R v Edwards [2013] NSWDC 329

District Court New South Wales

Medium Neutral Citation: R v Edwards [2013] NSWDC 329 Decision date: 28 February 2013 Before: Cogswell SC DCJ Decision: For each of the 3 offences, a sentence of 6 months imprisonment, suspended. Catchwords: CRIMINAL LAW - Appeal from Local Court - reconsideration of imposition of suspended sentence - genuine but unsuccessful efforts at rehabilitation, offences relatively low in seriousness, prior successful suspended sentence, strong motivation to stay out of gaol - increase in sentences imposed in Local Court - criminal record and other options exhausted. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 11, 12. Category: Principal judgment Parties: Kristy Leigh Edwards (appellant) Regina (respondent) Representation: Solicitors: A Wong, Aboriginal Legal Service (NSW/ACT) Limited (appellant) R Barrington, Office of the Director of Public Prosecutions (respondent) File Number(s): DC 2011/00175472; DC 2012/00045732; DC 2012/00181638.

Judgment 1Kristy Leigh Edwards came before me at Bourke on 25 October 2012. I delivered a short judgment on that day explaining why I was adjourning her case. I adjourned it under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) so that she could convince me that she was on the path to rehabilitation. 2Her case has come before me a number of times since then and the progress has been unsatisfactory. What I mean by that is that although she has apparently been making attempts to get into a facility, she has not turned up to Court on most of the times that I listed her case. In the end I had no choice but to issue a Bench Warrant. She was arrested and has come before the Court at Dubbo today. She is appearing by video link before me. I am sitting in Sydney and she is represented by Mr A Wong here in Sydney. 3I was inclined to dismiss her appeal and to direct that she therefore serve the balance of the sentence which was imposed by the magistrate. Mr Wong however pointed out that she had been making genuine efforts to secure a place in a rehabilitation centre but places were not available because of the time of the year. He pointed out, significantly, that the seriousness of the three crimes she committed was relatively speaking quite low. He has a point there because the shoplifting involved low price domestic items. However as I pointed out in my earlier judgment, the crime that she has been convicted of does deal with property under the value of $2,000. 4Significantly, Mr Wong pointed out that his client had received a suspended sentence in 2010 and had not breached that. I was attracted to the idea of giving her a suspended sentence back in Bourke. Mr D Pheeney who then appeared for her thought that such a sentence might be setting her up to fail. What he meant was that for a client who has a criminal record and gets into trouble reasonably frequently, a suspended sentence may mean that she is more likely to breach the bond and end up in gaol again. That was the reason I did not impose it then. 5But the combination of the points made by Mr Wong - namely that the crimes were relatively low in seriousness and Ms Edwards has had a successful suspended sentence before - incline me to reconsider it as an option. In addition Mr Wong pointed out that Ms Edwards has a strong motivation for staying out of gaol. She wants to keep her Housing Commission home. There is a Tribunal hearing about that on 13 March. It is important for her to keep her home because she wants to obtain the return of her children who have been taken away from her by the State authorities. She also has a sick father. 6Ms R Barrington, who appears for the respondent Director of Public Prosecutions, realistically expresses concerns given Ms Edwards' criminal history. She raises the real prospect of Ms Edwards re-offending. I agree with her that that is a risk. 7On balance I am persuaded by Mr Wong that I should impose a suspended sentence. However I propose to increase the overall sentence from effectively 4 months to effectively 6 months and I propose to suspend the 6 month sentence. I appreciate that increasing the sentence runs against the proposition that the offences were low in seriousness. However in increasing the sentence I have borne in mind Ms Edwards' criminal record and the fact that other options have been exhausted. She really leaves the Court with very few options. I have warned Ms Edwards that the effect of increasing the sentence will be that if she breaches the bond attached to the suspended sentence, she is at risk of serving more time in gaol than that imposed by the magistrate. The additional time is not only the 6 months which I impose but the time she has already served in custody which apparently amounts to some 1 month and 7 days. She is prepared to accept that risk. 8For each of the offences that Ms Edwards has been convicted of, I sentence her to 6 months imprisonment but under s 12 of the Crimes (Sentencing Procedure) Act 1999 I suspend the whole of the execution of that sentence for the whole of the period on condition that Ms Edwards enters into a good behaviour bond. The conditions of the bond are these: (1)That she be of good behaviour. (2)That she notify the registrar of the Court at Bourke of any change in her residential address. (3)That she attend Court if called upon to do so. (4)That she make herself available for supervision by the Probation and Parole Service and accept all reasonable recommendations and directions by any officer of that service. (5)She should report to the office of Probation and Parole Service at Bourke on or before Friday 8 March 2013. HIS HONOUR: Mr Wong and Ms Barrington before I explain the sentence to Ms Edwards, are there any other conditions that I should impose or any suggestions about the form of the sentence? Mr Wong? WONG: No your Honour. HIS HONOUR: Ms Barrington? BARRINGTON: No your Honour. HIS HONOUR: Okay, Ms Edwards you've got another sentence. In fact you've got three sentences. Do you understand that? OFFENDER: Yes I do. HIS HONOUR: They're 6 months each. Do you understand? OFFENDER: Yes. HIS HONOUR: I've suspended them so you should be released later on today. Do you understand that? OFFENDER: Yes I do. HIS HONOUR: All right, there are conditions. I've imposed a bond. You've heard me do that. The conditions are that you've got to stay out of trouble for 6 months, do you understand that? OFFENDER: Yes I do. HIS HONOUR: If you change your address, you've got to write to the Registrar of the Court at Bourke. You can turn up and write out and give the letter to him there if you like saying what your new address is, do you understand? OFFENDER: Yes I do. HIS HONOUR: And if you get something in the mail telling you you've got to turn up to Court, I don't want to have to send out the police or the sheriff again to arrest you. You've got to turn up. Do you understand? OFFENDER: Yes I do. HIS HONOUR: And the most important thing is that you turn up at Bourke Probation and Parole before Friday week, before tomorrow week, do you understand? OFFENDER: Yes I do. HIS HONOUR: And you've got to agree with what they suggest so far as supervision, do you understand? OFFENDER: Yes I do. HIS HONOUR: All right, there's a person there you know, is that right? One of the people you're dealing with? OFFENDER: Yes. HIS HONOUR: What's her name? OFFENDER: Debbie. HIS HONOUR: Debbie, is that right? And do you get on well with Debbie? Do you get on all right? OFFENDER: Yeah, yes. HIS HONOUR: All right, well you let Debbie help you and the idea is for you to stay out of trouble for six months, do you understand? OFFENDER: Yes I do. HIS HONOUR: All right, now I said, I'm not taking the risk, the community is taking the risk and the shopkeepers and people who run businesses in Bourke and Dubbo, I'm exposing them to the risk of letting you loose, do you understand? OFFENDER: Yes I do. HIS HONOUR: And I don't want you to break the bond, all right? OFFENDER: Yes. HIS HONOUR: If you break the bond, as you probably know, it is very hard for me not to send to gaol. The law is very strict. If you breach a suspended sentence bond, you've pretty well got to go to gaol and you'll probably end up serving longer than the magistrate gave you. Do you understand that? OFFENDER: Yes I do. HIS HONOUR: Okay Ms Edwards. Well you've got a lot to stay out of trouble for with your house, your dad and your children. And you let Debbie help you sort out your life, do you understand? OFFENDER: Yes I do. HIS HONOUR: Okay, anything else Mr Wong or Ms Barrington? WONG: No your Honour. HIS HONOUR: Okay, thank you both for your assistance and I'll now adjourn.