R v Edwards; ex parte
[2004] QCA 477
•10 December 2004
SUPREME COURT OF QUEENSLAND
CITATION:
R v Edwards; ex parte A-G (Qld) [2004] QCA 477
PARTIES:
R
v
EDWARDS, Steven John
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S:
CA No 355 of 2004
DC No 1337 of 2004DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by A-G (Qld)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
10 December 2004
DELIVERED AT:
Brisbane
HEARING DATE:
25 November 2004
JUDGES:
McPherson and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. That the appeal is allowed and the sentences imposed on 10 September 2004 be varied;
(a) by deleting the sentences of three and a half years imprisonment imposed in respect of counts 2 and 6 of the indictment, those counts being for assault occasioning bodily harm;
(b) substituting instead sentences on each of those counts of two years and six months imprisonment;
(c) ordering that all sentences for counts 1 to 8 inclusive be served concurrently with each other but cumulatively upon the remaining unserved term of two and a half years imprisonment activated on breach of the sentence of four years imprisonment imposed on 23 August 2002 and partly suspended;2. That the 472 days served in custody up to 10 September 2004 be declared time already served in respect of the sentences imposed on counts 1 to 8 on the indictment.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL & INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted on pleas of guilty to two counts of stealing, two counts of assault occasioning bodily harm, one count of dangerous operation of a motor vehicle, one count of wilful damage, one count of deprivation of liberty, and one count of threatening an injury – where respondent received head sentence of three and a half years to be served concurrently with the remainder of a suspended sentence imposed with respect to similar offending – where significant risk that sentence imposed will not sufficiently protect the community by deterring respondent from repetition of the same offending behaviour – whether sentence manifestly inadequate
COUNSEL:
D L Meredith for the appellant
M Green for the respondentSOLICITORS:
Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent
McPHERSON JA: The applicant has an appalling history of savagely attacking young women with whom he becomes associated. This is the third instance of such conduct since 1998, to say nothing of a variety of other offences he has committed. That being so, the sentence of three and a half years imposed here was plainly inadequate when taken with the fact that it was made concurrent with the unserved suspended period of two and a half years of his now activated prior sentence of four years.
I agree with the reasons of Jerrard JA that this appeal should be allowed, and with the orders set out in paragraph [33] of his Honour’s reasons.
JERRARD JA: On 10 September 2004 Steven Edwards pleaded guilty to all counts on an indictment charging him with two offences of stealing, two of assault occasioning bodily harm, one of dangerous operation of a motor vehicle, one of wilful damage to property, one of deprivation of liberty, and one of threatening an injury with intent to prevent another person making a complaint to police. He was sentenced to varying terms of imprisonment, to be served concurrently. The longest sentence imposed was three and a half years. Those sentences were ordered by the learned sentencing judge to be served concurrently with a sentence of two and a half years imprisonment, being the previously suspended part of a four year sentence of imprisonment imposed on 23 August 2002, which previously suspended portion the learned judge ordered to be activated and served in full. The Attorney-General has appealed against those sentences, arguing that those imposed in September 2004 should have been ordered to be served cumulatively on the activated suspended sentence.
Mr Edwards committed the offences in May 2003 for which he was sentenced in September 2004, on dates mostly very soon after his 24th birthday. The learned sentencing judge was told by Mr Edward’s counsel that Mr Edwards had been diagnosed some years earlier with bipolar disease, and Mr Edwards had instructed counsel that the effect of the disease was to make him irritable and angry. Counsel told the learned judge that Mr Edwards regarded himself as a very volatile person, quick to respond to situations with anger. He had been prescribed drugs for his illness, and had not been taking them in the period leading up to May 2003 and the commission of the offences for which he was sentenced.
Offences committed in May 2003
The first offence – count 1, stealing - occurred on 10 May 2003 when Mr Edwards drove into a service station at Springwood, put 36 litres of fuel into his vehicle, and drove away without paying. On 19 and 20 May 2003 he committed the remainder of the offences over a period of about 20 hours beginning about 7.00 pm on 19 May. In the previous three months he had had a relationship with a 21 year old woman CM, which she had ended on 17 May 2003.
