Newbury-Edwardson v The Queen

[2018] NZHC 2744

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2018-416-18

[2018] NZHC 2744

BETWEEN

LAURIE NEWBURY-EDWARDSON

Appellant

AND

THE QUEEN

Respondent

Hearing:	16 October 2018
Appearances:	A M Courtney for Appellant M L Wong for Respondent
Judgment:	23 October 2018

JUDGMENT OF MALLON J

Introduction

[1]                  Mr Newbury-Edwardson appeals against a sentence of imprisonment of two years and one month imposed by Judge Cathcart in the Gisborne District Court on a charge of wounding with intent to injure to which he pleaded guilty.1

The offending

[2]Mr Newbury-Edwardson arrived uninvited at his uncle’s property at around

9.30 am on 31 December 2016. His uncle told him to leave and opened the gate for him to do so. Mr Newbury-Edwardson refused, and began swearing and yelling abuse at his uncle and tried to shut the gate. In doing this he slammed the gate on to his uncle and forced him to take a step back.

1      R v Newbury-Edwardson [2018] NZDC 14401 (Sentencing Notes of Judge Cathcart); Crimes Act 1961, s 188(2) (maximum penalty seven years’ imprisonment).

NEWBURY-EDWARDSON v R [2018] NZHC 2744 [23 October 2018]

[3]                  This led to both of them yelling and calling each other names. Mr Newbury- Edwardson raised clenched fists to his uncle’s face and spat on him. Both men began to throw punches at each other. Mr Newbury-Edwardson was kicked in the groin area causing him to fall to the ground. He got up and retrieved a large hunting style knife from his vehicle which was parked nearby, and said “You’re going to get it now”.

[4]                  By this stage the two were on the road outside the uncle’s property. The uncle was retreating backwards from Mr Newbury-Edwardson when he tripped and fell into a drain area on to his back. Mr Newbury-Edwardson got on top of him and initially, unsuccessfully, tried to stab him in the chest with the hunting knife. Mr Newbury- Edwardson then stabbed his uncle in the shoulder. Blood began to flow from the wound. While Mr Newbury-Edwardson continued to stab him, his uncle grabbed a stick and swung it at Mr Newbury-Edwardson’s face. This caused a pause in the attack and allowed the uncle to get away.

[5]                  A passing motorist stopped to help the uncle. The uncle lost consciousness and was flown by helicopter to the Tauranga Hospital where he received surgery. One of the major arteries of his arms had been severed. He had lacerations in his arm and shoulder. While the end result of the injuries was not within the most serious category, they were life threatening at the time. But for the assistance of the passing motorist and the helicopter taking him to hospital the uncle could have died. The uncle continues to struggle with his work on the farm due to the ongoing physical effects of the injuries.

[6]                  Mr Newbury-Edwardson was initially charged with wounding with intent to cause grievous bodily harm and the lesser charge of wounding with intent to injure in the alternative.2 The alternative charge recognised Mr Newbury-Edwardson’s known mental health issues and the associated difficulty of proving intent to cause grievous bodily harm for such a defendant.

2      Crimes Act, ss 188(1) and (2).

Personal circumstances

[7]                  At the time of this offending Mr Newbury-Edwardson was 40 years old. He had one previous conviction, back in 1995 for possessing a class A drug for which he received a sentence of nine months’ supervision.3 He told the pre-sentence report writer that he was remorseful for the injuries suffered by his uncle. However he felt he was acting in self-defence when his uncle sustained his injuries.

[8]                  A report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003  was  ordered  by  Judge  Cathcart.  This  was  pursuant  to   a  request  from  Ms Courtney, his present counsel, who took over the representation in November 2017 and identified his mental health issues.4 This report was obtained from Dr David Street and was provided in February 2018. Dr Street considered Mr Newbury-Edwardson was fit to stand trial and that an insanity defence was unavailable to him. However he suffered from post-traumatic stress disorder (PTSD), major depressive disorder (MDD) and borderline personality disorder (BPD). He has had two prior psychiatric inpatient admissions.

[9]Dr Street further described Mr Newbury-Edwardson as having:

… severe symptomatology from his years of abuse. He will continue to require psychotherapy and pharmacologic management regardless of the court outcome. If he should receive a custodial sentence, these services should be provided through the forensic prison team. He will also require aggressive medical management for his active Crohn’s disease. …. He also presents as quite irritable and agitated, but careful observation demonstrated that this was not directed toward me, but in fact part of his long trauma history.

[10]              The report provided details of Mr Newbury-Edwardson’s difficult upbringing. He was adopted as a child and placed into a foster home. He suffered abuse within that home and in another context for a number of years. He struggled at school and was expelled at the age of 15. From a young age he used alcohol and cannabis. He then ceased doing so for a long period, but resumed his use from around the age of 38.

3      For completeness I note that while on bail for the wounding of his uncle, Mr Newbury-Edwardson was charged with trespass and assaults. He has pleaded guilty to one assault (involving pushing someone at a supermarket) and has entered not guilty pleas to the other charges.

4      Prior to this Mr Newbury-Edwardson had trouble retaining counsel. Due to Mr Newbury- Edwardson’ aggression towards them, Judge Cathcart granted leave to counsel initially instructed to withdraw and then to his replacement counsel.

More recently, he was using a range of class A drugs. He has been on income support for much of his life. At some stage he went to Waikato University and obtained a Bachelor of Social Science with Honours in Psychology.

