Edwardson v Police

[2014] NZHC 43

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-99 [2014] NZHC 43

BETWEEN  TIMOTHY EDWARDSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   3 February 2014

Appearances:           M J Hine for Appellant

A Hill for Respondent

Judgment:                3 February 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TIMOTHY EDWARDSON v NEW ZEALAND POLICE [2014] NZHC 43 [3 February 2014]

[1]      Mr Edwardson pleaded guilty in the District Court to a large number of charges.  These comprised six charges of burglary, one charge of theft, one charge of escaping from lawful custody, one charge of assaulting a female and one representative charge of breaching prison release conditions.

[2]      On  8  November  2013,  Judge  McGuire  sentenced  Mr  Edwardson  to  an effective term of two years imprisonment.1     Mr Edwardson appeals to this Court against sentence.   He argues that the Judge erred by imposing a sentence of imprisonment, and that he ought to have imposed the less restrictive sentence of home detention.

The facts

[3]      The offending in respect of which Mr Edwardson was sentenced occurred between  26  August  and  23  October  2013.    On  26  and  29  August  2013,  Mr Edwardson entered four residential addresses at night and whilst the occupants were asleep.  He removed property from each of those addresses.  On 29 September 2013, Mr Edwardson entered another residential address and stole items from it.  H did the same again the following day, 30 September 2013.

[4]      On  1  October  2013,  Mr  Edwardson  observed  a  vehicle  parked  in  the driveway  of  a  residential  address.    He  approached  the  vehicle  and  removed  a handbag from the passenger seat.  On 2 October 2013, the police were called to Mr Edwardson’s address in relation to an unrelated matter. Whilst there, they discovered numerous items that Mr Edwardson had stolen during these burglaries.

[5]      The assault charge arose as a result of an incident that occurred in the early hours of 3 October 2013.  Mr Edwardson had consumed a considerable quantity of alcohol during that evening, and an altercation arose between Mr Edwardson and another person at the address.  Mr Edwardson lashed out at this person and attempted to kick her.   He missed the intended victim, and instead kicked his partner in the

stomach.  She was heavily pregnant at the time.

1      New  Zealand  Police  Department of  Corrections v  Edwardson  DC  Rotorua CRI-2013-063-

003360, 8 November 2013.

[6]      The police were called, and took Mr Edwardson into custody.   He took an opportunity to exit the police car, however, and ran away.  The police chased him, and located him approximately 800 metres from the police vehicle.

[7]      The charge of breaching prison release conditions arose as a result of release conditions imposed in the Tokoroa District Court on 23 January 2013.  On 12 April

2013, Mr Edwardson signed an acknowledgment that he was required to report to his probation officer once every fortnight from 24 April 2013.  Mr Edwardson failed to report on 5 June, 19 June, 3 July, 17 July, 31 July and 14 August 2013.   This occurred despite home visits, contact with his whanau and telephone calls designed to encourage Mr Edwardson to comply with the release conditions.

The appeal

[8]      Counsel  for  Mr  Edwardson  points  out  that  at  just  19  years  of  age,  Mr Edwardson is a relatively young person.   In addition, Mr Edwardson freely acknowledged the burglaries when interviewed by the police because he wished to “get them off his chest”.  He also pleaded guilty at an early stage.

[9]      In addition, counsel submits that Mr Edwardson was greatly affected when his partner gave birth to his child very recently.  He submits that Mr Edwardson is not beyond redemption, and that it was open to the Judge to impose a sentence of home detention rather than imprisonment.

Decision

[10]     This submission needs to be viewed in context.  As the Judge remarked, Mr Edwardson  has  now  accumulated  a  lengthy  list  of  previous  convictions  for dishonesty offences.  These include previous convictions for burglary and theft, as well as unlawfully interfering with  motor vehicles.   These have resulted in  Mr Edwardson receiving sentences of supervision, community work, community detention and home detention.  When he was sentenced to home detention, however, he breached that sentence and it was then converted into one of  imprisonment. Having been released from prison in March 2013, he was convicted on 27 March

2013 of breaching his prison release conditions.  On that occasion he was ordered to come up for sentenced if called upon to do so within six months.

[11]     The sentence of home detention is a fettered discretion in that it must be imposed in accordance with the purposes and principles of sentencing contained in the Sentencing Act 2002.2    In the present case, Mr Edwardson has already had the benefit of the lesser sentences to which I have referred.   He has not taken the opportunity afforded to him on previous occasions to learn from his offending.   If anything, his offending appears to have escalated in recent times as evidenced by the burglary charges that he now faces.

[12]     I do not consider that the Judge was left with any other realistic option than to impose a sentence of imprisonment.  Mr Edwardson had already demonstrated that he was not prepared to abide by the strictures imposed by a sentence of home detention.  The fact that that sentence was reviewed and a sentence of imprisonment was imposed in its place must have alerted Mr Edwardson to the likely response of the Court if he chose to offend again in a similar way in the future.  The fact that he was prepared to do so a short time after his release from prison indicates that past sentences have had no effect whatsoever.

[13]     In those circumstances, the Judge was bound to impose a sentence that was designed to deter Mr Edwardson from becoming involved in similar offending in the future.  The sentence also needed to protect the community from Mr Edwardson, and the risk of future offending that he poses.  I therefore take the view that the Judge was entitled to reject the submission that a sentence of home detention was appropriate  in  Mr  Edwardson’s  case.    Like  him,  I  consider  that  a  sentence  of

imprisonment was the only realistic sentencing option available.

2      Fraser v R [2013] NZCA 250 at [17].

Result

[14]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Families Matter Law Ltd, Rotorua

Crown Solicitor, Rotorua