DANIEL JAMES EDWARDS AND NEW ZEALAND POLICE
[2024] NZHC 2800
•27 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-191
[2024] NZHC 2800
IN THE MATTER of an appeal against sentence BETWEEN
DANIEL JAMES EDWARDS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 September 2024 Appearances:
M Faletanoai-Evalu and M Harris for the Appellant B W D Alexander for Respondent
Judgment:
27 September 2024
JUDGMENT OF OSBORNE J
Introduction
[1] Daniel Edwards (34 years of age) pleaded guilty to unlawfully taking a motor vehicle,1 unlawfully using a motor vehicle,2 unlawfully getting into a motor vehicle,3 two charges of driving while disqualified (third or subsequent),4 possession of methamphetamine,5 possession of cannabis,6 and possession of a knife.7
1 Crimes Act 1961, s 226(1). Maximum penalty: seven years’ imprisonment.
2 Land Transport (Motor Vehicle Registration & Licensing) Regulations 2011, reg 85(1)(a). Maximum penalty: a fine not exceeding $1,000.
3 Crimes Act 1961, s 226(2). Maximum penalty: two years’ imprisonment.
4 Land Transport Act 1998, s 32(1)((a) and 32(4). Maximum penalty: two years’ imprisonment or a fine not exceeding $6,000.
5 Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: six months’ imprisonment or a fine not exceeding $1,000.
6 Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: three months’ imprisonment or a fine not exceeding $500.
7 Summary of Offences Act 1981, s 13A. Maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.
EDWARDS v NEW ZEALAND POLICE [2024] NZHC 2800 [27 September 2024]
[2] Mr Edwards was sentenced by Judge Couch on 17 July 2024 to two years and three months’ imprisonment.8 Mr Edwards now appeals his sentence on the basis it was manifestly excessive. Specifically, Mr Edwards says the Judge gave insufficient weight to the evidence provided by Mr Edwards’ mother regarding his background, and information contained in the pre-sentence report, for which (as personal mitigating factors) Mr Edwards ought to have received credit.
Facts — the offending
[3] Mr Edwards was disqualified from driving for a period of 12 months on 3 May 2023. On around 30 January 2024, a vehicle was stolen from a car park at Riccarton Mall. Between then and 8 February 2024, Mr Edwards received the vehicle from an unknown person.
[4] On 8 February, Mr Edwards was driving the stolen vehicle. He was stopped and arrested by police at a petrol station. The vehicle was displaying two false registration plates. Upon a search of Mr Edwards, police found a folding knife along with small amounts of methamphetamine and cannabis.
[5] On 8 February 2024, a van was stolen from an address in Christchurch. On 10 February 2024, Mr Edwards was driving the stolen van in a Christchurch suburb. On 11 February 2024, police conducted a door knock at Mr Edwards’ home, where they found him asleep in the van which had false registration plates on it.
Sentencing decision
[6]Mr Edwards was sentenced by the Judge to 27 months’ imprisonment.
[7] The Judge adopted the charge of unlawfully taking a motor vehicle as the lead charge and took a starting point of 15 months’ imprisonment. On the charge of unlawfully getting into a motor vehicle, the Judge adopted a starting point of six months’ imprisonment.
8 Police v Edwards [2024] NZDC 16728.
[8] The Judge regarded the two charges of driving while disqualified as being very serious due to their being the 10th and 11th of their kind for Mr Edwards. A starting point of 15 months was adopted for those charges together. This was uplifted by two months for the remaining charges.
[9] The combined starting point of 38 months’ imprisonment was reduced to 30 months’ imprisonment for totality.
[10] The Judge applied an uplift of five per cent for Mr Edwards’ personal aggravating factors, in that the offending occurred while Mr Edwards was subject to a sentence of intensive supervision. An additional uplift of 10 per cent was applied for Mr Edwards’ relevant criminal history, being seven previous convictions for dishonesty and five previous convictions for controlled drugs offending and one for unlawful possession of a knife.
[11] The only mitigating factor the Judge considered was Mr Edwards’ guilty plea, for which he allowed a discount of 25 per cent.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.9 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepting sentencing principles”.10 It is appropriate for this Court to intervene and substitute its own view only if the sentence being applied is “manifestly excessive” and not justified by the relevant sentencing principles.11
9 Criminal Procedure Act 2011, ss 250(2) and 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
11 Ripia v R [2011] NZCA 101 at [15].
Appeal grounds
[13] Mr Faletanoai-Evalu, for Mr Edwards, submits a discount of at least 15 per cent was available to the Court for the matters raised in both the pre-sentence report and in the affidavit of Mr Edwards’ mother (the personal information).
Appellant submissions
Discount for background factors
[14] Mr Faletanoai-Evalu submits the Judge erred in finding there was no nexus between Mr Edwards’ early life and continued struggles with addiction on the one hand, and the current offending on the other.
[15] Mr Faletanoai-Evalu submits the personal information reliably paints a picture of an unstable and traumatising childhood with an early introduction to gangs, anti- social behaviour and drugs. This included sexual abuse as a young person and an introduction to Black Power and the Mongrel Mob where anti-social behaviour was normalised. Through these connections, Mr Edwards was also exposed to drugs which quickly spiralled into an addiction.
[16] Mr Edwards left school at age 15 which Mr Faletanoai-Evalu submits means Mr Edwards’ early relationships and experiences must be viewed through the lens of someone who has poor educational outcomes and limited problem-solving skills.
