R v Eddington
[2016] NZHC 434
•11 March 2016
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI-2015-076-435 [2016] NZHC 434
THE QUEEN
v
JAMES WILLIAM EDDINGTON
Hearing: 11 March 2016 Appearances:
A R McRae for Crown
R G Glover for PrisonerJudgment:
11 March 2016
SENTENCING NOTES OF DUNNINGHAM J
Background to the sentencing
[1] So as you understand, you are here today to be sentenced on seven charges which relate to that offending on 18 February last year. Those include two charges of aggravated robbery, charges of using a firearm against a police officer; assault, assault with a weapon; unlawful possession of a firearm, and driving with excess blood alcohol.
[2] Now your co-offender, Ms Keen, was sentenced by Nation J late last year for her participation.1 She was sentenced to a term of two years and nine months’ imprisonment and I mention this simply because later, I will need to take account of
the sentence she received when I sentence you.
1 R v Keen [2015] NZHC 3066.
R v EDDINGTON [2016] NZHC 434 [11 March 2016]
[3] Now as you know, although these matters were first in the District Court, they are now before this Court because the sentence of preventive detention is being considered.
Summary of facts
[4] The events which gave rise to these charges occurred on the afternoon of
18 February. You and your co-offender, Ms Keen, drove to the Highfield Mall in Timaru. While Ms Keen waited in the car, you entered the Mall and walked straight into the New Zealand Post Shop which contained a number of customers and three staff members. As you approached the counter, you pulled your t-shirt up, partially covering your face. You presented your knife at the 15 year old staff member at the counter and demanded she hand money over to you. This staff member and another were so frightened they ran out of the back of the shop and hid. Another staff member approached you and you pointed the knife at her and demanded money. You repeatedly attempted to enter the area behind the counter by shoulder-charging the locked door that separates the staff from the shop floor. While money was being obtained for you, you made the five remaining customers in the shop kneel down on the floor. You were handed approximately $2,385 in cash before you ran from the Post Shop into the waiting car and drove off with your co-defendant.
[5] At about 7 o’clock on the same day, you drove to the township of Fairlie and parked near the BP service station. This time you were carrying a .22 calibre rifle complete with telescopic sights and a silencer. You ran across the forecourt of the service station into the building. At that time, a staff member and a customer were in the service station. You pointed the rifle at the customer and told him to get down, which he did. You then pointed the rifle at the staff member and demanded cash. The staff member complied and handed you $260 from the cash register. You also demanded money from the safe but, when you were told there was no safe, you then demanded tobacco and were handed approximately six packets. Another customer arrived at the service station but, when she attempted to enter, you showed her the rifle and she quickly backed away and left. As you left the service station with the cash and tobacco, you pointed the rifle again at the customer and staff member,
making them crouch down further. You also held the rifle up at another customer who pulled her vehicle into the service station as you were leaving and you swore at her, telling her to leave. You then left in the car with your co-offender.
[6] A short time later, you were spotted by Detective Senior Sergeant Marian Neill near Pleasant Point. She passed you and your co-offender in her private motor vehicle where you had stopped on the side of the road. She then met with Constable Chris Howes around the corner from where you had stopped. He was in a marked police car. You got back into your vehicle and drove past the police officers vehicles. Constable Howes turned to follow your vehicle as it passed. You then stopped the car on the side of the road approximately 90 metres ahead of Constable Howes without being signalled to. Detective Senior Sergeant Neill pulled up parallel to Constable Howes in the middle of the road. You got out of your vehicle with the rifle. Constable Howes, who was in full police uniform, also got out of his vehicle armed with a Police-issue rifle. He called on you to show your hands. Instead you lifted the rifle towards both officers and discharged a shot in their direction, causing them both to duck for cover. You then got back into your vehicle and drove off at speed. You and your co-offender dumped the car a short time later and continued on foot.
[7] You were located by armed police and arrested, with the assistance of a police dog, on farm land not long after. Most of the cash and tobacco was recovered, along with the firearm which was located in the car. As you were being transported to the Timaru Police Station, you told the police officer that, “if I had a gun with me, I would have shot the dog” and “if I had it with me I would have shot all your mates”.
