Edmondson v Police
[2015] NZHC 3184
•14 December 2015
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2014-443-0043 [2015] NZHC 3184
UNDER the Criminal Procedure Act 2011 IN THE MATTER
of an appeal against sentence pursuant to
s 244 of the Criminal Procedure Act 2011BETWEEN
DANIEL GARY EDMONDSON Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 December 2015 Appearances:
J M Woodcock on instructions from P M Keegan for Appellant
S J Simpkin for CrownJudgment:
14 December 2015
JUDGMENT OF M PETERS J
This judgment was delivered by Justice M Peters on 14 December 2015 at 2.15 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: C & M Legal, Crown Solicitor, New Plymouth
Counsel: P M Keegan, New Plymouth
EDMONDSON v POLICE [2015] NZHC 3184 [14 December 2015]
[1] On 6 July 2015, in the District Court at New Plymouth, the Appellant (“Mr Edmondson”) pleaded guilty to one charge of assault with a weapon and one of assault with intent to injure.1 On 7 August 2015, Judge A Roberts sentenced Mr Edmondson to 15 months’ imprisonment.2 Mr Edmondson now appeals, on the
ground that the starting point the Judge adopted was manifestly excessive.3
Background
[2] The charges against Mr Edmondson arise from events on 4 July 2015. That evening Mr Edmondson had been drinking with two male associates. They arrived at the (female) victim’s address at about 7 pm. The summary of facts states:4
At about 7 pm on Saturday 4th July 2015 [Mr Edmondson] arrived at the
victim’s address on Exeter Street, New Plymouth.
He was with two male associates.
When the victim became aware that [Mr Edmondson] was intoxicated she asked him to leave the address as she did not want him to be drinking at her home.
[Mr Edmondson] became hostile and verbally abusive towards the victim.
[Mr Edmondson’s] associates decided to leave the address at this point and offered to take [Mr Edmondson] home.
[Mr Edmondson] refused the offer and his two associates left the address.
[3] After his associates had left, Mr Edmondson pushed the victim onto a sofa. He pulled her hair and elbowed her in the right eye with some force. This constituted the assault with intent to injure.
[4] The victim managed to move to the lounge area, at which point Mr Edmondson went to get a knife from the kitchen and told her that she “could call the Police but that [he] would put a knife to [her] throat faster than the Police could
get there”.5
1 Assault with a weapon carries a maximum penalty for five years’ imprisonment see Crimes Act
1961, s 202C; Assault with intent to injure carries a maximum penalty of three years’
imprisonment see Crimes Act 1961, s 193.
2 R v Edmondson [2015] NZDC 15727
3 Criminal Procedure Act 2011, s 250(2).
4 NZ Police Summary of Facts.
5 Ibid.
[5] The victim telephoned the Police. Mr Edmondson attempted to take the telephone by bending her fingers backwards. He then went to the kitchen and retrieved a large carving fork, which he used to stab her in the lip. This constituted the assault with a weapon.
[6] The victim suffered a cut to her bottom lip and bruising to her right eye.
[7] Also, during the course of the assault Mr Edmondson tripped over a coffee table and ripped an earring from the victim’s ear.
[8] When questioned by Police, Mr Edmondson said he had no memory of the offending but he did not deny it. He pleaded guilty to both charges on his first appearance in the District Court.
Sentencing notes of Judge Roberts
[9] There is no dispute that Judge Roberts was correct to take the charge of assault with a weapon as the lead offence. The maximum penalty for this offence is five years’ imprisonment.
[10] In setting the starting point, the Judge referred to R v Taueki and Nuku v R as
providing a basis to determine culpability and “band” placement.6
[11] The Judge identified two matters as increasing the seriousness of the assault, being pre-meditation at a “moderate to high level” and attacking the head. These factors placed the offending in “band two” of Nuku, for which the starting point is up to three years’ imprisonment.7 The Judge also noted that the attack occurred in the victim’s home where she was entitled to feel safe.
