Edwards v Police

[2013] NZHC 1130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-300 [2013] NZHC 1130

BETWEEN  DONNIE PATRICK EDWARDS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 May 2013

Appearances: N T Tupou for Appellant

K V Mills for Respondent

Judgment:      17 May 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 17 May 2013 at 10.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Meredith Connell, Crown Solicitor, Auckland: [email protected]

Counsel:            N T Tupou, Otahuhu:  [email protected]

EDWARDS V POLICE HC AK CRI-2012-404-300 [17 May 2013]

Introduction

[1]      The Appellant appeals against a sentence imposed by Judge Everitt in the District Court at Manukau on 28 August 2012.1    The Appellant pleaded guilty to unlawful possession of a pistol, being an offence pursuant to s 50(1)(a) Arms Act

1983, for which the maximum penalty is three years’ imprisonment, a $4,000 fine or both.   The Judge sentenced the Appellant to four months’ home detention.   The offending occurred on 22 December 2011 and, as I understand it, the Appellant pleaded guilty at the first available opportunity.   The sentence imposed on the Appellant has been suspended pending determination of his appeal.

[2]      The appeal is brought on the ground that the sentence is manifestly excessive. It is apparent from the Judge’s sentencing note that he was not provided with much of the information that the Appellant’s (new) counsel has put before the Court on appeal.

Facts

[3]      The summary of facts is to the effect that the firearm in question was a sawn-off shotgun, that it was in working order, and that it was found in the Appellant’s  bedroom  with  16  rounds  of  ammunition.     It  is  clear  from  the Judge’s notes that he considered the firearm represented a serious risk and that his starting point was a term of imprisonment.  Ultimately, and having reminded himself of the obligation  to  impose the least  restrictive sentence  appropriate,  the Judge

sentenced the Appellant to a period of home detention.2   In doing so the Judge took

account of the fact that the Appellant had not been involved in “serious criminal

activity” in recent years.

[4]      A report from the Department of Corrections that was before the Court at sentencing was favourable to the Appellant. Although the Appellant has a number of

convictions, predominantly but not exclusively for land transport offences, there had

1 Police v Edwards DC Manukau CRI-2021-092-7073, 28 August 2012.

2 Sentencing Act 2002, s 8(g).

been no offending since August 2004.  Accordingly, there had been a clear break in the pattern of offending, a matter which Corrections attributed to the Appellant abstaining from alcohol and obtaining steady employment.

[5]      On appeal, the case for the Appellant is that a sentence of home detention was manifestly excessive and that a sentence of community work ought to have been imposed.   Counsel referred me to several decisions in which such a sentence had been imposed.3

[6]      The Crown rejects the submission that the sentence imposed was manifestly excessive.  It submits that, as a general rule, the Court treats unlawful possession of a firearm  as  serious  offending.     Crown  counsel  referred  me  to  cases  such  as R v Richardson,  R  v  McDonald,  Roberts  v  Police,  Solicitor-General  v  Lyon,

Harrison v Police and R v Miller.4   On the strength of those cases, counsel submitted

that the appropriate starting point for the offending was a period of imprisonment of at least 18 months.

[7]      The Crown does not submit that any uplift would be necessary on account of

the Appellant’s previous convictions.

Discussion

[8]      The cases on which counsel rely demonstrate that offending of this nature has resulted in a wide range of sentences.  Nonetheless, I consider the circumstances of this case to be closer to those cited by Crown counsel than those of the Appellant’s counsel.   This is not a case where the firearm presented no actual danger to any

person.5   The firearm was a sawn-off shotgun6 found to be in working condition7 and

3 Morgan v Police HC Wellington AP174/95, 13 September 1995; R v Flay HC Auckland CRI-2007-

090-7023, 28 May 2009; R v Hepi DC Hamilton CRI-2008-073-264, 27 April 2010; R v Smith HC Christchurch CRI-2011-409-91, 2 December 2011.