[8] Once in the Police Station, you were taken to the cells where you continued to act in an aggressive and confrontational manner. When a constable required you to undergo drink-drive procedures, you became agitated and aggressive, stating that you refused. You attempted to push your way past the police officer and out the door. Constable Malcolm Lindsay, who was present, directed you back to your seat but you refused and you head-butted him in the face, causing swelling to his upper lip. You subsequently had to be restrained and taken to a secure cell.
[9] A short time later, Dr Ian Smith arrived at the police station. He was asked to attend so he could examine your dog-bite injuries and obtain blood for a blood alcohol analysis. You initially complied with the request for blood and allowed Dr Smith to check your injuries but, at this time, you asked Dr Smith if you could speak with him alone. This request was granted although a constable waited just outside the partially open door of the medical room. You did speak briefly with Dr Smith but, as he walked out of the door, you launched yourself off the bed, picking up a pair of dressing scissors as you did so. You grabbed the doctor and pulled him towards you. You then swung your right hand containing the scissors towards Dr Smith’s throat and neck but you did not connect with him. Three police officers had to come into the room and restrain you. Your actions exacerbated an existing shoulder injury that Dr Smith had.
[10] Your blood alcohol test returned the result of 88 milligrams of alcohol per
100 millilitres of blood and you do not have a firearms licence.
Purposes and principles of sentencing
[11] In sentencing you today I have to consider various purposes. The ones that I
think are relevant are:
(a) holding you accountable for the harm you have done; (b) denouncing your conduct;
(c) deterring you and others from committing the same type of offending; (d) providing for the interests of the victims;
(e) assisting in your rehabilitation; and
(f) protecting the community from you. [12] I also take into account:
(a) the relative seriousness of the offending; (b) your culpability as an offender;
(c) the need for consistency in sentencing;
(d)the need to take into account information provided by the victims to this Court; and
(e) the need to impose the least restrictive outcome appropriate in the circumstances.
[13] In addition, because preventive detention has been sought, I have to consider whether a finite sentence of imprisonment would adequately protect the community or not. That means I first have to consider what finite sentence it would be proper to impose on you.
Setting a starting point
[14] Now the offending in this case is serious. The Crown has advocated for a lengthy term of imprisonment if I decide against preventive detention. Your lawyer has responsibly acknowledged that that is inevitable in the circumstances.
[15] The lead charges in this offending are the two charges of aggravated robbery.
[16] That charge carries a maximum penalty of 14 years imprisonment.2 The case of R v Mako gives the Court guidance in setting an appropriate starting point for that kind of offending.3
Features of the offending
[17] The offending you were involved in contains a number of features which bear on the starting point I am going to adopt;
First, the robberies involved commercial premises;
(a) second, members of the public were present, in addition to store-staff.
In particular, the Timaru Post Shop robbery took place during a busy time of the afternoon in a public mall, with a lot of people present;
(b)although there were no physical injuries sustained by the victims, there was nevertheless a significant amount of emotional trauma inflicted;
(c) the second robbery, at Fairlie, involved the use of a loaded firearm which, of course, is potentially lethal; and
(d)this was premeditated offending, it involved a reasonable degree of planning in order to get to and from the site of each robbery, using a co-offender as a getaway driver.
[18] I also consider that your intoxicated and highly volatile mental state over the course of this offending is a factor which increased the potential danger. The fact that no injuries were actually inflicted was fortuitous. Your threatening actions were serious, and were highly traumatic for the victims involved.
[19] I accept however that the value of the property stolen in the offending was relatively minor, and a large proportion of what was stolen was recovered. I accept that your efforts to disguise yourself were limited.
[20] So taking into account those factors that have been identified in the case Mako, I am satisfied that both of the aggravated robberies broadly belong to the category identified as attracting a starting point of around six years.
Uplift for totality
[21] However, you have been convicted of a number of other offences committed in the course of this offending and I have to consider how those bear on the overall sentence.
