and bit her lip. He threatened to cut her with a knife “next time”. He made other threats. Then he told Ms J to have a shower. She again tried to clean herself up. She returned to her bedroom to find Mr Edwards asleep there. Ms J fell asleep on the bed. In the morning Ms J tried to get help using text messages on her mobile phone. She was afraid, understandably, to allow Mr Edwards to know what she was doing. Mr Edwards awoke and pulled Ms J back on to the bed. She reluctantly submitted to intercourse with him again. Not surprisingly, she was afraid to resist. Mr Edwards interrupted the intercourse to urinate on Ms J.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I have gone into the facts in some detail to indicate the brutality on the part of Mr Edwards, and the degrading manner in which he treated Ms J. Ms J suffered cuts and significant bruising. It took some time for the soreness and bruising to cease. She incurred expenses for medical treatment, and for cleaning her bed linen and other items.Consideration of submissions It is unfortunate that the Magistrate before whom the assault charge came sentenced Mr Edwards, rather than committing him for sentence in the District Court. The circumstances in which this happened are not clear. For the assault which preceded the intercourse, the Magistrate sentenced Mr Edwards to imprisonment for nine months. But for his plea of guilty it would have been 12 months. The total period of imprisonment, including sentences for other offences, was 18 months and one day. The Magistrate fixed a non-parole period of nine months. The imprisonment and non-parole period commenced from 19 July 2009, when Mr Edwards was first taken into custody. As I said earlier, it is necessary to put this assault to one side. In that respect Mr Edwards is fortunate. The Magistrate’s sentencing remarks suggest that he was not given the full details of the assault. Each offence of rape was serious. The fact that the rape occurred in the course of a relationship does not mitigate the seriousness of the offence at all. The two offences are quite distinct, separated by a period of some hours. Apart from the force used, Mr Edwards treated Ms J in a degrading manner. Mr Edwards pleaded guilty about one week before trial. Mr Vadasz submits that Mr Edwards had virtually no memory of what he had done, and that explains the delay. Whatever the reason, the reduction for the plea of guilty had to be limited, and in my opinion the sentencing Judge did not err in that respect. The Judge accepted that Mr Edwards was remorseful. He had written a letter of apology, but this was not written until 24 September 2010, after the plea of guilty. The Judge accepted that Mr Edwards wanted to rehabilitate himself. But while one can accept that that is his wish, it remains to be seen whether it will be achieved. He has a significant record of offending, but the offences are mainly traffic offences. He has no previous offences of this kind or of this seriousness. He has had the benefit of suspended sentences in 2005 and 2008. He has a reasonable work record, and appears to be well regarded by his acquaintances. He was assessed by a clinical psychologist, who reported that with appropriate treatment programs he was more likely to achieve his aim of behaving responsibly. The psychologist reported that at the time of the offending Mr Edwards probably suffered from a depressed mood and alcohol dependence. Allowing for the circumstances of the offending, and the matters that I have summarised, I consider that the sentence of eight years’ imprisonment was within an appropriate range. It was certainly not manifestly excessive. In brief, the offences were very serious, Mr Edwards does not have a good record, there are some mitigating circumstances but they are not particularly powerful. There was no basis for reducing the sentence having regard to considerations of totality. For these reasons the appeal against the sentence must fail.An error of form