R v Edwards
[2004] NZCA 281
•17 November 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA223/04
THE QUEEN
v
CHARLES EDWARDS
Hearing:28 September 2004
Court:Anderson P, McGrath and William Young JJ
Appearances: M A Kennedy for Appellant
B M Stanaway for Crown
Judgment:17 November 2004
JUDGMENT OF THE COURT
A The appeal against the sentence of preventive detention is dismissed.
B The appeal against the six and a half year minimum term of imprisonment is dismissed.
REASONS
(Given by Anderson P)
[1] The appellant is a 28 year old man with an extensive criminal history including convictions for threatening to kill, assaulting a female, wounding with intent to injure, many burglaries and other crimes of dishonesty, breaches of court orders and bail, and escaping from custody.
[2] On 17 November 2002 the appellant broke and entered licensed premises at Wellsford, confronted the owner, a 40 year old woman, and bashed her on the head with an iron bar, rendering her unconscious. When she recovered consciousness the appellant struck her again with the bar. He then stole $1,100 from the cash register and absconded.
[3] As a result of the blows the victim suffered a brain injury of moderate severity. She now suffers from headaches, depression, fatigue, and inability to cope with work.
[4] Within a few days of the Wellsford incident the appellant carried out brutal and terrifying attacks on three more women.
[5] On 19 November 2002 he followed a pharmacy student, who had just completed her day’s work, to her car. As she was about to enter her car he forced his way in, overcoming her attempts to resist and to draw attention to herself by sounding the car horn. He locked the car doors and held her head down, threatening to stab her if she screamed or attempted to lift her head. The appellant drove this victim round for several hours in the South Auckland area. He told her to text her father on a cell phone to advise him she was not going to come home that night. Understandably the victim was terrified at the possible implications of the kidnapping and physical violence towards her. At one point the appellant threatened that he would tie the victim up and put her in the boot of the car. He in fact tied her hands behind her back with one of his shoelaces before stealing her money card and forcing her to tell him the PIN number. When he was unsuccessful in extracting money from the money machine he forced the victim to take out $700. He then drove her around to other parts of South Auckland, dominated her in a terrifying way before ultimately dismantling her cell phone and absconding.
[6] The next day the appellant burst into a van which had just been entered by a young mother, her three infant children and three other infants in her care. Entering the van the appellant punched the woman in the face with a closed fist and forced her to cross to the passenger seat. Angry at his inability to start the van he punched the victim in the face repeatedly before demanding the victim’s purse and eventually running off empty handed.
[7] The following day the appellant followed another woman to her car, and as she was preparing to drive off he threatened her with a knife which he held up to her face. He threatened to kill her with the knife and kept her captive for several hours, driving her around the South Auckland area until eventually visiting an address. There he frightened her into remaining in the car with hints that if she did not co-operate she would be the victim of a gang rape. Later he used the victim’s money card to steal $400 from her account. She eventually managed to escape when he inadvertently left the car keys behind with the victim whilst he visited a home in Otara.
[8] The impact on the victims has been understandably severe. As well as the trauma induced continuing anxieties, stress and sense of insecurity, each suffered physical injuries. We have referred to the brain injury sustained by the victim at Wellsford. Another victim suffered bruising and swelling as well as whiplash injuries. Another had bruising and swelling to the face and extensive dental damage. Yet another suffered lacerations to the hands from the knife wielded by the appellant.
The sentence
[9] The appellant pleaded guilty to nine counts arising from the incidents. There were two counts of kidnapping, two of aggravated robbery, one of causing grievous bodily harm with intent so to do, one of robbery, one of assault with intent to rob, and two of unlawful taking of motor vehicles. The kidnapping, aggravated robbery and grievous bodily harm counts carry a maximum finite term of 14 years imprisonment, each. Robbery carries a ten year maximum term of imprisonment and the remaining counts carry maximum terms of seven years. However the Judge invoked s 87 of the Sentencing Act 2002 which provides for a sentence of preventive detention, the stated purpose of which is “to protect the community from those who pose a significant and ongoing risk to the safety of its members”. The section applies if a person is convicted of a qualifying sexual or violent offence, the person was 18 years or over at the time of committing the offence and the Court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date of any sentence other than preventive detention that a court is able to impose. In this case there is no issue about the qualifying age and qualifying violent offence.
