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…

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 The Queen v Edwards

Details

AGLC: The Queen v Edwards [2007] NZCA 387
Case: [2007] NZCA 387
Decision Date: 5 September 2007

CaseChat Overview and Summary

The appeal in The Queen v Edwards was heard by Wilson, Williams and Rodney Hansen JJ of the Court of Appeal of New Zealand. The appellant, the Solicitor-General, sought leave to appeal against the sentences of 16 years' imprisonment imposed on the respondent, Mr Frankie Te Uira Edwards, for two counts of sexual violation by rape which occurred on 1 June 2006. The appellant contended that the appropriate sentence on those charges was preventive detention. The Court of Appeal allowed the appeal and substituted sentences of preventive detention in place of the 16 years' imprisonment.

The Court of Appeal found that the sentencing Judge had insufficiently considered the violence and depravity of the respondent's offending history. The Court considered the respondent's 34 charges over a 54 day period to constitute an alarming escalation in violent and sexual offending. The Court found the imposition of a finite sentence provided insufficient protection to counter the risk the respondent posed to the safety of the community.

The Court of Appeal quashed the finite sentences of 16 years' imprisonment on the two counts of sexual violation by rape and substituted sentences of preventive detention on those counts. All other sentences imposed by the sentencing Judge remained as imposed.

Orders