Edwards v The King

[2023] NZHC 1788

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-79

[2023] NZHC 1788

BETWEEN

GEORGE JUNIOR EDWARDS

Appellant

AND

THE KING

Respondent

Hearing:	29 June 2023
Appearances:	M M Dixon for Appellant S J Mallett for Respondent
Judgment:	10 July 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 10 July 2023 at 3.30 p m, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

EDWARDS v R [2023] NZHC 1788 [10 July 2023]

Introduction

[1]    George Edwards was sentenced to four years and six months’ imprisonment by Judge C D Savage on 29 March 20231 for one charge of causing grievous bodily harm with intent.2 He appeals that sentence.

Facts

[2]    Around 1 am, 31 January 2021, Mr Edwards was in central Christchurch with a group of associates. While Mr Edwards was standing facing the victim, he punched him in the face without provocation, causing the victim to lose consciousness and fall to the ground. The victim sustained a fractured skull and a brain bleed. He was placed in a medically induced coma and spent a week in the Christchurch Hospital Intensive Care Unit. His recovery is expected to take a significant period of time.

District Court Decision

[3]Judge Savage undertook the sentencing exercise having regard to R v Taueki,

and the aggravating features he identified in the case.3 These were:

(a)an attack to the head;

(b)the vulnerability of the victim, noting he had no warning of the attack, so could not prepare for it; and

(c)there were significant long-term consequences for him including that he would always be more fragile and susceptible to head injuries.

[4]    The Judge considered the attack fell into category 2 of Taueki and decided a starting point of five and a half years was warranted.

1      R v Edwards [2023] NZDC 6130

2      Crimes Act 1961, s 188(1); maximum penalty 14 years’ imprisonment.

3      R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

[5]    This was then uplifted by 10 per cent for Mr Edwards’ previous convictions, which included a manslaughter charge in 2004, committed under very similar circumstances.

[6]    In respect of a discount for his guilty plea, the Judge noted that “… the plea came “very late”.” While acknowledging there were “some intricacies” around the charge the Crown wanted to pursue, the Judge agreed with the Crown that a 10 per cent guilty plea should be given.4

[7]    Six months’ credit was given for Mr Edwards’ time spent on EM bail and a further 10 per cent was granted for cultural factors. There was no discount for remorse, with Judge Savage noting Mr Edwards still did not appear to take full responsibility. The end sentence was 54 months’ imprisonment.

Principles on appeal

[8]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7

Submissions

Appellant’s submissions

[9]    Mr Dixon submits this case falls within band one of Taueki and, with reference to a range of cases dealing with the same charge, he says the starting point should have

4      R v Edwards, above n 1, at [13].

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

been four years’ imprisonment.8 In Mr Dixon’s submission, the District Court put too much emphasis on the consequences for the victim. One punch grievous bodily harm cases are all serious and usually have long lasting consequences for the victim.

[10]   In further submissions, Mr Dixon also points out that in single punch manslaughter cases where the Taueki bands were used and, starting points of four to five and a half years’ imprisonment were imposed, despite recognising that a higher starting point was justified for the fact that death resulted in each case. This is supported by the following observation of the Court of Appeal in Everett v R:9

[21] One punch manslaughters are essentially s 188 or 189 wounding or injuring cases sometimes with the unintended consequence of GBH, and invariably the unintended consequence of death. Sentencing starting points are invariably in the order of five to six years.

The Court of Appeal went on to note that “death following the infliction of GBH is and must be a seriously aggravating feature of sentencing”.10

[11]   Again, Mr Dixon refers to a range of cases where a one punch manslaughter received between four and five and a half years as a starting point.11 In light of those cases, he submits that a starting point of four years’ imprisonment was appropriate in the present case, following an adjustment for the fact that death did not result.

[12]   Mr Dixon then submits that the uplift for previous convictions was not necessary as the previous conviction for manslaughter was inherent in the charge   Mr Edmonds faced. Mr Dixon says it is highly likely Mr Edmonds would have faced a lesser charge, attracting a lesser penalty, if he had not previously been convicted for manslaughter in very similar circumstances.

8      Kapene v Police [2016] NZHC 3036; Toeta v Police [2023] NZHC 888; Ihaia v R [2021] NZHC 1785; Barlow v R [2019] NZHC 650; Ryan-Thoms v R [2013] NZCA 518; and R v Sullivan [2017] NZDC 11405.