On 19 May 2003 CM went to Mr Edward’s house at Rochedale to deliver some flowers to Mr Edward’s mother, with whom CM got on well. CM and Mr Edwards did some shopping before going to CM’s residence and at about 5.30 pm CM suggested she should take Mr Edwards back to his home. He said he was not feeling well, became “snappy” towards her, and she drove him back to his house. As they approached it he told her he wanted to go inside and collect some things, and that he then wanted her to drive to Forde Road so that he could go for a walk. He entered his home, returned, and appeared upset, saying that he thought his life was over. At about 6.30 pm he got out of the car in Forde Road and walked off into bushland.
CM became concerned for his well being and returned to his residence to speak with Mr Edward’s mother. She told CM that he had taken a knife and some electrical cord with him when he left the house, and the two women became worried about his safety. They located him at about 7.00 p.m. near where CM had left him, and he appeared agitated and spoke again about killing himself. He hit the outside of CM’s car with the electrical cord.
Ultimately CM and Mrs Edwards persuaded Mr Edwards to re-enter CM’s car and as it drove back towards his house, and when CM’s car was travelling at about 60 kph, Mr Edwards suddenly applied the handbrake, causing the car to skid sideways. It came to a stop in the middle of the road, and Mr Edwards then left the vehicle and pulled CM out of the driver’s seat, screaming at her, and pushed her into the back seat. He immediately drove off, and while doing so punched the complainant on the right side of her head a number of blows (count 2, assault occasioning bodily harm of CM). CM felt immediate and considerable pain and both she and Mrs Edwards screamed at Mr Edwards to stop. He continued driving, doing so erratically at speeds of up to 100 kph, even though the speed limit was 60 kph; the car was swerving around on the road while Mr Edwards continued to punch CM. In Priestdale Road the car hit a traffic island and a “Keep Left” sign, mounted the traffic island, and became stuck there. That course of driving constitutes count 3, dangerous operation of a motor vehicle.
A number of people emerged from surrounding houses to help remove the car from the traffic island, but CM was too upset and fearful to say anything to them. She got back into the car with Mr Edwards and his mother, and he drove back to his house, where he told his mother to get out, which she did.
It was now about 8.15 p.m. Mr Edwards told CM to get into the driver’s seat and told her they were going for a drive. He directed her to drive down Rochedale Road, and as she did that he began punching her to the face again. She recalls feeling terrible pain. As well as punching her, he also punched the dash of the vehicle and pulled out some of its panels (count 4 – wilful damage). At some stage CM told Mr Edwards she could not keep driving because she could not see properly, since both her eyes were now beginning to swell shut as a result of his punches. At his direction she then got into the passenger side of the car, and he drove. His conduct in doing that marked the beginning of the period in which he unlawfully deprived her of her liberty (count 5).
He told her to stop crying and that he would stab her if she did not, making her further concerned for her safety, because she recalled the conversation with his mother and believed him to be still in possession of a knife. He drove them towards the Gold Coast and during the journey punched her at least another 20 times; and during the journey she asked him to take her to a hospital. His reply was:
“No I’m not taking you to a hospital. You think I’m stupid? They ask too many questions.”
Eventually he drove them to the home of a friend at the Gold Coast, where she went into the bathroom to attend to her injuries. At that time her left eye was completely closed over and bruised, and the right one also swollen and bruised. She was bleeding from the left eye.
Shortly afterwards she returned to the vehicle with him, where he punched her to the head again, and eventually he turned the vehicle around and drove back towards Brisbane. The punches she suffered on the journey to the Gold Coast, and the one when she returned after their short stop when there, constitute count 6, the second count of assault occasioning bodily harm. The learned sentencing judge was told that CM recalled little of the journey back to Brisbane, partly because of her injuries and partly because she is an insulin dependent diabetic who had not eaten or taken insulin that evening. She became weak and ill on the return journey. Eventually Mr Edwards arrived back at his own house at Rochedale, where Mrs Edwards was asleep. Mr Edwards then offered CM some Panadol and ice for her injuries, apologising to her, but telling her that what he had done was her fault, because she had “lied” to him. He remained in control of the keys to her car.
