R v Edwards

[2019] NZHC 2148

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-027-890

[2019] NZHC 2148

THE QUEEN

v

MARK ERUITI EDWARDS

Hearing:	30 August 2019
Appearances:	R B Annandale for the Crown JAG Moroney for the Defendant
Judgment:	30 August 2019

SENTENCE OF GAULT J

Solicitors:

Mr R B Annandale, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei Mr JAG Moroney, Thode Utting & Co, Auckland

R v EDWARDS [2019] NZHC 2148 [30 August 2019]

[1]                 Mr Edwards is charged with a number of offences arising from a very serious attack on his ex-partner. He has pleaded guilty following a sentence indication I gave on 11 June 2019.1 In the circumstances, I set out my sentencing remarks in full, rather than simply annex the sentence indication.

[2]There are six charges:

(a)assault with intent to injure;2

(b)kidnapping;3

(c)causing grievous bodily harm with intent to do grievous bodily harm;4

(d)threatens to kill;5

(e)intentional damage;6 and

(f)indecent assault.7

[3]                 I take the lead charge to be causing grievous bodily harm with intent to cause grievous bodily harm (GBH). The Crown submits a starting point of 9 to 10 years’ imprisonment is appropriate.   The Crown seeks an uplift of 9 to 12 months for      Mr Edwards’s previous convictions, and a limited reduction for a guilty plea. The defence seek a starting point of 7 ½ to 8 years’ imprisonment. They submit an uplift in the order of 6 to 9 months is appropriate for previous convictions, a discount to account for mitigating features personal to Mr Edwards, and a discount of 15 to 20 per cent for a guilty plea.

1      R v Edwards [2019] NZHC 1307.

2      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.

3      Section 209(b).  Maximum penalty 14 years’ imprisonment.

4      Section 188(1). Maximum penalty 14 years’ imprisonment.

5      Section 306(1)(a). Maximum penalty 7 years’ imprisonment.

6      Section 269(2)(a). Maximum penalty 7 years’ imprisonment.

7      Section 135. Maximum penalty 5 years’ imprisonment.

Facts

[4]                 The complainant is Mr Edwards’ former partner. They lived together in Waima and were in a relationship for several months.

[5]                 Around lunchtime on 2 March 2018 they drove to Rawene to do their laundry. While there the complainant spoke to a male artist, whom she recognised from when she was younger. Afterwards, when she told the defendant, he became angry and jealous. He drove away in her car but returned a short time later and he and the complainant began driving home, with the complainant driving.

[6]                 Not far along the road Mr Edwards started calling the complainant a “slut”. He began punching her around the head with his fist. The complainant attempted to jump from the driver’s seat in order to escape. She managed to stop the car, leap out and run down the road, waving down passing motorists. Someone stopped and noticed she was crying and looked in distress. The complainant asked them to call the police. She said the defendant had “given her a hiding” and she was afraid. She was visibly upset.

[7]                 She worried about the driver staying where he was because of Mr Edwards and told him to go. The driver went further up the road to get reception and called the police. Meanwhile, the defendant held up the complainant’s puppy, and told her he was going to kill it. This caused her to get back into the car and continue driving to their home. As she was driving the defendant continued punching her around the head and trying to strangle her.

[8]                 On getting home, the defendant pulled the complainant from the vehicle by her hair and dragged her inside the house. He continued to tell her she was a “slut” and a “whore”, and said he was going to kill her. He began punching, stomping and kicking her all over her body, head and face.

[9]This violent and sustained assault continued over the next 20 hours.

[10]              The assault involved using various weapons to hit her on multiple occasions. These included a 4 x 2 length of timber. At one point the complainant was lying down

on a bed. The defendant came and strangled her a number of times over the course of the assault and told her again that he was going to kill her.

[11]              At another point, the defendant picked up a metal crow bar and started whacking it near the complainant’s head, barely missing each time. He then hit her on the back of her leg, causing extensive pain and bruising. The defendant refused to allow her to go the bathroom when asked, telling her that she had to “piss her pants”.

