R v Edmonds

[2009] NZCA 152

IN THE COURT OF APPEAL OF NEW ZEALAND

CA756/2008
[2009] NZCA 152

THE QUEEN

v

DEAN KEVIN JOHN EDMONDS

Hearing:21 April 2009

Court:Ellen France, Heath and Fogarty JJ

Counsel:M G Appleby for Appellant

T Epati for Crown

Judgment:29 April 2009 at 2.30 pm 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]       Mr Edmonds was charged with cannabis offending.  The first charge was possession of cannabis for the purpose of sale to persons of or over the age of 18 years.  That occurred on 14 March 2006.  The second (on which Mr Edmonds was charged jointly with Mr Griffin) was one of cultivation of cannabis between 1 October 2003 and 15 March 2006.  All alleged offending occurred at Taieri Mouth, near Dunedin.

[2]       On 10 March 2008, Mr Edmonds entered pleas of guilty to both charges.  A disputed fact hearing was required on whether the cultivation was for commercial purposes.  That issue was resolved in a judgment given by Judge O’Driscoll, in the District Court at Dunedin, on 12 June 2008.  The Judge found that the cultivation fell at the higher end of Category 2 of the relevant guideline sentencing decision, R v Terewi [1999] 3 NZLR 62 (CA) at [4].

[3]       Judge O’Driscoll sentenced Mr Edmonds on 10 November 2008.  He imposed a term of imprisonment of three years.  Mr Edmonds appeals against that sentence.

Grounds of appeal

[4]       Mr Appleby prosecuted Mr Edmonds’ appeal on three grounds:

(a)The sentencing Judge provided insufficient credit for mitigating factors: namely, the guilty pleas, prior good character and remorse.

(b)The sentence imposed was unjust, having regard to the sentence imposed on the co-offender on the cultivation charge, Mr Griffin.

(c)       The Judge erred in deciding not to impose home detention. 

[5]       Ms Epati, for the Crown, submitted that the sentence was open to the Judge and could not be regarded as manifestly excessive.  Nor, she submitted, was the offending of the type to which the sentence of home detention could respond adequately.

Analysis

[6]       In his judgment on the disputed fact hearing, Judge O’Driscoll rejected Mr Edmonds’ version of events and held that the cultivation was for commercial, as opposed to personal, purposes.  Subsequently, on sentence, Judge O’Driscoll took a starting point at the upper end of Category 2 of Terewi of three years and six months imprisonment.  Category 2 contemplates a band of between two and four years imprisonment for small scale commercial activities.

[7]       Having regard to the findings of fact made by Judge O’Driscoll the starting point was plainly open to him.  Approximately 160 plants were being grown in two plots.  The amount of cannabis located at Mr Edmonds address was some 37.5lbs.  Cannabis was located in bags that weighed approximately one pound, a weight at which dealers are known to sell cannabis.  All of those factors point to small scale cultivation, for a commercial purpose. 

[8]       The Judge allowed a credit of six months for mitigating factors.  That credit represented approximately 14 per cent of the starting point.

[9]       Mr Appleby submitted that too little credit had been given for what he characterised as early guilty pleas.  That characterisation is unjustifiable.  Guilty pleas were not entered until the day of trial.

[10]     Mr Appleby’s argument seemed to proceed on the assumption that an early plea of guilty would be determined by reference to the time at which all avenues of appeal, in respect of pre-trial issues, had been exhausted.  That proposition is unsustainable. 

[11]     Credit is given for early guilty pleas, among other reasons, to recognise an acceptance of responsibility for offending.  The earlier the plea is entered, the greater the credit will be.  In R v Fonotia [2007] 3 NZLR 338 at [50](CA), Chambers J, for the Court, observed that this Court “has regularly approved discounts of between 10 per cent and 33 per cent”. He emphasised also the point we have just made, that the greatest discount will be for the earliest pleas.

[12]     We regard the pleas of guilty to have been entered very late.  Mr Edmonds was charged in 2006.  Various pre-trial applications were dismissed and appeals were exhausted by early 2008.  The pleas of guilty were entered on the day of trial.  Even then, Mr Edmonds did not accept full responsibility for his actions.  It was necessary for the Judge to make a factual finding, contrary to Mr Edmonds’ evidence, that the cultivation was for commercial purposes.  In those circumstances, Mr Edmonds would have been fortunate to receive a credit for guilty pleas of more than 10 per cent.

[13]     The Judge took account of Mr Edmonds’ prior good character but expressed some reservations about whether true remorse existed.  He was also conscious of the impact of Mr Edmonds’ imprisonment on family and friends whom Mr Edmonds had let down.  Given the lateness of the guilty pleas and the Judge’s views on other mitigating factors, we consider that the total credit given was adequate.

[14]     The appeal on grounds of unjust disparity is hopeless.  Mr Griffin was sentenced on 25 July 2006 on the single charge of cultivating cannabis.  He pleaded guilty very early and acknowledged responsibility for his actions.  No disputed fact hearing was required.  John Hansen J, after discussing relevant authorities, took a starting point of three years nine months imprisonment and allowed a credit of one year three months imprisonment for mitigating factors, including the early guilty pleas and genuine remorse.  A final sentence of two years and six months imprisonment was imposed: R v Griffin HC DUN CRI 2006-012-1210 25 July 2006.

[15]     As this Court pointed out in R v Lawson [1982] 2 NZLR 219 at 223–224 (CA), the test for appellate intervention on grounds of unjust disparity is not “whether an offender feels a sense of grievance over the sentence imposed upon him compared with that imposed on his fellow offender” but “whether the disparity is such as not to be consonant with the appearance of justice”. That assessment is objective and can be captured in the question: would a reasonably minded independent observer, aware of all the circumstances of the offence and the offenders, think that something had gone wrong with the administration of justice?

[16]     In light of the additional charge against Mr Edmonds and the greater credit available for mitigating factors in Mr Griffin’s case, there was no unjust disparity.

[17]     The final point is whether home detention should be ordered.  Mr Appleby sought to persuade us that R v McFelin HC DUN CRI 2007-012-5912 4 June 2008 and R v Marks HC DUN CRI 2008-012-895 6 June 2008, were comparator cases and that home detention ought to have been imposed for reasons of consistency.

[18]     We do not regard those cases as true comparators.  The sentences of home detention (McFelin) or a mix of community work and intensive supervision (Marks) were justified by the particular facts of the cases.  Those cases, when read properly, cannot be regarded as true comparators.  The mitigating factors were much more cogent than those advanced by Mr Edmonds.

[19]     However, Judge O’Driscoll did err in thinking that home detention was not available if the end sentence would, otherwise, be more than two years imprisonment.  The offending fell within the transitional period to which R v Hill [2008] 2 NZLR 381 (CA) refers. Hill, while a case involving the Class A controlled drug methamphetamine, was unusual in that the offender had taken significant steps to rehabilitate and it was clear that a degree of leniency was required to assist further rehabilitation and reintegration into the community.

[20]     As this Court emphasised in R v D [2008] NZCA 254 (on which the subsequent decision in R v Iosefa [2008] NZCA 453 rested), when considering whether home detention or imprisonment is to be imposed a sentencing Judge must form a judgment on which sentence is necessary to respond adequately to the seriousness of the offending: at [66].

[21]     In our view, there was no basis on which home detention could legitimately have been considered.  This was offending that required denunciation and deterrence as the primary sentencing goals.  In our view, a sentence of imprisonment was required to respond adequately to the offending.

Result

[22]     For the reasons given, the appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington