Edwards v Police

[2018] NZHC 1882

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-139

[2018] NZHC 1882

BETWEEN

CORRIE JESSIE EDWARDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 June 2018
Appearances:	T A Fitzgibbon for Appellant B A Keown for Respondent
Judgment:	27 July 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 27 July 2018 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

EDWARDS v POLICE [2018] NZHC 1882 [27 July 2018]

Introduction

[1]    Corrie Edwards was sentenced in the Auckland District Court to two years and two months’ imprisonment on two charges of burglary and one charge of unlawful possession of an imitation firearm.1 He now appeals against that sentence on the grounds that the Judge adopted an excessive starting point and gave insufficient credit for time spent on electronically monitored bail.

The offending

[2]    The first burglary took place at a residential address in Hamilton sometime between 3.00pm on 10 December 2016 and 6.30pm on 11 December 2016. The occupant had left the house locked and secure. Mr Edwards entered by smashing a glass door at the back of the house, and conducted what is described in the summary of facts as a “messy search” of all the bedrooms. He took numerous electrical items, books, jewellery and men’s clothing. His DNA was subsequently found in the master bedroom.

[3]    The second burglary took place at a residential address in Grey Lynn, Auckland, sometime between 1.00pm and 9.15pm on 15 February 2017. Mr Edwards took several items including silver cutlery, a sterling silver tea set, clothing and video tapes. The estimated total value of the property stolen is $650. When police carried out inquiries at the address, they found the toilet window had been smashed and a rubbish bin was positioned beneath that window. They also found a blood smear on the interior wall of the toilet, which returned a positive result for Mr Edwards.

[4]    The police located and arrested Mr Edwards at the Work and Income office in Manurewa on 17 March 2017. On searching him, they found an airgun in his possession.

[5]    Mr Edwards initially entered a plea of not guilty to the first burglary, in March 2017. He was released on electronically monitored bail on 2 May 2017 and complied with his bail conditions. On 24 August 2017, he pleaded guilty to the first charge of

1      Police v Edwards [2018] NZDC 9313.

burglary. In November 2017, he also pleaded guilty to the second burglary and the possession of an imitation firearm charge.

Mr Edwards’ personal circumstances

[6]    Mr Edwards is 34 years old. He was deported from Australia after being convicted of breaking and entering, and arrived in New Zealand on 23 October 2016. His Australian criminal conviction history has not been made available to me, but the pre-sentence reports record that he has multiple convictions for violence, robbery, burglary, wilful damage, unlawful possession of weapons, drug-related offending, breaches of bail and assaulting or obstructing police. He has not resided in New Zealand since 1996, and has no previous convictions in New Zealand.

[7]    The pre-sentence reports state that Mr Edwards has an extensive history of drug use, in particular methamphetamine and heroin. He uses these drugs in order to “escape from reality”, and it seems that drug use motivated his present offending. However, the pre-sentence report writer records that Mr Edwards committed to recovering from drug use in October 2017 when his daughter was born, and although he has had periods of relapse since then, he is motivated to rehabilitate himself. Pro- social support networks are important to him in this regard.

[8]    The pre-sentence report writer considers that Mr Edwards displays remorse for his offending and accepts full responsibility for his actions. He says his offending was “senseless” and “careless” and that he was “lashing out” in reaction to his deportation from Australia and separation from his family. He has been on electronically monitored bail with the Grace Foundation since May 2017, and considers this to have been a positive influence on him, allowing him to reflect on the consequences of his poor choices. He is described as being motivated to find full-time employment, join  a gym and engage in church activities.

[9]    The Grace Foundation address was proposed for an electronically monitored sentence, and the pre-sentence report states that it is technically suitable for electronic monitoring. However, because of the presence of other offenders with similar conviction histories at the address, the writer of the pre-sentence report expresses some concern about the suitability of the address for home detention. The influence of other

offenders is considered to be more manageable if Mr Edwards were to serve a sentence of community detention at the Grace Foundation address.

