Edmonds v Police

[2014] NZHC 3238

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-50 [2014] NZHC 3238

BETWEEN

STANTON HAPETA EDMONDS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014
Counsel:	C D Bean for Appellant T A Needham for Respondent
Judgment:	16 December 2014

JUDGMENT OF BREWER J

Solicitors/Counsel:               Charles Bean (Hamilton) for Appellant

Almao Douch (Hamilton) for Respondent

EDMONDS v POLICE [2014] NZHC 3238 [16 December 2014]

Introduction

[1]      Mr Edmonds appeals against the sentence of Judge MLSF Burnett handed down in the District Court at Hamilton on 24 June 2014.  The appeal is out of time. However, the respondent takes no issue with this, and I do not think I should either. The appeal may proceed.

[2]      The Judge sentenced Mr Edmonds to four years’ imprisonment on drugs charges and a cumulative sentence of three months’ imprisonment for assaults on two prison officers.  Mr Bean for Mr Edmonds submits that the Judge failed to give credit where it was due, but in any event the end sentence is manifestly excessive.

The law

[3]      An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.  The principles behind the law are well known, and not changed by the Criminal Procedure Act 2011.  A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.

The Judge’s sentence

[4]      The drugs charges were:

CHARGE	PARTICULARS	MISUSE OF DRUGS ACT 1975	MAXIMUM PENALTY
1	Offering to sell cannabis	6(1)(e) and 6(2)(c)	8 years imprisonment
2	Selling cannabis	6(1)(e) and 6(2)(c)	8 years imprisonment
3	Offering to supply methamphetamine	6(1)(c) and 6(2)(a)	Life imprisonment
4	Supplying methamphetamine	6(1)(c) and 6(2)(a)	Life imprisonment
5	Cultivating cannabis	9(1) and 9(2)	7 years imprisonment

[5]      A sentence indication had been given and refused.   Pleas of guilty were entered after the Crown indicated it would not proceed on charges of conspiring to supply  cannabis  and  conspiring  to  supply  methamphetamine.    The  amount  of

methamphetamine offered or supplied was approximately 4.88 grams.  The cannabis offending occurred on 13 separate occasions and involved 347 grams.

[6]      Mr  Edmonds  has  an  extensive  criminal  history  but  no  relevant  drugs convictions.

[7]      The Judge was not impressed by Mr Bean’s submissions that credit should be given for remorse and for Mr Edmonds’s personal drug addiction.   In the Judge’s view, the offences of dealing in drugs are not mitigated by personal drug addiction and here Mr Edmonds’s motivation was financial gain.   So far as remorse is concerned, the Judge did not accept there was genuine remorse on the material before her and noted that continued violent offending rather went against it.

[8]      The Judge found the methamphetamine dealing to fall within band one of R v Fatu  and  adopted  a  starting  point  of  three-and-a-half  years.1      The  cannabis offending, in the Judge’s view, fell within category two of R v Terewi and would normally justify a starting point between two and four years.2   On a totality basis, the Judge adopted a starting point of 18 months’ imprisonment.

[9]      The Judge did not impose an uplift but discounted the sentence by 20 per cent because of the pleas of guilty.

[10]     The Judge noted that a sentence indication on the charges of assaulting the prison officers had been offered by another Judge.  Although it was not binding on Judge Burnett, she nevertheless adopted it.  Her Honour held that the sentence had to be cumulative because it was quite separate offending and because of its nature (violent offending against prison officers) needed to be marked separately.   I note that the sentence, prior to discount for guilty pleas, included an uplift of one month

for previous convictions of violence.

1      R v Fatu [2006] 2 NZLR 72 (CA).

2      R v Terewi [1999] 3 NZLR 62; (1999) 16 CRNZ 429 (CA).

[11]     Finally,  the  Judge  did  not  feel  that  Mr  Edmonds’s  professed  steps  to rehabilitate himself deserved credit.  Her Honour pointed to the pre-sentence report which assessed Mr Edmonds as having a very high likelihood of re-offending:3

[10]      … You seem relatively undeterred by legal sanction and no measure has  proven  to  provide  lasting  rehabilitation  to  you  to  ensure  that  you maintain an offence free future and you are assessed, not surprisingly, at being at a very high risk of harming others based on your extremely violent past which reflects your propensity to offer and use violence.

Appellant’s submissions

[12]     Mr Bean, who to his credit as a professional appears on a pro bono basis, challenges the sentence on two main grounds.   The first is the Judge’s refusal to discount the sentence for remorse and prospects of rehabilitation.

[13]     Mr Bean recognises the difficulty in challenging the Judge’s decisions on these points.  They were exercises of her judicial discretion.  Given the pre-sentence report and Mr Edmonds’s extensive criminal history, the Judge made no error in refusing discounts.

[14]     The second challenge, however, is simply to the point that the end sentence was manifestly excessive.  Mr Bean submits that the Judge fell into error by adopting too high a start point for the drug offending.  In other words, the overall start point of five  years’ imprisonment  combining  start  points  for  the  methamphetamine  and cannabis offending was too high.

[15]     So far as the methamphetamine is concerned, Mr Bean submits that the start point of three-and-a-half years was too high considering that this was spasmodic offending over a period of months and at a street dealing level.  He submits a start point of two years six months to two years nine months imprisonment is appropriate.

