Edwards v The Queen

[2019] NZHC 2755

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-000071

[2019] NZHC 2755

KARLA RACHAEL EDWARDS

v

THE QUEEN

Hearing:	24 October 2019
Appearances:	K Burroughs for the Appellant K C Whyte for the Crown
Judgment:	29 October 2019

JUDGMENT OF GWYN J

This judgment was delivered by me on 29 October 2019 at 3.00pm

…………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

K Burroughs, Hamilton Crown Solicitor, Hamilton

EDWARDS v R [2019] NZHC 2755 [29 October 2019]

Introduction

[1]                 On 14 June 2019, Karla Rachel Edwards received a sentence indication from Judge PR Connell in regard to one charge of assault with intent to rob,1 and one charge of aggravated robbery.2 Ms Edwards subsequently pleaded guilty to those charges. On 4 September 2019, Judge Connell sentenced Ms Edwards to four years and eight months’ imprisonment. Ms Edwards now appeals this sentence.

[2]                 When convictions were entered on the above two charges, convictions for accessing a computer system and for discharging a fire arm with intent to cause grievous bodily harm were also entered. These additional convictions were entered erroneously as they had been previously withdrawn. Ms Edwards appeals against these convictions. The Crown does not oppose that appeal.

Offending

[3]                 Ms Edwards pleaded guilty to charges of assault with intent to rob and aggravated robbery, both of which related to offending that took place in 2015.

[4]                 The offending involved a number of co-offenders: Tao McRae, Dylan Woolrich and Moanaroa Kidwell. Mr Kidwell was Ms Edwards’ ex-partner and the father of her children.

[5]                 On 16 March 2015, Mr Kidwell advertised a motorcycle for sale on Facebook. The victim of the offending arranged to meet with Mr Kidwell the following day to purchase the motorcycle. The victim was lured to a semi-rural address in Kirikiriroa (Hamilton). Ms Edwards drove the party to the address, with Mr Kidwell bringing along a shotgun that he had obtained from Mr McRae. Ms Edwards dropped the co- offenders at the address and waited in the vehicle nearby.

[6]                 When the victim arrived at the address Mr Kidwell appeared with the shotgun and pointed the barrel through the vehicle window at the victim’s head, threatening to kill him if he did not hand over the money. Mr Kidwell then struck the victim with

1      Crimes Act 1961, s 236(1)(b). Liable to a term of imprisonment not exceeding 14 years.

2      Section s 35. Liable to a term of imprisonment not exceeding 14 years.

the gun barrel, and discharged a round through the roof of the vehicle, grazing the victim’s head. The victim attempted to flee in his vehicle but hit a tree and was forced to flee on foot. Following the offending Ms Edwards picked up Mr Kidwell. No money was obtained from the victim.

[7]                 The second charge involved similar offending. Again, a motorcycle was advertised for sale on Facebook, and the victim of the offending arranged to purchase the item the following day. The victim arrived at the address and Mr Kidwell pointed the gun at him, telling him to get on the ground. Mr Kidwell then took from the victim the $2,000 he had brought with him to purchase the motorcycle. Mr Kidwell got the victim to walk around the side of the house and get on the ground. He pressed the gun to the back of the victim’s head and made repeated comments about shooting him. Ms Edwards was again close by and came back to pick up Mr Kidwell and the other co- offenders.

[8]                 Ms Edwards was remanded in custody until 19 November 2015, when she was granted bail. On 1 December 2015, the appellant failed to appear at a scheduled hearing, and on 26 February 2016 a warrant for her arrest was issued.

[9]  By 2 August 2017, Ms Edwards was on the run. She avoided Police for approximately three years before being located and arrested on 14 February 2019.

Sentencing indication

[10]              On 14 June 2019, Ms Edwards received a sentencing indication from Judge Connell in respect of the charges of assault with intent to rob and aggravated robbery.3

[11]              Judge Connell adopted assault with intent to rob as the lead charge. In assessing the starting point the Judge had regard to R v Mako which set out various bands for sentencing certain types of aggravated robberies,4 Marzola v R where a starting point of eight years’ imprisonment was adopted,5 and Karaitiana v R where a

3      R v Edwards DC Hamilton CRI-2016-019-000548, 14 June 2019.

4      R v Mako [2000] 2 NZLR 170 (CA).

5      Marzola v R [2014] NZCA 341.

starting point of six and a half years was adopted.6 Having regard to these cases, the limited role of Ms Edwards, the principle of sentence parity, and the controlling influence that Mr Kidwell exerted over her, Judge Connell adopted a starting point of five years’ imprisonment.