District Court decision

[10]   Mr Edwards appeared for sentence before Judge Ronayne in the Auckland District Court on 4 May 2018.

[11]   After setting out the facts and Mr Edwards’ personal circumstances, Judge Ronayne noted that it was a serious aggravating factor that the two burglaries targeted dwelling houses. He also noted that it was a very serious aggravating feature that the second burglary and possession of an airgun were offences committed while on bail for the first burglary. Weighing up the need for deterrence of dwelling house burglaries and the obligation to impose the least restrictive outcome appropriate, the Judge took a starting point for the first burglary of 18 months. He adopted a starting point of 24 months for the second burglary and four months for the possession of the airgun.

[12]   The Judge then stepped back and considered the totality of the offending, and concluded that a sentence of three years’ imprisonment would be appropriate. He uplifted that sentence by three months to reflect Mr Edwards’ criminal record, and then gave a 20 per cent discount for his guilty pleas. This resulted in a sentence of two years and seven months’ imprisonment. Although noting that he did so out of order, the Judge then reduced that sentence by a further five months to reflect the time Mr Edwards had spent on electronically monitored bail. The overall end sentence therefore came to two years and two months’ imprisonment.

Submissions

[13]   Ms Fitzgibbon for Mr Edwards acknowledges that the starting point of 18 months was available to the Judge on the first burglary. Nor does she take issue with the starting point of four months adopted for the charge of possessing an imitation firearm. However, she submits that the Judge erred in two respects:

(a)by adopting an excessive starting point for the second burglary; and

(b)providing insufficient credit for the time Mr Edwards spent on electronically monitored (EM) bail.

[14]   Mr Keown for the Crown submits that the starting points adopted by the Judge were within the available range, and that appropriate credit was given for time spent on EM bail. He adds that the Judge gave generous guilty plea discounts despite Mr Edwards’ late pleas, and that his adoption of a global discount rather than applying the guilty plea discount at the end operated to Mr Edwards’ benefit. He says that the end sentence was therefore not manifestly excessive.

Approach on appeal

[15]   Section 250 of the Criminal Procedure Act provides that the Court must allow an appeal against sentence if satisfied that for any reason there is an error in the sentence imposed, and that a different sentence should be imposed. In any other case, the Court must dismiss the appeal.

[16]   The Court of Appeal has confirmed that the approach remains that of determining whether or not the end sentence is “manifestly excessive”.2 A sentence appeal therefore turns on a consideration of the final outcome: although the route by which the sentencing Judge reached that outcome is relevant, it is seldom pivotal.3

Was the 24-month starting point too high?

[17]   Burglary carries a maximum sentence of 10 years’ imprisonment.4 There is no tariff sentencing case for burglary, but a distinction is typically made between burglaries of residential houses and commercial premises. The Court of Appeal has observed:5

Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

3      Ripia v R [2011] NZCA 101 at [15].

4      Crimes Act 1961, s 231(1).

5 At [78].

[18]   The District Court Judge was therefore correct to treat the fact that the burglary targeted a residential dwelling as a serious aggravating feature. He was also entitled to regard as a serious aggravating feature the fact that Mr Edwards was on bail for similar offending at the time he committed the second burglary.6 This is because offending while on bail displays disregard and contempt for court processes.7

[19]   Nevertheless, in terms of the value of the property taken ($650), and given that there was no actual confrontation with occupants or any evidence of premeditation, the second burglary is at the lower end of the scale in terms of seriousness. It is also relevant that the second burglary took place either in the daytime or early in the evening (sometime between 1.00pm and 9.15pm): a burglary of a residential dwelling at night, when the occupants are likely to be asleep in bed, will be regarded as more serious.