[12]              The defendant started dragging her around again, stopping to punch or stomp on her. He continued dragging her, laughing, before punching her in the head on multiple occasions. During this sustained attack, he also threw a small set of drawers at her head; she moved, and they fractured her collar bone. He also picked up her walking stick and told her he should “shove it up [her] arse”. He hit her with it at least two or three times. He also kicked her in her hip.

[13]              Very disturbingly, he tied a noose over exposed rafters, placed a chair underneath and told the complainant to hang herself. She tried to, but the defendant laughed, told her she was a “stupid idiot”, and punched her to the ground.

[14]              During the assault he also put a knife to her throat and said “I am going to fucken cut your head off”. He also said he would “end it once and for all” and that he would get someone else to kill her and her parents too.

[15]              During the assault he spat on her face a number of times and told her that if he couldn’t “have” her then no one could. She was terrified for her life and thought that he was going to kill her. She felt she could not escape, believing if she tried to run he would run her over. At one point she tried to leave, but he dragged her back into the house by her hair.

[16]              The defendant removed the complainant’s clothes, and after a period of time tore off her underwear and groped her genitals.

[17]              She eventually fell into unconsciousness. She awoke to the defendant asking if she was awake. He began trying to kiss her and telling her it would be alright. She asked to go to the hospital. He initially refused, but eventually he agreed to let her go.

[18]              In the morning of 3 March 2018, the defendant took the complainant’s four- wheel drive and drove it into the side  of  her  house,  causing  extensive damage. The house belongs to the complainant.

[19]              The injuries to the complainant were substantial. She spent a significant amount of time in hospital. Her injuries included a fractured collar bone, significant bruising over her whole body, including a subdural haematoma, a secondary kidney infection as a result of the trauma, ongoing migraines, significant pain over much of her body, and associated psychological injuries. Most seriously, she suffered a traumatic brain injury, which her brain injury rehabilitation team assessed as severe, resulting in post-traumatic amnesia, and consequently she spent two months in a brain injury rehabilitation clinic. She suffered significant insomnia and anxiety, nausea and pain. Her communication abilities since the assault are severely affected, and she finds meeting and trusting new people difficult.

Victim impact statement

[20]The complainant has provided a victim impact statement.

[21]              She writes that she has spent several months in a brain injury rehabilitation clinic. She struggled with memory loss and could not remember what people had told her. She could not concentrate or remember anything; she felt terrified, could not trust anyone, and felt her life was spinning out of control. She writes that she felt like she had to learn to live again. Everyday life is still difficult for her. She becomes easily stressed, cannot concentrate for long periods or sustain long conversations. It takes much effort for her to leave her home.

[22]              While the damage to the house may seem less significant to an outsider in the scheme of the wider offending, the complainant writes that she is extremely stressed about what the defendant did to her property. She writes: “That was my home … that

was the only thing that I had and it was really important to me because I could call it mine.” She has not been able to fix it, and it was not insured.

[23]              She also writes of the trauma of this offending occurring in her own home, where she should have been safe. She was entitled to feel safe in her home, but instead she thought she would be killed. But she is committed to keeping on going, writing that she will not let the defendant take everything from her.

[24]              I thank the complainant for her courage in writing this statement, and I bear in mind the significant trauma she suffered at the hands of Mr Edwards as I sentence him today.

Approach to sentencing

[25]              I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.8 In serious violent offending such as this, the relevant purposes of sentencing include to hold the offender accountable for harm done to the complainant; to promote a sense of responsibility for that harm; denounce the conduct in which the offender was involved; deter the offender or others from committing the same or a similar offence; and to protect the community from the offender.