[22] I accept that all the offending occurred on the same day and you were in a state of substance-induced intoxication. For that reason, I accept that concurrent sentences are appropriate, but that I should apply such uplifts to the starting point reached in relation to the aggravated robbery charge, to reflect the totality of your offending.
[23] I think there should be an uplift to reflect the fact that there are two instances of aggravated robbery. Both of the aggravated robberies in this case were serious. They were both committed in public places, at commercial premises, and in each case, the danger posed by you as a result of being armed and intoxicated, was great. I suggest that an uplift of one year is appropriate so the starting point for the two aggravated robbery charges is seven years.
The need for parity between co-offenders
[24] I also have to be mindful that your accomplice and co-offender, Ms Keen, has already been sentenced and there needs to be consistency with her sentence. I have to reach conclusions about the relative culpability between you and her.
[25] However, in his sentencing, Nation J considered that you were “the principal
offender and in control of what happened within both shops”4 and I agree with that.
[26] I am satisfied that the starting point of seven years reached in relation to your part in the robberies reflects your markedly-increased involvement in their execution, and is in proportion to the four year starting point for Ms Keen.
[27] I now turn to the other offences. Using a firearm against a police officer is a serious charge, it attracts a sentence of potentially 14 years’ imprisonment on its own.5 Although there is no, what we call tariff case for this offence, the Crown has helpfully drawn the Court’s attention to a number of relevant cases. These show that the Courts take a firm approach in pursuit of the need for deterrence. Starting points
and sentences of imprisonment in the region of six to eight years have been imposed in the cases involving the actual discharge of the firearm.6
[28] The Crown has emphasised that the present case involved planning of the shot, because you left the car to take aim. This required the officers in pursuit to take immediate cover. The discharge occurred on a public highway, where there was a risk of harm to members of the public. All things considered, this was serious offending, and I am acutely mindful of the need to promote the principle of deterrence. In the circumstances, I propose an uplift of four years to reflect this offending.
[29] Much of the offending involved in the remaining charges is comparatively minor, although it is not trifling by any means. The assault on Constable Lindsay caused only superficial injury, and the assault on Dr Smith, whilst serious in that it involved the use of a weapon, did not result in physical harm, beyond the exacerbation of a pre-existing shoulder injury. On the other hand, the doctor’s Victim Impact Statement demonstrates that the attack has had a significant impact on him in other ways. As noted by the Crown, the assault on Constable Lindsay, involving as it does an assault on a police officer, automatically involves the presence of an aggravating factor recognised by the Sentencing Act.
[30] In addition to that violence-related offending, I have also had regard to the other offending, the unlawful possession of a firearm, and driving with excess blood alcohol.
[31] Having regard to the criminality of this related offending, viewed as a whole, I consider that a further uplift of one year is appropriate in the circumstances.
[32] That brings the end starting point, to 12 years’ imprisonment. I am satisfied that such a sentence fairly reflects the totality of the offending and is not excessive.
6 In R v Wells HC Auckland CRI-2003-092-026964, 30 April 2004, the defendant had fired four un-aimed shots from a vehicle during a police pursuit. A starting point of 6 years was adopted. In R v Atkinson [1990] 2 NZLR 513 (CA), a sentence of 6 years imprisonment was imposed for a burglary in conjunction with the firing of a ‘warning shot’ at police, directed into the air. An initial sentence of 8 years was reduced to 6 years in R v Collier CA27/92, 31 May 1992 where the Court was not satisfied that the discharge had been “directed” at the traffic officer.
Adjusting the starting point
[33] I now have to look at what we call the mitigating and aggravating factors which relate to you. You do have a history of offending that dates back to 2003, and you have been before the Court on a number of occasions during that period. While many of your convictions are for comparatively minor offending, some of them have involved serious violence-related offending. It is significant that this latest offending was committed while you were on parole for a spate of violence and dishonesty offending committed in 2009. In these cases, an uplift of six months is appropriate, taking the sentence to 12 and a half years.