[11]              An associate professor from the University had taken on a mentor role for  Mr Newbury-Edwardson and continued to support him. He also had the support of his long-term flatmate and a person from the local church where Mr Newbury- Edwardson was helpfully involved.

[12]              Mr Newbury-Edwardson had begun a one year therapy programme through the Waikato District Health Board (DHB) (mental health and addictions). This involved weekly sessions of dialectical behaviour therapy which the DHB provided specifically for people with BPD. The therapist considered Mr Newbury-Edwardson was committed to working on his complex treatment issues. The therapist advised that for this therapy “a high degree of trust in the therapist is helpful and any break in the therapy process is likely to be detrimental”. Two staff members involved in this treatment attended Mr Newbury-Edwardson’s pre-sentence report interview. They too considered that he was making progress and displayed commitment to the process.

[13]              The pre-sentence  report  writer  recommended  home  detention  to  allow  Mr Newbury-Edwardson to continue his treatment uninterrupted, while also providing him with some dignity and privacy when his Crohn’s disease flared up (which required frequent trips to the bathroom).

District Court proceedings

Sentence indication

[14]              On 15 May 2018 Judge Cathcart gave a sentence indication on the alternative charge of wounding with intent to injure. At this time he had the s 38 report and details of Mr Newbury-Edwardson’s treatment, but not the pre-sentence report. In view of Mr Newbury-Edwardson’s mental health issues the Crown was prepared to accept a guilty plea to this alternative charge.

[15]              The Judge indicated a starting point of four years’ imprisonment.5 He regarded the offending as involving a minor element of home invasion. The serious aggravating factors were the use of a weapon, the sustained nature of the attack and the life- threatening injuries inflicted.6 From this starting point the Judge indicated he would make the following discounts for personal mitigating factors: absence of previous convictions (five months/10 per cent); mental health issues (six months/14 per cent); other personal circumstances (four months/11 per cent); and guilty plea (five months/15 per cent). This meant an end sentence indication of two years and four months’ imprisonment.7

Sentencing

[16]              Mr Newbury-Edwardson entered a guilty plea on the wounding with intent charge. Sentencing proceeded on 13 July 2018. Counsel for Mr Newbury-Edwardson sought a sentence of home detention contending additional discounts were available for his remorse, rehabilitation efforts and guilty plea. The Crown prosecutor’s written submissions opposed home detention, but Ms Courtney advises that orally the prosecutor advised she would not argue against it.

[17]              The Judge considered no further discount for remorse was appropriate. He said insight was necessary for remorse. This was not evident from the pre-sentence report and was no doubt due to Mr Newbury-Edwardson’s mental health issues for which a discount was already provided. The Judge was prepared to increase the four month discount for personal circumstances by one month in light of the further information about Mr Newbury-Edwardson’s Crohn’s disease and his ongoing rehabilitative efforts. The Judge also accepted the submission that Mr Newbury-Edwardson likely needed to learn the skills to cope with his situation, through his rehabilitative efforts, before he was able to enter an earlier guilty plea. The Judge increased the guilty plea discount from five months to seven months.

5      The Judge considered the offending fell within band three of Nuku v R [2012] NZCA 584. He regarded Frelih v New Zealand Police Police [2014] NZHC 2217 as a comparable case.

6      R v Newbury-Edwardson DC Gisborne, CRI-2017-016-1, 15 May 2018 (Notes of Judge Cathcart on Sentencing Indication), at [19].

7 At [22].

[18]              These further discounts meant an end sentence of two years and one month imprisonment. The Judge added “having made those adjustments, it still does not arrive at the figure of 24 months or less”.8 Home detention therefore did not fall to be considered.

This appeal

[19]On appeal Ms Courtney submits the Judge erred in two ways:

(a)By not giving a discount for remorse. She submits Mr Newbury- Edmondson displayed remorse to the extent he could. His mental health issues, however, impacted on his ability to feel or express remorse.

(b)By not giving a greater allowance for personal circumstances particularly with his Crohn’s disease. This was a distinct medical issue which made prison disproportionately severe and this should have been considered separately from other personal circumstances.

[20]              I have some sympathy for these  submissions  in  that  they  aim  to reduce Mr Newbury-Edwardson’s sentence to the point where home detention can be considered. It is clear that Mr Newbury-Edwardson has health difficulties which materially diminished his culpability for what was serious offending. It is also clear that he needs assistance to address his difficulties and a home detention sentence would have enabled Mr Newbury-Edwardson to continue with appropriate treatment to do so.

[21]              However the approach the Judge took to all of the personal mitigating factors was available to him. The Judge was entitled to take the view that he had already accounted for Mr Newbury-Edwardson’s mental health issues and therefore no further discount should be allowed for his limited ability to express remorse. There was no evidence put forward to show that Mr Newbury-Edwardson’s Crohn’s disease could not be managed in prison. To the contrary, on this appeal the Crown has provided

8      R v Newbury-Edwardson, above n 1, at [16].

information from a Corrections’ principal health adviser that there is nothing out of the ordinary that would prevent Mr Newbury-Edwardson from being adequately cared for in prison, and records which show his health has been regularly reviewed.

[22]              The Judge had the benefit of dealing with Mr Newbury-Edwardson over the course of the District Court proceedings. In total, the Judge allowed 33.33 per cent discount for all those mitigating factors other than the guilty plea. He allowed 22 per cent discount for the guilty plea. Those were discounts within the available range. It cannot be said the Judge was wrong to not have allowed more.

Result

[23]The appeal is dismissed.

Mallon J