The Queen v Edwards

[2007] NZCA 387

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/07
[2007] NZCA 387

THE QUEEN

v

FRANKIE TE UIRA EDWARDS

Hearing:24 May 2007

Court:Wilson, Williams and Rodney Hansen JJ

Counsel:C L Mander for Appellant

G Newell for Respondent

Judgment:5 September 2007 at 4pm

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL IS GRANTED.

BThe Solicitor-General’s appeal is allowed and the finite sentences of 16 years’ imprisonment imposed on the respondent for two charges of sexual violation by rape which occurred on 1 June 2006 are quashed.  A sentence of preventive detention is substituted on each of those counts.

CAll other sentences imposed on the respondent on 19 December 2006, including the minimum period of imprisonment imposed on those two counts of sexual violation by rape, remain as imposed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Issue

[1]       On 19 December 2006 Lang J sentenced the respondent, Mr Edwards, on 34 charges covering five separate incidents between 9 April 2006 and 2 June 2007.

[2]       The Judge selected two counts of sexual violation by rape, both of which occurred on 1 June 2006, as the lead offences and imposed 16 years’ imprisonment and a 10 year minimum term of imprisonment on each.  The Judge imposed a variety of terms of imprisonment on all other counts.

[3]       The Solicitor-General seeks leave to appeal against the sentences of 16 years’ imprisonment on the lead offences, contending that the appropriate sentence on those charges is preventive detention.

[4]       No issue is taken with the 10 year minimum period imposed, nor with the other sentences.

Facts

[5]       In addressing the appellant at sentencing, Lang J accurately summarised the facts as follows:

9 April 2006

[3]       At about 2 am on 9 April 2006 you concealed yourself in the bushes outside an Accident and Emergency Clinic in Henderson.   You remained there for approximately 45 minutes before you noticed a female person walking to a car parked nearby.   When that person began to start the vehicle, you ran over to it and attempted to open the driver’s door.   Fortunately, the occupant of the vehicle managed to lock it, thereby preventing you from gaining access to the vehicle.   Undeterred, you broke the driver’s window of the vehicle with a large ring spanner.   You then wrestled with the occupant of the vehicle, put your hands around her throat and eventually stole her handbag.   You then ran off.   This has given rise to a charge of aggravated robbery.

10 April 2006

[4]       At approximately 7 pm the following day you were outside a badminton hall in Epsom.   Again, you observed a female person getting into a vehicle parked nearby.   You then approached the vehicle, got into the passenger seat and threatened to kill her family if she did not drive away and follow your instructions.   You also showed her a knife in order to show her that you were serious.   Acting on your instructions, she drove the vehicle away but was able to escape following a tussle with you when the vehicle stopped at some traffic lights.   You then drove off with the victim’s car and belongings.   The car was subsequently recovered from Avondale.

[5]       This incident gives rise to charges of kidnapping, threatening to kill and car conversion.

26 May 2006

[6]       At 10 pm on 26 May 2006 you again accosted a young female person who was returning to her car in Mangere.   You said that you had a gun and you threatened her with a screwdriver.   You then took your victim to various locations in order to withdraw money from her bank account.   Next, you took her to an industrial area in Mangere where you proceeded to sexually assault and rape your victim with her top covering her face.   After doing that you drove to an address to purchase some cannabis before leaving your victim in her vehicle in Mangere not far from where you were then staying.   When you left her you took with you her necklace, earrings and mobile phone.

[7]       As a result of this incident you face charges of abduction, aggravated robbery, indecent assault, sexual violation by digital penetration and sexual violation by rape.

1 June 2006

[8]       At about 8.30 pm two girls aged 17 and 12 years returned to their car in the carpark of the Westfield Shopping Centre in Manukau City.   When they got into their vehicle you jumped in as well.   You then threatened them with a screwdriver and told them that you had a gun.   You told them also they were not to look at you.   You then took the older girl’s mobile phone, wallet, money, Eftpos card and driver’s licence.  

