Ede v The King
[2023] NZHC 1197
•23 May 2023
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, while acknowledging any discount for time on restrictive bail was necessarily limited.
[6] Mr Ede’s appeal against sentence is governed by the Criminal Procedure Act 2011 (“CPA”). Section 250(2) provides I must allow his appeal if satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. In any other case, I must dismiss his appeal.4
The District Court decision
[7] Judge Orchard began her analysis by adopting a starting point of 18 months’ imprisonment on the basis of the authorities referred to her Honour. Judge Orchard noted that a starting point of two years could also be justified on the basis that the shotgun’s sole purpose was criminal offending.
[8] The Judge then considered mitigating and aggravating personal factors. The principal aggravating factor identified was Mr Ede’s history of criminal offending in Australia and a firearms offence to which he had been sentenced to four years imprisonment. That conviction led to Mr Ede being sent back to New Zealand, despite him having lived in Australia since he was very young. No uplift was specifically imposed by Judge Orchard for the Australian offending.
[9] Turning to mitigating factors, her Honour accepted it has been difficult for Mr Ede to settle into a new community but considered Mr Ede had been given significant support by his mother who travelled from Australia arranging accommodation with her sister for Mr Ede. Judge Orchard considered Mr Ede “blew” that opportunity by not respecting the aunt’s rules and had no sympathy with Mr Ede on that count.
[10] Judge Orchard reviewed a s 27 report prepared for Mr Ede to s 27 of the Sentencing Act 2002. The Judge summarised Mr Ede’s background and accepted
4 Criminal Procedure Act 2011, s 250(3).
some disruption to Mr Ede’s childhood had occurred as a result of him contracting meningitis which led to him missing school for a significant period, but overall was somewhat sceptical of the matters set out given the current support received from Mr Ede’s parents. To Judge Orchard, it appeared that drugs were the main driver of his criminal lifestyle and that this had started from an early age. Overall, her Honour gave a discount of five per cent for Mr Ede’s background.
[11] With regard to rehabilitation Judge Orchard recognised that Mr Ede had begun to make positive changes in his life, had complied with bail conditions and not been in further trouble.5 In addition, Mr Ede has engaged with an organisation involved in assisting those with drug and alcohol abuse problems. As a result, her Honour gave a further discount of 10 per cent.
[12] Without considering any discount for Mr Ede’s guilty plea or otherwise calculating the end sentence Judge Orchard then explained:6
But the thing that really is going to make a difference here is the time you spent in custody. You spent about nine months, possibly a little longer, in custody awaiting trial, and in addition to that, you have had for a long period of time on pretty restrictive or in fact very restrictive EM bail conditions for months, if not a year, and then less restrictive EM bail conditions. Because of that, in my view, you have effectively already served the appropriate sentence. If that had not been the case, I would not have dealt with you as leniently as Ms Wynn-Williams, given your background and the fact that I think you were the main mover in this offending, in the sense that they were your firearms and you brought them to her house, I would have given you a sentence of home detention as the least restrictive sentence, but I do not want to do that and I am not going to do that because, as I say, I think you have already served your sentence, so what I am going to do instead is give you a sentence of time served.
[13] Rejecting a submission that a more appropriate sentence was for Mr Ede to come up for sentence if called upon or supervision her Honour observed:7
I am not prepared to sentence you to either of those sentences because they are just too lenient, given the seriousness of the offending involved and I think also, if one were to look at your criminal history, they would give a very misleading impression of the seriousness of your conduct.
5 At [11].
6 At [13].
7 At [13].
So, as I say, what I am going to do instead is sentence you effectively to time served.
Discussion
[14] To address Mr Ede’s appeal, it is first necessary to consider the appropriate end sentence.
[15] There is no dispute that the starting point of 18 months’ imprisonment adopted by Judge Orchard in respect of the lead charge was within range and, as noted, there is no suggestion that an uplift was imposed in respect of Mr Ede’s Australian criminal history.8
[16] The question therefore turns to whether a total discount of 33 per cent including any credit for time spent on EM bail, provided by Judge Orchard was appropriate.9
[17] I begin with the guilty plea. Although Mr Ede did not plead guilty until the beginning of this trial, he is nonetheless entitled to a modest discount which I fix at 5 per cent.
[18] Turning to Mr Ede’s background detailed principally in the s 27 report I conclude that a greater discount than the 5 per cent provided was in fact warranted. First, although Judge Orchard was sceptical of whether the matters raised by the report were correct regarding difficulties at home, this appears to have been principally because his parents, and in particular Mr Ede’s mother, are now supportive of him. As Mrs Thode noted there is in fact nothing inconsistent in the scenario described in the s 27 report and the subsequent improvement in his parents’ own relationship and their relationship with Mr Ede. More fundamentally the s 27 report plausibly links childhood trauma, with early (and undisputed) drug issues and criminal offending, to mental health issues including post-traumatic stress disorder and borderline
8 Notwithstanding that this was one of Mr Ede’s grounds of appeal.
9 It is noted that even if no discounts had been applied the amount of time Mr Ede spent remanded in custody would have seen him released immediately on the basis of time served, albeit would have required a sentence of imprisonment. A one-year sentence would involve a six-month term served in custody.
personality disorder.10 Given this background it is easy to understand the effect of the deportation from Australia would have had on Mr Ede which could only have amounted to a significant cultural dislocation in the circumstances. This was compounded by the COVID-19 pandemic, and the overall lack of any support structure, his mother’s efforts to place Mr Ede with his aunt in Whangārei notwithstanding. Taking these matters together, I am satisfied that 15 per cent discount, rather than the 5 per cent given, was appropriate for these background factors.