[34] However, in terms of mitigating factors personal to you, I note of course you were heavily under the influence of disinhibiting drugs and alcohol but that is not something the Court can take into account as a mitigating feature.7
[35] Remorse is, however, a relevant sentencing principle to which the Court can have regard.8 That is distinct from the existence of a guilty plea.
[36] In this case you have shown a degree of genuine remorse, as exhibited by your letters to the victims and to the Court.9 You have also indicated a willingness to address your substance-abuse issues which are acknowledged to be a major contributing factor to this offending.10 However, I also bear in mind, that your lack of effort to change in the past warrants a degree of scepticism about this expressed desire to change.
[37] I consider you should be given a moderate credit for remorse, of around five per cent, taking the sentence back to 12 years.
Reduction for guilty plea
[38] You are then entitled to a discount by reason of your early guilty plea.
7 Sentencing Act 2002, s 9(3).
8 Sentencing Act 2002, s 9(2)(f).
9 See also the pre-sentence report at 4.
[39] In this case, the Crown has accepted a full 25 per cent reduction for your guilty plea, and I do not intend to depart from that.
[40] That 25 per cent discount takes the end sentence to a sentence of nine years’
imprisonment.
Preventive detention
Preventive detention criteria and process
[41] So, I now turn to consider the issue of preventive detention. This sentence is available if you have been convicted of a qualifying sexual or violent offence;11 and you are 18 years or more at the time the crime was committed,12 and you are considered “likely” to commit another qualifying offence at the expiry of your finite sentence.13 Even if I am satisfied that these three criteria are met, the decision whether to impose a sentence of preventive detention remains at this Court’s discretion.14
[42] Obviously the first and second criteria met in this case. The question is whether you are likely to commit another qualifying offence at the end of your finite sentence. In answering this question I have to consider a number of factors. These are:15
(a) any pattern of serious offending you have shown;
(b) the seriousness of the harm you have caused the community;
(c) information indicating a tendency to commit future serious offences;
and
(d) your failure to address the causes of your offending.
11 Sentencing Act 2002, s 87(2)(a).
12 Section 87(2)(b).
13 Section 87(2)(c).
14 Section 87(3).
15 Section 87(4).
[43] Furthermore, I have to bear in mind that a lengthy finite sentence if it can adequately protect the community, it should be preferred.
[44] I have already covered the seriousness of your offending and the seriousness of the harm caused to the community.
Reports on Mr Eddington
[45] In terms of the other factors, reports have been obtained from Doctors
Barry-Walsh and Kingi.
[46] Your lawyer has also referred me to the report of Dr Porter, the head of Psychiatry at Otago University. While this report was primarily addressed towards your fitness to plead, it does contain a useful and considered opinion of your potential amenability to treatment. However, it only briefly touches on one of the important considerations relevant to preventive detention, which is the likelihood of you committing further serious offences on release.
[47] Dr Kingi expressed a concern that, while you could be mindful and lucid about your offending while you were sober, you are prone to returning to your destructive habits related to substance-abuse when life becomes difficult. She also considered that at present, there were various factors in your life tending to indicate a high risk of re-offending.
[48] Both report writers identified significant underlying issues which contribute to your offending, including your substance-dependency, your poor emotional regulation, and the effects of unresolved emotional trauma said to stem from historic sexual abuse. Dr Barry-Walsh considers you display reasonable insight into your situation, and you do not currently hold what he calls, “violent ideation”, or other words, desires to be violent.16 He expressed optimism for your prospects upon release, but he noted that this was really conditional on having a stable and supportive living environment. He acknowledges that you have a strong personal
support network in your life and that is evidenced by the letters I have received and
the fact that your family is here in Court today. It was Dr Porter’s opinion that the use of this support network, in conjunction with programmes designed to promote your sobriety, would have a marked impact on the risk you would pose on release.
[49] The pre-sentence report also indicates that, while your risk of future harm and recidivism is “assessed as high”, these risks may be reduced over time if you address the factors that are contributing to your offending. The report recognises though that you have been subject to imprisonment before, and seemingly without effect, but also, until the current charges, you had not committed serious offending since 2009.
