Edmonds v R
[2011] NZCA 415
•26 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA422/2011 [2011] NZCA 415 |
| BETWEEN MOWENA TEMOKI EDMONDS |
| AND THE QUEEN |
| Hearing: 24 August 2011 |
| Court: Harrison, Ronald Young and Venning JJ |
| Counsel: G W Calver for Appellant |
| Judgment: 26 August 2011 at 1 pm |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe sentences of two years three months’ imprisonment, two months of which have been served, and one month imprisonment are quashed.
CA sentence of six months’ home detention is imposed on the following conditions:
(a)the sentence of home detention is to be served at 23 Margate Place, Flaxmere;
(b)upon her release from prison the appellant should immediately travel to Flaxmere and remain at Margate Place until contacted by the Department of Corrections;
(c)the appellant is not to move from that address without the prior written approval of the Probation Officer;
(d)the appellant is to undertake such parental responsibilities as may be considered necessary with the approval of her Probation Officer;
(e) the standard post‑detention conditions apply to the appellant.
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
The appellant was sentenced to two years and three months’ imprisonment by Judge Adeane in the District Court at Napier on two charges, a specific count of receiving stolen property and one of conspiring with a co‑offender, Mr Andrews, over a period of five months to receive stolen property.[1]
[1] R v Andrews DC Napier CRI-2009-020-3923, 24 June 2011.
The appellant’s sole ground of appeal is that the sentence imposed was manifestly excessive or wrong in principle because the Judge failed to take into account the appellant’s co‑operation with the Police.
Facts
The specific charge of receiving involved the accused’s possession and sale of a sapphire and diamond ring and gold chain. The appellant sold the ring to a shop in Napier but subsequent investigations revealed that the ring was stolen.
As to the conspiracy, from April 2009 to August 2009 there were a large number of daylight burglaries of residential properties in Hastings and Napier. In July 2009 the appellant told the Police about the burglaries her co‑offender, Mr Andrews, was committing. The appellant and Mr Andrews had been in an intermittent domestic relationship of some duration. As a result of the information the appellant gave to the Police search warrants were obtained which resulted in the location of a large amount of stolen property. One of the search warrants related to the appellant’s own home. There, a large amount of property stolen from 27 individual residential properties where burglaries had been committed was recovered. The items found included televisions, cameras, electronic items, jewellery, hunting gear, boots, telephones, makeup, electronic games, clothing and luggage.
The Crown case was that Mr Andrews had used the appellant’s house to store a large amount of the stolen property. Some of the items in the appellant’s possession were gifts from Mr Andrews that the appellant knew were stolen.
District Court Sentencing
Judge Adeane sentenced Mr Andrews and the appellant together. As to Mr Andrews the Judge took a starting point of five years’ imprisonment for the conspiracy charge, reduced it to four years and nine months for his guilty plea and added a further 15 months for other offending committed by him, resulting in a sentence of six years’ imprisonment with a minimum non‑parole period of three years.
As to the appellant the Judge considered that a proper starting point for her involvement was two years and six months’ imprisonment. He gave a discount of three months, or ten per cent, for the appellant’s late guilty plea (on the eve of trial) arriving at a final sentence of two years and three months’ imprisonment. A concurrent one month term for the specific count of receiving was imposed.
The appellant first reported her co‑offender’s conduct to the Police on 7 July 2010. The appellant told the Police that Mr Andrews had been committing burglaries in the Hastings and Havelock North area. She described the way in which he gained entry to houses and the fact that he brought a number of items taken in the burglaries back to her place.
Further, on the following day the appellant again contacted the Police advising that her co‑offender had sent her a text indicating that he had made more than $1,000 by selling stolen property from the burglaries.
The Crown accept that as a result of this information the Police were able to obtain a number of search warrants which ultimately gave rise to the arrest and prosecution of Mr Andrews. It also resulted in the prosecution of the appellant for receiving.
Faced with these facts at sentencing the Judge said at [18]:
Edmonds now seeks to make the most of her position by some measure of co‑operation with Police after the event and by the claim that she was acting in the thrall of Andrews throughout. ... Those matters, however, stand to be assessed in light of the scale of the offending in which she has now admitted her complicity. ...
Later the Judge considered whether or not the appellant had been acting under Mr Andrews’ control. He said that this claim was “both convenient and unconvincing”. He rejected her claim that she had received no personal benefit from receiving the stolen goods.
