Edwards v The Queen

[2018] NZHC 1463

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 on the principles of denunciation and deterrence at the expense of rehabilitation.

[6]                 Ms Spelman pointed to Mr Edwards’ circumstances, focusing on his health and the fact his daughter and grandson rely upon him. He has been driving while

concurrent six month disqualification from holding/obtaining a drivers licence; and the fines   Mr Edwards was facing were remitted in light of his sentence.

2      The Court referred to the authorities of Drinkwater v Police [2013] NZHC 1036 and Haig v Police

[2017] NZHC 2751.

disqualified for many years as he has had little opportunity of getting a licence. His last supervised sentence was in 2008 and even then the focus was not on assisting him to get his licence. Ms Spelman submits he was on a treadmill and a sentence of imprisonment would not change that.

[7]                 Ms Spelman submitted it would have been more appropriate to impose a limited sentence (electronically monitored) and support through supervision to assist him to gain his driver’s licence. Ms Spelman points to a number of gaps in his driving record when he has not driven whilst disqualified. This provides encouragement, she says, for his rehabilitative prospects. He had attempted to get his licence but had failed his blood tests (these are for alcohol and cannabis). Also, the presentencing report records that Mr Edwards had been compliant with his community based sentence and that he had reported as alcohol free.

[8]                 On the driving offences I am of the view that a 22 months starting point for sentence was appropriate and within the range. The personal factors and sentencing principles were dealt with when the judge considered the total sentence. I deal with those issues below.

Assault with intent to injure

[9]                 Mr Edwards went to the house of the complainant one evening. When the complainant  opened  the  door,  he  was  punched  in  the  face  by  Mr Edwards.   Mr Edwards yelled at the complainant about a stolen Freeview box, alleging that the complainant had taken it. The complainant was pushed with such force he fell into the couch in the lounge. Mr Edwards followed him into the lounge, stood over him and hit him in the face multiple times. Mr Edwards left threatening to come back the next day to take the complainant’s TV.

[10]              The complainant suffered cuts, swollen lips, bruises and required medical treatment. When Mr Edwards was talked to about the incident later he admitted going to the complainant’s property to get his stuff back but said nothing about the assault.

[11]Mr Edwards pleaded guilty to the offence.

[12]              Ms Spelman submits the starting point adopted for the assault within intent to injure was too high. The Judge took a starting point of 17 months. This is within band 2 of Nuku v R.3 The Nuku band 2 provides for a starting point of up to three years imprisonment where three or fewer of the aggravating factors listed in Taueki are present.4 The relevant Taueki factors potentially present here are:

(a)Home invasion: the offending occurred with Mr Edwards entering the home of the victim where the assault took place;

(b)Strikes to the head: there were number of strikes to the head.

[13]It is questionable whether premeditation and vigilantism were present.

[14]              There were at least three factors noted in Taueki present. However, these were of the lower end of range and the charge was lesser than been dealt with in Taueki.

[15]              Ms Spelman canvassed eight cases in detail to illustrate that the present case adopted a starting point that was too high.5 In light of those, I am of the view that the Judge did take too high of a starting point. In this case while there was a home invasion, the injuries were relatively minor in comparison to the facts of the various cases cited by Ms Spelman.6 In my view, it fell within band 2 of Nuku but given that Mr Edwards’ offending was at the lower end of the range of the factors identified I consider the starting point on sentencing should have been at the lower end of the band. A starting point of 12 months’ imprisonment was a more appropriate starting point in this case, in light of similar authorities

3      Nuku v R [2012] NZCA 584. .

4      Nuku v R, above n 3, at [38]; R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [31].

5      R v Tamihana [2015] NZCA 169, Kojeunikov v Police [2013] NZHC 551; Kohu v Police [2013] NZHC 944; Ransfeild v Police [2014] NZHC 1046; R v Harris [2017] NZHC 1404; Cameron v Police [2016] NZHC 2678; Taingahue v Police HC Wellington CRI-2009-485-85, 17 August 2009.

6      Specifically see Ransfeild v Police, above n 8, in which a starting point of 18 months’ imprisonment was considered appropriate for a prolonged assault with steel cap shoes, a vulnerable victim and an implicit breach of trust. R v Harris, above n 8, illustrates the same point with a starting point of 16 months’ adopted for a prolonged assault involving two offenders punching and kicking the victim in the head in the victims home.

Personal circumstances and rehabilitation

[16]              Mr Edwards says greater allowance should have been made for his personal circumstances. The judge allowed a discount of two months. I am of the view that the judge was not in error here. Mr Edwards has a record of persistent driving offending. He has failed to respond to rehabilitative intervention. He has wilfully disregarded court orders and continued to drive. He shows no remorse. The presentence report remarks outlined that position. A deterrent sentence was clearly required.

[17]              I am of the view that the judge made no error in discount. There is nothing in Mr Edwards’ personal circumstances which would call for a greater discount.

