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Edwards v The Queen

Edwards v The Queen

Case [2018] NZHC 1463 19 June 2018

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-11

[2018] NZHC 1463

BETWEEN
HENRY JOSEPH EDWARDS

Appellant

AND

THE QUEEN

Respondent

Hearing: 7 June 2018

Appearances:

J Spelman for Appellant S Graham for Respondent

Judgment:

19 June 2018

JUDGMENT OF GRICE J

[1] Mr Edwards, in his counsel’s submission, is a sad figure. He turns 50 in July, is a sickness beneficiary and has been for some time. He has long term back pain and evidence of some other medical complaints. His daughter and grandson rely on him. He is now in prison and will have lost his flat.

[2] Mr Edwards was sentenced in the District Court following his conviction for a charge of assault with intent to injure, operating a vehicle carelessly, refusing to give a blood specimen and two charges of driving while disqualified (third of subsequent offence). He was sentenced to two years and two months’ (26 months) imprisonment and disqualification from holding or obtaining a driver’s licence for two years.1

1 The final sentence was as follows: Assault with intent to injure: two years two months’ imprisonment; December 2016 driving while disqualified: concurrent 18 months’ imprisonment with 24-month disqualification from holding or obtaining a drivers licence; March 2017 driving while disqualified: concurrent one year ten months’ imprisonment with concurrent 24-month disqualification from holding/obtaining a drivers licence; operating a vehicle carelessly: conviction and discharge, concurrent six month disqualification from holding or obtaining a drivers licence; refusing to give a blood specimen: concurrent one month imprisonment and

EDWARDS v R [2018] NZHC 1463 [19 June 2018]

[3]Mr Edwards appeals against his sentence on the basis that:

(a)the starting point of 22 months’ imprisonment adopted for the driving offences was excessive in light of Mr Edwards’ personal circumstances;

(b)the starting point of 17 months’ imprisonment adopted for the lead charge of assault with intent to injure was too high;

(c)the discounts given for mitigating factors was insufficient; and

(d)the sentence was manifestly excessive.

The driving offences

[4] Mr Edwards has a long history of driving while disqualified and blood alcohol offences. The District Court Judge in his sentencing notes highlighted recent offending over an eight month period in 2015 and 2016 which involved four offences of driving while disqualified. Since the 1980s he has amassed 28 driving convictions.

[5] The maximum penalty for driving while disqualified (third of subsequent offence) is two years’ imprisonment.2 Ms Spelman, for Mr Edwards, accepts the starting point of 22 months’ imprisonment taken by the sentencing Judge was available. She accepted that the authorities leave it open for the Court to impose a longer sentence of imprisonment in cases involving repeat offending. Nevertheless, Ms Spelman says the Judge failed to impose the least restrictive outcome as required under s 8(g) of the Sentencing Act. Nor, she says, did the Judge properly consider the particular circumstances of Mr Edwards and whether the sentence was disproportionate (as required under s 8(h)). She said the Judge concentrated…

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 Queen

Details

AGLC: Edwards v The Queen [2018] NZHC 1463
Case: [2018] NZHC 1463
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Henry Joseph Edwards appealed against his sentence imposed by the District Court. The appeal was heard in Gisborne and the judgment was delivered by Grice J. Edwards was convicted of assault with intent to injure, operating a vehicle carelessly, refusing to give a blood specimen and two charges of driving while disqualified. He was sentenced to two years and two months imprisonment and disqualification from holding or obtaining a driver’s licence for two years. Edwards contended that the starting point of 22 months’ imprisonment adopted for the driving offences was excessive in light of his personal circumstances; the starting point of 17 months’ imprisonment adopted for the lead charge of assault with intent to injure was too high; the discounts given for mitigating factors was insufficient; and the sentence was manifestly excessive. The court found that the starting point for the assault was too high and the final sentence was tainted by this error, resulting in a sentence that was manifestly unjust. The appeal was allowed and a new sentence of one year and ten months imprisonment was imposed.

The court found that the starting point for the assault was too high. The offence fell within band 2 of Nuku, as identified by the District Court. The court found that while the 17 month starting point taken by the judge was within the band 2 range, it was pitched at the high end of that band. This offending is at the lower end of the band. Therefore, a starting point of 12 months (rather than 17 months) for the assault charge was appropriate. The court did not consider the judge erred in any other respect. The final sentence of 22 months’ imprisonment was less than 24 months’ imprisonment. Home detention is available as a sentencing option at this point. However, the court found that Mr Edwards is not suitable for a sentence of home detention. His sustained driving offending shows a complete disregard for court orders. Rehabilitation attempts have been tried and have failed. Mr Edwards has shown no remorse, nor any appreciation of the problems with his driving. A period of home detention in these circumstances, while itself is not an easy option, is inappropriate.

Orders