[20]   Mr Keown referred me to Sussex v Police and Regan v Police in order to illustrate that there will be variations, sometimes significant variations, in the sentences imposed for burglary.8 Neither of those cases is directly comparable to the facts of the present case: in Sussex, the defendant broke into and stole money from a church, which is of course distinct from burglary of a residential dwelling, and in Regan the sentencing Judge adopted a starting point of three years for burglary of a residential dwelling taking into account several aggravating factors personal to the defendant. I do not derive any real assistance from those cases.

[21]   Ms Fitzgibbon referred me to Stepanicic v R.9 In that case, the defendant broke into two residential dwellings in the early hours of 6 April 2011 and stole a number of personal items. On both occasions the occupant was at home and asleep in bed. The Court of Appeal adopted a starting point of two years on each burglary, uplifting that starting point by a further four months to reflect the fact that the defendant was on bail at the time. The sentences were imposed concurrently.

6      Sentencing Act 2002, s 9(1)(c).

7      Clunie v R [2013] NZCA 110 at [22].

8      Sunnex v Police HC Christchurch CRI-2010-409-43, 22 April 2010; Regan v Police [2016] NZHC 161.

9      Stepanicic v R [2015] NZCA 211.

[22]   Ms Fitzgibbon submits that the two burglaries in that case were more serious than the charges Mr Edwards faced. I agree that each of the burglaries in Stepanicic was more serious than Mr Edwards’ second burglary due to the fact that they occurred in the early hours of the morning, while the occupant was at home and asleep. The risk of confrontation with the occupant (and violence as a consequence) was considerably heightened, and indeed only narrowly avoided – one of the occupants woke up and saw the defendant crawling across her bedroom floor, but thought it was her son and went back to sleep.

[23]   The second burglary committed by Mr Edwards therefore merited a lower starting point than the 24 months adopted in Stepanicic. By comparison to other cases involving daytime burglaries where property with a slightly greater total value was stolen, Mr Edwards’ second burglary (taken alone) should have attracted a starting point of around 17 to 18 months.10

[24]   However, as I have noted, the Judge was also entitled to incorporate in the starting point an uplift to reflect the fact that Mr Edwards was on bail in relation to another burglary at the time. Although the Judge did not expressly quantify the uplift for this aggravating feature, instead choosing to build it into his starting point, Stepanicic indicates that an uplift of around four months would have been justified. Taking this into account, I consider that a starting point of 21 to 22 months would have been justified for the second burglary. The starting point of 24 months adopted by the Judge was therefore slightly outside the available range.

[25]   However, the Judge went on to make a reduction for totality. Section 85(2) of the Sentencing Act 2002 provides that if cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. Recognising this, Judge Ronayne concluded that a global starting point of three years’ imprisonment appropriately reflected the totality of the offending, including the first burglary and the possession

10 Compare Hotene v Police [2014] NZHC 2081 (daytime burglary of residential dwelling while occupants were out; items taken worth a total of $3,000; starting point of 18 months); Blissett v Police [2013] NZHC 156 (daytime burglary of residential dwelling; items taken worth $2,000; starting point of 17 months); French v Police [2015] NZHC 2635 (daytime burglary of residential dwelling while occupant was out; window forced open with shovel; items taken worth a total of

$1,340; starting point of 20 months).

of the airgun. I consider that no issue can be taken with this reduction or the resulting global starting point of three years, into which the 24-month starting point on the second burglary was effectively subsumed.

[26]   I further note that the guilty plea discounts given by the Judge (20 per cent for each offence) could be regarded as generous, given the length of time between Mr Edwards’ first appearance in Court and his guilty pleas. The uplift for previous convictions (three months) was also somewhat lenient, given Mr Edwards’ extensive dishonesty-related criminal history in Australia.11

Did the Judge give insufficient credit for time spent on EM bail?