[19] I also conclude a discount greater than the 10 per cent awarded for prospects of rehabilitation was also warranted. I acknowledge Judge Orchard recognised that Mr Ede has, since his return to New Zealand, engaged with various organisations to assist his recovery from abuse of drugs and alcohol. It is however clear, as Mrs Thode has submitted, that having been granted bail Mr Ede has in a relatively short time not only taken a proactive approach to his rehabilitation by completing a number of courses, but he has started to engage with his Māori ancestry and established a genuinely positive support network who provided support to Mr Ede at sentencing. This is reflected in the letters of support tabled at sentencing from a former employer, members of the local community law centre and members of various organisations who have helped Mr Ede with his rehabilitation. These are compelling to read and evidence the rapid progress Mr Ede has made to rebuild his life in New Zealand since the present offending took place. The comments from his partner contained in the s 27 report are equally positive. In the circumstances I conclude a discount of 15 per cent for actual and prospective rehabilitation is warranted.
[20] Applying the discounts identified, which total 35 per cent, gives a notional end sentence of approximately 11½ months prior to considering what credit should be given for restrictive EM bail.
[21] Leaving aside for present purposes the nearly 9 months that Mr Ede was remanded in custody prior to being granted EM bail, which in a short sentence of
10 There are no medical reports before me to this effect, but the issues are alluded to in Australian reports cited in the s 27 report.
imprisonment effectively amounts to the equivalent of 18 months’ imprisonment, he has also served the equivalent of:
(a)10 months home detention, being the 10 months on EM bail with a 24- hour curfew;11 and
(b)11½ months’ community detention, being the 11½ months’ EM bail with an 8 pm-6 am hour daily curfew.12
[22]
In such circumstances, it can be seen that any sentence of imprisonment imposed on Mr Ede in this case would have been manifestly excessive even without reference to the time he had spent remanded in custody. It follows that even a notional sentence of imprisonment in this case was also manifestly excessive in the sense it would mean notwithstanding Mr Ede’s rehabilitative efforts he would not be able to take advantage of the Criminal Records (Clean Slate) Act 2004. The Act does not apply when a sentence of imprisonment has been imposed in New Zealand. In this case I also consider that that Act provides a valuable incentive to Mr Ede to continue his positive rehabilitative efforts to date. As a result, I am satisfied the appeal should be allowed.
13
[23] As imprisonment was not appropriate it follows that the release conditions can no longer be imposed. I accept Mrs Thode’s submission that in order to continue to provide support to Mr Ede, in place of the now termination release conditions a sentence of 6 months supervision is appropriate in their place on essentially the same conditions.
11 Equivalent in appropriate circumstances to 20 months’ imprisonment.
12 Equivalent in appropriate circumstances to 23 months’ imprisonment, albeit community detention is limited to a maximum of six months, noting that the total weekly curfew imposed (70 hours) was less than the maximum permissible for community detention (which is 84 hours: Sentencing Act 2002, s 69B(4))
13 Time spent on EM bail is a mandatory consideration under the Sentencing Act 2002; it is not uncommon for Courts to give an allowance of up to 50% of the time on bail: Hall v R [2020] NZCA 183 at [37]. In Parata v R [2017] NZCA 48, the Court rejected that a one-for-one credit could be given for time on EM bail (as for home detention), though noted at [14] that there was “considerable similarity between the conditions of home detention and those experienced when subject to the most restrictive form of EM bail”. The primary rationale for that statement appeared to be a concern where the bail restrictions were not otherwise equivalent to detention. In light of those similarities, and as I have expressed elsewhere, I see no principled reason for treating time on restrictive EM bail differently to detention where the conditions are otherwise identical
[24] It is apparent that this appeal was not ultimately about the hierarchy of restrictive sentences as Mrs Thode initially submitted. Rather it has been determined on the basis of considering the appropriate end sentence against discounts appropriate for the significant time Mr Ede spent on EM bail, without even taking into account the time Mr Ede was remanded in custody. Given this position it is apparent that a sentence if called upon as submitted by the defence at sentencing would also have been inappropriate because it is clear that Mr Ede had already served the punitive element of any sentence that could be imposed, while a community based sentence (home detention or community detention) could only have been contemplated if after analysis it was concluded there was still time to be served which on any analysis was not the case here.
Decision
[25] The appeal is allowed. Mr Ede’s sentence of imprisonment on both charges is quashed, and in substitution he is sentenced to six month’s supervision on both charges, to be served concurrently.
Powell J