[10] The criteria for imposition are set out in s 87(4) which provides as follows:
When considering whether to impose a sentence of preventive detention, the court must take into account—
(a) any pattern of serious offending disclosed by the offender's history; and
(b) the seriousness of the harm to the community caused by the offending; and
(c) information indicating a tendency to commit serious offences in future; and
(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[11] Also relevant are s 88(1) and s 89:
88 Offender must be notified that sentence of preventive detention will be considered, and reports must be obtained
(1) A sentence of preventive detention must not be imposed unless—
(a) the offender has been notified that a sentence of preventive detention will be considered, and has been given sufficient time to prepare submissions on the sentence; and
(b) the court has considered reports from at least 2 appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence.
89 Imposition of minimum period of imprisonment
(1) If a court sentences an offender to preventive detention, it must also order that the offender serve a minimum period of imprisonment, which in no case may be less than 5 years.
(2) The minimum period of imprisonment imposed under this section must be the longer of—
(a) the minimum period of imprisonment required to reflect the gravity of the offence; or
(b) the minimum period of imprisonment required for the purposes of the safety of the community in the light of the offender's age and the risk posed by the offender to that safety at the time of sentencing.
(3) For the purposes of Part 13 of the Crimes Act 1961, an order under subsection (1) is a sentence.
[12] Two health assessors provided reports. They were Dr Ian Goodwin a consultant psychiatrist and Dr Andrew Moskowitz a forensic psychologist, both with Regional Forensic Psychiatry Services.
[13] Relevant to the issue of significant and ongoing risk to the safety of the community Dr Goodwin expressed this opinion:
Re. Likelihood of Mr Edwards Committing a Further Qualifying Offence
The Court will appreciate the limitations of any predictions that health professionals may make around behaviours that might occur at an unspecified time in the future. This is particularly so when specific behaviours do not appear to be the result of any underlying mental illness. Mr Edwards’ offending appears to have occurred on a background of previously established antisocial behaviour. The current offences however appear to have been significantly influenced by Mr Edwards’ use of methamphetamine and the effects it had upon him. From Mr Edwards’ own account of his offending he felt hyped and elevated in mood during his offending. It was clear to me from his account of his offences that he had felt exhilarated during the offending and had largely enjoyed it. Mr Edwards was not undertaking his offending purely to obtain money to buy P as he was able to obtain this at no cost. This appears to imply that the offending was largely motivated by Mr Edwards’ spontaneous desires and his wish to continue what he terms “rushing”.
Mr Edwards appeared to have only limited capacity to express remorse for his actions. He appeared to have very little empathy with the plight of his victims though did at one stage say he was sorry for what he had done.
Mr Edwards continues to use methamphetamine while in prison and does not see any need to alter this behaviour. It would therefore appear that Mr Edwards has a well-established previous pattern of antisocial behaviour and that his most recent offending has been significantly assisted by his use of methamphetamine. If Mr Edwards were to continue using methamphetamine or to resume the use of such substances on release from prison then there would appear to be a higher likelihood of him offending then if he were not abusing methamphetamine. In the absence of any established mental illness it is not possible to give the court any more direction about any other future risks Mr Edwards might pose. Additional assessment of his personality while in prison may be of significant utility in the future and may also assist in guiding release plans.
[14] Dr Moskowitz expressed his opinion as follows:
The predilection or proclivity for offending, taking into account professional risk assessments and the prognosis for the outcome of available rehabilitative treatment
The difficulty in assessing this case lies in determining whether Mr Edwards’ actions in November 2002 should be seen as continuous or discontinuous with his previous history of offending.
Prior to the November 2002 offences, Mr Edwards’ had an extensive history of theft-related crimes, clearly saw himself as a professional criminal, appears to have had little motivation to change, and was apparently not deterred by the threat of incarceration. However, the extent to which violence played a part in his criminal activities is unclear; the prior charges by and large are for robberies or burglaries without associated violence, and he himself claims to have turned to violence only as a last resort. Mr Edwards was charged with an Aggravated Robbery in 1994, and an attempted Aggravated Robbery in 1993. Then there are a series of charges relating to the September 1996 ‘domestic’ incident with his partner; I only have Mr Edwards’ version of events surrounding this incident, and it appears likely that he has minimised its severity.
With regard to the November 2002 offences, it is clear, from Mr Edwards’ statements, that the death of his father, his lack of sleep, and his increased substance abuse all contributed to his violent and criminal actions. Certainly, this crime ‘spree’ appears to have been relatively opportunistic, in contrast to his earlier – reportedly well-planned – crimes. In addition, despite the factors listed above, and his reported intense sense of anger and hatred after his father’s death, Mr Edwards did not simply resort to beating up people, which might have been understandable if he was simply driven to express the anger and hate he reportedly felt. Rather, not so dissimilar from his early crimes, he only resorted to violence to subdue his victims in order to get them to cooperate with him. While it is quite likely that aspects of these crimes – such as the choice of situation/victim and the intensity of the violence – differed from his earlier pattern, he was quite clear to me that – while he was not typically violent, he would not hesitate to resort to violence if the situation warranted it. Further, when asked how badly he could have hurt these women, Mr Edwards indicated that he could have done something “really stupid”; when asked another question, he indicated that, under the right circumstances, he could kill somebody.