[9]       After that, you tied the hands of the younger girl behind her back with a shoelace that you said that you found in the vehicle.   You then made her lie down on the floor in the back seat of the car before driving the car to an industrial area in Mangere where you assaulted and raped the older victim.   After that, you drove the girls around various locations in Mangere and West Auckland in an effort to obtain money and petrol.   You subsequently parked in a secluded area in Ranui and again sexually assaulted and raped the older girl.   Once this had finished you drove the vehicle back to a carpark near Western Park Village where you told the girls how to find their way back to the motorway.   You then departed, taking with you the older girl’s phone and wallet.

[10]     This incident has led to 16 charges, including abduction, aggravated robbery, threatening to kill, doing indecent acts and sexual violation by rape and in other forms.

2 June 2006

[11]     At about 9.30 pm on 2 June 2006 you concealed yourself in bushes behind a bus stop near Auckland Hospital.   You saw a female person walking past and returning to her vehicle.   As she got into the vehicle you opened the passenger door and held a piece of sharpened metal to her throat.   You also had a screwdriver with you at that point.

[12]     You repeatedly told your victim on this occasion not to look at you.   You told that her you had a gun and you threatened her.   You then drove to several locations in order to try to obtain money and cigarettes.   Eventually you ended up in Ranui, where you left the car briefly in order to purchase methamphetamine. 

[13]     When you returned, you drove to Massey and parked in a secluded spot where you held the piece of metal to the victim’s throat.   You then sexually assaulted and raped her, after which you drove her to Whenuapai and left her in a paddock.   You then returned to Western Park Village and parked the vehicle at the back of a caravan park.   You evidently proposed using the victim’s vehicle again because you were arrested when you were observed returning to the vehicle the following day.

[14]     This incident has led to charges of abduction, aggravated robbery, threatening to kill and to do grievous bodily harm, sexual violation in various forms and doing an indecent act.  

Sentencing Remarks

[6]       After reviewing the facts and the applicable principles in the Sentencing Act 2002, the Judge considered the victim impact statements.  He described them as “harrowing” (at [21]).   We agree.

[7]       The Judge then referred to a number of authorities, including R v Mahoni (1998) 15 CRNZ 428, 435-436 (CA) and R v Johnson (2003) 21 CRNZ 196 (CA).

[8]       In settling on the starting points for the various sentences, the Judge noted the number of victims, the violence or threats of violence and the “cruel” nature of many of the offences.  He decided that the 1 June 2006 incident warranted a starting point of at least 14 years’ imprisonment on each of the rapes though he later held, in order to reflect the other offending over the period, that a “strong case could be made for a starting point of more than 20 years’ imprisonment” and decided 20 years was appropriate (at [59], [60]).

[9]       The Judge went on to consider whether the sentences should be concurrent or cumulative, ultimately deciding in favour of the former on the basis that all the offending was similar in kind, fitted a pattern and was not greatly separated in time (at [54]-[55]), a decision not challenged before us.  The Judge took the view, however, that Mr Edwards’ previous offending, including three convictions for assaulting females in 1996, 1997 and 1998 was sufficiently different in nature not to warrant an increase in the starting point (at [61]).  A decision was made to reduce the lead sentences by four years to reflect the respondent’s early guilty pleas following his admissions and a degree of co-operation with the Police (at [72]). 

[10]     The Judge then concluded that a minimum term of imprisonment was justified having regard to the criteria in s 86(2) of the Sentencing Act 2002 as, without such, the respondent’s eligibility for parole at one-third of the sentence would be “manifestly insufficient” to meet those statutory purposes.  The community would only be protected if, in the Judge’s view, Mr Edwards remained “ineligible for parole for a very significant period of time” because the “Parole Board is likely to require every year available to it to ensure that you undergo appropriate treatment for your underlying problems” (at [76]-[77]).  A 10 year minimum period was imposed and, as earlier noted, was not challenged on appeal.

[11]     The Judge then turned to the major remaining issue, namely whether the sentence to be imposed for the lead offences should be the finite term on which he had already tentatively settled, or preventive detention.