Submissions and Discussion
The appellant says that the Judge was wrong when he said that Ms Edmonds was seeking to make the most of her position by co‑operation with the Police after the event. Mr Calver points out that it was Ms Edmonds’ contact with the Police that led the Police to investigate Mr Andrews, which in turn led to his arrest and ultimately to her own prosecution.
Counsel refers to this Court’s decisions in R v Accused[2] and R v Urlich[3] that real and substantial credit ought to be given to offenders who assist the Police by providing information to them.
[2] R v Accused CA443/97, 4 March 1998.
[3] R v Urlich [1981] 1 NZLR 310 (CA).
We are satisfied the Judge erred in failing to give any discount for the appellant’s assistance to the Police. On 7 July, when the appellant spoke to the Police, she provided detailed information regarding Mr Andrews’ criminal activities. This information enabled the Police to obtain search warrants which, when executed, provided the evidence with which to prosecute Mr Andrews, whose lengthy sentence of imprisonment properly reflects the scale and duration of his burglaries. This assistance was critical to the Police investigation of Mr Andrews. It is no exaggeration to say that at the time Ms Edmonds provided this information the Police could not have proceeded against him without it.
We acknowledge that a discount at sentencing will not always follow the provision of information about criminal offending to the Police.[4] But in this case we are satisfied a discount is called for especially given the pivotal part the information played in the prosecution of Mr Andrews as a serious recidivist burglar. However, two points reduce the discount that can be properly given.
[4] R v A CA308/02, 16 December 2002.
First, when interviewed by the Police the appellant did not fully identify her involvement in the criminal offending as a receiver.
Secondly, as Ms Laurenson submits, the appellant, unlike many offenders who provide this type of information, did not use the occasion herself to stop offending. When the Police executed a search warrant on her premises after her interview on 7 July she had a number of items of stolen property at her house. The appellant had, therefore, been continuing to offend as a receiver after her 7 July interview with the Police.
In those circumstances we are satisfied that her plea of guilty (in the District Court the subject of a ten per cent discount) and her assistance to the Police justifies a deduction of 33 per cent from the Judge’s start sentence of two years six months’ imprisonment. This would result in a sentence of 20 months’ imprisonment and qualifies for consideration of home detention.
The Crown submitted that if we reduced the sentence to two years’ or less imprisonment on appeal, then it did not oppose a sentence of home detention for the appellant.
The Judge in the District Court considered the possibility of home detention with respect to the appellant. He said:
[35] That sentence does not permit of an electronically monitored outcome. Given Mr Calver’s careful argument on the point, I record my view that home detention would have been inappropriate and contrary to good policy even if the final sentence had permitted it. You have used the shelter of your home and the facade of domesticity that it creates to mask a thriving criminal enterprise. Along with Andrews you have profited off the backs of honest and hardworking people. You must accept that the consequences will be a sentence that denounces your conduct and deters others from doing the same. A less restrictive outcome is not available when all the competing interests, including those of your victims, are weighed in the balance. An end sentence is arrived at which does not permit a sentence of home detention.
The proposed home detention residence is with the appellant’s parents and so there is little reason to think that further offending is likely at that residence. The appellant has already spent two months in custody, equivalent to four months time served allowing for parole rights. We are satisfied in those circumstances that the balance is now appropriately struck by imposing a sentence of home detention.
Taking account of the 20 months’ imprisonment period and the period the appellant has spent in custody we consider a sentence of six months’ home detention is appropriate.
Result
We are satisfied the sentence of two years three months’ imprisonment was manifestly excessive. We quash the sentence of two years three months’ imprisonment, two months of which have been served, and also the sentence of one month imprisonment on the receiving charge. We impose instead a sentence of six months’ home detention on the conspiracy charge and two months’ home detention on the receiving charge (concurrent) upon the following conditions:
(a)the sentence of home detention is to be served at 23 Margate Place, Flaxmere;
(b)upon her release from prison the appellant should immediately travel to Flaxmere and remain at Margate Place until contacted by the Department of Corrections;
(c)the appellant is not to move from that address without the prior written approval of the Probation Officer;
(d)the appellant is to undertake such parental responsibilities as may be considered necessary with the approval of her Probation Officer;
(e)the standard post‑detention conditions apply to the appellant.[5]
[5] Sentencing Act 2002, s 80O.
Solicitors:
Crown Law Office, Wellington
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