R v Edmonds HC Christchurch CRI 2009-009-13108

[2010] NZHC 2265

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-009-013108

REGINA

v

BAZ MICHAEL EDMONDS

Hearing:         15 December 2010

Counsel:         A M Toohey and M G Robinson for Crown

E C Bulger for Prisoner

Sentence:       15 December 2010

SENTENCE OF PANCKHURST J

Mr Edmonds:

[1]      As you know all too well, you were found guilty by verdict of a jury in this court of the crime of manslaughter committed on 25 August 2009.  This afternoon you are for sentence.

[2]      The facts were that on that day, a Tuesday, you left work early.  You spent the middle and late afternoon drinking on the verandah of your home in Olliviers Road with your partner and some of your workmates.  You lived at that address with Virginia Watson and, at that stage, one of her children, a son then aged 17 years. Your mates left by about 5.30 pm.  By then I am sure that you were intoxicated to a

significant degree.  You had something to eat, it seems, in your front bedroom which

R V BAZ MICHAEL EDMONDS HC CHCH CRI-2009-009-013108 15 December 2010

bordered the verandah of the house.   Then it appears you lay down and you were watching television, or dozing.

[3]      At about 6.40 Andre Delamare knocked on the door of your home.  He lived some distance away in Olliviers Road.  Prior to this he had had an argument at his home with his long-time partner.  This culminated in his shoving her at one stage. As a result a child in the house rang 111.  Aware that the police were likely to come to the address, Mr Delamare left.  He packed a backpack and walked along Olliviers Road in the direction of your home.

[4]      The evidence at trial indicated that he was probably intending, eventually, to go to Shirley, to the home of his mother, which was something of a refuge for him on occasions such as this.  He was also conscious that a police car may come down the street and I am sure that is the reason why he went into your property and knocked on the door.

[5]      In the first instance Ms Watson and her son went out and spoke to him.  He asked a number of times whether he could come in.  He said that he needed to hide. He was, I am sure, at least insistent in his requests.  He, too, was affected by drink. A blood sample taken after his death produced a reading of 239 milligrams of alcohol per 100 millilitres of blood.   That is, a reading which was three times the legal driving limit.

[6]      If cars went past while this discussion was occurring outside the house, he went beside the house and into the shadows in an obvious endeavour to hide himself from view.  He was clearly told he wasn’t welcome and asked to go, but he did not do so.  At one point he made a remark to the effect that “I’m family.  You should let me in”.

[7]      The evidence showed there was a connection in that Mr Delamare’s partner, and the father of one of Virginia Watson’s children, were related.  However, that was not apparent to anyone else on the night, other than Mr Delamare himself.  In any event you must have heard what was occurring outdoors.  You got up and went out to the verandah.   Ms Watson implored you to go inside.   I think it is obvious she

feared that matters could escalate and that there could be violence.  And that, in my judgment, is exactly what occurred.  Your presence made matters worse.

[8]      Andre Delamare, despite his insistent requests to be let into the house, had not been on the verandah other than perhaps momentarily when he knocked on the door.   Thereafter he was on the driveway and effectively separated from the occupants by a corrugated iron gate which marked the end of the verandah and the commencement of the driveway.

[9]      On your arrival you told him in no uncertain terms to go.  He didn’t.  You went through the gate and a struggle began in the driveway.  You manhandled him off the property.  The struggle then continued on the road and also on the grass verge on the opposite side of Olliviers Road.   The evidence of Virginia Watson’s son showed clearly enough that you, in time, got the better of the struggle; with the result that Mr Delamare ended up on his back and you were in a position above him, it seems on your knees or perhaps straddling him.

[10]     This witness then saw what he took to be a number of punches struck from above.   In reality, they were blows struck with a knife and they resulted in the infliction of numerous lacerations or stab wounds.  There is no doubt that the knife used was a sharp double-edged knife which you termed “a shank” when spoken to by the police after the event.  That, I think, was an apt description of this knife.  Having struck  these  blows  you  then  returned  across  the  road  to  the  house.    You  left Mr Delamare bleeding on the grass verge.  In fact, of course, we now know that he was dying.

