Edwards v The Queen
[2015] NZHC 2078
•28 August 2015
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 CrownJudgment:
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 the stolen bottles of bourbon. The majority of the other items were located in the red bags found in the bushes.
Events prior to sentencing
[8] The chronology of events prior to sentencing is of relevance in this case, as one of the grounds of appeal asserted by Mr Edwards is that he was not advised by the lawyer, acting for him at the time, of crucial DNA evidence against him and he did not plead guilty until he was. As this was the point he considers was the first reasonable opportunity to plead guilty, he should have received a much higher discount for his guilty plea.
[9] Mr Edwards’ former lawyer, Mr Stevens, received a legal aid assignment to act for Mr Edwards on 31 March 2014. At that stage Mr Edwards had already entered a not guilty plea. Mr Stevens was provided with disclosure from police, and advised Mr Edwards that the case against him was strong. He also provided advice about the discount for an early guilty plea, including that the discount would diminish the longer the matter continued.
[10] At that stage the results of DNA testing of blood found at the scene of the burglary was not available but, on 9 May 2014, the Crown advised Mr Stevens that the blood found at the scene of the burglary had been identified as belonging to Mr Edwards. It is at that point that Mr Edwards’ and Mr Stevens’ recollections diverge. Mr Stevens says he communicated this to Mr Edwards by telephone and, after discussion with Mr Edwards, it was agreed that a sentencing indication would be sought. Mr Edwards primary concern was to try for a sentence of less than two years so that home detention could be considered as a sentencing option.
[11] A sentencing indication was sought on 23 May 2014 and was given on 27
June 2014, by Judge Crosbie. The indication was that, due to Mr Edwards’ large list of previous convictions, he was looking at a sentence of over two years’ imprisonment and that home detention would not be considered. Mr Stevens says he discussed this with Mr Edwards who was not keen to accept the sentencing indication. It was agreed he would reject it, but plead guilty soon after. This was in
the hope that a subsequent Judge receiving his guilty plea might be minded to call for appendices and allow for a sentence of home detention to be at least considered. Mr Stevens accepts that it was his fault that a guilty plea was not entered until 8
August 2014, over a month after they had discussed entering a guilty plea.
[12] Mr Edwards’ evidence is that he was intoxicated on the night and did not remember actually carrying out the burglary. While he accepts he was found with some of the stolen property on him, he was not going to plead guilty until he had the results of the DNA testing to confirm that he had actually entered the property.
[13] He says he only got this information on 8 August 2014, and it was on that date that he pleaded guilty and so he pleaded guilty at the first reasonable opportunity.
[14] Both Mr Stevens and Mr Edwards were cross-examined on these matters and
I refer to it again when considering the issue of the discount for guilty plea below.
Sentencing
[15] In sentencing Mr Edwards on 1 October 2014, Judge MacAskill referred to
Mr Edwards’ extensive criminal record saying:
[5] As to your criminal record, you were first sentenced for burglary as a youth in 1978 and your burglaries have continued until the present time. The current count I understand is 70. That is not my personal count but I rely on that information on the file. You certainly have a large number. You received a sentence of six years imprisonment some years ago. That, evidently, did not change your ways but it kept you from offending for some time. On 17 June 2011 you received a total of two years and three months on three charges of burglary, a receiving and a breach of release conditions.
[16] In setting a starting point, Judge MacAskill made it clear that he was selecting one that recognised Mr Edwards’ criminal record. He then went on to discuss the aggravating factors of the burglary itself saying:5
The relevant factors include that this was a burglary of a dwelling house at night and the value of the property stolen and the damage caused, the latter being at the lower end of the scale. There was an element of premeditation in that you told the probation officer that it was your associate’s idea to
commit the burglary. He pulled out but you went ahead anyway. It does not help you that you were intoxicated at the time, particularly as much of your offending appears to have been associated with drug and alcohol abuse.
[17] Taking into account all those factors, Judge MacAskill took the starting point to be three years’ imprisonment. He determined there were no personal mitigating factors and therefore no factors that justified credit beyond what could be given for Mr Edwards’ late guilty plea. In that regard he deducted three months which reflected a discount for pleading guilty of approximately 8.5 per cent. He also deducted another two months on account of what he described as “your seven months on electronically monitored bail”. That left a total end sentence of two years and seven months, which was the sentence then imposed.
Submissions
Submissions for the appellant
[18] The appellant says for the reasons set out in [2] above, the sentence imposed was manifestly excessive and he should have received a sentence of no more than two years.
Submissions for the respondent
[19] The respondent in response says that the end sentence was well within the range available to the Judge, making the following submissions to that effect:
(a) the end point was well within the range available to the Judge.
Several authorities are cited in support;6
(b)the respondent acknowledges that the Judge did make an error when he stated that the appellant had spent seven months on electronically monitored bail when in actual fact he had spent eight and a half months. However, this did not affect the end sentence to an extent
that it should be interfered with;
6 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; R v Povey [2009] NZCA 362; Hale v
Police [2012] NZHC 124.
