Edwards v The Queen
[2017] NZCA 132
•26 April 2017 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA408/2016 [2017] NZCA 132 |
| BETWEEN | DEBBIE NORMA EDWARDS |
| AND | THE QUEEN |
| Hearing: | 8 March 2017 |
Court: | Winkelmann, Woodhouse and Collins JJ |
Counsel: | V L Thorpe for the Appellant |
Judgment: | 26 April 2017 at 2.30 pm |
JUDGMENT OF THE COURT
ALeave to appeal out of time is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Woodhouse J)
Debbie Norma Edwards pleaded guilty in the Gisborne District Court to one charge of conspiring to supply methamphetamine. She was sentenced by Judge Cathcart to imprisonment for 6 years 4 months.[1] Ms Edwards appeals against sentence.
Leave to appeal out of time
[1]R v Edwards [2016] NZDC 9915 at [48].
The notice of appeal was filed out of time. The reasons are adequately explained and there is no opposition from the Crown to leave being granted to appeal out of time. Leave is granted accordingly.
The offending
Ms Edwards pleaded guilty to conspiring to supply methamphetamine between September 2012 and October 2013. Over this period Ms Edwards obtained approximately 822 grams of methamphetamine from Auckland on 22 occasions. All but approximately 56 grams was sold by Ms Edwards to customers in and around Gisborne. The conspiracy also involved Ms Edwards making plans with a co‑offender to purchase for $400,000 one kilogram of methamphetamine sourced from China. Ms Edwards was arrested not long after preliminary steps had been taken to implement that plan.
The District Court sentence
The Judge adopted what may be called a “provisional starting point” of 11 years’ imprisonment for the 822 grams, assessed as if the offence was a completed offence. On that basis, the offending was in band 4 of R v Fatu, with a range of 10 years to life imprisonment for commercial dealing involving 500 grams or more of methamphetamine.[2] This starting point was increased by 6 months for the conspiracy to procure the one kilogram of methamphetamine.[3] The total of 11 years 6 months’ imprisonment was reduced by 12 months because it was a conspiracy, not a completed offence.[4] The starting point for the conspiracy was, therefore, imprisonment for 10 years 6 months.
[2]R v Fatu [2006] 2 NZLR 72 (CA) at [34].
[3]R v Edwards, above n 1, at [24].
[4]At [28].
The Judge then recorded the following adjustments:
(a)An increase of 12 months for previous offending and because the conspiracy was committed while Ms Edwards was on parole.[5]
(b)A reduction of 17 months for a total of 20 months spent on restrictive bail.[6]
(c)A reduction of what amounted to 11 months for efforts while on bail at Odyssey House to free herself of a methamphetamine addiction, and a further reduction of 6 months for voluntary community work and remorse.[7]
[5]At [33].
[6]At [36].
[7]At [43].
The Judge recorded the result at this point as imprisonment for 8 years 6 months.[8] He then deducted 20 per cent for the guilty plea and stated that the end sentence was imprisonment for 6 years 4 months.[9]
[8]At [43].
[9]At [46].
After sentencing the prosecutor advised the Court that there were two arithmetical errors recorded by the Judge in the process. The first was that the stated allowance for restrictive bail was 17 months, but the actual period allowed was 19 months. With the stated allowance, the Judge ought to have reached an interim result of 8 years 8 months prior to the final deduction of 20 per cent. The second error was in the calculation of the reduction of 20 per cent for the guilty plea. The period that should have been deducted from 8 years and 6 months’ imprisonment was 21 months, but the end sentence of 6 years 4 months’ imprisonment involved a reduction of 26 months. Overall, there was an unintended benefit to Ms Edwards of 7 months.
The Judge issued a minute on 24 June 2016 after receiving submissions from both counsel. The two errors were acknowledged. The primary purpose of the minute was to record the position reached following the submissions. The position for the Crown was that there should be no alteration to the end sentence. The Crown proposed that this be recorded by adding the additional months to the credit already given for rehabilitation efforts.[10] The Judge recorded that Ms Thorpe, counsel for Ms Edwards, had given no indication of Ms Edwards’ agreement to the proposal. As a result nothing further was done. The Judge recorded that he left it as a matter for the parties to raise on any appeal against sentence.
Grounds of appeal
[10]We note that, as recorded in the Judge’s minute, the Crown erroneously said the mathematical error amounted to 8 months.
