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: kate.mills@meredithconnell.co.nz

Counsel: N T Tupou, Otahuhu: ntupou.lawyer@xtra.co.nz

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…

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 [2013] NZHC 1130
Case: [2013] NZHC 1130
Decision Date: 17 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Donnie Patrick Edwards appealed against a sentence imposed by Judge Everitt in the District Court at Manukau. Edwards was found guilty of unlawful possession of a sawn-off shotgun, with 16 rounds of ammunition, in breach of the Arms Act 1983. The District Court sentenced Edwards to four months of home detention, which he appealed on the basis that the sentence was manifestly excessive. Edwards' counsel argued that a sentence of community work should have been imposed instead. The Crown opposed the appeal, asserting that the sentence was appropriate given the nature of the offence and the risk the firearm represented.

The court considered the arguments from both sides and examined the circumstances of the case. The court noted that the firearm was in working order and represented a danger to the occupants of the home and others. The court also acknowledged Edwards' good employment record and his responsibility for his son's medical condition. However, the court found that a sentence of four months' home detention was not manifestly excessive and was within the range of appropriate sentences for the offence.

Ultimately, the court dismissed the appeal but acknowledged the importance of accommodating Edwards' responsibilities to his son and his employment. The court suggested that the probation officer could approve Edwards leaving the home detention residence for employment and other approved purposes, as per section 80C(3)(c) of the Sentencing Act 2002.

Orders