(c) mere compliance with a community work sentence goes no way to showing rehabilitation; and
(d)the appellant was aware of the DNA evidence prior to the sentencing indication which he rejected. The guilty plea did not come at the earliest possible opportunity and the 10 per cent discount was appropriate.
Analysis
Starting point
[20] One of the factors that the appellant points to as leading to a sentence that was manifestly excessive is that the three year starting point that Judge MacAskill took was too high.
[21] In Senior v Police, different categories of burglar were identified: the first- time burglar, the recidivist burglar and the spree burglar.7 The recidivist burglar was described as:
[30] The more typical case in this category is likely to involve a burglar who has appeared on previous occasions (with perhaps 20 or 30 previous convictions for burglary) and who is appearing for sentence on only one or a limited number of offences. This burglar will probably be a professional burglar in the sense of being a person who burgles and steals for a living and often enough to sustain a drug habit but at what might be regarded as a subsistence level.
[22] The appellant undoubtedly falls within this category. He has over
70 previous convictions for burglaries alone, not to mention his many other dishonesty offences.
[23] For these types of offenders, it was said that:8
…the length of the sentence will largely depend upon the number of previous convictions, the number of offences for which the offender appears for sentence and the presence of aggravating and mitigating factors.
7 Senior v Police (2000) 18 CRNZ 340 (HC).
This case is not regarded as a tariff, however, it is relevant to the extent that it confirms the obvious, Mr Edwards is a recidivist burglar, and by no small margin.
[24] The reason that there is no tariff was explained by the Court of Appeal in R v
Nguyen:9
[18] The range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed. Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises. The value of goods stolen from commercial premises may be higher.
[25] In that case, however, the Court identified six factors which are relevant to burglary offending:
(a) the degree of planning and sophistication in the offending; (b) the nature of the premises entered;
(c) the kind and value of the property stolen; (d) damage done;
(e) the impact and potential impact upon occupants or owners of the property; and
(f) the extent of the offending where multiple burglaries are involved.
[26] Here, Judge MacAskill identified a number of these factors being applicable to this case. Firstly, the premise was a dwelling house. This is significant due to the aggravation which the Court of Appeal has held this adds to a burglary case:10
Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.
9 R v Nguyen CA 110/01, 2 July 2001
[27] The property stolen, and the damage caused, was modest as identified by Judge MacAskill, but this is of little significance in dwelling house burglaries. At this point, the most important aspect of sentencing is deterrence and community protection.
[28] Another significant factor, as already identified above, is the level of recidivism. It falls within the most extreme cases. In R v Povey the appellant had
22 previous convictions for burglary.11 The offending was a premeditated burglary,
entering an occupied residential property. A starting point of two years was upheld by the Court of Appeal along with a one year uplift in recognition of the appellant’s previous convictions.
[29] Of further relevance was the premeditated nature of the offending, with his pre-sentence report recording he planned with an associate to commit the burglary, and the negative impact that the burglary would have undoubtedly had on the victim’s belief of her safety in her own home.
[30] Turning to the sentence itself, Judge MacAskill might have chosen to adopt a starting point of two years and uplifted by a further year in recognition of Mr Edwards’ almost unbelievable record. Instead, he simply took a starting point of three years. Either way, the end result is the same. I can see no issue with the starting point imposed by Judge MacAskill. It fell in the middle of what was probably a wide range of sentences that the Judge could have imposed upon such an extreme recidivist offender.
Guilty plea discount
[31] The competing contentions as to when Mr Edwards learnt that the DNA evidence placed him within the burgled property are set out above. Mr Edwards maintains that until he knew for sure he was in the property (as he was too intoxicated to remember), it was not reasonable for him to plead guilty. However, he accepted, under cross-examination, that he was advised by Mr Stevens that the case
against him was a strong one and he also accepted that he was told that the longer he
11 R v Povey [2009] NZCA 362.
waited the less credit he would get. Thus the first issue to consider is the factual issue as to when Mr Edwards learnt about the DNA evidence.
[32] In this regard, I prefer Mr Stevens’ evidence over Mr Edwards. Mr Stevens’ evidence was to the effect that, having got the DNA evidence, he recommended that a sentencing indication be sought. He recognised that Mr Edwards’ primary concern was to try for a sentence of less than two years so that home detention could be considered as a sentencing option. However, the sentencing indication given by Judge Crosbie on 27 June 2014 was not favourable and so, as a tactical measure, it was decided to delay entering the guilty plea until after the one week for acceptance of the sentencing indication had expired, in the hope that another Judge would be more favourably disposed to Mr Edwards. Mr Stevens candidly admitted that it was his error, because of personal circumstances involving chemotherapy and radiation treatment for cancer, that he did not enter the guilty plea until the next Court date for this matter on 8 August 2014.
[33] While it was unfortunate that Mr Stevens could not locate his file to confirm the specifics of the advice given and instructions recorded, it made sense that the sentencing indication was sought once all real prospects of defending the charge had been removed, and it was a purely tactical decision that drove the non-acceptance of the sentencing indication. I found his evidence was credible and consistent with the undisputed chronology of events at the time.