9      Everett v R [2019] NZCA 68.

10 At [22].

11     R v Whaanga [2020] NZHC 1318; Ioata v R [2013] NZCA 235; Murray v R [2013] NZCA 177;

Palmer v R [2016] NZCA 541; R v Faletolu [2014] NZHC 2218; Cooper v R [2014] NZCA 275.

[13]   Mr Dixon submits that a discount of 15 per cent for a guilty plea would better reflect the circumstances. Mr Edwards accepted at an early stage that he was the individual who threw the punch and was prepared to plead guilty to a lesser, but still serious charge as had been offered by counsel. Furthermore, this was not a case where the victim was ever going to be required to give evidence at trial as the victim did not recall the incident. It was also not a case of the guilty plea being offered without warning on the first day of the trial. The guilty plea was indicated to the Crown shortly before trial.

[14]   Mr Edwards was also willing to pay reparations, engage in restorative justice and his letter to the victim was insightful.  Mr Dixon submits further discounts of   15 per cent and five per cent are available for cultural disadvantage and remorse.

[15]   While in submissions Mr Dixon sought a sentence of home detention, he did not pursue that at the oral hearing.

Respondent’s submissions

[16]   Mr Mallet for the Crown draws attention to the impacts of the offending, noting the victim is  a  young  Tongan  man  on  a  rugby  scholarship  in  New  Zealand.  Mr Edwards’ actions have likely stripped him of the chance to ever play professional rugby again.

[17]   Citing Taueki, the Crown submits Mr Edwards’ offending was within band two but alternatively could also be a serious example of band one, noting the range for band one is from three to six years.

[18]   The Crown accepts that one punch cases are not typically charged under       s 188(1) Crimes Act. However, it was in this case because the victim plainly suffered grievous bodily harm and, further, the appellant must have been aware of that possibility, having committed manslaughter previously in similar circumstances. Indeed, with his guilty plea, Mr Edwards accepted that was the case.

[19]   The Crown therefore submits that the unusual circumstances of this case, including the level of the charge, make it difficult to draw comparisons between it and the cases referred to by the defendant.

[20]   The case of Kapene involved a lesser charge carrying a maximum of 10 years’ imprisonment so a lesser starting point followed. There was also less harm to the victim. Toeta v Police involved a charge which only carried a maximum penalty of five years’ imprisonment and Barlow a maximum charge of seven years.

[21]   The Crown submits this is not an “exceptional case” case such as Ihaia where a lesser sentence involving reckless disregard was justified. Given Mr Edwards’ previous charge for manslaughter, Mr Edwards was “well aware” of the consequences of his conduct. While acknowledging the starting point was high, the Crown submits it was not out of range.

[22]   In terms of the uplift for previous convictions, the Crown submits this was consistent with permissible lines of judicial reasoning, noting Mr Edwards has not learned from his previous convictions and continues to behave violently.12 The need to protect the public and the exceptionally serious nature of the manslaughter conviction combine, the Crown argues, to justify the uplift.

[23]   The Crown submits Mr Edwards’ attempts to engage in restorative justice and his remorse must be viewed in the light of Mr Edwards initially blaming the victim for what occurred and continuing to do so until very recently. Mr Mallet submits that while credit for reparation, if ordered, is not opposed, a restorative justice conference at a point when Mr Edmonds had still not fully accepted responsibility would have had little benefit to either party.

Analysis

[24]   I consider the starting point of five and a half years adopted by Judge Savage was outside the range available, particularly in light of the large number of cases where

12     Reedy v Police [2015] NZHC 1069.

the victim died and starting points of five to five and a half years were adopted. This sits uneasily with Judge Savage’s starting point at first impression.

[25]   In Ryan-Thoms, the defendant was charged with wounding with intent to cause grievous bodily harm and wounding with  intent  to  injure,  during  an  attack  on two complainants. The male defendant struck each female victim several times, including head strikes and blows while on the ground, ceasing only when members of the public stepped in and forcing the victims to undergo extensive surgery processes.13 A five year starting point was adopted for the lead charge of wounding with intent to cause grievous bodily harm. The Court of Appeal considered the end sentence of four and a half years’ imprisonment stern, but within the available range noting the brutal nature of the offending.14

[26]   In Kapene v Police the defendant was convicted of one charge of injuring with intent to cause grievous bodily harm and two charges of assault.15 I accept the Crown’s submission that the consequences of the offending in Kapene for the victim were less severe than the consequences on these facts. However, I also note the similarity between the two cases in terms of actual events and Mallon J’s comment regarding the suitability of a three to four year starting point for the charge if it had a maximum penalty of 14 years’ imprisonment (as here) but reducing it to reflect the fact the defendant in Kapene faced a maximum of 10 years’ imprisonment.16 In R v Faletolu, I took a starting point of five and a half years on a manslaughter charge where the defendant attacked the victim by jumping onto a car bonnet and, from there, leaping at the victim and kicking or kneeing him in the head.17