4 R v Richardson CA450/02, 25 March 2003; R v McDonald CA108/00, 10 July 2000; Roberts v

Police (1993) 10 CRNZ 451 (HC); Solicitor-General v Lyon HC Auckland CRI-2004-404-77-A, 11

July 2006; Harrison v Police HC Hamilton CRI-2007-419-101, 27 September 2007; and R v Miller

HC Hamilton CRI-2007-419-138, 28 February 2008.

5 Contrast with R v Smith, above n 3, at [4].
6 Contrast with all cases referred to by the Appellant’s counsel, above n 3.

7 Contrast with R v Flay, above n 3, at [6].

there  is  no  suggestion  that  the  ammunition  did  not  match  the  firearm.8      The Appellant was clearly aware of the firearm’s presence,9  and he occupies the home where the firearm  was  found with  others,  including children.    The firearm  and ammunition plainly represented a danger to the occupants and to others.

[9]      Given the circumstances of the Appellant’s offending, I do not consider there could be any objection to the Judge’s starting point.   A sentence of four months’ home detention is not manifestly excessive and is well within the range open to the Judge.

[10]     The essence of the appeal however is that mitigating factors that relate to the

Appellant personally are such that some variation to the sentence is required.

[11]     The first matter relied upon is that one of the Appellant’s children, that is his

10 year old son, has a serious and debilitating medical condition.  This matter was not  known  to  the  Judge  when  he  sentenced  the Appellant.    On  occasion  this condition requires the Appellant to travel to the boy’s school and then to take such steps as are necessary to care for the boy.   In  addition, from time to time the Appellant is required to drive his son to doctors, including at Starship hospital, and this can happen day or night.   The Appellant’s wife (and the boy’s mother) has a restricted driver licence only and, for the moment at least, cannot drive unless in the company of a fully licensed driver.   There is no evidence before me as to how frequently the Appellant is required to drive on account of his son’s condition, but I accept from the evidence that he is required to drive at least on occasion and that he is the only person who can be expected to do so.

[12]     The  second  matter  concerns  the  Appellant’s employment  as  a  “forensic cleaner”,  a  position  requiring  him  to  travel  to  and  clean  crime  scenes  such  as “P labs” or the scenes of violent crime.  In a letter dated 2 April 2013 (in evidence before the Court) the Appellant’s employer says that it has employed  the Appellant for  nearly  five  years,  that  the  Appellant  has  reached  a  significant  level  of

competence, and that he is punctual, honest and hardworking.  The employer wishes

8 Contrast with R v Hepi, above n 3, at [2].

9 Ibid, at [4].

to retain the Appellant as an employee and considers the Appellant is a real asset to its business. The employer is accommodating of the calls made on the Appellant as a result of his son’s condition.

[13]     It is clear from the Corrections report to which I have referred that this employment has had a beneficial effect on the Appellant and that it is in the interests of all concerned that the Appellant continue to be so employed.  That employment also  assists  in  meeting  the  costs  that  arise  from  the  Appellant’s son’s  medical condition to which I have referred.

Result

[14]     These circumstances would have persuaded me that a sentence that precluded the Appellant from meeting his obligations to his son and which precluded him from working  would  be  disproportionately severe,  and  that  another  form  of  sentence would be preferable.  One practical issue which arises, however, is that the Appellant might not be better placed to work or to transport his son even if I were to impose a sentence of community service or community detention.

[15]     Crown counsel submitted that the circumstances would be better addressed pursuant to s 80C(3)(c) Sentencing Act 2002.   That provision allows a probation officer to approve an offender leaving the home detention residence for employment and for any other specifically approved purpose.  I agree that those provisions might be the best method of accommodating the particular circumstances of this case. Given that, I dismiss this appeal but record that I hope it will be possible for the Appellant’s probation officer to settle on a regime with the Appellant, his counsel and possibly the Appellant’s employer, that will accommodate both the demands of the Appellant’s son (which no doubt are urgent when they arise) and the Appellant’s employment to which I have referred.

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M Peters J