[27]   Ms Fitzgibbon notes that Mr Edwards was on EM bail from 2 May 2017 until 4 May 2018 when he was sentenced. He was subject to a curfew 24 hours per day, seven days a week, with some special exceptions. She says that he has not reoffended during this time, and has incurred only one minor breach (failing to charge his bracelet). Ms Fitzgibbon submits that Mr Edwards was entitled to more than five months’ credit for the 12 months spent on restrictive bail conditions with (effectively) full compliance. She suggests that seven months’ credit could have been given.

[28]   Section 9(2)(h) of the Sentencing Act provides that the sentencing Judge must take into account time spent on EM bail. However, there is no fixed rule or arithmetical formula for determining the appropriate quantity of such a discount.12 It is a matter for the Judge’s discretion. A relevant factor in assessing the credit to be given is to weigh up the degree of restriction on liberty imposed by the bail conditions, compared with the degree of restriction on liberty involved in a prison sentence.13 In the present case, although Mr Edwards was subject to a 24/7 curfew, he was allowed several trips away from the house, including to attend church and related activities, as well as an absence of five days to attend his daughter’s birth. He therefore had considerably greater freedom of movement than he would have had if imprisoned.

11 Compare Jones v R [2012] NZCA 273 (starting point of three years; uplift of 18 months for previous convictions); R v Columbus [2008] NZCA 192 (starting point of 18 months; uplift of 12 months for previous convictions).

12     Rangi v R [2014] NZCA 524 at [10].

13     Keown v R [2010] NZCA 492 at [12].

[29]   In Keown v R, the Court of Appeal reviewed a number of its former decisions where discounts had been given for time spent on EM bail.14 There is significant variation between them: in some cases, discounts of more than half the time spent on bail were given,15 while in other cases, discounts of one third of the time spent on bail (or less) were given.16 The Crown referred me to two further decisions in which credit of less than half the time spent on EM bail was given.17 In light of these authorities, I am not satisfied that the Judge made any error in giving five months’ credit for the 12 months Mr Edwards spent on EM bail. Although a higher figure would not necessarily have been wrong, five months was not inadequate.

Home detention?

[30]   Ms Fitzgibbon submits that if a greater discount had been given for Mr Edwards’ time on EM bail, his sentence may have come within the two-year range for home detention and that such a sentence would be appropriate. She refers to s 16 of the Sentencing Act, which requires the Court to have regard to the desirability of keeping offenders in the community so far as that is practicable and consonant with the safety of the community, and the principle of sentencing which requires the Court to impose the least restrictive sentence that is appropriate in the circumstances.18 She notes that home detention is a punitive sentence in its own right. In this case, she submits that Mr Edwards’ adherence to EM bail conditions and the absence of any other identified issues with compliance supports a sentence of home detention. She further says that Mr Edwards was settled at the Grace Foundation and making good progress prior to sentence.

[31]   I acknowledge Ms Fitzgibbon’s submission that home detention may have been a desirable outcome for Mr Edwards. However, the fact remains that the Judge reached an end sentence of two years and two months’ imprisonment, which is outside the range for home detention.19 On examination of that sentence I have not found it to be manifestly excessive. Although the starting point on the second burglary was

14     Keown v R [2010] NZCA 492 at [14].

15     See R v Aram [2007] NZCA 328; R v Faisandier CA185/00, 12 October 2000.

16     See R v Tamou [2008] NZCA 88; R v Gray [2008] NZCA 224.

17     Longman v Police [2017] NZHC 2928; Parata v R [2017] NZCA 48.

18     Sentencing Act 2002, s 8(g).

19     Sentencing Act, s 15A(1)(b).

slightly too high, this error was rectified by the Judge’s subsequent reduction for totality, as well as generous guilty plea discounts and a minimal uplift for previous convictions. There was no error in the discount the Judge gave for time spent on EM bail. It is not appropriate for an appellate Court to “tinker” with or adjust the length of a sentence that is not manifestly excessive in order to reach a sentence of home detention.

Result

[32]   The end sentence of two years and two months’ imprisonment was not manifestly excessive.

[33]The appeal is dismissed.

Paul Davison J