[12]     In considering that question, the Judge discussed the pre-sentence report which described Mr Edwards’ deplorable family and substance abuse background.  He noted the offending for which the respondent was being sentenced had begun less than six weeks after his release from prison and when subject to parole.  He concluded “you obviously have no understanding of your present offending and you did not wish to discuss it at all with the probation officer” (at [63], [67]).

[13]     Lang J then reviewed the psychiatric and psychological reports before him, noting the respondent’s failure to co-operate fully with the report-writers.  He cited extensively from their risk assessments though concluding “neither health professional was able to say that it is likely that you will commit a qualifying offence upon release from a long determinate sentence” (at [93]).  The Judge then concluded, in what would appear to be a pivotal passage in his sentencing notes (at [97]-[99], [[102], [103]):

[97]     The nature of the offending for which you appear for sentence shows that between April and June this year you had fallen into a pattern of serious offending that would in all likelihood have continued if you had not been apprehended on 3 June.   For that reason I accept that, if you were released even within the medium term, there must be a high risk that you would re-offend in a similar way.

[98]     Of significance, however, is the fact that you have not appeared before on charges of sexual offending or even on charges involving serious violence.   This suggests to me that some other factor may have influenced you during the period of your present offending.   Although you deny it, it may be the continued use of substances such as methamphetamine, because the February pre-sentence report makes it clear that you have been a relatively heavy user of methamphetamine.   I note also that during one of the incidents for which you appear for sentence today you consumed methamphetamine during the course of the offending.   Whatever the cause, I place considerable significance on the fact that you have not previously appeared on charges involving sexual offending or offending involving serious violence.

[99]     I am also influenced by the fact that the reports from the health professionals do not say that you will be likely to commit a further qualifying offence if released from a lengthy determinate sentence.  …

…

[102]    If there was a prospect that you would be released within even the medium term, I accept that the risk of sexual re-offending is likely to be high.   You will not, however, be released within that timeframe.   The finite sentence that I am able to impose upon you is, in my view, sufficiently long to ensure that society is adequately protected from you.   It will also give you an adequate opportunity, one that you have not taken previously, to identify and address the causes of all of your offending.   If you do not take up that opportunity, you are likely to find yourself still in prison well after you have served the 10 year minimum term that I propose to impose upon you.

[103]    For these reasons I have concluded that it would not be appropriate in the circumstances of the present case to impose a sentence of preventive detention.   I am not satisfied that, if you serve a very long sentence of imprisonment, you will nevertheless remain likely to commit a further qualifying offence upon your release.

Pre-sentence and health professionals’ reports

[14]     Mr Edwards refused to be interviewed by a probation officer for the sentencing.  The probation officer therefore submitted a February 2006 report used when Mr Edwards was sentenced to one year’s imprisonment for receiving (he was then serving a term of two years’ imprisonment imposed on him in November 2004 on four counts of burglary).  The Probation report stated that Mr Edwards was one of a large, drunken, violent family.  One of his brothers was already serving a sentence of preventive detention.  Mr Edwards was recorded as expressing remorse for the offending and a willingness to engage in rehabilitative interventions.

[15]     Dr Pavagada, a psychiatrist, assessed Mr Edwards on 19 June 2006 concerning an appeal against a refusal to grant suppression of name on grounds that, without suppression, his life might be in danger.  The report reviewed Mr Edwards’ lengthy methamphetamine use and concluded that he was “currently not fit to stand trial”.

[16]     Mr Edwards participated in two interviews with a Dr Heed, a psychiatrist, also in June 2006.  Mr Edwards stopped both interviews.  Dr Heed’s report covered issues similar to those discussed by Dr Pavagada but it noted that “Mr Edwards stated spontaneously he has anger problems which might result, once he was released from his present prison term, even if that was many years in the future, [that] he might kill someone”.  Dr Heed took the view Mr Edwards was fit to stand trial despite his limited intellectual attainments.

[17]     The two reports furnished under s 88 were from Dr Bellve-Wack and Dr Seth.