She eventually said she wanted to return to her own home and Mr Edwards insisted on going there with her, saying “Otherwise you’ll go see your mum and the first thing she’ll do is ring the cops.” When they arrived at her unit she had to wait for about four hours before he eventually fell asleep, at which time she was able to get possession of the keys to her car and drive away. By then it was about 3.00 pm on 20 May 2003. She drove to her parent’s place of work, and was able to make contact with them around 3.45 pm. CM’s mother rang the police and arranged to meet them at CM’s flat. When CM’s mother got there, Mr Edwards was present outside the building. CM’s mother yelled at him to remain where he was because the police were on the way, and Mr Edwards said to CM’s mother:
“If she calls the cops I will kill her and youse.”
That statement forms the basis of count 7, threatening to do an injury to CM and her mother with intent to prevent CM making a complaint to the police.
CM was significantly bruised and in pain for a number of days thereafter. She was treated at hospital for multiple contusions to her face, including bilateral periorbital haematoma, bruising to her face and jaw, bruising and abrasions to upper parts of both arms, and to the palms of her hand.
To add insult to those injuries she suffered, a few days after those events when she decided to move from her flat, she noticed that a quantity of her property was missing, including a camera, a mobile phone, some gold rings, a set of keys, and a watch. Mr Edwards admitted by his plea to count 8 that he had stolen that property on a date unknown between 20 May 2003 and 7 June 2003.
The learned judge sentenced Mr Edwards to one year imprisonment on each of counts 1, 3, 4, 5, and 7; 18 months imprisonment on count 8; and three and a half years imprisonment on each of the charges of assault occasioning bodily harm, counts 2 and 6. Those were substantial sentences for those assaults, but each count covered a period in which Mr Edwards subjected CM to a prolonged assault with his fists, and when driving a car, adding the danger of losing control of the car to the injury CM was suffering from his loss of self control.
The Attorney-General complains that those sentences should have been made cumulative on the suspended sentence activated by the learned judge because that suspended sentence was imposed for similar conduct indulged in by Mr Edwards, and for which he received the partly suspended sentence; which itself was imposed for offences which were the second time that Mr Edwards had behaved like that. Further, his general criminal history is appalling. He had a number of convictions when a child, including for wilful damage to property (two offences), stealing, unlawful use of a motor vehicle (six offences), and attempted unlawful use of a motor vehicle. While a child he had been ordered to serve detention on two separate occasions, and placed on probation on two occasions.
Offences committed in 1997 and 1998
On 23 November 1998 he was sentenced to a total of two and a half years imprisonment, with 66 days declared time already served. The offences for which he was sentenced in November 1998 included:
· seven charges of unlawfully using a motor vehicle;
· two charges of stealing;
· six charges of assault occasioning bodily harm;
· one of deprivation of liberty;
· one of stealing from a person;
· two of common assault;
· two of wilful destruction of property.
The offences of stealing and unlawfully using a motor vehicle occurred in the period from 19 May 1998 to late July 1998. The offences against the person of assault, deprivation of liberty, and stealing from a person occurred in September and October 1997.
The Crown described the latter offences to the learned judge on 10 September 2004 in the following terms:
“Your Honour, essentially the assaults and – or the offences of violence occurred over two days and involved the prisoner’s girlfriend who had informed him she had wanted to leave the relationship and also members of her family. Your Honour, considering the current matters I will go into a little bit of detail about those facts. Essentially, on one occasion the prisoner choked the complainant, placing his hands around her throat – the complainant was the accused’s girlfriend – telling her he would not stop until she agreed to stay with him. Eventually, after almost losing consciousness she agreed to stay and he stopped. He then made threats to burn her belongings and her parents’ house if she left.
The following night after an argument whilst out they were walking towards a taxi. The prisoner dragged her into an alleyway and again choked her by placing his hands around her throat. He then grabbed her hair repeatedly, smashing her head into the ground. Friends of the defendant attempted to intervene, however, he told them in no uncertain terms to go away before returning to choking the complainant. The complainant, however, did manage to scream at one stage and security staff then intervened. However, the prisoner stole the complainant’s hand bag which is the stealing from the person, taunting her with it before later discarding it in bushland.
