Edwards v Police

[2023] NZHC 2825

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-407

[2023] NZHC 2825

BETWEEN

CAMERON PAUL EDWARDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 October 2023
Appearances:	J S Kovacevich for Appellant S M Murphy for Respondent
Judgment:	10 October 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 10 October 2023 at 3:00 pm

………………………………

Registrar/Deputy Registrar

Solicitors:    Meredith Connell, Auckland

EDWARDS v POLICE [2023] NZHC 2825 [10 October 2023]

Introduction

[1]                 Mr Cameron Edwards pleaded guilty to a representative charge of strangulation.1 He was sentenced to 25 months’ imprisonment by Judge P J Sinclair in the District Court at Auckland on 17 May 2023.2

[2]Mr Edwards appeals this sentence as being manifestly excessive in that:

(a)the starting point was too high; and

(b)there was insufficient discount applied for his guilty plea, the contents of his cultural report, his remorse, his participation in restorative justice and his time spent in custody.

[3]                 The Court must allow an appeal against sentence if it is satisfied there is an error and a different sentence should be imposed.3 A Court will intervene where the sentence is manifestly excessive,4 but will not engage in “tinkering”.5

[4]                 The focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.6

Offending

[5]                 Mr Edwards and the victim had been in a relationship for six months.   On   15 March 2022 they were together at home and argued about the victim not finishing her dinner. Mr Edwards grabbed the victim by the throat and pushed her back against a wall with sufficient force to cause her head to snap forward. He squeezed her neck for approximately 30 seconds before releasing the pressure on her throat.

1      Crimes Act 1961, s 189A(b), maximum penalty is seven years’ imprisonment.

2      Police v Edwards [2023] NZDC 9596.

3      Criminal Procedure Act 2011, s 250(2).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

5      Maihi v R [2013] NZCA 69 at [21] and Mack v R [2013] NZCA 183 at [16].

6      Tutakangahau v R, above n 4, at [36].

[6]                 The victim described the force as feeling like a rope burn after she was released, and further stated her jaw hurt and that it hurt to swallow for a couple of days.

[7]                 On 22 March 2022, Mr Edwards and the victim were together at home. They argued as the victim believed Mr Edwards was cheating on her. Mr Edwards pushed the victim on the bed and knelt on her throat before covering her face with a pillow and pressing down on it, preventing her from breathing. He removed the pillow before applying his hands to her nose and mouth to again prevent her from breathing. He removed his hands to allow her to breathe, then placed his hands over her nose and mouth a second time, preventing her breathing for a short period.

[8]                 The victim was pinned to the bed for 10 to 15 minutes before Mr Edwards released the pressure from her throat, allowing her to move. The victim received a small cut to her upper lip.

District Court decision

[9]The 25-month sentence Judge Sinclair imposed was constructed as follows:

(a)a starting point of three years’ imprisonment;7

(b)an uplift of three months for prior offending;8

(c)a compound discount for personal circumstances and attendance at a restorative justice conference of 15 per cent;9 and

(d)a discount for guilty plea (not entered at the earliest opportunity) of  15 per cent.10

[10]              There is a calculation error in the Judge’s decision in Mr Edwards’ favour. Her Honour omitted to include the three-month uplift for previous convictions in her

7      Police v Edwards, above n 2, at [13].

8 At [13].

9 At [17].

10 At [18].

calculations.     The end sentence ought to have been 27 months’ imprisonment (rounding down). This resulted in an additional discount of around eight per cent.

Starting point before uplift for previous offending

[11]              The tariff case for strangulation is Shramka v R.11 In that case the Court of Appeal referred to the legislative history underlying the introduction of a specific offence of strangulation.12 It set out eight primary aggravating factors relating to the offence.13 The Court did not suggest bands based on the number of factors present given the degree of overlap and cautioned against an over-mathematical approach.14 Rather, the Court provided examples as reference points for comparison in future sentencing, noting that subsequent decisions at all levels would add to them.15

[12]              In this case, Judge Sinclair highlighted the key purposes and principles of sentencing. She noted that a stern approach was required for family harm offending in general, and strangulation/impeding breathing specifically as it is potentially life-threatening offending and implies a serious risk of fatal harm.16

[13]              Referring to Shramka v R the Judge considered that the two incidents, but particularly the second, “sit towards the upper end of the spectrum”.17 She noted that given Mr Edwards’ emotional dysregulation at the time it was fortunate he did not more seriously harm or kill the victim.18

[14]She identified four aggravating features:19

(a)the offending took place in a domestic setting where the victim was entitled to feel safe and secure, and the likelihood of coercion and control was increased;

11     Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.

