Edwards v The King - [2024] NZHC 1762

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-11

[2024] NZHC 1762

BETWEEN
TIHINA EDWARDS

Appellant

AND

THE KING

Respondent

Hearing: 26 June 2024

Appearances:

T D A Harré for Appellant L Fiennes for Respondent

Judgment:

2 July 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 2 July 2024 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

EDWARDS v THE KING [2024] NZHC 1762 [2 July 2024]

Introduction

[1] Tihina Edwards was sentenced by Judge Ruth on 18 January 2024 to three years’ imprisonment on one charge of assault with intent to rob.1 The appellant appeals this decision on the grounds:

(a)the Judge provided insufficient discount for personal background factors; and

(b)no uplift should have been provided for the appellant’s previous convictions.

Facts

[2] On 10 November 2021, the appellant was released from prison on parole with conditions which included electronic monitoring until August 2022. On 4 January 2022 he removed his EM bracelet, in breach of his release conditions. Although both a warrant to recall him and a police warrant to arrest him, issued, he continued to evade police.

[3] At around 8.50 am on 23 January 2022, the appellant, his brother, Mr Dallas Edwards, and an unknown associate parked their vehicle outside Growers Direct Market on Yaldhurst Road.

[4] The three men entered the shop in heavy disguise. There were two employees and a customer present. Dallas Edwards pointed a pistol at the head of an employee. The associate and Dallas Edwards dragged both employees to an area near the stairs and the appellant ran up the stairs, kicking open the door to a room containing a safe. Dallas Edwards and the associate punched the employees whilst the appellant attempted to open the safe.

[5] Dallas Edwards walked out of the shop followed by the others. He handed a pistol to the associate who walked back into the shop and pointed it at a third employee. Together with the appellant, they dragged the employee into the shop and

1 R v Edwards [2024] NZDC 933.

demanded the code to the safe. All three men then ran from the store and as they got in the car to drive away, the unknown associate pointed the pistol in the air and fired it. He then fired the pistol at a shop patron, which missed.

District Court decision

[6] Judge Ruth first addressed the question of what role the appellant played in the offending with reference to CCTV footage and the summary of facts. The Judge determined he was a “full participant” but acknowledged the appellant was not to be sentenced on the basis that he did more than could be proven.2

[7] The aggravating features of the offending were identified with reference to those identified in the tariff decision R v Mako to assist with establishing a starting point.3 The Crown submitted that a clear aggravating feature of the offending…

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.

Continue reading Edwards v The King

Details

AGLC: Edwards v The King [2024] NZHC 1762
Case: [2024] NZHC 1762
Decision Date: 2 July 2024

CaseChat Overview and Summary

In Edwards v The King, Tihina Edwards appealed his sentence for assault with intent to rob, arguing that the District Court judge provided an insufficient discount for personal background factors and no uplift should have been provided for his previous convictions. The appeal was heard by Dunningham J at the High Court of New Zealand, Christchurch Registry, on 26 June 2024, with judgment delivered on 2 July 2024. The key legal issues were whether the District Court judge erred in discounting the appellant’s background factors and whether the uplift for previous convictions was justified.

The court found that the District Court judge erred in considering himself bound by the decision in Carroll v Police, which held that a lesser discount should be given for background factors in cases of repeat offending. The judge acknowledged the appellant’s tragic background but incorrectly felt constrained to provide a lesser discount. The High Court determined that a 15% discount for background factors was appropriate, rather than the 6% applied by the District Court. Regarding the uplift for previous convictions, the court held that the three-month uplift was appropriate, noting the appellant's significant criminal history and the recent nature of his violence and firearms convictions. However, the court found that the District Court had erred in assuming there was no opposition to the uplift when in fact there was. The High Court adjusted the sentence accordingly, substituting a sentence of two years and eight and a half months for the original three-year sentence.

The final orders of the court were that the appeal was allowed, the sentence of three years’ imprisonment on the charge of assault with intent to rob was quashed, and a sentence of two years and eight and a half months was substituted.

Orders