Ede v The King - [2023] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2023-488-22

[2023] NZHC 1197

JAMES EDE

v

THE KING

Hearing: 16 May 2023

Appearances:

S Thode for the Appellant N Jamieson for the Crown

Judgment:

23 May 2023

JUDGMENT OF POWELL J

This judgment was delivered by me on May 2023 at am/pm pursuant to R 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

Solicitors:
Thode Utting – Albany, Auckland Crown MWIS - Whangarei

EDE v R [2023] NZHC 1197 [23 May 2023]

[1] In February 2023 James Ede was sentenced by Judge D J Orchard to 12 months imprisonment on two charges to which he had previously pleaded guilty, namely: 1

(a)Unlawful possession of a firearm,2

(b)Unlawful possession of explosives,3

[2] The charges arose in the course of an investigation of an aggravated robbery, in respect of which charges against Mr Ede and his co-defendant were subsequently dismissed at trial. During that investigation, Police executed a search warrant of the co-defendant’s house. In the course of the search, the police located a sawn-off shotgun underneath a bed. The gun was loaded with one round in the magazine. Police also found 15 rounds of ammunition in Mr Ede’s belongings.

[3] It is clear that notwithstanding the end sentence imposed it was designed by Judge Orchard to ensure that Mr Ede was in fact released on the basis of time already served. It is not in dispute that following his arrest Mr Ede had been remanded in custody for approximately 9 months and once this had been credited by Corrections as it was required to do meant that Mr Ede was released immediately following sentence.

[4] Notwithstanding this outcome Mr Ede nevertheless contends the sentence imposed was manifestly excessive. On behalf of Mr Ede, Mrs Thode submitted insufficient discounts were given by Judge Orchard for personal factors, including no guilty plea discount, nor was sufficient credit given for the time spent on restrictive electronically monitored (‘EM”) bail. Had Judge Orchard done so, Mrs Thode submitted even a notional term of imprisonment would not have been necessary. Although the outcome was superficially identical, what made the sentence imposed manifestly excessive was the inability of Mr Ede to rely upon the provisions of the Criminal Records (Clean Slate) Act 2004, if imprisonment was imposed on a sentence of imprisonment however notional, precludes eligibility under the Act.

1      R v Ede [2023] NZDC 2884 (“the District Court decision”).
2      Arms Act 1983 s 45(1) and 66. Mr Ede was sentenced to 12 months imprisonment on this charge.
3      Arms Act 1983 s 45(1) and 66. Mr Ede was sentenced to 6 months imprisonment on this charge, to be served concurrently.

[5] Ms Jamieson for the Crown acknowledged the lack of any specific guilty plea discount afforded to Mr Ede. Ms Jamieson nonetheless submitted that the overall 33 per cent discount between the starting point of 18 months and the end sentence of 12 months was appropriate,…

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 Ede v The King

Details

AGLC: Ede v The King [2023] NZHC 1197
Case: [2023] NZHC 1197
Decision Date: 23 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, James Ede appealed against his sentence of 12 months imprisonment, imposed by Judge D J Orchard. The charges related to unlawful possession of a firearm and explosives, which arose during an investigation of an aggravated robbery. Ede argued that the sentence was manifestly excessive, as it precluded his eligibility for the provisions of the Criminal Records (Clean Slate) Act 2004 if imprisonment was imposed. The court considered the appropriate end sentence, taking into account the 35% discount for personal factors and the time spent on electronically monitored bail. The court found that any sentence of imprisonment in this case would have been manifestly excessive, as it would mean Ede would not be able to take advantage of the Clean Slate Act. Consequently, the appeal was allowed, and Ede's sentence of imprisonment on both charges was quashed. In substitution, he was sentenced to six months' supervision on both charges, to be served concurrently.

The court's reasoning focused on the appropriate end sentence, taking into account the significant discounts for personal factors and the time spent on restrictive electronically monitored bail. The court found that any sentence of imprisonment in this case would have been manifestly excessive, as it would mean Ede would not be able to take advantage of the provisions of the Clean Slate Act. The court also noted that the time spent on restrictive bail was a mandatory consideration under the Sentencing Act 2002, and that there was considerable similarity between the conditions of home detention and restrictive bail. The court concluded that a sentence of imprisonment was not appropriate in this case, and that a community-based sentence would also have been inappropriate. The court found that Ede had already served the punitive element of any sentence that could be imposed.

Orders