[12]              The Judge declined to give an uplift for absconding while on bail, or to acknowledge Ms Edwards’ prior convictions. However, an uplift of two years was applied to take account of the aggravated robbery charge. This resulted in an aggregate start point of seven years’ imprisonment.

[13]              Judge Connell then applied a 25 per cent discount for guilty pleas, and a six month deduction to reflect Ms Edwards’ personal circumstances. This resulted in an end sentence of four years, eight months’ imprisonment.

[14]On 21 June 2019, Ms Edwards accepted the sentence indication.

Sentencing

[15]              On 4 September 2019, Ms Edwards appeared before Judge Connell for sentencing.7 In place of traversing the extensive details of the offending and the sentence determination, Judge Connell made express reference to his earlier sentencing indication, adopting it in its entirety.8

[16]              Beyond the deductions provided in the sentencing indication, Counsel for Ms Edwards sought an additional deduction for remorse. However, Judge Connell declined to apply any further deductions, stating “I took your guilty plea as a show of remorse and I consider I have given you the full discount that I possibly could for that remorse.”9

[17]              Judge Connell made a note that Ms Edwards had made significant progress since the indication, accepting responsibility for the offending, and setting goals

6      Karaitiana v R [2014] NZCA 126.

7      R v Edwards [2019] NZDC 17492.

8      At [2] and [7].

9 At [6].

around education and future employment.10 He also noted that he had received additional information concerning Ms Edwards’ personal background, however, neither of these factors warranted any alterations to the earlier indication.

[18]              In accordance with his earlier indication, Judge Connell imposed an end sentence of four years, eight months’ imprisonment.

Submissions

Appellant

Conviction appeal

[19]              Mr Burroughs, for the appellant, contends that the convictions for discharging a firearm11 and accessing a computer system for dishonest purposes12 were entered erroneously. In an amended charge notice dated 5 April 2017, the Crown withdrew both of these charges. Mr Burroughs says that it would be conducive to the ends of justice to grant the appeal and quash the convictions.

Sentence appeal

[20]              In the general notice of appeal, the grounds of appeal were two-fold: first that the Judge had failed to provide a remorse discount, and second, that the Judge had not acknowledged the issues raised pursuant to s 27 of the Sentencing Act 2002. In counsel’s submissions only the former of these grounds was raised.

[21]              Mr Burroughs submits that Judge Connell erroneously declined to grant a discount for remorse as he misdirected himself as to the law. Mr Burroughs says that the sentencing indication given by Judge Connell did not contain any reference to remorse, however, at sentencing, the Judge stated that a remorse discount had been incorporated in the 25 per cent guilty plea. Mr Burroughs relies on the Supreme Court’s judgment in Hessel v R which acknowledged that remorse should be dealt with

10 At [3].

11     Crimes Act 1961, s198(1). CRN 15019501432.

12     Crimes Act 1961, s 249(1). CRN 15019501425.

separately to the guilty plea, and he says that as Ms Edwards’ probation report shows evidence of remorse, she ought to have received an additional discount.

Respondent

Conviction appeal

[22]              The Crown does not oppose the conviction appeals, stating that the convictions had been withdrawn in the amended charge notice and were entered erroneously.

Sentence appeal

[23]              Counsel for the Crown opposes the sentence appeal on the basis that Judge Connell turned his mind to all mitigating factors available to the appellant and gave appropriate credit where doing so. As a result, counsel says that the Judge did not err in law or fact.

[24]              In regard to the guilty plea discount awarded by Judge Connell, counsel for the Crown submits that the discount provided was generous and was applied in the most favourable manner. To elaborate, Ms Edwards absconded while on bail, evading the Police for approximately three years. This is an aggravating factor under the Sentencing Act 2002, which could have warranted a tempering of the discount. In addition, counter to standard practice Judge Connell applied the 25 per cent deduction before any other deductions, resulting in a bigger overall reduction in sentence. Counsel submits that the credit afforded to the appellant was generous and produced an end sentence that was not manifestly excessive.

