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R v Edmonds

R v Edmonds

Case [2009] NZCA 152 29 April 2009

Sentencing

Credit for Mitigating Factors

Disparity in Sentencing

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Edmonds

Details

AGLC: R v Edmonds [2009] NZCA 152
Case: [2009] NZCA 152
Decision Date: 29 April 2009

CaseChat Overview and Summary

Dean Kevin John Edmonds was charged with cannabis offences, including possession for the purpose of sale and cultivation. The charges related to events occurring at Taieri Mouth, near Dunedin, between October 2003 and March 2006. Edmonds entered guilty pleas to both charges in March 2008. A disputed fact hearing determined the cultivation was for commercial purposes, placing it at the higher end of Category 2 of the sentencing guidelines in R v Terewi. Judge O’Driscoll sentenced Edmonds to three years' imprisonment in November 2008, a decision that Edmonds now appeals. The appeal grounds include insufficient credit for mitigating factors, unjust disparity in sentencing compared to co-offender Griffin, and the failure to impose home detention. The Crown argued that the sentence was not manifestly excessive and that home detention was inappropriate for the type of offending. The Court found that the starting point for sentencing was appropriate, and the credit given for mitigating factors was adequate. The appeal on unjust disparity was dismissed, as the differences in the cases warranted different sentences. Lastly, the Court ruled that home detention was not suitable for this case, as imprisonment was necessary to adequately address the seriousness of the offending. The appeal against sentence was dismissed.

Orders