Guilty plea decision

[18]              The Judge reached his final sentence by adding a month for the offending occurring while on bail and a discount of two months for personal circumstances, and a guilty plea discount of 12.5 per cent. He has reached the guilty plea discount by applying a half of the maximum available discount (25 per cent) because Mr Edwards only pleaded guilty to two of the five offences (the balance of his convictions followed a defended hearing). I consider this was an appropriate approach to the discount. It was open to the judge to take that approach and I am of the view he made no error here.

The approach by the respondent

[19]              The respondent submits that the end sentence is not manifestly excessive having regard to the gravity of the offending and culpability of the offender. That is the ultimate issue on appeal. An appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason) a) an intrinsic error in the sentence imposed and b) a different sentence should be imposed.7 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.8

7      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.

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

Conclusion

[20]              I am of the view that the starting point taken by the judge in sentencing      Mr Edwards on the assault charge was too high. The offence fell within band 2 of Nuku as I have noted above. 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, I would take 12 months (rather than 17 months) as a starting point for the assault charge. I do not consider the judge erred in any other respect. Therefore, following his reasoning:

Proposed	Original sentence
Starting point for driving offences:	22 months	22 months
Assault offence:	12 months	17 months
Uplift for offending on bail:	1 month	1 month
TOTAL	35 months	40 months
Totality adjustment (using the same adjustment as the original sentence)	27 months	32 months
Less
Discount for personal circumstances:	2 months	2 months
Discount for guilty plea at approximately 12.5 percent (half of the 25 per cent  maximum  available  if  Mr Edwards had pleaded guilty to all charges) approximately:	3 months	4 months
TOTAL	22 months	26 months

[21]              The reduction from two years and two months’ to 22 months’ (less than a year) in terms of the period of imprisonment is significant for Mr Edwards. In my view, the judge erred in his assessment of the starting point and that error tainted the final sentence, resulting in a sentence that was manifestly unjust in the circumstances.

Home detention

[22]              A final sentence of 22 months’ imprisonment is less than 24 months’ imprisonment.9 Home detention is available as a sentencing option at this point. Whether or not home detention is appropriate is a matter for the sentencing Judge – and there is no presumption in favour of home detention being imposed.10 There is a

9      Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).

10     R v Stacey [2008] NZCA 465 at [2].

two-step process involved in assessing whether home detention can be imposed. The case of R v Vhavha helpfully set this out as follows:11

The two-step process required for a sentence of home detention requires the Judge first to decide that the sentence which is otherwise appropriate is a short-term sentence of imprisonment (‘stage one’) and then whether to commute that sentence to home detention (‘stage two’). Similar (at least broadly) two stage processes were associated with the power to suspend prison sentences and the power to give leave to apply for home detention — the precursors of the present discretion to sentence to home detention. Faithful adherence to such processes requires the judge at stage one to operate on the assumption that there is no stage two. The underlying legislative purpose is to avoid net-widening and, more particularly, to ensure that the more lenient sentences which can be imposed at stage two are reserved for those who would truly otherwise have been imprisoned.

[23]              I have considered that option here. However, in my view 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. While Mr Edwards says this rehabilitation assistance was in the distant past there is nothing to indicate that Mr Edwards’ covert attitude or receptiveness to rehabilitative programmes would show better results. He has shown no remorse, nor any appreciation of the problems with his driving. He considers he has a right to drive without a license. One of the incidents for which he was sentenced included driving into the back of a motor vehicle. While initially apologising, he then erupted when a passer-by attempted to assist. He became abusive and swore. The police noted that he smelt of alcohol. He refused to take an evidential breath test or allow a sample of his blood to be taken.

[24]              This is the latest in a pattern of wilful disregard of court orders. Even at his sentencing for these offences he showed no remorse. A period of home detention in these circumstances, while itself is not an easy option, is inappropriate.

Orders

[25]              Accordingly, I allow the appeal and quash the sentence of the total period of two years and two months imprisonment and impose a period of one year and ten months imprisonment in total as follows:

11     R v Vhavha [2009] NZCA 588 at [31].

(a)October 2017 assault with intent to injure: one year ten months’ imprisonment (as compared to the previous 26 months’ imprisonment);

(b)22 December 2016 driving while disqualified: 18 months’ imprisonment concurrent with 24-month disqualification from holding or obtaining a licence;

(c)23 March 2017 driving while disqualified: one year ten months’ imprisonment concurrent with 24-month disqualification from holding or obtaining a licence concurrent with the above disqualification;

(d)23 March 2017 operating a vehicle carelessly: six month disqualification from holding or obtaining a drivers licence concurrent with the above two disqualifications;

(e)23 March 2017 refusing to give a blood specimen: 1 months’ imprisonment concurrent and disqualification from holding or obtaining a drivers licence for a period of six months concurrent with the above three disqualifications;

[26]I also note that the judge remitted Mr Edwards’ outstanding fines in the sum of

$1,781.83 which he is currently paying off. I confirm the remittance of those fines and order accordingly.

Grice J

Solicitors:

Crown Law Office, Wellington for Respondent