The complainant following that incident immediately returned to her parent’s home. However, the prisoner followed and when confronted by the parents at the front door headbutted the complainant’s mother, knocking her to the ground, before assaulting the complainant’s father by repeatedly punching him to the face and also knocking him to the ground. From that assault he suffered two fractured cheek bones and damage to the nerves under his eye.
The complainant then ran - that is the girlfriend – then ran outside to help her parents and the prisoner punched and again choked her by placing his hands around her throat. The complainant’s 16 year old sister then ran out to help the complainant and the prisoner punched her to the stomach causing her to double over. Following this incident he then left. Following this incident the prisoner repeatedly made threats to harm the complainant and her family if she did not continue to date him.”
Mr Edward’s criminal history revealed that those serious offences against the person were all committed shortly before he was sentenced to four months imprisonment, with parole recommended after two months, on 28 November 1997 in the Beenleigh Magistrates Court. He would have been released from custody no later than February 1998, and had committed the serious offences on his ex-girlfriend and her family within about 10 months of that release. The property offences for which he was sentenced in November 1998, committed in the period May – July 1998, would almost certainly have been committed when he was on bail in respect of the charges for offences against the person.
Offences committed in 2000 and 2001
Mr Edwards must have completed his two and a half year sentence of imprisonment in or around April 2000, if not earlier. He remained in the community until 9 April 2001, for about a year. In that period he committed the offences to which he pleaded guilty on 23 August 2002, and for which he received sentences of varying lengths, with the longest being one of four years imprisonment, such sentences to be suspended after he had served 18 months. Five hundred days of pre-sentence custody between 9 April 2001 and 21 August 2002 were declared time already served, and he was therefore released from custody at the end of September 2002.
The offences for which he had received that partly suspended sentence included:
· three counts of breaching bail undertakings;
· unlicensed driving;
· entering a dwelling to commit an indictable offence (on 4 March 2001);
· assault occasioning bodily harm (6 offences, committed on various dates, those being 23 February 2001, 4 March 2001, and 1 April 2001);
· receiving stolen property (on 5 August 2000);
· unlawful use of a motor vehicle (three offences, committed on 6 April 2000 and 17 October 2000);
· common assault (on 19 August 2000);
· wilful damage (two offences, committed on 19 August 2000);
· fraud – committed on 3 April 2000.
The dates on which those offences were committed evidences that Mr Edwards was at liberty by April 2000 and committing property offences. The offences of personal violence he committed in February, March and April 2001 were described on 10 September 2004, by the Crown Prosecutor in these terms:
“That involved six complainants on, essentially, three separate occasions, and included punches and kicks as well as striking one complainant to the head with a brick, causing all of the complainants bodily harm. Again concerningly, one of the complainants included his then girlfriend who he punched, head butted, poured hot tea and cleaning agents over before head butting her again, knocking her to the ground. Other complainants included members of her family.”
Mr Edwards has thus demonstrated a pattern of very serious behaviour in which he forms a relationship and then engages in prolonged, excessive, cruel, and physically dangerous abuse of the person with whom he had formed that relationship, and members of that other person’s family. He also regularly enough steals other people’s property. His conduct could be described as utterly self indulgent behaviour without any respect or care for other people or their possessions. Leniency extended to him in the past has not resulted in any improvement, and he has re-offended twice with serious attacks on other vulnerable people within a year of release.
The learned sentencing judge was informed by counsel that since Mr Edwards had been last admitted to prison he had been diagnosed as a schizophrenic. Counsel informed the learned sentencing judge that Mr Edwards was now taking medication, Zyprexa, for both of his diagnosed conditions, and that Mr Edwards described himself as being quite stable. However, Mr Edwards had also instructed his counsel that his medical or mental difficulties had nothing to do with the commission of his offences in May 2003. Rather, Mr Edwards was using amphetamines at that time, and described himself to counsel as accordingly being quite labile and given to wild fluctuations in mood for no apparent reason. He also instructed counsel that he became violent with CM because she had assaulted him, although he did not claim a defence of either provocation or self-defence. What he said was that each had been violent on occasions to the other.
The sentencing judge was also told that Mr Edwards had left school after year 10 and had qualified as a mechanic, despite his difficulties with unlawful consumption of drugs. The learned judge was told that Mr Edwards was not only now taking his prescribed medication, he was not taking any non-prescribed medication.
