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 offending. A 100 per cent uplift on sentence is, as was said in the decision of Kushell v Police3 “very unusual”.

[7]      While  in  chronological  terms,  I accept  that  two  months  does  not  sound significant, it does represent a doubling of the starting point for sentencing and I have no doubt, therefore, that it is manifestly excessive.  I say that notwithstanding Mr Higbee’s submission that with offences involving small penalties, percentage terms might not be as relevant as they are in sentences with longer penalties.  Even taking that submission into account, I think in this case an uplift of 100 per cent is too much.

[8]      I accept that the sentencing Judge was dismayed by Mr Edwards’ lack of response to previous sentences and saw this as an aggravating factor.   But in my view, a 50 per cent uplift in sentence, that is, an uplift of one month from the starting point of two months, was clearly sufficient in the circumstances to reflect the aggravating features relevant to this offender.

[9]      Having reached that conclusion, I do not need to consider the first ground of appeal, which is whether an uplift can take the sentence beyond the statutory maximum, so long as the final sentence is within it.  That is a matter that will have to be considered on another occasion.

[10]     The third ground of appeal flows from the second ground of appeal.  I accept Mr Williamson’s submissions that, as a consequence of the excessive uplift, Mr Edwards was effectively denied credit for an early guilty plea.  The value of giving credit for an early guilty plea is traversed fully in the decision in Hessell v R, where it was said:4

It is, however, the benefits that guilty pleas bring to the criminal justice system, and participants in it, which provide the core justification for recognising such pleas in a tangible way in the sentence.

[11]     By imposing an excessive uplift on sentence the learned District Court Judge effectively  denied  the   defendant   the  benefit   of  an   early  guilty  plea.     As

3      Kushell v Police [2012] NZHC 2380.

4      Hessell v R [2010] NZSC 135 at [46]. Also see [45].

Mr Williamson said, he would have been at least as well off if he had insisted on availing himself of all the resources of the criminal justice process as he could not have exposed himself to a worse outcome.

[12]     In my view, this would undermine the policy reasons for the credit given for a guilty plea, and that includes:

… a degree of predictability which will assist counsel in advising persons charged to have in mind pleading guilty.5

[13]     I consider the starting point of two months adopted by the District Court Judge was appropriate.  An uplift of one month to a maximum of three months is ample to reflect Mr Edwards’ recidivism.  From that, the discount of 25 per cent for a guilty plea adopted by the Judge is also appropriate, and I therefore would reduce the three month sentence by three weeks, which is approximately 25 per cent, to two months and one week.

[14]     As a result, the appeal against sentence is allowed.   The sentence of three months is quashed and a sentence of two months and one week’s imprisonment imposed in its place.

Solicitors:

Hewat Galt, Invercargill

Preston Russell Law, Invercargill

5      Hessell, at [73].