R v Edwards - [2007] NZCA 382

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA83/07 [2007] NZCA 382

THE QUEEN

v

DANIEL JOHN EDWARDS

Hearing: 20 August 2007

Court: Arnold, Wilson and Priestley JJ

Counsel: N J Sainsbury and C Parkin for Appellant
K B F Hastie for Crown

Judgment: 31 August 2007 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

R V EDWARDS CA CA83/07 31 August 2007

Introduction

[1] The appellant was convicted on one count of sexual violation by rape following a jury trial in the High Court at Wellington. Miller J sentenced him to a term of imprisonment of seven years six months: HC WN CRI 2005-078-212
15 December 2006. He now appeals against that sentence.

[2] The appellant’s counsel, Mr Sainsbury, submitted that Miller J erred in three respects:

(a) He adopted a starting point that was too high;

(b) He did not give sufficient credit for the appellant’s mental health problems;

(c) He did not give credit for the appellant’s remorse.

Mr Sainsbury said that the sentence of seven years six months is manifestly excessive and that an end sentence of less than six years imprisonment is appropriate.

[3] We deal with each ground in turn.

Starting point too high

[4] The complainant was the appellant’s flatmate. She had moved into the appellant’s rental property about four days before the incident occurred, in response to an advertisement placed by the appellant. At the time the complainant was on medication for depression, her partner having committed suicide shortly before.

[5] On the evening of the incident, the complainant was in her room listening to music. The appellant arrived home about 11pm, having been out drinking with some friends. He was intoxicated. The appellant went into the complainant’s room, and,

despite the complainant’s repeated requests that he stop, forced the complainant to have sexual intercourse with him.

[6] We describe the course of the proceedings in more detail at [16] and [17] below. For present purposes it is sufficient to note that the appellant did not give evidence at trial, although he gave two video interviews to the police. His defence at trial was that the sexual intercourse (which he accepted occurred) was consensual.

[7] Miller J adopted a starting point of eight and a half years. The Judge noted that the starting point for a contested rape is eight years imprisonment (R v A [1994]
2 NZLR 129 (CA)), but adopted a starting point of eight and a half years imprisonment to reflect two aggravating factors in the offending. Those were breach of trust, arising from the fact that the complainant was the appellant’s flatmate, and the complainant’s vulnerability, as reflected in her receiving medical treatment for depression brought about by her partner’s suicide.

[8] Mr Sainsbury submitted that the six month increase on the eight year starting point identified in R…

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 Edwards

Details

AGLC: R v Edwards [2007] NZCA 382
Case: [2007] NZCA 382
Decision Date: 31 August 2007

CaseChat Overview and Summary

The case of R v Edwards involved an appeal against the sentence imposed on the appellant, Daniel John Edwards, who was convicted of sexual violation by rape. The appeal was heard in the Court of Appeal of New Zealand, with Arnold, Wilson, and Priestley JJ presiding. The appellant's counsel, N J Sainsbury, argued that the sentence of seven years and six months imprisonment was manifestly excessive and that an end sentence of less than six years imprisonment was appropriate. The grounds of appeal were threefold: the starting point for sentencing was too high, insufficient credit was given for the appellant's mental health problems, and no credit was given for the appellant's remorse.

The court addressed each ground in turn. Regarding the starting point, the court found that the trial judge was correct to adopt a starting point of eight and a half years, considering the aggravating factors of breach of trust and the complainant's vulnerability. The court also found that the trial judge was entitled to take into account the appellant's mental condition as a mitigating factor but that the discount given by the trial judge was within the permissible range. Finally, the court found that the trial judge was not obliged to give credit for the appellant's remorse, as it was not accompanied by a genuine acceptance of responsibility.

Ultimately, the court concluded that the sentence imposed by the trial judge was not manifestly excessive, as it involved no error of principle and took into account all relevant considerations. The appeal was dismissed, and the sentence of seven years and six months imprisonment was upheld.

Orders