Edwards v R
[2013] NZCA 349
•6 August 2013 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA146/2013 [2013] NZCA 349 |
| BETWEEN | CHARLES ALEXANDER EDWARDS |
| AND | THE QUEEN |
| Hearing: | 31 July 2013 |
Court: | Harrison, Panckhurst and Ronald Young JJ |
Counsel: | H P Retzlaff for Appellant |
Judgment: | 6 August 2013 at 9.30 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of six years nine months’ imprisonment is quashed.
CA sentence of five years four months’ imprisonment is imposed.
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
In August 2010 the appellant, Mr Charles Edwards, and three other men (his co-accused) drove to a house occupied by the complainants: three adults and two young children. The four men had planned to enter the house to resolve a dispute with the occupants about drugs. Mr Edwards was the driver and stayed in the car throughout the incident.
The three co‑accused broke into the house. One of the adults was assaulted. He was punched and struck with a baton. A laptop and an iPod were stolen. Mr Edwards then drove the other three men from the house. The police, who had been called, arrived and pursued the car. It did not immediately stop despite police requests. Eventually the vehicle was stopped by the police.
Mr Edwards pleaded guilty to aggravated robbery and was sentenced by Judge Andrée Wiltens to six years and nine months’ imprisonment.[1] He says the sentence was manifestly excessive because:
(a)the starting point was too high;
(b)no allowance was made in the sentencing for his lesser involvement in the offending;
(c)no proper allowance was made for mitigation; and
(d)there was an unjust disparity with the other offenders.
[1]R v Edwards DC Manukau CRI-2010-092-12566, 19 February 2013.
The other three offenders were sentenced in this way. Each had a start sentence of eight years’ imprisonment. Mr Pere was sentenced to six years’ imprisonment, Mr Gideon was sentenced to six years and six months’ imprisonment and Mr Belmont was sentenced to six years and six months’ imprisonment.
Starting point too high
The original indictment contained three counts which all four accused faced: (1) aggravated burglary (Crimes Act 1961, s 232(1)(a)) based on the unlawful entry into the house with the wooden baton as a weapon; (2) aggravated robbery (Crimes Act, s 235(a)) where the aggravating feature was the assault on one of the occupants of the house; and (3) causing grievous bodily harm with intent to cause grievous bodily harm to the complainant (Crimes Act, s 188(1)).
After discussion between counsel for Mr Edwards and the Crown a fourth count of aggravated robbery under s 235(b) of the Crimes Act was added. This charged only Mr Edwards with aggravated robbery arising out of the same incident but where the aggravating feature was the presence of the other three accused.
On 11 November 2011 Mr Edwards pleaded guilty to this count and was discharged on the other three counts. The co-accused were all convicted of s 235(a) offending arising from the attack on the complainant as the aggravating feature.
It seems that after his plea the Crown and Mr Edwards’s counsel anticipated a disputed facts hearing relating to Mr Edwards’s knowledge of his co-accused’s possession of the wooden baton and the disguises. He was remanded in custody for such a hearing on 29 February 2012. The relevant part of the summary of facts said:
The accused drove to the complainant’s address and parked outside. While one of the group remained outside the other three approached the house. All of the group were wearing bandanas to hide their faces and one of the group was carrying what the complainant described as a short metal bar or baton.
There were a number of further adjournments of Mr Edwards’s sentencing and a new counsel, Mr Retzlaff, was appointed to represent him at a very late stage. By the time Mr Edwards was finally sentenced on 19 February 2013, the proposal to have a defended facts hearing had been lost. Counsel before us were unable to assist on the reasons.
Mr Retzlaff acknowledged that his submissions proceeded as if the aggravating feature of the robbery was Mr Edwards’s knowledge of the presence of the others and that Mr Edwards did not know about the baton or the disguises.
The Crown and the Judge seemed to have proceeded on the basis that at least Mr Edwards knew the others had gone to the house with the wooden baton and in disguise.
When Judge Andrée Wiltens sentenced Mr Edwards he did so on the basis that there was nothing to distinguish the involvement of the four men (including Mr Edwards) in the offending. The Judge in his sentencing remarks stressed the physical violence and the resulting injuries to the complainant and the disguises used. His start sentence for Mr Edwards at eight years’ imprisonment was the same as the other three men.
Given Mr Edwards faced a different charge than the other three men, and given he denied knowing about the weapon or the disguises, the procedure described by s 24 of the Sentencing Act 2002 (a disputed facts hearing) should have been considered.
The violence at the house and the knowledge of the weapon was not an ingredient of the charge Mr Edwards faced. Thus, if the prosecution wished to establish this disputed fact as an aggravating feature at sentencing, they would have had to have proved those facts beyond reasonable doubt (Sentencing Act, s 24(2)(c)). This assumes the sentencing Judge would have accepted that the disputed facts would affect the ultimate sentence (see s 24(3)(a) and 24(3)(b)). This process was not followed.
Mr Edwards, therefore, was wrongly sentenced on the basis of this aggravating feature. Ms Jelas for the Crown now properly accepts that this Court should reconsider the starting sentence for Mr Edwards without this aggravating feature. She accepts that it is now not sensibly possible to have a disputed facts hearing regarding Mr Edwards’s knowledge of the baton and the disguises. We agree with this approach.
Mr Edwards submitted that rather than the eight year starting point a six year starting point properly reflected his involvement. The Crown did not disagree with such a starting point in the absence of the weapon and disguises evidence.
We agree that six years is an appropriate starting point. This was serious offending involving planning, invasion of a home, the theft of property and four offenders. For Mr Edwards, however, it did not involve knowledge of disguises or weapons. This significantly reduced his culpability compared with his co-offenders. We consider the six year starting point is, therefore, appropriate. These conclusions, therefore, deal with appeal grounds (a), (b) and (d).[2]
[2]At [3].
Mr Edwards did not argue against the modest three month uplift given by the Judge at sentencing for his past offending, which is extensive, and the fact that Mr Edwards was subject to a sentence of supervision when he offended.
No allowance for mitigation
Mr Edwards submitted a reduction in sentence should be given for his efforts at rehabilitation. Mr Edwards has undertaken a number of courses at his own instigation in prison relevant to his rehabilitation.
We agree with the Judge that no reduction in sentence was justified for these commendable efforts by Mr Edwards. Mr Edwards has a lengthy list of criminal convictions going back almost 20 years. He has been subject to supervision on a number of occasions designed to rehabilitate him. To date those sentences have not been successful. He has continued to offend. Mr Edwards was on supervision at the time of this offending. Thus, his short term effort at rehabilitation in prison, however commendable, is insufficient in the circumstances to justify a reduction in an otherwise proper start sentence.
Mr Edwards does not challenge the 15 per cent deduction given for his guilty plea.
Result
We are satisfied that the proper start sentence is six years’ imprisonment. From that start sentence there should be a three month uplift for personal aggravating features. From that six year three month sentence we deduct the only mitigating factor, 15 per cent for Mr Edwards’s guilty plea leaving a final sentence of five years and four months’ imprisonment. We, therefore, quash the sentence of six years and nine months’ imprisonment and substitute instead a sentence of five years and four months’ imprisonment.
Solicitors:
Public Defence Service, Waitakere for Appellant
Crown Law Office, Wellington for Respondent
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