[25]              Counsel for the Crown also submits that the Judge did not err in stating that any discount for remorse had already been incorporated under the guilty plea discounts. Although genuine remorse is a mitigating factor separate from credit for a guilty plea, counsel says that a sentencing Judge does not need to go into “chapter and verse” when assessing remorse, rather the Judge need only make a “proper and robust evaluation of all the circumstances”. Counsel says that Judge Connell acknowledged the appellant was remorseful, but was satisfied that in the circumstances he could not give any further discounts. As such, a proper and robust assessment was conducted.

[26]              Lastly, counsel for the respondent says that the Judge acknowledged the matters raised under s 27 of the Sentencing Act when referring to the appellant’s difficult upbringing and that this is what the additional deduction of six months represented.

Law

Conviction Appeal

[27]              Section 229(1) of the Criminal Procedure Act 2011 (CPA) allows a person to appeal against his or her conviction under Subpart 3 of the Act. The High Court is the first appeal court for a conviction entered by a District Court Judge.13

[28]              Section 232 of the CPA provides that the first appeal court must allow the appeal if satisfied that, in any case, a miscarriage of justice has occurred for any reason. A miscarriage of justice will be evident where an error, irregularity, or occurrence in relation to the trial has created a real risk that the outcome of the trial was affected.14 A trial includes a proceeding in which the appellant pleaded guilty.15

[29]              I am satisfied that the convictions for unlawfully discharging a firearm and accessing a computer system for dishonest purposes were entered erroneously. Accordingly, there has been an error that has created a real risk that the trial was affected.

[30]The appeal is allowed, and the convictions are quashed.

Appeal against sentence

[31]              Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal against sentence if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

13     Criminal Procedure Act 2011, s 230(1)(b).

14     Section 232(4).

15     Section 232(5).

(b)a different sentence should be imposed.

[32]In any other case, the Court must dismiss the appeal.16

[33]              The Court of Appeal in Tutakangahau v R recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957:17 it must be shown that the sentence is “manifestly excessive”.18 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

Analysis

[34]              Judge Connell, in his sentencing indication adopted a starting point of five years imprisonment for the charge of assault with intent to rob and then uplifted this by two years to reflect the second charge. He proceeded to apply a 25 per cent discount for Ms Edwards’ early guilty pleas (and remorse), and then gave a further discount of six months for personal circumstances. This resulted in an end sentence of four years, eight months’ imprisonment. This indication was adopted in its entirety at sentencing.

The starting point

[35]              When setting the starting point the Judge had regard to R v Mako, Marzola v R and Karaitiana v R. Mako is a case that set out bands of offending for aggravated robbery, having regard to various combinations of features of the offending.19 Mako identified that a very serious armed robbery would result in a starting point of around 10 years’ imprisonment, and this category arguably captures the severity of the current offending.20 Marzola adopted a starting point of eight years where co-offenders had set about robbing the victim under the pretence of a drug transaction, and had agreed to threaten the victim with a tyre iron.21 Karaitiana involved the robbery of a tavern

16     Section 250(3).

17     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].

18     At [26]–[27].

19     R v Mako, above n 4.

20 At [55].

21     Marzola v R, above n 5.

by a group of offenders, and resulted in a starting point of six and a half years.22 These cases suggest that where there is full participation in the offending a starting point of between six and ten years is appropriate.

[36]              Judge Connell had regard to the fact that being a getaway driver in and of itself does not reduce an offender’s culpability.23 However, where the driver is less than a full participant, a reduction in starting point will be appropriate. Having regard to the abovementioned case law, the starting points adopted in the sentencing of Ms Edwards’ co-offenders,24 and Ms Edwards’ reduced culpability arising from her limited role and the fact that Mr Kidwell exercised a degree of coercive control over her, I am satisfied that the starting point of five years was appropriate.