The appeal is on the following grounds:
(a)The sentencing process was flawed because the Judge predetermined the end point of the sentence.
(b)The Judge wrongly considered that he was bound to give primacy to principles of denunciation and deterrence.
(c)There were inadequate reductions of sentence for efforts Ms Edwards had taken to free herself of her methamphetamine addiction, voluntary community work she had undertaken of well over 200 hours, and remorse.
Evaluation
The contention that the Judge had predetermined the end point of the sentence was founded on the following statement by the Judge in his minute, after sentencing, relating to the arithmetical errors:
[4] In the overall sentencing exercise, I intended to reach a point where there was a starting-point of eight and a half years’ imprisonment before I applied a discount of 20 percent for the defendant’s guilty plea. This approach was to ensure that the principles of deterrence and denunciation were not undermined by the defendant’s countervailing personal circumstances.
Ms Edwards’ first ground of appeal, when related to this statement, amounted to a contention that the Judge approached the sentencing by first determining that the sentence before a reduction for the guilty plea (what the Judge referred to in the minute as a “starting-point”) should be imprisonment for 8 years 6 months before considering any other elements of the sentence, including the true starting point. Looking at the minute in isolation that is, perhaps, a possible interpretation. But the way in which this was expressed may simply have reflected the acknowledged miscalculations. In any event, the ultimate issue for us is whether there were errors which require a different sentence to be imposed.[11] For reasons we will come to, we are satisfied that the sentence was well within range.
[11]Criminal Procedure Act 2011, s 250(2).
The second ground of appeal was that the Judge misdirected himself by finding that he was bound to give primacy to the principles of deterrence and denunciation.
The Judge said in his sentencing remarks that “personal circumstances of an offender must be subordinate to the importance of deterrence and denunciation”.[12] A submission that the Judge misdirected himself in that regard is unsustainable. The Judge’s statement about the importance of deterrence has the authority of the Supreme Court in R v Jarden.[13]
[12]R v Edwards, above n 1, at [38].
[13]R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
In addition, Judge Cathcart expressly recognised that, in appropriate cases, some weight could be given to the sentencing objective of rehabilitation.[14] He cited the following statement of this Court in Hastings v R:[15]
[W]e do not see the approach to personal circumstances described in Jarden as prohibiting the Court from giving proper weight to the sentencing objective of rehabilitation and reintegration if the circumstances of the case call for a sentencing response that emphasises that factor.
[14]At [38]–[39].
[15]Hastings v R [2011] NZCA 105 at [27].
The third ground of appeal was that the weight the Judge did give to the particular personal circumstances identified — rehabilitation efforts, community work and remorse — was inadequate. For the reasons that follow, we are satisfied that there was no error by the Judge justifying intervention by this Court.
First, the individual allowances for each relevant personal circumstance involved judicial assessment which would have to be plainly wrong before an appellate court will make an adjustment. None of the individual assessments comes close to being plainly wrong.
Secondly, Ms Edwards’ argument focuses on individual allowances, but there is need to consider the total reduction for all personal circumstances. The reduction from the adjusted starting point of imprisonment for 11 years 6 months (after the increase for the offending on parole and previous offences) was a total of 36 months — that is, 26 per cent for personal circumstances before the further reduction for the guilty plea. That is a substantial allowance.
Thirdly, it might also be said that Ms Edwards, to an extent, obtained a form of double benefit from recognition of time spent on restrictive bail. The intended allowance of 17 months was for a total of 20 months on restrictive bail, which is generous. Ms Edwards’ circumstances while on bail were also reflected in the reduction of 11 months for rehabilitation. This is because Ms Edwards was only able to undertake that rehabilitation at Odyssey House by being granted bail to that location.
Finally, there is the fact that Ms Edwards received further benefit from the miscalculations of the reduction for time on bail and for the guilty plea; an additional benefit of 7 months. The total reduction for personal circumstances, other than restrictive bail and the guilty plea, was, as a result, 2 years. These are substantial credits.
A body of information was put before Judge Cathcart, and this Court, in respect of Ms Edwards’ achievements toward rehabilitation. The various steps Ms Edwards took are commendable and justified adequate recognition. We are satisfied that the credits the Judge intended to give properly recognised those matters. The actual result, with the additional 7 months, reinforces our conclusion that there was no error.
Result
Leave to appeal out of time is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent