Edwards v The Queen - [2015] NZHC 2078

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000033 [2015] NZHC 2078

BETWEEN
MICHAEL JAMES EDWARDS

Appellant

AND

THE QUEEN Respondent

Hearing: 25 August 2015

Appearances:

T Aickin for Appellant
AMS Williams and A Trinder for Crown

Judgment:

28 August 2015

JUDGMENT OF DUNNINGHAM J

Background

[1] On 1 October 2014, Michael James Edwards was sentenced to two years and seven months’ imprisonment on one charge of burglary.1 He now appeals that decision.

[2] The grounds of appeal are as follows:

(a) Judge MacAskill erred in his assessment of the amount of time Mr Edwards had spent on electronic bail. He had spent nine months on electronically monitored bail, not seven months as the Judge referred to at [14] of the sentencing decision;

(b)the Judge failed to take into account the steps the appellant had taken to rehabilitate himself while on remand;

1 R v Edwards DC Christchurch CRI-2013-009-11736, 1 October 2014.

EDWARDS v THE QUEEN [2015] NZHC 2078 [28 August 2015]

(c) the starting point of three years for a single burglary was excessive;

and

(d)the discount for the guilty plea did not recognise the circumstances in which it was made, and a 15 to 20 per cent discount would have been appropriate.

[3] Taking into account all of the above, the sentence imposed was manifestly excessive. It should have been no more than two years.

Jurisdiction

[4] This is an appeal under s 244 of the Criminal Procedure Act 2011. Under s 250 of the Act, the appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.2 The Court must dismiss the appeal in any other case.3

[5] While s 250 makes no reference to the principle that a sentence is in error if it is “manifestly excessive”, it is well accepted by the Courts that it is an error which could justify an appeal being allowed against sentence.4

The offending

[6] The offending took place at about 10.30 pm on Saturday, 7 December 2013. Mr Edwards went to a house property on Bickerton Street, Aranui and forced open the front window and gained entry. While he was there he also gained entry to a Nissan motor vehicle by smashing the right rear window.

[7] In the house he took nine Jim Beam bottles of bourbon and a Michael Hill watch valued at $500. He also took a new pair of Avia shoes and a Colombia brand jacket, a black air pistol, a watch and some old currency. He placed the bourbon into two red carry bags and left the property. Unfortunately he was seen placing the red
carry bags into some vegetation at another address in Bickerton Street and he was

2      Section 250(2).
3      Section 250(3).
4      Tutakangahau v R [2014] NZCA 279 at 35.

apprehended a short time later by police where he was noted as wearing the Michael Hill watch and still carrying one of…

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 [2015] NZHC 2078
Case: [2015] NZHC 2078
Decision Date: 28 August 2015

CaseChat Overview and Summary

Michael James Edwards appeals against a two-year and seven-month imprisonment sentence imposed for burglary. The grounds of appeal are that the Judge erred in his assessment of the time Edwards had spent on electronic bail, failed to take into account his rehabilitation efforts, considered a three-year starting point excessive, and did not appropriately discount his guilty plea. Edwards argues the sentence was manifestly excessive and should have been no more than two years.

The court must decide if the sentence is an error justifying an appeal under the Criminal Procedure Act 2011. The court examines if the starting point, guilty plea discount, rehabilitative efforts, and time on electronic bail were appropriately considered. The court analyses whether these issues, if corrected, would result in a materially different sentence.

The court finds that the starting point of three years for such a recidivist burglar was appropriate. Regarding the guilty plea discount, the court finds the evidence of when Edwards learnt of the DNA evidence more credible in favour of the Crown. The court also finds that mere compliance with a community work sentence does not justify a discount for rehabilitative prospects. Finally, the court notes the Judge erred in assessing the time spent on electronic bail, though this would not have made a material difference to the sentence.

The court concludes that despite the issues noted, the end sentence fell within the range available to the Judge for such an extreme recidivist offender. Therefore, the sentence is not manifestly excessive and the appeal is dismissed.

Orders