Edwards v Police - [2014] NZHC 1260

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-000018 [2014] NZHC 1260

RORY ANTON EDWARDS

v

NEW ZEALAND POLICE

Hearing: 5 June 2014

Appearances:

Dr G S Williamson for Appellant
E L Higbee for Respondent

Judgment:

5 June 2014

JUDGMENT OF DUNNINGHAM J

[1] Mr Rory Edwards appeals his sentence of three months imprisonment on a charge of theft (under $500) under ss 219 and 223(d) of the Crimes Act 1961. In practical terms this was the maximum penalty available for this offence under s 223.

[2] There is no dispute here about the approach to the appeal. I must allow the appeal if I am satisfied that for any reason there is an error in the sentence imposed on the conviction and that a different sentence should be imposed.1

[3] In this case, the alleged errors are set out in the grounds of appeal and they are as follows:

(a) the starting point of two months imprisonment was uplifted by a further two months imprisonment and this exceeded the maximum
penalty available. This was outside the District Court’s jurisdiction;

1 Criminal Procedure Act 2011, s 250.

(b)the uplift was manifestly excessive, being 100 per cent uplift on the starting point, despite having nine previous shoplifting convictions, this uplift was in effect additional punishment for the appellant’s prior offending; and

(c) the appellant was effectively denied any discount for his guilty plea.

This was because the guilty plea reduction only reduced the sentence to the maximum available. This is contrary to the policy behind guilty pleas.

In my view all issues really turn on the quantum of the uplift imposed by the District

Court Judge.

The District Court decision

[4] In his decision given on 17 April 2014, the District Court Judge observed of the appellant:2

You are 31 years of age and have nine previous convictions for theft of a similar nature. Looking at your record the Court has done all it can to keep you out of prison. You have received sentences of come up if called upon, community work, fine, home detention and most recently when all other options were exhausted you were imprisoned for two months and 10 days.

[5] The Judge went on to say:

I take as a starting point two months’ imprisonment and I uplift that by two months for your previous history. That comes to a sentence of four months’ imprisonment. The only mitigating factor is an early guilty plea for which you are entitled to the maximum credit available to you. That reduces a sentence to one of three months’ imprisonment.

Discussion

[6] I will deal with the second ground first because I accept Mr Williamson’s submission in this regard. The uplift for the previous offences must in my view be proportionate to the available sentence, and also to the penalties imposed for the
previous offences. This is to ensure that there is not, in effect, additional punishment

2 Police v Edwards DC Invercargill CRI-2014-025-000426, 17 April 2014.

for prior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edwards v Police

Details

AGLC: Edwards v Police [2014] NZHC 1260
Case: [2014] NZHC 1260
Decision Date: 5 June 2014

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Rory Anton Edwards against his three-month imprisonment sentence for theft (under $500), imposed by the Invercargill District Court. The District Court Judge had adopted a starting point of two months' imprisonment, which was uplifted by a further two months due to Mr Edwards' previous shoplifting convictions, resulting in a total sentence of four months. This was reduced to three months, reflecting the maximum credit available for an early guilty plea. Mr Edwards argued that the uplift was excessive and denied him the benefit of his guilty plea. The appeal raised questions about the proportionality of the uplift, the maximum penalty available under the statute, and the impact of the uplift on the discount for a guilty plea.

The court considered the proportionality of the uplift in the context of the statutory maximum penalty and previous sentences. It noted that a 100% uplift was unusual and excessive, particularly given the nature of the offence and the penalties imposed for previous offences. The court agreed with the appellant's counsel that a 50% uplift, or one additional month, was sufficient to reflect the aggravating features of the offender. Regarding the impact of the uplift on the discount for a guilty plea, the court accepted that the excessive uplift effectively denied Mr Edwards the benefit of his early guilty plea. The court emphasised the importance of giving credit for a guilty plea, as it supports the policy reasons for encouraging such pleas, including predictability in sentencing.

The court allowed the appeal and quashed the three-month sentence, imposing a new sentence of two months and one week's imprisonment. This new sentence reflected a 50% uplift from the starting point and appropriately accounted for the appellant's guilty plea. The court did not address the issue of whether an uplift can take the sentence beyond the statutory maximum, reserving that matter for another occasion. The final orders of the court were that the appeal against sentence was allowed, the three-month sentence was quashed, and a sentence of two months and one week's imprisonment was imposed in its place.

Orders