[12] Weighing all matters and the fact that the injury sustained was at a very low level, the Judge adopted a starting point of 18 months’ imprisonment. The Judge
6 R v Taueki [2005] 3 NZLR 372, (2005) CRNZ 769; and Nuku v R [2012] NZCA 584. I note Hurinui v R [2014] NZCA 290 at [26] in which the Court of Appeal accepted that the principles in Nuku could be applied to a charge under s 202C Crimes Act 1961 given that it carries the same maximum penalty as injuring with intent to injure under s 189(2).
7 Nuku v R, above n 4, at [38].
then applied a two month uplift to take account of the charge of assault with intent to injure. The Judge then reduced the sentence by the maximum possible, that is 25 per cent, for Mr Edmondson’s guilty pleas, those having been entered at the first opportunity. This resulted in an end sentence of 15 months’ imprisonment.
[13] Judge Roberts declined home detention. Mr Edmondson does not challenge this aspect of the decision.
Approach to appeal
[14] I must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.8
[15] In any other case, I must dismiss the appeal.9
[16] In Tutakangahau v R,10 the Court of Appeal confirmed that s 250(2) was not intended to alter the approach taken under the Summary Proceedings Act 1957.
[17] An appeal against sentence is an appeal against the exercise of discretion and proceeds on an “error principle”.11 The High Court will not intervene if the sentence is within the range justified by accepted sentencing principles. Whether or not a sentence is manifestly excessive is to be considered in terms of the end sentence, rather than the process by which the sentence is reached.12
Discussion
[18] There is no dispute that there was a degree of premeditation. Mr Edmondson was asked to leave, refused, could have left with his associates but did not, and then
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
11 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
12 Ripia v R [2011] NZCA 101 at [15].
was violent when alone with the victim. Mr Edmondson also targeted the victim’s
head.
[19] To these matters the Crown adds the following: the fact that the attack occurred in the victim’s home where she was entitled to feel safe; and the use not only of the carving fork but also threats with the kitchen knife. Given these matters the Crown submitted that Nuku band two was appropriate and the starting point well within range.
[20] Counsel for Mr Edmondson referred me to several authorities which she submitted were comparable and which were said to demonstrate that the appropriate starting point was 12 months’ imprisonment.13
[21] In Pathiranage v Police,14 the offender was charged with possession of an offensive weapon, male assaults female and threatening to kill or to cause grievous bodily harm. Accordingly, it was not a case of assault with a weapon.
[22] The offender:
·assaulted his wife by putting his hands around her mouth and squeezing, digging his fingernails into her cheeks;
· pinned her to the bed putting pressure on her throat;
·the following day kicked his wife in the thigh and again put his hand over her mouth; and
·retrieved a butcher’s knife from the kitchen, pointed it at her and acted out a stabbing motion with it.
13 Pathiranage v Police HC Invercargill CRI 2013-425-008, 8 April 2013; Teka v New Zealand Police HC Auckland CRI-2009-404-253, 7 September 2009; Leatherby v Police HC Palmerston North CRI-2008-454-45, 11 September 2008; and Mann v Police HC Invercargill CRI-2005-
425-1415, 19 August 2005.
14 Pathiranage v Police, above n 13.
[23] The victim suffered minor hurts but no serious physical injuries. On appeal Whata J upheld the starting point of 12 months’ imprisonment, noting that offending of that particular nature would usually attract a sentence in the range of nine months to two years’ imprisonment.
[24] In Teka v Police,15 the offender was charged with assault with intent to injure. The maximum penalty for this offence is three years’ imprisonment, not five years as it is if there is an assault with a weapon, as in this case. Mr Teka assaulted his former partner following an argument at her address. Mr Teka:
· threw a chair across the lounge, smashing glass in the back door;
· disconnected the victim’s telephone call to the police; and
· threw the victim to the floor and attempted to strangle her. [25] The victim suffered bruising to her neck and throat.
