Edwards v Police

[2012] NZHC 737

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-16 [2012] NZHC 737

BETWEEN  RICHARD ANTHONY EDWARDS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 April 2012

Counsel:         T V Barclay for Appellant

N Tahana for Crown

Judgment:      23 April 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 740, Rotorua
Counsel:

T V Barclay, PO Box 366, Rotorua

EDWARDS V NEW ZEALAND POLICE HC ROT CRI 2012-463-16 [23 April 2012]

The appeal

[1]      Mr Edwards appeals against a sentence imposed by Judge Weir in the District

Court at Rotorua on 23 February 2012.

[2]      Although there were other charges before the Court, on which cumulative sentences were imposed, the challenge is directed to a sentence of 18 months imprisonment on a charge of deception.  The point is whether the end sentence was manifestly excessive as a result of an uplift for prior convictions that was greater than appropriate.

Facts

[3]      Between 30 April 2011 and 23 May 2011, Mr Edwards lived in Auckland. During that time he visited Countdown supermarket stores within the Auckland region.

[4]     On 10 separate occasions Mr Edwards presented cheques which were subsequently dishonoured.   The 10 cheques were presented at four different Countdown stores.  The total value was $6,244.31.  The deception arises out of Mr Edwards’ knowledge that he did not have money to meet the payments.

Personal circumstances

[5]      Before sentencing, Judge Weir had had the advantage of receiving a pre- sentence report and a report obtained under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, from Dr Wilson.   The information provided from Dr Wilson seems to make clear that Mr Edwards exhibits signs of a personality disorder with possible psychopathic tendencies.

[6]      Judge Weir summed up the information in this way:[1]

[13]  The conclusion is this.   It has been determined that your history and functioning is suggestive of a strong indication of severe anti-social traits and consequently a high risk of future offending.  The psychiatrist said that persons with similar patterns of scores are often found to be superficial, grandiose and deceitful in their attitudes and approach to the world and often display limited remorse and a tendency for denial of responsibility for their actions.  That is you to a tee, that is exactly you.  Tellingly, his assessment revealed you to be a man free of serious mental health concerns but you have severe anti-social personality dysfunction.  He said the problem with you is that you appear to have almost complete disregard of following established rules  and  you  are  too  willing  to  violate  those  in  order  to  meet  your immediate needs and desires.  The firm conclusion by the psychiatrist is that you can and should be held accountable for your actions as your offending appears largely to be a function of your personality functioning and not related to a specific mental health concern, which is what I intend to do today.

[1] Police v Edwards DC Rotorua CRI 2011-063-004455, 23 February 2012.

[7]      Mr Edwards has 105 prior convictions.  Of those, 84 involved dishonesty.

Sentencing in the District Court

[8]      In sentencing on the deception charge, the Judge took a starting point of 12 months imprisonment to which he added a further period of 12 months to reflect the prior criminal history.   From the total of 24 months, the Judge gave a maximum available allowance (25%) for the guilty plea of six months, meaning that the end sentence was 18 months.

Analysis

[9]      Mr  Barclay,  for  Mr  Edwards,  submits  that  the  uplift  had  the  effect  of penalising Mr Edwards twice for the offending.  I agree that the uplift was too high. In doing so, I accept the expression of principle set out in Williams v Department of Corrections,[2] in which Duffy J said:

[23]  Whilst prior convictions can be taken into account in sentencing, the current offending remains the primary consideration.   A delicate balance between the need to protect the public and the principle that offenders should not be punished further for past offending has to be preserved to avoid the appearance of additional punishment for past offences.  This is achieved by maintaining a reasonable correlation between the sentence imposed and the penalty justified by the nature and gravity of the current offending: see Adams on Criminal Law (online ed) at SA9.15.

[2] Williams v Department of Corrections [2012] NZHC 304

[10]     The issue for an appellate Court is, however, whether the end sentence is manifestly excessive.  The rolling of 10 separate incidents into a single charge tends to make the offending look less serious than, in fact, it was.

[11]     One needs to obtain a very large number of goods from a supermarket on 10 different occasions to reach a figure of $6,244.31.  In my view, the starting point for the actual offending was too low and could easily have been pitched at a level of 18 months.  If that had been the starting point it would have been appropriate to add an uplift of six months (for prior offending) and then to deduct the credit for the guilty plea.  That would have resulted in the same end sentence.  The District Court Judge did not err in the sentence actually imposed.

[12]     In those circumstances, it has not been established that the sentence imposed was manifestly excessive.

Result

[13]     The appeal against sentence is dismissed.

P R Heath J