[11]     About your first action was to ring your boss from work.  You said to him that you had “stuffed up” and that you would not be at work in the morning.  Shortly thereafter you took steps to remove evidence.   This included your getting into the shower fully clothed, no doubt intending to get rid of blood that was on your person. The knife was discarded.  It was placed over a fence, but on a lean-to which attached to that fence on the property of your immediate neighbour.

[12]     Sometime later police officers went to your home and you were taken back to the police station and participated in a lengthy video interview.  Throughout this first interview you denied all involvement in the death of Mr Delamare.  I have no doubt that you were still affected by alcohol at that stage.  A blood sample was taken from you at about 1.00 am in the morning.   It returned a reading of 122 milligrams. However, alcohol would have been shed from your system over the intervening period, which suggests that the actual reading at the time of the fatal incident could have been 190 and up to as much as 250 milligrams of alcohol per 100 millilitres of blood.

[13]     To  your  credit,  Mr  Edmonds,  the  next  morning  you  asked  to  be  re- interviewed.   You had  obviously sobered up,  appreciated  your predicament and realised that your denials of the previous night were ill-conceived.  You then gave a coherent account which, I think, is essentially consistent with the outline I am in the course of giving.

[14]     Dr Sage, a pathologist, examined the body of the deceased.  He found a total of 14 wounds.  Most of them were either lacerations or what might be termed lesser stab wounds.   These were not life-threatening in nature.   But there were five stab wounds which were life-threatening.  These were serious; they were to the trunk, one to the shoulder and one to the head or face of your victim.  The fatal one was a blow to the left upper chest.   This cut the aorta.   It led to what the pathologist termed “torrential blood loss”.   It would inevitably, he said, have rendered Mr Delamare unconscious within seconds and dead within minutes, as indeed was the case.

[15]   There are two factual aspects, Mr Edmonds, which I consider remain controversial.   The first has been touched upon by Ms Bulger.   Who brought the knife to this affair?  There is no evidence that Mr Delamare was armed that night, or that he was inclined to carry a knife.   Your account is, however, that he was in possession of the knife; that he carried it at his side as you approached him on the driveway; that you were able to disarm him and that, ultimately, you used it in the way I have described.

[16]     Equally there  is  no  evidence  from  any other  witness  implicating  you  in ownership, or even possession, of a knife of this description.   I thought, however, that the evidence concerning where this knife was located and its then condition was revealing.   It was found in a disassembled state.   It comprised as one piece the double-edged blade and a handle, correctly called a tang, according to the expert who gave evidence before the jury.

[17]     There was also a makeshift composite cylindrical handle which fitted over the tang and which would, when assembled, have been secured by a screw nut at the top of the tang.  But, in fact, the knife was found disassembled in three bits.  Why that was so you were not asked at interview, no doubt because the detective did not know of the state of the knife when he spoke to you.

[18]     To me this evidence could well indicate that you had knowledge of the knife and, hence, were readily able to disassemble it after the event.  While I think that is probable, I don’t know for sure.   So, I accept what Ms Bulger has said, that the origin of the knife and who introduced it into this affair is something we know little more about now than we did at the commencement of the trial.  I can’t assume that you did bring the knife to this dispute.

[19]     The second aspect concerns the interpretation of the jury’s verdict.  Plainly self-defence was rejected.  But, did the jury reject the defence on the basis that this was not an occasion of self-defence at the time you stabbed Mr Delamare, or, did they view it as an occasion of self-defence, but where you used inappropriate and excessive force?  In my view it is the former.

[20]     Certain of the questions which the jury asked while in retirement, to my mind, pointed in that direction.  But even more telling were some answers you gave in the course of the second interview on the morning after the event.

[21]     Detective Collins asked you this:

Q.     Once you’ve come into possession of the knife you are telling me effectively that things then took a new turn, a new stage.  That when you were outside and you remember being on top of him and you remember doing those actions.

A.     That was anger. Q. Yeah.

A.     That was anger yeah.  There wasn’t a big deal until I looked down, then there was anger.  It went from blasé just straight to fuck.

Q.And would it be fair to say that that explains your reaction later on, in your words ‘I knew I fucked up’.

A.     I know I fucked up.  I know I fucked up so many lives.

Consistent, I think Mr Edmonds, with your straight-forward and direct approach, that was a pretty honest assessment of just what had happened at the crucial moment.