[26]              I will follow the normal sentencing process.9 First, I will set a starting point, based on the characteristics of the offending and informed by sentences given in similar cases. Secondly, I will consider whether any of Mr Edwards’ personal circumstances  justify  an  adjustment  to  that  starting point,  up  or  down.  Thirdly, I consider whether Mr Edwards should receive a discount for his guilty plea.

Starting point

[27]              In offending such as this, where all the charges occur in the course of the same sustained assault, it is appropriate to set a global starting point, taking account of the offending as a whole.

8      Sentencing Act 2002, ss 7-8.

9      R v Taueki [2005] 3 NZLR 372 (CA); and Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.

[28]Taking causing GBH with intent to cause GBH as the lead offence, R v Taueki

is the applicable guideline case.10

[29]The Crown identifies the following aggravating factors of the offending:

(a)extreme violence;

(b)pre-meditation;

(c)serious injury;

(d)use of weapons;

(e)attacking the head; and

(f)vulnerability of the complainant.

[30]              The defence submits there is no pre-meditation. They say the offending occurred after Mr Edwards saw the complainant talking to the male artist, and it was not pre-planned. On the agreed facts, I accept this submission. The defence also do not accept attacking the head and use of weapons as aggravating factors. I do not agree.   On the summary of facts, these  aggravating features are clearly present.   The defence accept the other aggravating features.

[31]              I also emphasise that the fact this offending took place in the complainant’s home adds to the seriousness of the offending. As the Court of Appeal has noted, offending in the family home, where the complainant should feel safe and secure, will always engage vulnerability as an aggravating factor.11

[32]              The Crown submits this offending falls within band 3, or at least the higher end of band 2, of Taueki. The defence say this is mid to upper band 2 offending. Band 2 is 5 to 10 years’ imprisonment, and band 3 is 9 to 14 years’ imprisonment.

10     R v Taueki [2005] 3 NZLR 372 (CA).

11     Solicitor General v Hutchison [2018] NZCA 162 at [27].

[33]              Band 2 is appropriate for GBH offending which features two or three aggravating factors. The Court of Appeal gave this pertinent example of band 2 offending:12

Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would  require  a  starting  point  in  band  two.  The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

[34]              Band 3 is for offending which has three or more aggravating features, where the combination of aggravating features is particularly grave. The Court of Appeal gave this example:13

Serious domestic assault: In a domestic attack situation, where the attack involves a premeditated home invasion with the use of a weapon brought to the scene, the victim is vulnerable and the injuries caused have a lasting effect on the victim, a starting point at the top of the band 3 range may well be required.

[35]              I regard this case as being within band 3. There are more than three aggravating features, and they combine in particularly nasty, persistent and serious offending.  The  complainant  was  vulnerable,   being  alone  in  her  home  with   Mr Edwards and unable to escape, the attack was prolonged and involved significant elements of humiliation, and her injuries are particularly severe, namely her head injury.

[36]              I consider that this offending warrants a starting point of 10 years’ imprisonment. In coming to this view, I have considered the Court of Appeal’s decision in Solicitor General v Hutchison – which I regard as somewhat analogous to the present case – and the cases referred to in that decision.14

[37]              I consider the global starting point is sufficient to account for all of the charges, so I do not consider discrete uplifts for the other offending. I have already addressed the aggravating features in the Taueki framework.

12     R v Taueki [2005] 3 NZLR 372 (CA) at [39].

13 At [41].

14     Solicitor General v Hutchison [2018] NZCA 162 at [12]-[26].

Mr Edwards’ personal circumstances

[38]              Mr Edwards is 45 years’ old and of Māori descent. I have been provided with a s 27 cultural report.15 It is written by Ms Turner, who has provided a thoughtful and detailed account of Mr Edwards’ upbringing.

[39]              It is fair to say his  early life  could  hardly have  been  more  traumatising. He never knew his father. He saw his mother being beaten severely when he was eight years old. She died three days later. His history from then on is one of abuse, including physical and sexual abuse, and educational problems. He was in and out of social homes. He has no formal qualifications, or at least did not in his youth. Since the age of 17 he has been in and out of prison, reporting never lasting more than 2 years outside of prison. The report writer notes that Mr Edwards is disconnected from his culture, and that is an indication of the systematic disadvantage and cultural deprivation experienced by many Māori.

