R v Edwards [2019] NSWDC 825

District Court New South Wales

Medium Neutral Citation: R v Edwards [2019] NSWDC 825 Hearing dates: 1 & 12 November 2019 Decision date: 13 November 2019 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: I find the breaches proven. I revoke the s 12 bond. I fix a term of imprisonment of one year 9 months; non parole period 6 months. Catchwords: CRIME – sentence – called up for breach of s 12 bond – admitted – domestic violence offences - common assault – intimidation – use carriage service to threaten to kill – deterioration of existing mental conditions – willingness to address drug use and comply with supervision requirements. Legislation Cited: Crimes (Sentencing Procedure) Act Drug (Misuse and Trafficking) Act 1985 Cases Cited: Cooke (1993) 65 ACrimR 595 Cooke v R [2007] NSWCCA 184 R v Marston (1993) 60 SASR 320 R v Hemsley [2004] NSWCCA 228 DPP v De La Rosa [2010] NSWCCA 194 Category: Sentence Parties: Regina (Crown) Tyrel Edwards (Offender) Representation: Counsel: Mr Michie (Offender) - hearing Mr Pierce (Offender) - decision

Solicitors: Mr A Fiorenza (DPP) File Number(s): 2016/00156324 Publication restriction: No

Judgment 1. Tyrel Edwards appears today having been called up in respect of alleged breaches of a s 12 Crimes (Sentencing Procedure) Act bond that I imposed on 21 November 2017 in relation to an offence contrary to s 25A Drug (Misuse and Trafficking) Act 1985. I imposed a sentence of one year nine months and I suspended it pursuant to s 12 of the Act. 2. I received notification some few months ago that there had been alleged breaches by reason of offences which are currently before the Local Court. Those matters have been listed a few times for sentence and are now, as I understand it, listed for next Friday. I understand the Local Court to be putting off dealing with those matters until the Court was aware of what the District Court was going to do with the matters for which the offender was on a bond at the time of the Local Court offences. 3. In this matter I have been aided by two different counsel representing the prisoner. Amongst the material provided to me, putting aside the Crown bundle for the moment, are an apology letter from the prisoner, a letter from the prisoner's mother, psychological reports, three in number, dated 18 October and 30 October 2018 and 27 September 2019 and a report from a psychiatrist working with the Aboriginal Legal Service dated 6 February 2019. I do not propose to summarise that material but what is apparent is that since the prisoner was before me there has been a significant deterioration in his mental health and I am prepared to accept a diagnosis made by the psychiatrist of an existing complex post-traumatic stress disorder, a form of schizophrenia or schizoid condition, and a polysubstance abuse disorder, which I was aware of when he last appeared before me for sentence in November 2017. 4. The offences that constitute the breaches, which are admitted by the prisoner, are ostensibly serious matters. They involve elements of domestic violence. They include offences of common assault, an offence of intimidation and an offence of use carriage service to threaten to kill. I am mindful of the fact that the prisoner is pleading guilty to those charges as I understand it in the Local Court and I have had available to me facts in relation to those matters. 5. The repealed s 98 of the Act dealing with call-ups in relation to various types of bonds makes it very clear that there are only very limited circumstances in which an offender may, having committed offences while subject to a bond, evade revocation of that bond if the breaches are found to exist. Section 98(3) provided that the Court "must" revoke the bond unless it is satisfied either that the failure to comply with the conditions of the bond was "trivial in nature", and that does not apply here, or that there are "good reasons" for excusing the offender's failure to comply with the conditions of the bond. As I understand it, it was sought to be argued to some extent that the mental condition of the offender at the time of the commission of the offences currently before the Local Court may provide a good reason for excusing his failure to comply with the bond. The fact that he had been in custody since January, now coming up to ten months since he was arrested, may be another reason. It seemed to me, with respect, that the Court taking those matters into account in this particular case could not decline to act to revoke the bond. 6. Section 99 as it then operated is of relevance. The current s 24 of the Act is of relevance. I have had regard to the period of time that the prisoner has been in custody. I have also had regard to some authorities that have been brought to my attention in the course of the proceedings, particularly the decision of the New South Wales Court of Appeal in Cooke and a South Australian from 1993 of Marston which is reported in the Australian Criminal Reports at (1993) 65 ACrimR 595. That judgment did not appear to me to be of much assistance to this prisoner's situation. 7. As the Court of Appeal held in the matter of Cooke the principal matter for consideration is the conduct giving rise to the breach and whether that conduct can be excused. Whilst there is a causal relationship of at least part of the offending before the Local Court with the prisoner's mental condition it is not such as to in my view, permit excusing the offender's conduct. It is to be pointed out that Cooke is a somewhat confusing judgment in some respects because amongst the views of the Court in determining the matter was a conclusion that the subjective features of an offender were irrelevant to the decision as to whether good reasons exist to excuse the breach. One might see in a particular case an overlapping of the subjective circumstances of an offender and the explanations for the offending constituting a breach that might otherwise give rise to good reasons. But I am not here to second guess the Court of Appeal and I am happy to accept, as I must, that I am bound by the reasoning of their Honours in that decision. 