Mr Edwards was found guilty in the District Court on one count of indecent assault. The trial Judge, Judge Down, refused an application for discharge without conviction.[1]
[1]R v Edwards [2015] NZDC 6663.
On appeal against sentence, Mr Edwards contends that he ought to have been discharged. He says that the Judge overstated the seriousness of his offence and understated the consequences of conviction.
The facts
The facts as recorded by the trial Judge are that Mr Edwards and the complainant had been friends for some years. On the night of the incident he was at her flat visiting her flatmates. He knocked on her bedroom door late at night and asked if she wanted to talk. She told him to come in. After a short time he began telling her that he found her attractive. She made it clear that she was not interested. Specifically, she told him to “fuck off”. He then got on the bed and lay beside her, placing his hand on her breast and saying that he wanted to have sex with her. At that point she insisted that he should leave the room and he did so.
Mr Edwards’ defence at trial was that he misinterpreted her initial rejection, reasonably believing that she consented. He contended that the incident followed a flirtatious discussion. The jury must have rejected that defence.
The jurisdiction
Sections 106 and 107 of the Sentencing Act 2002 relevantly provide:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
For purposes of appellate review, this Court treats as evaluative the first step in the inquiry; that is, whether the consequences of conviction sufficiently outweigh the gravity of the offence. The second step, whether to grant a discharge in all the circumstances, is treated as the exercise of discretion.[2] In the District Court Mr Edwards fell at the first step.
[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.
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AGLC
Edwards v R [2015] NZCA 583
Case
[2015] NZCA 583
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand heard an appeal by Chad Bryan Veilleux Edwards against his conviction and sentence for indecent assault. The appeal sought an extension of time, leave to adduce fresh evidence, and a discharge without conviction. The Court found the appeal against sentence but denied the discharge without conviction. The facts of the case were that the appellant and the complainant were friends, and on the night of the incident, the appellant visited the complainant's flat and entered her room uninvited. He then touched her breast and attempted to have sex with her despite her explicit refusal. The appellant claimed that he reasonably believed the complainant consented due to their prior flirtatious discussion, but the jury rejected this defence. The legal issues were whether the appellant should have been discharged without conviction and if the trial judge erred in assessing the gravity of the offence and the consequences of conviction. The Court found that the trial judge appropriately assessed the gravity of the offence, considering it moderately serious, and appropriately evaluated the consequences of conviction, concluding that they were not out of proportion to the gravity of the offence. The Court dismissed the appeal against sentence, granted the extension of time to appeal and leave to adduce fresh evidence, but denied the discharge without conviction. The appellant's sentence of supervision and 80 hours of community work was upheld.