12     At [14]–[29].

13 At [42].

14 At [43].

15 At [45].

16     Police v Edwards, above n 2, at [5]–[7].

17 At [9].

18 At [9].

19     At [9]–[10].

(b)the charge is a representative one covering two separate instances, with the second being “quite prolonged” lasting 10 to 15 minutes and involving repeated instances of impeding her breathing;

(c)the  victim  was  vulnerable  as  being  smaller   and  weaker  than   Mr Edwards, and on the second occasion was lying down and was pinned by Mr Edwards’ knee on her neck; and

(d)the victim was harmed physically, emotionally, and psychologically.

[15]              Her Honour noted that in Shramka, a three-year starting point was adopted for similar offending; and in Williams v Police,20 a 30-month starting point was adopted for two 30-second strangulations on the defendant’s partner in her home, which was accompanied by other violence.21

[16]             Mr Kovacevich submits that the Judge came to the three-year starting point by an over-mechanistic application of Shramka, rather than a review of and comparison with subsequent cases. He referred me to a range of High Court decisions and one Court of Appeal decision.22 All of these cases involved starting points of three years or less with the Court applying the principles outlined in Shramka.

[17]              Mr Kovacevich submits that only one of the Shramka factors is engaged here, being the vulnerability of the victim. He further submits that the case is at a moderate level of offending as referred to in Shramka. On the basis of the above, he submits that the three-year starting point was too high.

[18]              I do not consider the Judge to have been in error in applying a three-year starting point. While the other cases referred to by Mr Kovacevich involved lower starting points, the aggravating features here justify the starting point adopted. As  Ms Murphy submits, the first incident bears similarities to Mr Shramka’s strangulation

20 Williams v Police [2022] NZHC 2583.

21 Police v Edwards, above n 2, at [11].

22 Williams v Police, above n 22; Miller v Police [2022] NZHC 2636; Parata v Police [2022] NZHC 2623; Barnett v Police [2022] NZHC 2662; Riley v R [2023] NZHC 124; Schell v Police and Chief Executive of the Department of Corrections [2023] NZHC 636; Mullan v Police [2023] NZHC 962; Jackson v Police [2023] NZHC 1100; and Hopa v R [2023] NZCA 320.

charge yet the second is more serious and prolonged. Moreover, it was appropriate to treat as aggravating the two separate strangulation events. As the Court of Appeal has noted, where strangulation is repeated “there is a pronounced risk of fatality”;23 and also in respect to the second event, “a longer, purposeful period of strangulation warrant[s] higher culpability”.24

[19]              All things considered, in my view the three-year starting point was well within range.

Uplift for Mr Edwards’ previous family harm offending

[20]              The Judge uplifted the three-year starting point by three months to  reflect  Mr Edwards’ 11 previous family harm offences.25 His counsel in the District Court had proposed a two-month uplift.26

[21]              Mr Kovacevich submitted that an uplift is a form of double jeopardy being a penalty on a penalty that is breach of s 26(2) of the New Zealand Bill of Rights Act 1990.27 It is however well established in the case law that an uplift will be made in appropriate circumstances.28

[22]              Mr Kovacevich further submits that there is no legal duty to uplift a sentence just because of prior offending even when it is of a similar nature. This is certainly correct. An uplift should not be given unless relevant and relative.29

[23]              However, I accept the Crown’s submission that an uplift of three months to reflect Mr Edwards’ 11 previous family harm offences was appropriately made. Those previous convictions are:

(a)doing a threatening act (2019);

23     Shramka v R, above n 11, at [42](b).

24     Ackland v Police [2019] NZHC 312, (2019) 29 CRNZ 179 at [26](c) as quoted in Shramka v R, above n 11, at [42](e).

25     Police v Edwards, above n 2, at [13].

26 At [4].

27     Which provides “No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again”.

28     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [8]–[9].