[40]              I also have a pre-sentence report. The report writer notes that Mr Edwards has a significant criminal history, which started when he was 15. It stretches from 1988 to 2017. Rare is the year in that period when he did not accrue several convictions. His history includes convictions for violence, threats of violence, burglary, theft, dishonesty, driving, and drug related offending. Violence against women features heavily.

[41]              The writer assesses his risk of reoffending and risk of harm to others as high, given his history and his previous convictions. The writer notes that Mr Edwards said he has schizophrenia and PTSD and was using meth at the time of the offending.  The writer says Mr Edwards appeared to be remorseful for his offending and ashamed of what he had done. He did not try to justify or minimise the offending.

[42]              As well, I have received a psychiatrist’s report from Dr Goodwin. It indicates that Mr Edwards has a history, dating back almost two decades, of complaining of psychotic symptoms. Mr Edwards expresses a general degree of paranoia, and states he has previously been diagnosed as suffering from schizophrenia. The psychiatrist

15     Sentencing Act 2002, s 27.

was unable to uncover any medical notes confirming that diagnosis but noted that clinicians who have interviewed Mr Edwards within the last two years have considered that he may be suffering  from  an  underlying psychotic illness.  I interpolate that  Mr Moroney has provided me this morning with a letter from a consultant psychiatrist dated December 1996 which indicates that at that time the author concluded that diagnostically Mr Edwards would be classified as a chronic paranoid schizophrenic with anti-social personality disorder and alcohol and cannabis abuse.

[43]              Dr Goodwin considered that, applying a Structured Professional Judgement to Mr Edwards’ situation, he is at high risk of similar violent offending in the future.16 Factors which would mitigate Mr Edwards’ risk include abstinence from substances of abuse and possible treatment for underlying psychotic phenomena. Dr Goodwin strongly suspects that Mr Edwards does suffer from an underlying psychotic illness and it is possible that consistent treatment with anti-psychotics may mitigate the risk of reoffending.

[44]              Diagnostically, Dr Goodwin is of the opinion that Mr Edwards currently suffers from Psychosis Not Otherwise Specified and that he would most likely benefit from a trial of anti-psychotic medication. The report concludes that Mr Edwards is likely to benefit from such a trial and ongoing psychiatric monitoring, and recommends that Mr Edwards is further assessed in the prison setting and potentially offered a treatment trial. It also suggests that Mr Edwards would benefit from forming a consistent relationship with a psychologist in relation to his childhood abuse and neglect, and may qualify for an ACC sensitive claim. It may be that therapy can be provided for Mr Edwards via this avenue. I endorse Dr Goodwin’s recommendations.

Aggravating and mitigating features personal to Mr Edwards

[45]              Both sides accept there should be an uplift for Mr Edwards’ criminal history. As I have said, the Crown  submits  an  uplift  of  9  to  12  months  is  warranted. The defence submit an uplift should be 6 to 9 months. I consider 12 months is more appropriate.

16     The HCR-20 version 3.

[46]              In terms of mitigating features, as mentioned, Mr Edwards’ cultural report discloses a shocking personal history from a young age. Mr Edwards’ background in no way excuses or justifies his offending. But it does go some way to explaining it. Personal, family, whānau, community and cultural background, including systemic disadvantage, can be relevant as factors mitigating culpability, but there must be a linkage between the matters raised in the cultural report and the offending.17 Cultural factors, however, are likely to have only a modest effect on sentence when the offending involves serious violence.18

[47]              I accept Ms Turner’s view that there is a causal nexus between Mr Edwards’ background and his violent offending. As she said, his trajectory to the criminal justice system was mapped out long before his first sentence of imprisonment at 17 years old. I note again Dr Goodwin’s psychiatric assessment in this regard. Without in any way justifying Mr Edwards’ offending, I consider a discount of 20 per cent is appropriate to reflect his culpability in these circumstances.