The essence of the submissions made on his behalf to the learned sentencing judge, and relied on by his (different) counsel in this appeal, is that Mr Edwards had already spent 472 days (one year three and a half months) in custody, solely in respect of the offences to which he had pleaded guilty. His counsel accepted that it was just that the learned judge should activate the entirety of the two and a half years remaining unserved of the four year sentence imposed on 23 August 2002, and that that two and a half years be served cumulatively on whatever term of imprisonment was imposed for the offences to which Mr Edwards had just pleaded guilty. Counsel’s submission was that the likelihood was that Mr Edwards would not obtain any post prison community based release for any part of that activated two and a half years. Accordingly, he would spend a minimum of three years nine and a half months in custody; the 15 and a half months already spent in custody equated to a notional sentence of two and a half years imprisonment in which Mr Edwards had been notionally released at the half way point or just after it. By that means counsel arrived at the submission that the sentences actually imposed, namely three and a half years for the offences admitted to on 10 September 2004, to be served concurrently with the two and a half years, had an effect similar to a sentence of two and a half years imprisonment for those offences made cumulative upon the two and a half year activated sentence.
I respectfully observe that that submission was carefully and thoughtfully presented to this court, and it persuaded the learned sentencing judge, as that judge put it, to measure and balance sternness and mercy. For that reason the judge ordered that the sentences be concurrent.
The effect of the sentences imposed by the learned judge is that the punishment for the offences he committed in May 2003 is actually limited to the 15 and a half months Mr Edwards spent on remand for those. That time cannot be declared or considered in respect of the two and a half year activated sentence. The learned judge declared that the 472 days (the judge declared 471) was time served under the sentences for the offences to which he had pleaded on 10 September 2004, and Mr Edwards accordingly only had two years, two and a half months at most of that sentence left to serve on and from that day. He has a parole eligibility date of 18 April 2005, that being the half way point of his three years nine and a half months, which unbroken period of imprisonment began on 28 May 2003. (The learned judge made no recommendations regarding parole eligibility).
In my respectful opinion there was a sentencing error in confining the term of Mr Edward’s imprisonment for his May 2003 offences to the period on remand, although that was not necessarily the learned judge’s intention. The error lies in the significant risk that that sentence, while merciful, will not sufficiently protect the community by deterring Mr Edwards from repetition of the same behaviour; particularly should he succeed in obtaining parole. The risk to the community comes from the risk of his again ceasing to take prescribed medication when again in the community, and the risk of his taking non-prescribed drugs. Mr Edwards was clearly aware of the effect of doing both of those things in May 2003, but he still did them. Other people suffered the consequences, and now Mr Edwards has to.
The learned sentencing judge also described the decision to make the sentences the judge imposed concurrent as being a concession because Mr Edwards had pleaded guilty and had done so quite promptly, thus saving the trouble of a trial. I infer from those remarks that the sentences totalling three and a half years were head sentences the judge imposed, before taking into consideration the pleas of guilty and other matters mitigating against severity. It is therefore appropriate to have regard to those matters and to reduce the 42 months imprisonment the learned judge ordered by approximately a third, to a sentence of two years six months in respect of the two counts of assault occasioning bodily harm, and to order that all sentences imposed on 10 September 2004 be served cumulatively upon the two and a half years of the activated suspended sentence.
Accordingly, I would order:
1. That the appeal is allowed and the sentences imposed on 10 September 2004 be varied;
(a) by deleting the sentences of three and a half years imprisonment imposed in respect of counts 2 and 6 of the indictment, those counts being for assault occasioning bodily harm;
(b) substituting instead sentences on each of those counts of two years and six months imprisonment;
(c) ordering that all sentences for counts 1 to 8 inclusive be served concurrently with each other but cumulatively upon the remaining unserved term of two and a half years imprisonment activated on breach of the sentence of four years imprisonment imposed on 23 August 2002 and partly suspended;
2. That the 472 days served in custody up to 10 September 2004 be declared time already served in respect of the sentences imposed on counts 1 to 8 on the indictment.
PHILIPPIDES J: I agree with the reasons for judgment of Jerrard JA and with the orders proposed.
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