Edwardson v Police HC Rotorua CRI-2011-463-86
[2011] NZHC 2035
•15 December 2011
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2011-463-86
LOUANNE HUINGARANGI EDWARDSON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 15 December 2011
Counsel: D Malcolm for Appellant
L Owen for Respondent
Judgment: 15 December 2011
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
EDWARDSON V NEW ZEALAND POLICE HC ROT CRI-2011-463-86 15 December 2011
[1] Ms Edwardson pleaded guilty to charges of injuring with intent to injure, obstructing a police officer and threatening to cause grievous bodily harm. On
22 September 2011 Judge Everitt sentenced her to 20 months imprisonment.1 She
now appeals against sentence. She contends that the Judge adopted a starting point for her offending that was too high, and that he ought to have imposed a sentence of home detention rather than imprisonment.
Background
[2] All of the charges arose out of an incident that occurred on the evening of
13 August 2011. On that date the police were called to a domestic incident at a residential address in Taupo. I infer from the Judge’s sentencing notes that the police had been called as a result of friction between Ms Edwardson and her partner. When the police arrived, they endeavoured to arrest Ms Edwardson’s partner. She then intervened, placing her body between her partner and a police officer. A female police officer then pulled Ms Edwardson away from her partner and arrested her for obstruction. The officer placed one handcuff on Ms Edwardson and forced her to the ground. At or about this time, the police also employed pepper spray in an endeavour to prevent Ms Edwardson from resisting arrest.
[3] At this point, Ms Edwardson told the female officer that she intended to “smash her”. She then lashed out on several occasions at the officer with her feet. One of these blows struck the officer forcibly on the jaw, breaking it. Other blows were directed to the officer’s chest area.
[4] Ms Edwardson was eventually subdued and taken to the police station, where she underwent a videotaped interview. She was significantly affected by alcohol during the incident. She and her partner had been drinking for most of the evening
before the incident that led to the police being called to the address.
1 New Zealand Police v Everitt DC Taupo cri-2011-063-3766, 22 September 2011.
[5] The Judge selected a starting point of three years imprisonment. He did so in the following terms:2
I refer to the decision of R v Harris3 where Justice Young outlines procedures to be followed in sentencing for these types of offences, and I refer to R v Taueki4 where the Court must have a starting point after looking at the aggravating and mitigating circumstances of the offence, and I have adopted in this particular case, bearing in mind the maximum penalty is five years’ imprisonment, is a three year starting point for what was a particularly nasty, brutal, prolonged, intentional assault from which the defendant appeared to get some enjoyment out of seeing the result of her handiwork, it was obvious the constable’s jaw was misplaced at such an angle that she laughed and said, “I told you I was going to smash you didn’t I.”
[6] The Judge then applied a discount of 25 per cent to reflect Ms Edwardson’s very early guilty pleas. He allowed a further discount to allow for other mitigating factors, including Ms Edwardson’s expression of remorse. This left the Judge with the end sentence of 20 months imprisonment.
Was the starting point too high?
[7] Counsel for Ms Edwardson contends that the starting point of three years imprisonment was not justified having regard to the factual matrix of the offending. He also submits that the Judge was probably influenced by two erroneous matters. The first was his perception that the constable had suffered cracked ribs as a result of the incident. The summary of facts makes no mention of this issue, but in her victim impact statement, which was apparently only available on the morning of the sentencing, the female police officer said that she had been told by a doctor that she may have cracked ribs but that that would not be known for some time.
[8] The second alleged error identified by counsel is that in reading out part of the victim impact statement, the Judge referred to punches allegedly thrown by Ms Edwardson at the female police officer. That aspect of the offending is not referred
to in the summary of facts either.
2 At [14].
3 R v Harris [2008] NZCA 528.
4 R v Taueki [2005] 3 NZLR 372.
[9] Counsel submits that the addition of these extraneous factors may have prompted the Judge to describe the attack as being “prolonged and brutal”. He submits that the summary of facts makes it clear that the attack occurred within a very short period of time, and it did not contain any reference to the officer receiving cracked ribs or to punches allegedly thrown by Ms Edwardson.
[10] The Court of Appeal discussed the starting point to be applied in relation to the lead charge in this case, that of injuring with intent to injure, in R v Harris.5 The Court of Appeal emphasised that sentencers should not slavishly follow an application of Taueki factors, modified to meet the circumstances of individual cases, for this type of offending.6 Rather, the Court identified separate bands of offending attracting different starting points. The Court said:7
An offence of injury with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki. On this basis, we envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:
Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate;8
Band two: where the injuries are moderate, sentences of up to two
years’ imprisonment can be justified;
Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s
8(c)(d) of the Sentencing Act 2002).
[11] Counsel for Ms Edwardson submitted that the injuries to the officer in the present case could properly be described as moderate. He therefore submitted that the Judge should not have gone beyond the upper end of Band two, which calls for a
sentence of up to two years imprisonment.
5 Fn 3.
6 At [8].
7 Fn 3 at [10].8 Fn 4 at [27].
Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved. Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act.
[13] As a result, the bands that the Court identified relate only to the physical aspects of the offending. Other aspects of the offending may warrant being taken into account to increase the starting point identified by the relevant band.