[26] The sentencing Judge adopted a starting point of two years’ imprisonment. On appeal, Venning J reduced the starting point to 15 months. In doing so, Venning J noted the maximum penalty of three years and took the view that a starting point of two thirds of the maximum was excessive.
[27] In Leatherby v Police,16 the appellant was convicted of assault with a weapon. Mr Leatherby appealed against a sentence of 12 months’ imprisonment. Mr Leatherby and members of his extended family were at a gathering. Mr Leatherby, heavily intoxicated, became angry because he considered the victim was provoking him. Mr Leatherby picked up a butcher’s knife and struck the victim, delivering a 1.5 centimetre cut just above the victim’s left eye.
[28] The Judge took a starting point of 18 months. Miller J, in the High Court, thought the starting point in the particular circumstances should have been nine
months’ imprisonment.
15 Teka v Police, above n 13.
[29] Counsel for Mr Edmondson also referred me to Frater J’s judgment in Mann v Police.17 In that case the appellant was charged with assault with a weapon and threatening to kill committed in April 2005, male assaults female in May 2005 and breach of a protection order in June 2005. In each case the victim was the appellant’s former partner of eight or nine years standing and the couple had two young boys.
[30] The relevance of the case is how the Court treated the conviction for assault with a weapon. The appellant had become very depressed. He also had some intellectual impairment. One day his partner awoke to find him rubbing a knife up and down her neck and he told her he was going to kill her and the other adults in the house.
[31] The District Court Judge’s starting point was not expressed but he sentenced the appellant to nine months for the assault with a weapon and Frater J confirmed that sentence on appeal.
[32] The Crown referred me to Hurinui v R.18 Ms Hurinui was convicted on a
charge of assault with a weapon and sentenced to 18 months’ imprisonment.
[33] Ms Hurinui, unprovoked, hit the victim with a baseball bat. In doing so she split the skin on the victim’s forehead causing a wound that required 15 stitches and which gave rise to significant discomfort and soreness. The victim herself was not engaged in the violence and was trying to bring it to an end.
[34] The Judge took a starting point of 18 months. On appeal the Court referred to Nuku, and said that the unprovoked use of a heavy weapon resulting in a serious injury to the head supported the Judge’s starting point and observed that the Judge might have imposed an uplift for Ms Hurinui’s previous convictions for violence which appeared to be extensive. The Court of Appeal dismissed the appeal.
[35] The Crown also referred me to Ormsby v R.19 Mr Orsmby was charged with disfiguring with intent to injure, the maximum penalty for which is seven years’ imprisonment.20
[36] Mr Ormsby and his partner had two children. At the time of the offending the couple were living apart. Mr Ormsby went to the house to mind the children, the couple had been drinking and then started to argue. In the course of a struggle, Mr Ormsby bit off a portion of his partner’s left earlobe which could not be reattached.
[37] The Court referred to the serious injury and the offending in the home and said the appropriate starting point was two and half years, not the three adopted by the District Court Judge.
[38] In considering this appeal I have also had regard, of my own volition, to Mr Edmondson’s criminal record. It comprises 10 pages. Most of the convictions are for burglary, theft and the like but there are, however, convictions for possessing an offensive weapon (2009), two assaults on a child with a weapon and threatening to kill or do violence (2005). In my view an uplift for this offending was warranted.
Result
[39] I am persuaded that the starting point of 18 months’ imprisonment on the assault with a weapon charge was manifestly excessive. In my view, having regard to the authorities to which I have been referred, 14 months would have been within the proper range. To this one adds two months for the assault with intent to injure, an uplift of two months for the violence type convictions to which I have referred, giving a starting point of 18 months’ imprisonment. Allowing 25 per cent for the guilty pleas gives an end sentence of 13 months’ imprisonment.
[40] I consider the end sentence of 15 months’ imprisonment manifestly excessive. I reduce it to 13 months’ imprisonment and allow the appeal to that extent.
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M Peters J
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