[22]     The fact remains, however, that the jury were not satisfied, not sure, that you possessed murderous intent.   My interpretation is that your intoxication and the confusion and nature of the struggle would have influenced the conclusion they reached on that aspect.

[23]     You are 40 years of age.  You have only two previous convictions, one for driving with excess breath alcohol in 1996 and one in March of last year for cultivating cannabis.   Neither I regard as relevant, or significant, in the present context.  You have no previous convictions for offences of violence.

[24]     In addition, your pre-sentence report is a positive one.  It confirms something which one of the witnesses, Mr Cribb, told us in evidence.  You worked for him as a gib fixer for several years prior to this tragedy.  And he said of you that he could not speak more highly of anyone.  He described you as the best worker he had ever had. Elsewhere in the report there are assessments that you were not only hard working, but that you were family orientated in relation to your several siblings.  The writer thought that you were not in need, as it is put, of interventions.  You were assessed to be at low risk of future offending.   Why, Mr Edmonds, you had a moment of madness with this knife, I don’t know.  I think it can only have been, as you put it to Detective Collins, a moment of anger when you were uninhibited as a result of the consumption of alcohol.  No doubt you are going to ask yourself this question, over the years as well.

[25]     The impacts of your actions have been very significant indeed.  I have read and considered victim impact statements prepared, no doubt, at considerable cost by

Mr Delamare’s partner, two of his children and others.  They have lost a father and a husband as well.  This, I am sure, was a family which could ill-afford, as can any family, such a loss.

[26]     In relation to the sentence of imprisonment which must inevitably follow, the Crown advocated a starting-point of 10 to 11 years’ imprisonment.   Ms Toohey stressed that you were the aggressor; that an escalation occurred once you were on the scene.  She referred, as well, to the degree of violence, the infliction of no less than 14 wounds of one sort or another, five of them of life-threatening seriousness. There is also the absence of any defence injuries to the hands and arms of your victim.  This indicates that, by the time he was stabbed to death, he was overcome, and in all probability vulnerable to what was about to occur.

[27]     Ms Bulger, on the other hand, criticised the suggested starting-point as being excessive and she advocated for something rather less.  She sought full allowance for your offer to plead guilty.  On 1 February 2010, when an indictment had been tabled by the Crown, you made an offer, initially orally through Ms Bulger, but confirmed nine days later in writing, to plead guilty to the crime of manslaughter.   This was considered by the Crown Solicitor but ultimately, a few days later, rejected.  I find that entirely understandable.  This was not a clear case of manslaughter or, for that matter, of murder.  The proper course, I am sure, was to allow the case to proceed to trial and have a jury deliberate upon it.  But, nonetheless, your offer to plead guilty must be recognised.  You have, in effect, been vindicated in that offer by virtue of the verdict reached by the jury.  In my view, a reduction of the order of 20 per cent is required to recognise that offer.

[28]     I am also satisfied, as Ms Bulger asked me to be, that  you demonstrate remorse for what you have done.  There were very early signs of that in the video interview, the second one, on the morning after the event.   I have read, today, the letter you have written to me.  A number of people have said of you that you are direct and straight-forward and I think that letter is probably in this category as well. I take it as a sincere statement of what your assessment of matters actually is.

[29]     That said, Mr Edmonds, this was a serious crime.  I do not think it is much removed from murder.  For that reason I consider the starting-point in arriving at a sentence must be 11 years’ imprisonment.  However, I make full allowance for your offer to plead to manslaughter, for your remorse and also for some rounding in order to arrive at an end sentence of eight years’ imprisonment.  You are sentenced to that term.

[30]     I am also required to consider whether you should serve a minimum period before you are eligible to be considered for release by the Parole Board.  The test to be  applied  is  whether  a  minimum  term  is  required  in  order  to  denounce  your conduct, to deter others and yourself, and to provide for the protection of the community.  I doubt that you need to be deterred.  And, nor do I think you will be, in all probability, any risk to the community following your release.  To the contrary, I rather think you have learnt a very hard lesson as a result of this matter.

[31]     Nonetheless, denunciation is also a relevant consideration.  This was a killing of a human being through the savage use of a knife.  The use of a knife should be roundly denounced by the courts and for that reason, in particular, I direct that you are to serve a minimum period of imprisonment of four and a half years.

You may stand down.