Thus, if these crimes are seen as largely continuous with Mr Edwards’ earlier history, despite the unique factors that likely triggered them, his prognosis for rehabilitation appears to be poor. He continues to see himself as a professional criminal, expresses only limited remorse for his actions, and does not appear to be deterred by prison. However, the alternative possibility remains that the events of November 2002 are largely an aberration due to his father’s death, his inability to grieve, and his lack of sleep and use of drugs. If Mr Edwards’ potential for violence, as demonstrated by his prior criminal history, is limited, than his risk for future violent episodes like those of November 2002 might be low, provided he can deal appropriately with the specific factors which led to his violence. However, even if that second scenario is accurate, it remains to be seen whether Mr Edwards is able or willing to do the work required. His history in prison and in the community does not lead one to be optimistic in that regard.
In summary, while there currently appears to be little reason to think that Mr Edwards’ pattern of criminal activity is likely to change, he has never served a lengthy sentence and could conceivably respond to some of the treatment offered. It is not clear what, if any, treatment he has received in prison over the years. Secondly, it is not clear to what extent the offences committed in November 2002 were an aberration, due to his father’s death and his reaction to it, and to what extent they were simply an extension of his prior criminal activities. His risk of engaging in future similar violent acts is crucially related to this point. However, his limited remorse and acknowledged potential for violence should also be taken into account.
[15] The Judge also had a pre-sentence report which indicated that the appellant had experienced a hard and violent upbringing, parental deprivation and a family situation of child neglect and alcohol abuse. His adolescence was marked by truancy from home, foster homes and school. From the age of 15 the appellant began using alcohol and drugs, including methamphetamine and developed gang affiliations. His behaviour leading up to the offences involved methamphetamine abuse. His motivation for change was assessed as low.
[16] The Judge was not disposed to accept that the offences in question were aberrations outside the previous pattern. He considered the real motive for the offences was to obtain money to feed the appellant’s drug habit and expressed the view that the fact the appellant was high on drugs during the offending highlights the risk that he would carry out similar offending in the future, even after a lengthy period of imprisonment. “Whatever your motive” he said, “the combination of drugs and your obvious propensity for violence is a potentially lethal combination”. He considered that the medical reports did not give any confidence to him that the appellant would not offend violently in the future.
[17] In the Judge’s view, if he were to impose a finite sentence he would adopt a starting point of 13 to 14 years to reflect the totality of the offending and making an allowance for the timely plea of guilty, which avoided the need for the victims to give evidence, he concluded that he would arrive at a finite sentence of ten years imprisonment. In that case he would have a discretion to impose a minimum period of imprisonment under s 86 of the Sentencing Act of up to two-thirds of that sentence, or about six and a half years. He concluded:
However, given the factors I have already discussed, I do not consider that the community would be sufficiently protected by a lengthy finite sentence. I simply cannot be confident that you are prepared to deal with your drug abuse problems and your propensity for violence in a way which would adequately protect society from the risk of carrying out future violent offending by you at the termination of your sentence. I therefore conclude that a sentence of preventive detention must be imposed.
[18] Turning to the question of a minimum period of imprisonment, the Judge considered that although not determinative of the length of a minimum term of imprisonment, the six and a half years indicated on the hypothetical finite sentence of ten years, informed the issue of a minimum period for the purposes of preventive detention.
[19] In the result the Judge imposed a sentence of preventive detention in respect of the grievous bodily harm charge relating to the Wellsford incident and ordered a minimum term of imprisonment of six and a half years. He also imposed a range of concurrent sentences in respect of the other offences, ranging from two years imprisonment for assault with intent to rob through to six years imprisonment for the aggravated robbery of the Wellsford premises.
Submissions for the appellant
[20] Ms Kennedy submitted that the offending, although of a very serious and violent nature over a short period of time, was in the nature of “spree” type offending, fuelled by substance abuse, particularly methamphetamine. Because of this and in view of the psychiatric and psychological opinions, a crucial factor in predicting the commission of future serious offences is whether the appellant would continue or, as the case may be, resume smoking methamphetamine upon his release from prison after serving, say, six and a half years imprisonment. She accepted that according to the opinion of Dr Moskowitz, the appellant’s prognosis for rehabilitation would be poor if the offences were seen as largely continuous with his earlier offending. But there was an alternative possibility of the offending being an aberration due to the death of his father. Ms Kennedy submitted that the effect of the expert opinions was to suggest incapability of prediction as to the likelihood of future serious offending and that in Dr Goodwin’s view if the appellant stopped using drugs his likelihood of reoffending would be much lower.