[18]     Dr Bellve-Wack, a clinical psychologist, reported on 8 November 2006.  Mr Edwards participated in the original two hour interview but refused to participate in a second.  He was reluctant to discuss matters with Dr Bellve-Wack.

[19]     Her report referred to Mr Edwards’ extreme anger at his former partner for terminating the relationship and keeping their children from him, and his admission that he had been “quite violent towards her during their relationship” and “harboured homicidal ideation” towards her and at least one cell-mate.  The report also noted Mr Edwards’ statement that he would commit suicide if sentenced to preventive detention.

[20]     The report said Mr Edwards had difficulty discussing the summaries of fact relating to his offending because of their sexual content, but that he disagreed with certain detail.

[21]     On STATIC 99, a sexual recidivism risk assessment instrument, Mr Edwards rated above average and in terms of another risk assessment, SVR-20, the report recorded that, amongst indicators of sexual deviance, Mr Edwards had been severely physically abused throughout his childhood, had a history of mental illness and poly-substance abuse, suffered relationship problems, had never held paid employment largely because of his gaol terms, had “anti-social attitudes as well as recklessness” and had failed to comply with past directions for supervision.  His prior offending included weapons or threats of the use of weapons and a certain degree of physical harm to his victims.  The report concluded :

Mr Edwards’ past non-sexual violent offences indicate his risk for general and violent offending, especially against females.  This is of concern with regards to sexual reoffending as rape is considered to be motivated largely by violence and the need to dominate.   …

…  Mr Edwards has committed multiple acts of sexual violence within a short period of time.  This may be a risk marker for sexual deviance and for attitudes that condone sexual offending.  While Mr Edwards feels ashamed for his offending and claims not to have planned to offend sexually, he made no efforts to prevent himself from repeating such offending once it had occurred.  Rather he put himself into the same situations repeatedly. …

While the sexual acts committed in the context of the index offences follow largely the same pattern, an increase in severity can be noted with regards to the June 1 offence as it involved two victims and the use of threatening harm to one in order to enforce compliance from the other.  …

… While Mr Edwards does not consciously condone sexual offending and exhibits shame and remorse, he has on the other hand not done anything to prevent himself from repeating such offending once it had occurred … this may indicate subconscious approval of sexually deviant tendencies.

[22]     Finally, whilst acknowledging that “long term predictions of risk are not very accurate”, Dr Bellve-Wack concluded that, in light of the matters to which reference has just been made, it was not impossible that Mr Edwards could overcome some of his difficulties and reduce the risk of reoffending.  But that would require motivation on his part and significant professional intervention and that “in the past Mr Edwards does not seem to have availed himself of such help”.   She said that, whilst the risk assessment indicated a “high risk at present and for the foreseeable future unless Mr Edwards commits to and is assisted to change”, it was impossible to predict if he would reoffend on release from a long, finite sentence.

[23]     The final report was from Dr Seth, a psychiatrist who saw Mr Edwards twice. At the commencement of the interview, Mr Edwards had a long discussion with his then counsel about preventive detention and the role of the health professionals’ reports.

[24]     The report largely repeated aspects of earlier reports, but Dr Seth’s report did note Mr Edwards’ acknowledgement of starting to use methamphetamine in his early 20s and described the circumstances giving rise to his previous convictions for arson and the suggested domestic circumstances which led to the male assaults female convictions.  The report noted that Mr Edwards walked out of the second interview and refused to return.  This occurred after he was reminded of the possible sentencing implications of his refusal to discuss his offending.  Dr Seth found it difficult to draw conclusions regarding Mr Edwards’ risk of reoffending given his refusal to discuss the matter.

Submissions

[25]     For the Solicitor-General, Mr Mander reviewed the factual and reporting history but submitted, in reviewing the sentencing notes, that the Judge was in error in allowing Mr Edwards a discount because he was “motivated to address the causes of [his] offending” (at [71]).  That comment, Mr Mander suggested, contradicted the Judge’s finding of lack of insight into the offending (at [67]).  Mr Mander also submitted there was no basis to assume that the respondent would engage in any form of rehabilitation given his refusal to engage in the interview process to any marked degree or discuss his offending.