[34] While Mr Edwards was adamant in his recollection that he did not have the DNA results before the sentencing indication, I find it implausible that such a critical piece of evidence was not referred to him as part of the advice to plead guilty, and I suspect that Mr Edwards’ recollection of events was imperfect.
[35] For that reason, I am of the view that when he sought and obtained the sentencing indication, he was in a reasonable position to plead guilty, and the only delay which was not of his making was the delay in entering the guilty plea between early July and early August, which his lawyer candidly accepts was his fault.
[36] However, for completeness, even if the information about the DNA analysis results were not presented to Mr Edwards until August, when he pleaded guilty, it is not clear that this would have justified a significantly different discount for his guilty plea. First, Mr Edwards accepted that he was advised that the case against him was strong and it was recommended that he plead guilty when Mr Stevens was first assigned to him. He acknowledged relying on his lawyer’s advice and, had he relied on his lawyer’s advice at this stage, it was likely he would have got a significant discount for the early guilty plea. Furthermore, given Mr Edwards’ history of burglaries and the strong evidence pointing to him having carried out the burglary, I find it implausible that Mr Edwards had real doubt that it was him who had carried out the burglary. This is reinforced by his acknowledgement to the probation officer preparing the pre-sentence report that he and an associate planned to do the burglary but the associate pulled out. Thus I do not accept that receipt of the DNA evidence was essential to the decision to plead guilty.
[37] Once Mr Edwards received the DNA results, there could be no doubt that the case against him was overwhelming. As was said in Hessell, the strength of the prosecution case may be relevant to the extent of discount given, with a reduced discount given where the defendant faced a strong prosecution case.12 This is because to give a full discount would treat “as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility”.13 It would also be “likely to lead to the criticism that unjustified windfall benefits are provided by the system to those who have little choice but to plead guilty”.14 Thus, even if Mr Edwards was not advised of the results of the DNA analysis until 8
August 2014, given the strength of the prosecution case, and that Mr Edwards had already sought a sentencing indication and rejected it, it was well open to the Judge to give him less than half the full discount that would be available compared with an early guilty plea facing a less strong prosecution case.
[38] In short, as was said in Hessell, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be
12 Hessell v R [2010] NZSC 135.
13 At [60].
14 At [60].
regarded as an early or late plea and the strength of the prosecution case. The discount given of three months, or 8.5 per cent, took into account the lateness of the plea and the strong case against him. It is also not out of step with the 10 per cent discount Judge Crosbie was prepared to offer in June. In the circumstances, I cannot say that it is unprincipled, nor does it fail to take account of the relevant considerations except, perhaps, the one month delay in entering the plea caused by his solicitor. I accept that might have affected the deduction by, say, 2 to 5 per cent, and was obviously a factor the Judge was unaware of. However, I will have to consider whether overall, if that deduction was made, it would lead to a sentence which is materially different from that imposed.
Rehabilitative prospects
[39] Counsel for the appellant argues that Judge MacAskill did not take into account that the appellant had been regularly attending his community work centre and had completed 100 hours of community work and, in addition, he had been attending on a voluntary basis to provide Maori carving instruction to other work centre attendees while on remand.
[40] However, I accept the respondent’s submission that mere compliance with the community work sentence is insufficient to justify a discount for personal mitigating factors and there is no evidence before the Court regarding any additional work done on a voluntary basis. I accept that given Mr Edwards’ extensive criminal history, and the fact he had to be remanded in custody on 7 September 2014, after he cut off his electronic monitoring bracelet while on EM bail for this offence, the Judge was entitled to conclude there was no real change in Mr Edwards’ behaviour such as would justify a further discount.
Time spent on electronic bail
[41] Finally, it is accepted that Judge MacAskill erred in his assessment of time spent on electronic bail. However, counsel for both the appellant and the respondent appear to have overstated the extent of his miscalculation. Mr Edwards was granted electronic bail on 23 January 2014. After he cut off his electronic monitoring bracelet, he was remanded in custody on 8 September 2014 where he remained until
sentencing. By my calculation this is a period of seven and a half months. I am therefore satisfied that this would not have made a material difference to the end sentence. The Judge was entitled to give only a modest discount for time spent on EM bail, particularly given the circumstances in which it terminated, requiring Mr Edwards to be remanded in custody.
Conclusion
[42] Given my conclusion that the end sentence fell in the middle of what was probably a wide range of sentences that the Judge could have imposed on such an extreme recidivist offender, the minor adjustments which might have resulted had the Judge appreciated that there was a delay in entering the guilty plea of one month which was not the defendant’s fault, and that there was a minor error in his assessment of the time spent on electronically monitored bail, would still have left it within this range.
[43] Thus, despite the two issues noted, I do not consider the end sentence is manifestly excessive, nor should a different sentence be imposed. The appeal is therefore dismissed.
Solicitors:
T Aickin, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch
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