[50] It seems to me that you have undertaken, but not entirely learnt from some of the standard rehabilitation programmes and that is a negative factor in my assessment. But, on the other hand, the various reports do express some optimism that if you do engage the risk you pose could well be reduced. You are not someone who is demonstrably unlikely to be rehabilitated.
[51] Where does all that take me?
Discussion and conclusion on preventive detention
[52] The pre-sentence report in conjunction with those two other reports paints a troubling picture of your prospects. However, there are not indications in them that your prospects are irredeemably bleak. While they point to the high risk you pose at present, that is not the end of the matter: the test is whether you will present such a risk to the community when you are released. In this regard, those reports express a degree of optimism.
[53] However, the Crown has reminded me that you have “complex rehabilitation needs”.17 They have referred me to the various parole board decisions which reflect poorly on your attitude at times as well as the fact you have reverted to taking drugs and alcohol. However, this must be read, I believe, in the context of the issues identified by the report writers. The report writers consider that if you actively engage in treatment on your underlying issues, the risk you pose will be diminished.
[54] I take into account the fact that you are relatively young and, I hope, maturing. I also take into the fact that an extended supervision order is available at the end of a finite term of imprisonment and Mr Glover, sensibly accepts that that might be helpful at that stage. Your criminal history does disclose a consistent pattern of offending but, not of a number of serious violence-related charges. You have expressed a degree of remorse and insight into this offending, particularly on the factors giving rise to it, and its effects on the victims and the people in your life. That is consistent with, and it is reinforced by your early guilty plea.
[55] So you do not strike me as a man inherently motivated by violence and I am not satisfied, at this point, that preventive detention is required. Rather, a lengthy finite sentence will adequately serve the purpose of protection of the community.
Minimum Period of Imprisonment
[56] Now as I have decided on a lengthy term of imprisonment I also have to consider what minimum period of imprisonment should be imposed.
[57] Despite all the matters I have previously discussed I do remind myself of the need to protect the community, and to denounce your behaviour. In all these circumstances, I consider that a minimum period of imprisonment of five years will be appropriate.
Conclusion and sentence
[58] So Mr Eddington, if you would now stand and I will formally sentence you. Mr Eddington, your sentence is as follows:
(a) On each of the two charges of aggravated robbery, you are sentenced to concurrent terms of nine years’ imprisonment, with a minimum term of imprisonment of five years.
(b)On the charge of discharging of a firearm at police, you are sentenced to a term of imprisonment of six years to be served concurrently.
(c) On the charge of unlawful possession of a firearm, you are sentenced to a term of imprisonment of one month to be served concurrently.
(d)On the charge of assault, you are sentenced to a term of imprisonment of three months to be served concurrently.
(e) On the charge of assault with a weapon, you are sentenced to a term of imprisonment of eighteen months to be served concurrently.
(f) On the charge of driving with excess blood alcohol, you are sentenced to a term of two months’ imprisonment to be served concurrently plus, the mandatory six months’ disqualification from driving.
Stage 1 Warning
[59] Now, given your convictions for aggravated robbery and for using a firearm against a law enforcement officer, you are now subject to the three strikes legislation. From now on, if you are convicted of any serious violence offence, excluding murder, you will receive a second and final warning. Furthermore, if you are sentenced to a term of imprisonment for that offence, other than preventive detention or life imprisonment for manslaughter, you will serve the entirety of that sentence without parole or early release.
[60] If you are convicted of murder after you receive this first warning, then you will be sentenced to life imprisonment. You will serve the life term without parole unless it would be manifestly unjust for you to do so. If you are sentenced to life without parole, this means you will not be released from the prison. If serving the sentence without parole would be manifestly unjust, the sentencing judge must specify a minimum term of imprisonment that you will serve.
[61] Now, you will get that warning also given to you in writing, so just to let you know that.
[62] You may stand down.
Solicitors:
Gresson Dorman & Co., Timaru
R G Glover, Barrister, Christchurch
6