[17] Mr Faletanoai-Evalu submits Mr Edwards’ offending stemmed from his substance abuse and anti-social relationships and attitudes, all of which developed as a result of the instability and traumatic experiences of his early life. As such, Mr Faletanoai-Evalu submits there is a clear nexus between Mr Edwards’ background and his offending. Mr Faletanoai-Evalu invoked the standard set for the causative contribution of offending in Berkland v R not requiring an operative or proximate clause in every case.12 He invited comparison of Mr Edwards’ circumstances with
12 Berkland v R [2022] NZSC 143 at [109].
those of the defendants in R v Carr and Walker v Police.13 Mr Faletanoai-Evalu concluded that a discount of 15–20 per cent would be appropriate.
Consideration of home detention
[18] If the Court allows a discount of 15–20 per cent for Mr Edwards’ background factors, Mr Faletanoai-Evalu submits the Court would reach an end point on appeal of 24 months’ imprisonment or less. In other words, the starting point of 30 months would be adjusted down to the range of 16 to 19 months. In that case the Court must consider whether imprisonment is the least restrictive sentence outcome that is appropriate in the circumstances. Mr Faletanoai-Evalu seeks leave for Mr Edwards to apply for home detention to a suitable address if the Court grants this appeal.
[19] Mr Faletanoai-Evalu submits rehabilitation is a key consideration in this case, particularly as Mr Edwards’ acknowledges the need to address the “core” of his offending, which he submits is his methamphetamine addiction. Additionally, Mr Falentanoai-Evalu submits home detention would more effectively address concerns about the type of people Mr Edwards associates with.
Respondent’s submissions
[20] Ms Fiennes for the Police submits it was open to the Judge to find there was no causative connection between Mr Edwards’ background and his offending. She acknowledges the difficult background of Mr Edwards but notes there is no evidence Mr Edwards was using the stolen vehicles to pay for drugs. She also notes Mr Edwards was for a significant period able to work and successfully lead an offence-free life despite his past hardships.
[21] In relation to home detention, Ms Fiennes notes the comments in the pre- sentence report that Mr Edwards was not willing to provide his consent to home detention, and that Community Corrections had concerns about his ability to comply with such a sentence. She submits these matters would preclude a home detention sentence.
13 Carr v R [2020] NZCA 357; and Walker v Police [2022] NZHC 2430.
Discussion
The issue
[22] Counsel takes issue with neither the starting point nor the uplifts applied. The points of contention are whether the Judge ought to have given a discount for Mr Edwards’ background and, if so, did the failure to do so result in a sentence which was manifestly excessive.
Background factors — the principles
[23] For mitigation purposes, the Supreme Court in Berkland v R considered the standard as to degree of connection between background and offending is “causative contribution”.14 Although a causative contribution is a lower standard than operative or proximate “cause”, it must still be established. There will be a point at which background factors can no longer assist in explaining the offending.15
Mr Edwards’ circumstances
[24] The pre-sentence report and the affidavit outline, as Mr Faletanoai-Evalu says, Mr Edwards’ exposure to drugs and negative influences during his formative years. I accept these factors will have encouraged poor decision-making skills and contributed somewhat to the range of poor choices Mr Edwards has made in his life and his ongoing interaction with the justice system.
[25] That said, the majority of Mr Edwards’ previous convictions stem from driving offences, being in the main, driving while disqualified or on a suspended licence. In relation to the current offending, there is no indication Mr Edwards had acquired the vehicles to support his addiction. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment or commit dishonesty offences to fund a drug habit. That is not the case here.
14 Berkland v R, above n 12, at [109].
15 At [110].
[26] Mr Edwards’ case can be distinguished from both Carr v R and Walker v Police.16
[27] The defendant in Carr grew up in poverty, became affiliated with a criminal fraternity and youth gang, and subsequently adult gangs. He was severely disconnected from Te Ao Māori, served his first term of imprisonment when 17 years old, and experienced severe alcohol and drug abuse. Mr Carr’s whole life had been one of crime. There was a clear connection between his background and the offending which included aggravated robbery, aggravated assault, and theft. In contrast, Mr Edwards has spent a period of time leading an offence free life. There is not a clear connection between his background and the specific offending involved here.
[28] The defendant in Walker suffered extensive neglect and abuse as a child, had early exposure to cannabis and methamphetamine, and struggled with depression and anxiety which he used methamphetamine to regulate. Whilst the exposure to drugs is like that in Mr Edwards’ case, Mr Walker’s offending was clearly for the purpose of funding his methamphetamine addiction. As I have indicated, I do not consider that to be the case for Mr Edwards.
[29] I accept substance abuse remains an area of concern in Mr Edwards’ life and that he is motivated to engage with rehabilitative services. But I do not consider Mr Edwards’ methamphetamine use is, as submitted, at the “core” of his offending or causatively contributing to his offending.
[30] Mr Edwards’ background can help to explain his poor decision-making, but I find the link between his background and the offending less compelling than in other cases. It was therefore open to the Judge to find there was no causative connection.
[31] Had a causative connection been identified, it would have been necessary to assess appropriate credit for it.
[32] In Berkland itself, the Supreme Court granted the appellant a 10 per cent discount to recognise his history of deprivation and trauma and his clinically
16 Carr v R, above n 13; and Walker v Police, above n 13.
confirmed methamphetamine addiction. In this case, had some causative connection been established, it would have been of modest effect, warranting at the most a five per cent discount. Such a discount, if applied, would have led to a calculated 25.5 month end sentence as contrasted with the end sentence of 27 months in fact imposed. The differences would not have rendered the sentence imposed manifestly excessive.
Home detention
[33] The appeal as focused on a discount for Mr Edwards’ background factors will be dismissed. The end sentence therefore does not reach 24 months or less, and home detention cannot be considered as an alternative sentence.
Result
[34]The appeal is dismissed.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
Public Defence Service, Christchurch
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