The uplift

[37]                Ms Edwards was also convicted on a charge of aggravated robbery, an offence which carries a maximum term of imprisonment not exceeding 14 years. This is a serious charge, involving serious offending that has detrimentally affected the life of the victim. Judge Connell stated that this charge would typically attract a sentence of around four years’ imprisonment. Having regard to comparable cases it appears that for a ‘getaway’ driver a charge of aggravated robbery attracts an end sentence of between two and a half and six years’ imprisonment.25 I am satisfied that the severity of the current offending would place the appropriate sentence somewhere in the middle of this range, at around four years. Having regard to the principle of totality the uplift of two years applied by Judge Connell was appropriate.

22 Karaitiana v R, above n 6. Note that Judge Connell incorrectly identified the starting point in this case to be five years.

23 See R v Mako, above n 4, at [64], referring to R v Smart CA57/94, 24 May 1994.

24 On the charge of assault with intent to rob Mr Kidwell received a starting point of eight years; and Mr McRae received a starting point of seven years. Mr Woolrich was charged only with aggravated robbery and not assault with intent to rob.

25 See R v Keen [2015] NZHC 3066. Ms Keen was the getaway driver in two aggravated robberies. She received an end sentence of two years and nine months’ imprisonment. Heydon v R [2017] NZHC 1127. Mr Heydon was the getaway drive for a home invasion robbery and received an end sentence of three years and four months’ imprisonment. Karaitiana v R, above n 6. The getaway driver, Mr Hutua was sentenced to six years and five months’ imprisonment.

Section 27 Sentencing Act

[38]              While the Judge made no specific reference to s 27 of the Sentencing Act, I am satisfied that the deduction of six months was in fact a reflection of s 27 factors and an appropriate deduction.

Guilty plea and remorse

[39]              Judge Connell provided Ms Edwards with a 25 per cent deduction to reflect her early guilty pleas. This is the maximum discount available.26 Hessel outlined that remorse is a mitigating factor that warrants a deduction that is entirely separate from the deduction provided for a guilty plea.27 Before Judge Connell, counsel for Ms Edwards sought an additional discount for remorse, on top of that already provided for the guilty pleas. Judge Connell declined to grant any further deduction, stating that any discount for remorse had already been accounted for in the guilty plea deduction. In this appeal, counsel for Ms Edwards submits that Judge Connell has conflated the two mitigating factors.

[40]              At the hearing before me Mr Burroughs submitted that, as submissions directed to remorse were not made until the sentencing hearing, remorse could not logically have featured in the Judge’s calculation of the 25 per cent deduction at the time of the sentencing indication. In his submission, the Judge was required, at the sentencing, to specifically decide whether or not to give a discount for Ms Edwards’ acknowledged remorse, in addition to the 25 per cent already indicated for the guilty plea. Mr Burroughs’ submission was that is what the law (specifically, Hessell) requires and it is important that the sentencing process is transparent, both for the person being sentenced and for the public.

[41]              In response, Counsel for the Crown submitted that the guilty plea deduction given by Judge Connell was generous, and was applied in a manner favourable to Ms Edwards. Judge Connell provided the maximum guilty plea discount available, despite Ms Edwards having evaded Police for three years. The Judge also applied the guilty plea discount prior to other deductions which resulted in a greater numerical

26     Hessell v R [2010] NZSC 135 at [75].

27 At [64].

discount than would have resulted had the typical deduction process been followed. The Crown also points to Williams v R where the Court of Appeal acknowledged that when assessing remorse, the sentencing judge need not go into “chapter and verse” 28 but rather, must undertake a “proper and robust evaluation”.29

[42]              I acknowledge Mr Burroughs’ submission on this point. However, in the circumstances of this particular case I am satisfied that a discount of 25 per cent, applied in a favourable manner as it was here, was sufficient to take into account both the early guilty pleas and the expressed remorse. Although the two are separate mitigating factors, a substantial guilty plea deduction meant that a further reduction on account of remorse was not appropriate. Accordingly, I am satisfied that the Judge undertook a “proper and robust evaluation” in regard to these factors.

Result

[43]              Based on my above assessment I am unable to find that Judge Connell erred in imposing the sentence of four years and eight months’ imprisonment.

[44]The appeal against sentence is dismissed.

[45]              The appeal against the erroneously entered convictions is allowed and the convictions are quashed.

Gwyn J

28     Williams v R [2012] NZCA 176 at [16].

29     Hessell v R, above n 26, at [64].