[14] In the present case, there were undoubtedly aggravating factors. The first related to the physical violence that Ms Edwardson inflicted on the officer. It involved a significant blow to a vulnerable part of the body, namely the head. Second, it involved several instances of violence being directed towards the constable. Third, it caused moderate to serious injury. The constable sustained a fractured jaw that has taken significant medical attention to treat. She also suffered severe bruising in the chest area, notwithstanding the fact that she was wearing police armour at the time of the incident. She has also suffered ongoing difficulties in both her professional and home life as a result of the injuries that Ms Edwardson inflicted upon her.
[15] Having regard to those factors, I consider that the offending can properly be classified as falling towards the bottom end of Band 3 identified in Harris. On its own, it would justify a sentence of at least two years three months imprisonment.
[16] There are, however, additional aggravating factors in this case. The most serious of these is the fact that it involved a deliberate attack on a police officer who had been called to assist Ms Edwardson at a time of difficulty. Police officers are entitled to expect that the courts will impose deterrent sentences on those who attack them whilst they are carrying out their lawful duties.
[17] Secondly, the attack involved a degree of pre-meditation. This is evident from the fact that, before she kicked the officer, Ms Edwardson said that she would
“smash her”.
9 Fn 3 at [11].
[18] Third, the offending involves a degree of callousness. Ms Edwardson laughed at the officer after she had inflicted the injuries, and said words to the effect “See, I told you that I would smash you”.
[19] When those factors are taken into account, I consider that a significant uplift was warranted. Although a starting point of three years imprisonment may have been toward the upper end of the range, I do not consider that it can be viewed as outside the available range.
[20] That this is correct is demonstrated by two related cases having some similarity to the present. In R v Waihape10 and R v Davoren,11 a father and son had been convicted of an attack on a police officer. It involved punching to the head and throttling. It did not, however, result in broken bones, as occurred in the present case. In each case, the sentencing Judge took a starting point of three years imprisonment. One of the reasons for selecting that starting point was the need to recognise that the attack had occurred on a police officer acting in the execution of his lawful duty.
[21] Counsel for Ms Edwardson sought to distinguish those cases by submitting that the starting points selected in Waihape and Devoren also reflect the offenders’ previous convictions. Reading the sentencing notes, however, I do not accept that submission. I consider that both sentencing Judges selected a starting point of three years imprisonment having regard to the gravity of the offending alone. This demonstrates that the starting point of three years that the Judge selected in this case was not out of line with sentences imposed in other similar cases.
[22] I therefore reject the submission that the Judge selected a starting point that was too high having regard to the nature and gravity of the offending.
10 R v Waihape HC Gisborne CRI-2010-016-240, 7 December 2010.
11 R v Davoren HC Napier CRI-2010-016-240, 13 May 2011.
[23] I preface my remarks in relation to this aspect of the case by saying that Ms Edwardson may well have been the beneficiary of a mathematical error by the Judge. Having settled upon a discount of 25 per cent for the guilty plea, it is clear that the Judge intended to provide a further discount in respect of a late expression of remorse by Ms Harris. It is difficult to see how that could have led to a further discount of more than five to eight per cent. Instead, however, the Judge allowed 19 per cent for this factor, thereby ending up with an end discount of 44 per cent. That is a very large discount indeed, and one that I do not consider to have been warranted. It is entirely possible that, if the Judge had undertaken the mathematical exercise correctly, the issue of home detention would never have arisen, because the end sentence would have been more than two years imprisonment.
[24] Putting that issue to one side, counsel for Ms Edwardson submits that the errors that led the Judge to select a starting point of three years imprisonment also led him to take a graver view of the offending than was warranted having regard to the summary of facts. If those errors are put to one side, he submits that a sentence of home detention was not only open, but was also the appropriate sentence in this case.
[25] A sentencing Judge has the discretionary power to sentence an offender to a sentence of home detention in any case where the end sentence is one of two years imprisonment or less.12 The discretion to impose the sentence is unfettered in the sense that the Sentencing Act 2002 does not prescribe the circumstances in which a sentence of home detention may be imposed. The discretion must be exercised, however, having regard to the purposes and principles of sentencing contained in ss
7 and 8 of the Sentencing Act 2002.13
[26] It is clear from the Judge’s sentencing remarks that he viewed the principles of deterrence, denunciation and accountability to be well and truly to the forefront.
12 Sentencing Act 2002, S 15A and Parole Act 2002, s 4(1).
13 Manikpersadh v The Queen [2011] NZCA 452 at [14].
Indeed, he described the sentencing option of home detention as being “hopeless”
given the circumstances of this case.
[27] A deliberate, premeditated and serious attack on a police officer acting in the execution of his or her duty will often, in my view, bring these principles to the fore. I accept, as counsel for Ms Edwardson submits, that they will not preclude a sentence of home detention in every case. Nevertheless, the circumstances of this case were such that the Judge was well entitled to exercise his discretion against that form of sentence. He was entitled to conclude that only a sentence of imprisonment could properly reflect the sentencing principles and purposes that he had identified.
[28] For these reasons the appeal is dismissed.
Lang J
Solicitors:
Crown Solicitor, Rotorua
Counsel:
D Malcolm, Taupo
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