29     O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [41].

(b)assault by a male on a female (2019);

(c)possession of a firearm (2019);

(d)assault by a male on a female (2018);

(e)four charges of breach of protection order (2017);

(f)common assault (2017);

(g)trespass (2017);

(h)speaking threateningly (2017);

(i)common assault (2012); and

(j)wilful damage (2012).

[24]              The Judge recorded that the previous convictions are relevant to this offending as they reflect “a pattern of violence and threats towards intimate partners”.30 I accept the Crown’s submission that the offending showed not just a pattern of violence but one that is escalating. The uplift given was relevant and relative here. I see no basis to interfere with it.

Personal and mitigating factors

[25]In terms of personal factors, the Judge noted:

(a)the pre-sentence report assessed Mr Edwards as posing a moderate to high risk of re-offending if untreated, noted he appeared to be remorseful, and recommended a sentence of imprisonment;31

30     Police v Edwards, above n 2, at [12]–[13].

31 At [14].

(b)there was a nexus between Mr Edwards’ adverse upbringing and his offending;32

(c)Mr Edwards attended a productive restorative justice conference in which he made some comments that indicated he was aware of the impact of his offending on the victim;33 and

(d)a guilty plea was entered following amendment of the charge, not at the earliest opportunity, but prior to trial.34

[26]              The Judge allowed a reduction of 15 per cent for Mr Edwards’ personal circumstances and a  further 15 per  cent for his  guilty plea.  An  end sentence  of  25 months’ imprisonment was imposed.35

Personal circumstances

[27]              Mr Kovacevich submits that a greater combined discount of up to 30 per cent, rather than 15 per cent, for factors raised in the cultural report/other factors would have been appropriate.

[28]              The Crown submits that 15 per cent was available to the Judge but Ms Murphy accepted that it would have been open to her Honour and in line with authority to take a more generous approach. However, as she submitted, that it would have been open to her Honour to be more generous does not mean that the Judge was in error.

[29]              In her judgment, the Judge outlined Mr Edwards’ personal circumstances from the pre-sentence report including reference to his remorse.36 Her Honour had also been handed the cultural report just prior to sentencing.37 This provided insight into Mr Edwards’ personal background and circumstances including family violence and alcohol featuring heavily in his childhood and teenage years. There is reference to

32     At [15]–[16].

33 At [17].

34 At [18].

35     At [17]–[19].

36 At [14].

37 At [15].

parental neglect and disconnect as well as to Mr Edwards’ grandfather dying when Mr Edwards was young leaving a huge gap in his life.38 The Judge was satisfied that there was a causal connection between Mr Edwards’ background and personal issues and his offending warranting a discount.39

[30]              The Judge also referred to Mr Edwards’ attendance at a restorative justice conference.40 This in particular was relied upon by the appellant together with remorse as justifying a greater discount.

[31]              While I acknowledge that the Court could have been more generous than the 15 per cent discount allowed for these factors combined, as noted above, the focus on appeal is whether the sentence is within the appropriate range, rather than the process by which the sentence was reached. Taking into account the eight per cent error made in Mr Edwards’ favour, the effective discount is 23 per cent and the end sentence is well within the available range. I do not consider there is any justification for interfering with the final sentence imposed.

Reduction for guilty plea

[32]              Mr Kovacevich submits the 15 per cent discount for Mr Edwards’ guilty plea was too low.

[33]              Mr Edwards’ guilty plea was entered approximately one year after the first appearance and in the face of a relatively strong police case comprised of a recorded statement, photographic/video records, and text evidence. It followed an amendment from two charges of strangulation covering the two incidents to one representative charge. There does not appear to have been changes made to the summary of facts.

[34]              I accept the Crown’s submission that the 15 per cent was correct in the circumstances. Notably, it was at the level proposed by Mr Edwards’ counsel in the District Court. While the plea avoided a trial it was not entered at the earliest opportunity. The amendment of the charge was not substantive.

38 At [16].

39 At [16].

40 At [17].

Time spent in custody on remand

[35]              Finally,  Mr  Kovacevich  submits  that   the   approximately   six   months  Mr Edwards spent in custody on remand is something that could be taken into account. As a custodial sentence was imposed, the Judge was not permitted to take Mr Edwards’ time spent in custody into account.41

Result

[36]              In all the circumstances, the sentence is not manifestly excessive. I dismiss the appeal.

Anderson J

41     Sentencing Act 2002, s 82.