Edmonds v Police HC Nelson CRI-2011-442-41

[2011] NZHC 1970

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-442-41

BETWEEN  CARLOS ALICK DAVID TAMA EDMONDS

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 December 2011

Counsel:         L Acland for Appellant

M A O'Donoghue for Respondent

Judgment:      8 December 2011

JUDGMENT OF MILLER J

[1]      Mr  Edmonds  appeals  against  his  sentence  of  18  months  imprisonment imposed on one charge of burgling his mother’s home on 14 September 2010.  It was not a serious offence of its kind.   Mr Edmonds, who was aged 20 and had been required by his mother to live elsewhere, took some jewellery.  At the time he had not previously been convicted of burglary.

[2]      However,  the  sentence  does  not  fall  to  be  considered  in  isolation.    Mr Edmonds was re-sentenced on other charges, including burglary, at the same time, having failed  to comply with  the sentence of community work  and  supervision which he received for those offences.  It is necessary to set out the chronology of his offending.

[3]      Five offences were committed on 21 and 26 June 2010;  they were unlawfully taking a motor vehicle, theft, possession of an offensive weapon, unlawfully interfering with a motor vehicle, and burglary.  He and an associate went to a farm

and filled their car, which ran on petrol, with diesel.  The car promptly broke down

CARLOS ALICK DAVID TAMA EDMONDS V NEW ZEALAND POLICE HC NEL CRI-2011-442-41 8

December 2011

and they walked to a café several kilometres away, there entering a staff room and taking a set of car keys.  He used the keys to steal a motor vehicle, which he took to Nelson.   He was caught near the vehicle, and located under the driver’s seat was found a baseball bat which he claimed to have for protection.

[4]      Mr Edmonds pleaded guilty and was sentenced on 22 November 2010 to community work and supervision, as I have noted.   He had no previous District Court convictions at the time.

[5]      The burglary which is the subject of the present appeal was committed on 14

September 2010, as I have noted.  He was on bail for the first set of offences at the time.

[6]      In February 2011 Mr Edmonds committed the offences of intentional damage and possession of a knife.  He slashed the tyres on a car.  Sadly, the owner of the car had lost his wife the same day.

[7]      For completeness I also note that Mr Edmonds failed to comply with his community work sentence; he had been ordered to do 190 hours but 177 remained outstanding.

[8]      Mr Edmonds has been remanded in custody since 31 May 2011, shortly after his arrest on the September burglary charge.  He pleaded guilty on 15 September and was sentenced on 17 October 2011.

[9]      In the District Court, the Judge noted that this burglary was committed within a matter of days after Mr Edmonds had been sentenced to community work and supervision for burglary.  That was a mistake.  As at September 2010 Mr Edmonds had not been sentenced for any charge of burglary, although he had committed the June burglary and was on bail for it.  Indeed, he had not yet been sentenced for any offence at that point.

[10]     The pre-sentence report was brief.   It recommended imprisonment having regard to Mr Edmonds’ breaches of his community-based sentence.  There was also

an alcohol and drug assessment which indicated that Mr Edmonds has suffered a head injury in his youth, is “always angry”, has a harmful pattern of alcohol consumption, and is actively involved with the Mongrel Mob.   Against that, an earlier  pre-sentence  report  indicated  that  he  had  completed  a  limited  service volunteer programme at Burnham Military Camp, and  that he had had seasonal employment at a freezing works.

[11]     The Judge noted the reports, observing that clearly alcohol was an issue for Mr Edmonds.   Imprisonment was the only option, and he noted that Mr Edmonds had already been in custody for some time, the equivalent of a 10-month term of imprisonment.

[12]     The Judge convicted and discharged Mr Edmonds for breach of supervision and  breach  of  community work,  and  cancelled  the  sentences.    He  re-sentenced Mr Edmonds to six  months imprisonment on the original June 2010  charges of unlawfully taking a motor vehicle and burglary.  He was sentenced to three months imprisonment for the theft and the same term for possession of the knife, all of those sentences to be served concurrently.

[13]     Turning to the present charge, the Judge first dealt with breaches of bail and intentional damage charges, convicting and discharging Mr Edmonds.   But on the burglary charge the appropriate sentence was 18 months imprisonment, to be served concurrently.  The Judge repeated that the burglary was a serious matter because it occurred  within  days  after  he  had  been  before  the  Court  on  similar  offending. Release conditions were imposed.

[14]     I accept that, standing alone, the sentence for the burglary on this occasion is excessive, and attributable to the Judge’s mistake about the sequence of events.  The offending was minor, involving the theft of jewellery from a family member in circumstances where he might have thought that he had some entitlement to be on the premises.  His mother has since forgiven him.  However, it was not the case that Mr Edmonds was entitled to be treated as a first offender.   He had committed the other offences, and this burglary was committed whilst on bail.  A starting point of

12 months imprisonment was available.  A reduction of something more than 30 per

cent would be appropriate for his guilty plea and youth, resulting in an end sentence of seven months imprisonment.  He having been remanded in custody for some time, no  question  of  a  community-based  sentence  arose.    I  am  told  that  he  is  also remanded in custody on yet another indictable offence.

[15]     In the circumstances, it would have been appropriate to impose a cumulative sentence for the matters on which he was being re-sentenced.   Strictly they were separate offences, not part of a connected series.   There can be no issue with the sentence of six months imprisonment, in itself.

[16]     The total sentence which results is 13 months imprisonment.  I consider that that is appropriate on a totality basis.  I note that if only because of the time spent in custody no question of home detention arises.

[17]     The appeal is accordingly allowed to the extent that a) the sentence on the burglary charge is set aside and a sentence of seven months imprisonment is substituted and b) the other sentences, which are concurrent as among themselves, are imposed cumulatively upon the burglary sentence, resulting in an effective sentence of 13 months imprisonment. The post-release conditions remain.

Miller J

Solicitors:

Bamford Law, Nelson for Appellant

Crown Solicitor’s Office, Nelson for Respondent