[21] Ms Kennedy submitted that a lengthy determinative sentence would provide adequate protection for the pubic, particularly in view of the catalytic factor of drug dependency at the time of the offences themselves. She submitted that there was the possibility of appropriate treatment and counselling in prison which, coupled with a long finite sentence, could substantially reduce the risk of future drug dependency. In substance, counsel’s submission invoked and relied on the principle, identified in s 87(4)(e), that a lengthy determinative sentence is preferable if this provides adequate protection for society.
[22] In relation to the minimum non-parole period, counsel submitted that six and a half years was excessive having regard to the appellant’s comparatively young age, the factor of methamphetamine abuse in the offending, the absence of serious psychological issues, the guilty plea, the insight and remorse albeit limited, indicated in the reports, and the improved prognosis on the assumption of ending drug abuse.
Crown submissions
[23] The core submission for the Crown was that on the material available the Judge was entitled to be satisfied that the appellant was likely to commit another qualifying violent offence if released at the sentence expiry date of any reasonably available finite sentence. There were four separate incidents, two of which involved serious violence against the victims. There was a link between offending and unrelenting consumption of methamphetamine, limited remorse or empathy and little if any inclination to change lifestyle or benefit from future treatment and counselling regimes.
[24] The risk to the community safety posed by this appellant was, in the Crown’s view, comparable to that in the case of R v Carroll CA153/03 18 November 2003 where preventive detention with a six and a half year minimum period of imprisonment was similarly imposed. In R v Keremete CA411/03 8 July 2004 this Court dismissed an appeal against preventive detention with a minimum term of imprisonment of eight years. Those two cases, like the present, involved violence, threats and kidnapping.
[25] On the Crown’s submission the likelihood of future violent offending is affected by the likelihood of continuing or future abuse of methamphetamine. There is nothing to suggest that the appellant had any real insight into this link and indeed, despite the serious charges that he faced and having notice of the Crown’s intention to apply for preventive detention, he continued to obtain and use methamphetamine whilst in custody.
[26] As to the minimum term of imprisonment there are only two things which could be invoked to support the appeal, the comparatively young age and the guilty pleas. In the Crown’s submission the appellant’s age had been taken into account in fixing the six and a half years and there was consistency with R v Carroll.
Discussion
[27] Whilst the proximity and frequency of the offending in the present case can be linked to methamphetamine abuse at the relevant time this is not a case of uncharacteristically aberrant behaviour attributable to unfamiliarity with a serious mind-altering drug. As will be seen from the reference to past criminal offending at the beginning of this judgment, the appellant is an habitual offender with a background of violent and threatening behaviour.
[28] The Court cannot assume that methamphetamine or a drug of similar dangerousness when used by a person with the appellant’s personality will not be available to those who seek it in the years to come. It is therefore of considerable concern that the appellant is so committed to methamphetamine abuse that custody and the jeopardy of preventive detention provide no barrier to his continuing use.
[29] We are not persuaded that the Judge was wrong to conclude that the community would not be sufficiently protected by a lengthy finite sentence and that the sentence of preventive detention was necessary to protect society.
[30] All of the criteria stipulated by s 87(4)(a)-(d), when applied to this case, indicate the need for preventive detention. There has been a pattern of serious offending both in respect of the particular incidents and generally, the seriousness of the harm to the community caused by the offending is plain, the information available to the Court, including the experts’ reports, and the absence or failure of efforts by the appellant to address the cause or causes of his offending underscore the nature of the risk to the community which the appellant presents.
[31] We agree with the Judge that if a finite sentence were considered a term of ten years with a minimum term of six and a half years would not be inappropriate. The difference between such a finite sentence and preventive detention therefore lies, essentially, in the appellant’s amenability to continuing detention after six and a half years if he should still present as a serious risk to community safety and his amenability to recall should be in fact offend after release. Such differences are entirely community protective in scope and we are not persuaded that the Judge was wrong to perceive a real need for that in the present case.
[32] As to the minimum term fixed by the Judge, we are of the view that both the gravity and the preventive criteria of s 89(2) warrant six and a half years. The gravity of the offending, comprising as it did brutal and terrifying violence, was considerable. And in terms of the safety of the community no less than the stipulated term could have been considered.
Result
[33] The appeal against preventive detention and against the minimum term of imprisonment is dismissed.
Solicitors:
Crown Law Office, Wellington
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