[16]     So far as the cannabis offending is concerned, Mr Bean accepts that it falls within category two of Terewi.   A start point of two years or more was therefore available.  Responsibly, Mr Bean does not challenge the uplift of 18 months imposed

by the Judge to take into account totality.

3      R v Edmonds DC Hamilton CRI-2013-019-4973, 24 June 2014.

[17]     The end point for the drug offending should, in Mr Bean’s submissions, have been three years and two months.  He does not challenge the cumulative sentence for violence.

Decision

[18]     I have looked at a number of cases, particularly in regard to the starting point for  the  methamphetamine  offending.4      I accept  that  the  Judge  could  well  have adopted a starting point of three years’ imprisonment given that this was band one Fatu offending and not band two.   However, the Judge noted that band two commences  at  five  grams  and  4.88  grams  is  only  just  short  of  that  line. Nevertheless, the bands do overlap.

[19]     I also accept that the Judge could have gone slightly higher than three years.

R v McGee  is  an  example of  a starting  point  of three  years two  months  where

4.35 grams  of  methamphetamine  and  a  single  incident  of  cannabis  supply were involved.5

[20]     I consider also that the overall starting point of five years’ imprisonment for the totality of the drugs offending is also on the high side.  As an example, in R v Sidwell,6 the Court of Appeal upheld a starting point of four-and-a-half years where the Judge had imposed a three year three months starting point for possession of

7.5 grams  of  methamphetamine  and  $1,100  in  cash  and  imposed  cumulatively, adjusted for totality, a 15 month starting point for selling 450 grams of cannabis.

[21]     In this case, there is an overall starting point of five years for supplying, or offering to supply, 4.88 grams of methamphetamine, no cash was found, and for selling 347 grams of cannabis.  For myself, I would have imposed a starting point of three years’ imprisonment for the methamphetamine offending, with an uplift of

18 months for the totality of the offending.  The point becomes whether there should

have been a further uplift to account for Mr Edmonds’s very serious criminal record.

4      R v Rawiri HC Hamilton CRI-2009-070-3601, 14 May 2009; R v Hill [2008] NZCA 41; R v

Wilson HC Auckland CRI-2008-090-7272, 5 December 2008; R v Tutakangahau [2014] NZCA

279, [2014] 3 NZLR 482.

5      R v McGee HC Whangarei CRI-2010-088-2612, 6 July 2011.

6      R v Sidwell [2009] NZCA 385.

[22]     Section 9 of the Sentencing Act 2002 requires a Judge to take into account “the number, seriousness, date, relevance, and nature of any previous convictions”. Here, for the drugs charges, the Judge looked only to see if there were other convictions of the same nature as the drugs charges.

[23]     Obviously, where previous convictions are of a similar nature to the offences for which sentence is to be imposed, or have other relevance, then they will have greater significance in the Judge’s sentencing decision than offences which go more distantly to character.  The former may show a propensity for offending which raises a need to deter and to protect the public.  The latter might also raise similar concerns, but care has to be taken not to punish a person twice for the same offending.

[24]     Mr Edmonds is 30 years old.   His offending began in 1998 when he was

14 years old.  In the intervening 16 years, he has amassed another 66 convictions for offences of dishonesty (including burglaries), disobedience of Court orders and violence.   He was first sentenced to imprisonment (for serious violence) when he was  15 years  old.    He  has  been  sentenced  to  imprisonment  on  13  subsequent occasions.

[25]     In my view, it was necessary to make it clear to Mr Edmonds that if he continues  to offend  then his  record  of offending will  increasingly influence his sentences.  This is not to double punish.  It is to deter him personally by making him aware that his record of offending will not be ignored.

[26]     In my view, an uplift of four months’ imprisonment should have been given for Mr Edmonds’s previous offending.  Since a month was added to the sentence for assaulting the prison officers, I consider that three months should be added to the sentence for the drugs offending:

Methamphetamine offending: starting point -  3 years Cannabis offending (totality): starting point -  1½ years Uplift for previous convictions -  3 months

Total:  4 years 9 months

[27]     The Judge allowed a 20 per cent reduction for pleas of guilty.   That was generous.    Given  the  lateness  of  the  pleas,  a  lesser  discount  would  have  been justified. But it was within the Judge’s discretion and I will not disturb it.

[28]     The sentence I reach is three years 10 months imprisonment (rounded).  That is two months less than Judge Burnett’s sentence.  The issue becomes whether this means the Judge’s sentence is outside the range available to her.

[29]     Sentencing  is  not  a  science.    It  calls  for  the  evaluation  of  many,  often conflicting, factors relevant to the offending and the offender.   There is room for Judges to reach different views on the exercise of their discretion.   Therefore, a correct sentence is not a pinpoint.  It is a point within a range.  The Court of Appeal has made it clear that an appellate Court should not tinker with the sentence of the Court at first instance.

[30]     Here, the two months amounts to 4.17 per cent of the Judge’s sentence. When I consider the factors in this case relevant to sentence, including the 20 per cent reduction for the pleas of guilty and the room for a slightly higher starting point than three years on the methamphetamine offending, I cannot say that the Judge’s sentence was outside the range available to her, albeit at the upper end.

Decision

[31]     The appeal is dismissed.

Brewer J