[26]     Mr Mander further submitted that the Judge fell into error in his assessment as to whether preventive detention was appropriate by giving weight to the respondent’s lack of previous sexual or serious violence convictions, the suggestion that Mr Edwards had had no opportunity to address his offending through treatment programmes and the suggestion of motivation to change based on his early pleas and assistance.

[27]     Mr Mander reminded us that, in considering a person’s previous convictions as a factor in deciding whether preventive detention was appropriate, the whole of a person’s conviction history must be taken into account:  R v Ebbett CA56/88 28 September 1998, R v Miller CA185/88 3 October 1988, R v McGee (1995) 13 CRNZ 108, 112 (CA), Solicitor-General v S CA15/98 6 May 1998.  Mr Mander stressed Mr Edwards’ history of burglary, violence against females, arson, aggravated robberies, conversions, threatening to kill and similar offending.  All were relevant to the offending for which Mr Edwards was being sentenced.  He also stressed the fact that Mr Edwards’ April-June offending spree began only six weeks after his release from prison and whilst he was on parole.  He said there was a recall order out for Mr Edwards during the period he was offending.

[28]     Mr Mander also submitted that the Judge placed too much emphasis on the lack of any risk assessment by the health professionals to the point where, he submitted, if Lang J’s approach was correct no offender charged with offending as serious as this would be likely to be sentenced to preventive detention because of difficulties in long-term risk assessment.

[29]     Mr Mander submitted that the Judge’s comments about Mr Edwards’ lack of involvement in rehabilitative programmes should be contrasted with the health professionals’ observations on that topic.

[30]     He submitted that the sentencing Judge also appeared to have approached preventive detention, incorrectly, as a sentence of last resort.  He gave it too much weight having regard to the respondent’s risk profile.

[31]     In summary, Mr Mander submitted that the respondent must be considered as highly dangerous, lacking in insight, lacking in motivation to engage in rehabilitation and highly likely to commit another qualifying offence on release, however far into the future.

[32]     For Mr Edwards, Mr Newell put before us the submissions he made to Lang J and expanded on them, saying everything that could realistically be said on Mr Edwards’ behalf.  He stressed the brevity of the period of offending, its instigation through use of methamphetamine and the difficulties the health professionals had in reaching a conclusion.  He pointed to the length of time Mr Edwards actually spent in interviews with the health professionals and their views as to the respondent’s deviance and recidivism.  He took us to recorded observations by Mr Edwards as to his shame and remorse, submitting his condition was treatable and his client would seek treatment.  Counsel concluded by submitting that Mr Edwards did not fall into the category of a sex offender “who cannot help himself”.

Discussion

[33]     There being no doubt the respondent had committed qualifying sexual or violent offences over the April‑June 2006 period such as to make him eligible for the imposition of preventive detention, the main issues for the sentencing Judge were an assessment as to whether Mr Edwards posed a “significant and ongoing risk to the safety” of the community and whether the sentencing Judge was satisfied that the respondent was “likely to commit another qualifying sexual or violent offence” if released at his sentence expiry date (s 87(1)(2)).  In considering those questions, the sentencing Judge was required to take into account, as he did, the criteria under s 87(4).

[34]     There was no contest that Mr Edwards’ offending had caused serious harm to the community and that, despite the availability of rehabilitative prison programmes he had never involved himself in any such programmes.  Where issue was joined was in whether there was any pattern of serious offending disclosed by his history, or adequate information available concerning a tendency for him to commit serious future offences. 

[35]     It is in relation to the first of those criteria that we, with respect, take a different view from that of the sentencing Judge.

[36]     Bearing in mind that Mr Edwards’ entire conviction history, not just his qualifying offences, was to be taken into account, we believe the sentencing Judge gave insufficient weight to the violence to persons and to property involved in Mr Edwards’ conviction history.