[48]              The cultural report and pre-sentence report note that Mr Edwards is remorseful. Restorative justice was not appropriate, as Mr Moroney acknowledged this morning, but he did convey that Mr Edwards is extremely sorry for his offending. I consider that the previous discount is sufficient to account for remorse.

[49]This makes the adjusted sentence 9 years’ imprisonment.

Guilty plea

[50]              I now consider what discount is appropriate for Mr Edwards’s guilty plea. His plea was certainly not at the first opportunity. The trial was a little over two months away. His pleading guilty did, however, save the complainant from testifying. I can only imagine that, given her injuries, such an experience would have been extremely traumatic. I also understand communication assistance was requested for trial given her injuries. Considering the trauma of giving evidence in these particular

17     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50], recently cited in Arona v R [2018] NZCA 427 at [59]. See also HM v R [2019] NZHC 121.

18     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [57]; and R v Duff [2018] NZHC 2690 at [23].

circumstances, and the trial’s length and complexity, I consider a discount of 20 per cent is warranted.19

[51]This brings me to a final sentence of 7 years and 2 months’ imprisonment.

Minimum period of imprisonment

[52]              I now need to consider whether to impose a minimum period of imprisonment as sought by the Crown.

[53]              If a Court imposes a determinate prison sentence of more than 2 years, it may also impose a minimum period of not more than two-thirds, if it is satisfied that the normal one-third parole eligibility period is insufficient for any of the purposes of holding the offender accountable, denunciation, deterrence or protection of the community.20

[54]              The Court of Appeal has noted that the power to impose a minimum period of imprisonment for a serious offender must be intended for cases of such seriousness that the Court considers that release after one-third of the sentence has been served would represent insufficient denunciation, punishment and deterrence in all the circumstances.21

[55]              On that basis, a minimum period of imprisonment may well be appropriate in this case to meet the sentencing purposes, particularly protecting the community, as the Crown submit here. This was sustained, violent, degrading and horrific offending. The complainant suffered severe and lasting injury. While this is Mr Edwards’s most serious offending, it follows a significant history of violence, and of violence against women in particular. The pre-sentence report writer assesses his likelihood of reoffending and of risk to others as high, and I agree.

[56]              The one factor that causes me to pause is the psychiatrist’s recommendation as to a trial of medication and ongoing psychiatric monitoring in prison. As

19     Considering the principles in the leading case Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

20     Sentencing Act 2002, s 86.

21     R v Brown [2002] 3 NZLR 670 (CA) at 676.

Mr Annandale, for the Crown, submitted this morning, past conduct, including while on remand, indicates a reluctance by Mr Edwards to engage with forensic services, and his past offending gives no comfort at all in relation to the future. But, as is acknowledged, past conduct is one thing. Here the future is uncertain and given the psychiatrist’s recommendations, which I have endorsed, this leads me to conclude that the Parole Board will be better placed to assess the timing of Mr Edwards’ release. Accordingly, I decline to impose a minimum period of imprisonment.

Conclusion

[57]Mr Edwards, please stand.

[58]              On the charge of causing grievous bodily harm with intent to do grievous bodily harm, I sentence you to 7 years and 2 months’ imprisonment.

[59]On the charge of kidnapping, I sentence you to 6 years’ imprisonment.

[60]On the charge of threatening to kill, I sentence you to 4 years’ imprisonment.

[61]On the charge of intentional damage, I sentence you to 1 year’s imprisonment.

[62]On the charge of indecent assault, I sentence you to 2 years’ imprisonment.

[63]              On the charge of assault with intent to injure, I sentence you to 2 years’ imprisonment.

[64]These are all to be served concurrently.

[65]Please stand down.

Gault J