[27]   As a cross check, I refer to the aggravating factors in Taueki.18 The violence was unprovoked and caused serious injury to the victim. The strike was also targeted at the victim’s head. Those are clearly aggravating features. However, I am less inclined to put weight on the suggested vulnerability of the victim. While I accept the punch took the victim by surprise, Taueki refers to circumstances where the victim is

13     Ryan-Thoms, above n 8, at [3]–[6].

14 At [21].

15     Kapene, above n 8.

16     Kapene, above n 8, at [14].

17     R v Faletolu, above n 11.

18     Taueki, above n 3, at [31].

“particularly vulnerable” such as where the victim is a child, or where there is a clear disparity in size or strength between the victim and the attacker. That was not the case here, and the element of surprise is already accounted for in the extent of the injury the victim suffered. I also note Mallon J did not take vulnerability as an aggravating feature in Kapene which involved a similar single punch saying:19

The victim was not vulnerable in the way described in Taueki. He was not a child, it is not said there was a significant disparity in size and strength between Mr Kapene and him, and, once he was rendered defenceless by the force of the blow, no further attack took place.

[28]   Here, Mr Edwards threw a single punch, injuring the victim in a manner that will negatively affect him for many years to come. It was unprovoked and undoubtedly forceful as is evident from the CCTV footage of this incident. However, the lack of a weapon, of any follow up strike, of any premeditation and, as I have found, of particular vulnerability, places this offending, somewhere between band one and two offending per Taueki. In noting the five to five and a half year starting points for many cases involving the death of the victim, I am satisfied a starting point of four and a half years is appropriate here. This recognises the severity of Mr Edwards’ conduct whilst distinguishing it from cases where the victim’s death resulted.

Uplifts and discounts

[29]   I have taken no account of Mr Edwards’ historic manslaughter conviction in my analysis of the starting point. While I accept that that conviction will have influenced the seriousness of the charge adopted for the offending, that does not mean there has been double counting in respect of prior convictions. The previous conviction is a factor which constituted evidence to support the charge, alongside evidence such as the CCTV footage and witness statements. Many different factors can go to the strength of the evidence to support a charge. Simply because a prior conviction also supports it, (for example, by establishing a propensity), does not preclude a Judge from considering an uplift for prior convictions upon the defendant being convicted on that charge.

19     Kapene, above n 8, at [13].

[30]   I am satisfied it was open to the Judge to uplift the sentence by of 10 per cent. Although the manslaughter conviction is dated, the circumstances of that offence are too similar to ignore. It indicates a predilection to offend in a specific way and a clear need to impose an uplift for deterrence purposes.20

[31]   A 10 per cent credit for Mr Edwards’ late guilty plea is within range. I accept that counsel indicated a guilty plea would be entered some 10 days before the trial date so this was not a case where the trial was ready to proceed in all respects before it was known the defendant would plead guilty. However, Mr Edwards was, according to Judge Savage, still apportioning blame on the victim in the period before sentencing.21

[32]   I note some willingness on Mr Edwards’ part to pay compensation to the victim. However, a more concrete proposal needs to be on the table before I could factor this into  the  sentence  imposed.  Without  confidence  about  what  amount Mr Edwards would offer and in his ability to pay it, I am not prepared to direct payment of reparation and adjust his sentence accordingly. That said, I consider there should have been a modest discount for remorse. Mr Edwards’ letter to the victim was insightful as to the causes of his offending and demonstrated empathy for the victim noting that watching his own son in hospital made him realise what he had put the victim through. I would allow a five per cent discount for remorse.

[33]   While Mr Dixon submitted that Mr Edwards’ cultural background warranted a 15 per cent discount, I am not persuaded that 10 per cent was out of range. I am also satisfied the credit for time spent on EM bail is appropriate.

[34]   Taking a starting point of four and a half years’ imprisonment and adjusting for the net discount of 15 per cent, I reach a sentence of 46 months’ imprisonment. With the six month credit for EM bail, the end sentence is 40 months’ imprisonment.

20     Reedy v Police, above n 12.

21     R v Edwards, above n 1, at [15].

Conclusion

[35]   The appeal is allowed. Mr Edwards’ sentence is quashed and he is sentenced to three years four months’ imprisonment.

Solicitors:

Public Defence Service, Christchurch Crown Solicitor, Christchurch