8. What I propose to do, taking into account the mental health issues of the prisoner, in the context of the considerations relevant to s 44 of the Act, and noting of course what has been said about the relevance of mental health or mental disability issues to sentencing in cases such as De La Rosa from 2010, the earlier the decision of Hemsley from 2005, and the various decisions that McClellan J refers to in De La Rosa such as Israil, Letteri, Engert and the like, is to, in revoking the bond, backdate the sentence of imprisonment which must inevitably follow, that is one year and nine months. On making a finding of 'special circumstances' fix a non-parole period of six months to commence on the date that the offender came into custody and that was 25 January 2019 and fix an expiry date of 24 July 2019 then leave the matter for the Magistrate to review the case in the context of the fact that the prisoner theoretically was eligible for release to parole three or four months ago. 9. Just one matter arising from the evidence I need to refer to now. One of the matters that caused the case to be adjourned was the unavailability of a Sentencing Assessment Report. I now have a Sentencing Assessment Report, not prepared for me, because there was not enough time to prepare a report for this Court, but a report prepared for the Sutherland Local Court for the proceedings proposed to commence on 8 November 2019. I have taken into account what that report provides. It notes his long-term history of drug use and deteriorating mental health, his offending that is the subject of the breaches is certainly concerned with those matters. 10. The charges before the Local Court are his first domestic violence offences although they are, as pointed out, potentially serious matters. He was un-medicated at the time of the offending. He is motivated to address his drug use and willing to comply with the requirements of supervision. He had been subject to supervision by the Service but for some reason he was released to supervision obligations on 11 April 2018 whilst he was subject to the conditions of the bond that I fixed. He is assessed as being a medium to high risk of reoffending but it should be noted also that before the current offending that is before the Local Court he had been making progress until there had been this substantial deterioration in his mental health, which is a development that has occurred since he appeared before me. So, that report provides some comfort and support for the course that I take. It does not provide a basis for excusing the breaches of course and I do not propose to do that, as I said, having regard to the terms of s 98 as it then stood of the Act, but it does give me comfort in determining the non-parole period. 11. Thus, the orders I make it will take me some small time to have these prepared, they may be prepared later in the day. But your client is bail refused in relation to the other matters, is he not? Yes. So it will not affect his current custody. But the orders that I make in relation to this matter, if I might state them slowly and I will write them out so that they can be written up, are: I find the breaches proven. I revoke the s 12 bond imposed on 21 November 2017. I fix a term of imprisonment of one year nine months to commence on 25 January 2019 expiring on 24 October 2020. I fix a non-parole period of six months commencing on 25 January 2019 expiring on 24 July 2019. I have lost the power, for a sentence of less than three years, to direct the offender be released to parole. But of course it is not a practical situation anyway because that non-parole period is now expired. 12. Any other matters, Mr Crown? 13. FIORENZA: No, your Honour. 14. PIERCE: Would you Honour consider taking out your remarks today to be available for the magistrate on Friday. 15. HIS HONOUR: Absolutely no chance of that happening. If I had the power to get something typed up for you I would but you can tell the Court what the order is. 16. PIERCE: Yes, as the Court pleases. 17. HIS HONOUR: It will be entered on JusticeLink this afternoon or today some time so it will be available for the Court to check. I can ask my associate to request that remarks be prepared but I would say almost no chance of being prepared by Friday. Are you going to appear at the Local Court? 18. PIERCE: No. 19. HIS HONOUR: Well, your colleague, he has been here to see what I have said and he can relate that to the Magistrate, I am sure faithfully, what I have said and certainly the order will be cast in stone by sometime later today when we get a chance to get away from the trial and do other things. 20. Now, Mr Edwards, what that means is that the non-parole period I have imposed has expired. Until a year or two ago we had power to direct that the person be released from their non-parole period if it was for a sentence of three years or less, if the total sentence was for three years or less. We do not have that power anymore but what it means is that the practical effect is that when you are sentenced in relation to the other matters the learned Magistrate can have regard to what I have ordered and determine in his or her wisdom whether, first of all, what terms of imprisonment are appropriate and, if so, determine the starting date. One would have thought the latest starting date the Magistrate would impose would be a starting date from the expiry of the non-parole period. If the Magistrate makes a finding of special circumstances then it will be within the Magistrate's power to fix a non-parole period that may expire at a time closer to the time you have already served in custody. But that is a matter for the Magistrate in the Local Court. Do you understand that? Right. Thank you, do you follow what has happened? 21. OFFENDER: Yes. 22. HIS HONOUR: Fine, well I wish you well for the future. I should also note for the purposes of the ex tempore remarks I made I have noted what counsel has said and which I am prepared to accept that the prisoner was not able to obtain medication whilst at large in the community at a time when he may have been vulnerable and that he has been placed on some medication that provides him with some assistance whilst in custody. I have taken those matters into account. Thanks Mr Edwards, good luck and you are excused, thank you.