[37]     As the Judge noted, at the age of 31, he had accumulated 48 convictions since 1993.  They included the three for assault on a female discussed by the Judge and other, though minor, offences involving violence or potential violence, such as convictions for trespass and resisting arrest.  His conviction history also included a number of abuse of property rights in the sense of there being convictions for burglary and receiving, plus a conviction for arson in 1993 and two others in 2000 for that offence.

[38]     Of more importance, however, is the series of offences for which the respondent was being sentenced.  There were 34 offences committed within 54 days.  Many of those were qualifying sexual or violent offences under s 87(5).  Lang J said that the only pattern of sexual offending emerged from what occurred between 9 April and 1 June 2006.  He placed considerable significance on the fact that Mr Edwards had not previously appeared on charges involving sexual offending or offending involving serious violence.  He said that it suggested to him that some other factor may have influenced him during the period of his present offending.  He went on to note Mr Edwards’ recent history of substance abuse and the part that methamphetamine may have played in his offending. 

[39]     In our view the significance and seriousness of the offending should not be diminished because the offences were committed within a short space of time and because substance abuse may have played a part.  Against a background of previous assaults on women, the spate of offending constituted an alarming escalation in violent behaviour.  The aggravating features of the offending – targeted attacks on women at night involving the use of a weapon and characterised by a high level of callousness, brutality and depravity – showed that Mr Edwards is a deeply disturbed man with an inability to control violent sexual impulses.  We do not think the weight to be attached to his repeat offending should be materially affected by the fact that it was not part of a more extended pattern of similar conduct.  Had Lang J considered Mr Edwards’ offending in this way, we have little doubt that he would have concluded that there was a pattern of serious qualifying offending disclosed by Mr Edwards’ conviction history.

[40]     The other issue was the tendency to offend in the future, coupled with any evidence of determination to undertake rehabilitative programmes during his incarceration.

[41]     In effect, as the Judge’s conclusions show, he was convinced of Mr Edwards’ willingness to undertake rehabilitation.  It was that factor, in concert with the Judge’s view that the imposition of a 10 year minimum period of imprisonment was sufficient to meet the risk Mr Edwards posed to the community, that led him to impose a finite sentence.

[42]     The difficulty with that approach, in our view, is that there is almost nothing in the material which could properly lead to the conclusion that on this occasion, unlike his previous periods of imprisonment, Mr Edwards would definitely undertake the rehabilitative programmes available to him.  He had expressed an intention so to do in the past but had never done anything in that regard.  His refusal to discuss his offending before being sentenced gives no confidence that his motivation to address the causes of his offending was any more determined on this occasion than previously.  Indeed the Judge recognised that at least a 10 year minimum was required to give the Parole Board comfort that Mr Edwards would recognise the causes of his offending and address them with as much professional assistance as was available.

[43]     Without a continuing determination so to do, Mr Edwards, on his release, will continue to pose a significant risk of committing qualifying sexual or violent offences against others with whom he comes into contact, particularly women.  In those circumstances the difficulty with imposing a finite sentence is that, whether or not he is paroled between the 10 and 16 year mark, once he is finally released there may be no control over his movements.  By contrast, were he to be sentenced to preventive detention, even if paroled he remains the subject to lifetime recall.  The significant risk he poses to the safety of the community can thereby be minimised.

[44]     Giving those two factors greater and, in our view, proper emphasis leads to the conclusion that, notwithstanding the lengthy minimum period of imprisonment imposed on him, the imposition of a finite sentence on Mr Edwards will provide insufficient protection to counter the significant and ongoing risk he poses to the safety of the community.

Result

[45]     In the result, the Solicitor-General’s application for leave to appeal is granted.  The finite sentences of 16 years’ imprisonment for each of the two counts of sexual violation by rape which occurred on 1 June 2006 are quashed and a sentence of preventive detention is imposed on those counts.  In all other respects the sentences imposed by Lang J, including the minimum period of imprisonment, remain as imposed.

Solicitors:
Crown Law Office, Wellington