R v Edwards - [2008] NZCA 109

IN THE COURT OF APPEAL OF NEW ZEALAND

CA159/2008
[2008] NZCA 109

THE QUEEN

EDDIE KAURANGA EDWARDS

Hearing:1 May 2008
(by telephone)
Counsel:G C McArthur for Appellant

S B Edwards for Crown
Judgment:1 May 2008 at 4. 30 pm

JUDGMENT OF ELLEN FRANCE J

The appellant’s application for bail is granted. The appellant is released on bail for the period until this Court delivers judgment on his appeal, subject to the following conditions:

1.That he resides at 1034 Hood Street, Mayfair, Hastings;
2.That he reports to the Hastings police station between the hours of 3 pm and 7 pm, Mondays and Fridays; and
3.That he not associate with or communicate with the complainant.

REASONS

The appellant pleaded guilty to charges of assault with a weapon, male assaults female and possession of an offensive weapon and to a summary charge of theft. On 12 March 2008, he was sentenced to six months home detention and 100 hours community work and ordered to pay reparation in the sum of $2,014.00: DC TAU CRI 2007-070-2699.
The appellant has now applied under s 70 of the Bail Act 2000 for bail pending the final disposition of his appeal on the grounds that the appeal has reasonable prospects of success and because the sentence is short the injustice of him serving it pending appeal is greater. The appellant also says he was on bail prior to sentence with the condition he reside at the address now suggested as his bail address and there were no bail breaches.
Ms Edwards in her helpful submissions on this application points out that the changes made to the Crimes Act 1961 and to the Sentencing Act 2002 in 2007 have given rise to difficulties in determining the effect of an appeal on a sentence of home detention. In terms of s 399(1) of the Crimes Act, no sentence is “suspended” by reason of any appeal, unless the Court expressly so directs. However, since the amendments made by the Sentencing Amendment Act 2007 came into force, s 399(3) provides that on any conviction to which any appeal relates where the Court has sentenced the accused to, amongst other matters, home detention, “the term of the sentence shall cease to run on the day on which notice of appeal or of application for leave to appeal is given.”
By contrast, the relevant provisions of the Sentencing Act, particularly s 80ZB, suggest that time ceases to run on a sentence of home detention, relevantly, only when “the offender is released on bail pending the appeal”.
It seems unlikely given the provisions in the Sentencing Act that the intention was that an appeal would have the effect of immediately releasing offenders sentenced to terms of home detention. However, as Ms Edwards submits, it may be that in practical terms there is no difference for the offender between a sentence being suspended and time ceasing to run.
Ms Edwards also raised an issue about the jurisdiction to grant bail given s 80A(5) of…

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 [2008] NZCA 109
Case: [2008] NZCA 109
Decision Date: 1 May 2008

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the case of R v Edwards was heard on 1 May 2008. The appellant, Eddie Kauranga Edwards, was convicted of assault with a weapon, male assaults female, possession of an offensive weapon, and theft. He was sentenced to six months of home detention and 100 hours of community work, and was also ordered to pay reparation. Edwards applied for bail pending the final disposition of his appeal, arguing that the appeal has reasonable prospects of success and that the short sentence makes the injustice of him serving it pending appeal greater. He also argued that he was on bail prior to his sentence with no breaches.

The legal issues before the court were the effect of the appeal on a sentence of home detention and the jurisdiction to grant bail in this context. The court considered the changes made to the Crimes Act 1961 and the Sentencing Act 2002 in 2007, which have caused difficulties in determining the effect of an appeal on a sentence of home detention. The court also considered the jurisdiction to grant bail given that a person sentenced to home detention is not "in custody" while serving that sentence. The Crown did not oppose the application for bail, and the appellant argued that there is an anomaly but that the provisions in the Sentencing Act sensibly take priority.

The court granted bail to the appellant, subject to certain conditions. The court was satisfied that it would be in the interests of justice to grant bail, particularly given the unresolved issue of the effect of the appeal on the sentence of home detention. The court also noted that there is a chance that the right of appeal will be rendered nugatory given the length of the sentence and the likely length of time that will pass before the appeal is heard. The appeal was set down for a hearing as soon as possible after 12 June 2008.

Orders