Edwards v Police - [2015] NZHC 60

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000100 [2015] NZHC 60

BETWEEN
TIHINA JOSEPH EDWARDS

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing: 3 February 2015

Appearances:

A McCormick for Appellant
K B Bell for Respondents

Judgment:

3 February 2015

ORAL JUDGMENT OF GENDALL J

[1] The appellant Mr Edwards was sentenced by Judge Garland1 on a cumulative basis to a term of 18 months imprisonment on charges of driving with excess breath alcohol (third or subsequent),2 driving while disqualified (third or subsequent),3 breach of release conditions4 and breach of bail.5

[2] He now appeals against the sentences imposed on the sole basis that he desires to obtain help for his alcohol addiction, which he acknowledges to be the driving force behind his offending. Indeed, there is no assertion that the sentence imposed was outside of the available range. Such a suggestion would be a difficult row to hoe given that he pleaded following a sentence indication and was then
sentenced in accordance with such indication.

1      Police v Edwards DC Christchurch CRI-2014-009-2636, 8 September 2014. This followed a sentencing indication on 10 July 2014 where a sentence of 18 months’ imprisonment was indicated.
2      Land Transport Act 1998, s 56(1) and (4).
3      Section 32(1)(a) and (4).
4      Sentencing Act 2002, s 96(1).
5      Bail Act 2000, s 37(a).

EDWARDS v NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS [2015] NZHC 60 [3
February 2015]

Jurisdiction

[3] Mr Edwards is able to appeal to this Court the sentence imposed as of right.6

This Court, as first appeal Court,7 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.8 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).9

Discussion

[4] The basis for this appeal is that “given the compelling report prepared by ADAS the prospect of his rehabilitation should have been given a greater degree of primacy in the sentence imposed [rather] than simply being addressed in the post release conditions”. I take this to mean that because the ADAS report was not before the Court at the time the sentencing indication was given, but was at the time of sentencing, circumstances had arisen which would justify departure from the
indication. A similar situation arose in Areaiti v Police,10 where Mander J allowed

an appeal in similar circumstances.

[5] From what I can gather, Mr Edwards desires to obtain a place on the He Waka Tapu alcohol programme, which runs for approximately eight weeks. I understand that Mr Edwards has been offered a place in the programme, which commences on
9 March 2015. A problem arises, however, as I am advised that his release date from…

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.

Keep reading for free

Create a free CaseChat account to read Edwards v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZHC 60
Decision Date: 3 February 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, Tihin Joseph Edwards appeals against a sentence imposed by Judge Garland for driving with excess breath alcohol, driving while disqualified, breach of release conditions, and breach of bail. The appellant, Edwards, was sentenced to a total of 18 months imprisonment. The appeal focuses on the appellant's desire to obtain help for his alcohol addiction, which he acknowledges as the underlying cause of his offending behaviour. The appeal does not contest the severity of the sentence but rather seeks a modification to enable the appellant to access treatment for his addiction.

The court was required to determine whether the change in circumstances since the sentencing indication justified a departure from the originally indicated sentence. The court considered the compelling report prepared by ADAS, which highlighted the appellant's need for rehabilitation. The court also took into account the offer of a placement in the He Waka Tapu alcohol programme, which could potentially address the appellant's addiction issues.

The court held that the combination of the favourable ADAS report and the offer of a placement in the He Waka Tapu programme constituted sufficient change in circumstances to warrant revisiting the sentence. The court allowed the appeal and varied the original sentences. The 14-month imprisonment sentence was maintained, while the four-month imprisonment sentence was reduced to three months and eight days. This modification ensured that the appellant would be released on 9 March 2015 and directly transferred to the He Waka Tapu programme, allowing him to complete the programme by 30 April 2015. This decision aimed to provide the appellant with the opportunity to obtain the help he needed to address his alcohol addiction.

Orders