Edwards v Police [2017] NZHC 2834 (17 November 2017)

Last Updated: 24 November 2017

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-441-33 [2017] NZHC 2834

BETWEEN	JASON WADE EDWARDS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 November 2017
Appearances:	E J Forster for the Appellant C C Gullidge for the Respondent
Judgment:	17 November 2017

_{JUDGMENT OF CULL J}

[1] Mr Edwards pleaded guilty to four charges of breach of a protection order.¹ On

1 September 2017, Judge Courtney sentenced Mr Edwards to 12 months’

imprisonment.²

[2] Mr Edwards appeals his sentence on the grounds that it was manifestly excessive and there was an error in calculating the discount for the guilty plea. The Crown opposes the appeal and submits the sentence was within the available range. The Crown accepts, however, that there was an error in the guilty plea calculation,

_{although submits the effect of this error was minimal.}

¹ Domestic Violence Act 1995, ss 19, 49(1)(b) and 49(3). Maximum penalty is three years’

imprisonment.

² _{New Zealand Police v Edwards [2017] NZDC 19761.}

EDWARDS v NEW ZEALAND POLICE [2017] NZHC 2834 [17 November 2017]

Factual background

[3] Mr Edwards and the victim had been in a relationship for approximately 12 years and separated for the last two years. There is a protection order in place against

Mr Edwards, which covers the victim and their four children.

[4] The present offending occurred on 24 and 25 July 2017. On 24 July,

Mr Edwards went to the victim’s address, accused and abused the victim before leaving. He returned again later that evening and abused and intimidated the victim. Police were called and the victim asked for Mr Edwards to be warned and told to stay away for the breach, as one of her children had begged her not to send dad to jail.

[5] In the late morning of 25 July, Mr Edwards, uninvited, arrived again at the victim’s address. Mr Edwards stood over the victim with a closed fist, while abusing her for having another partner. He also abused the victim about having contacted police the previous day. The victim asked Mr Edwards to leave numerous times, however, he refused to do so. The victim managed to escape outside onto the deck of the property, fearing she would be physically hurt. During this time, Mr Edwards made repeated comments about how he was going to do something to her and would burn the house down. Mr Edwards eventually left and was arrested by police a short time later.

[6] Mr Edwards is 36 years of age. He has nine previous offences, including five previous breaches of this same protection order, two convictions for male assaults female, one conviction for assault with intent to injure and one for wilful damage. These offences are all family violence related.

District Court decision

[7] In sentencing Mr Edwards, Judge Courtney highlighted that although there was no violence involved, he did not view this as low-level offending. Mr Edwards repeatedly returned to the property over two days. The Judge noted he would treat the offending as an ongoing single incident involving four different breaches. The Judge commented that the offending was clearly of significant concern to the victim, particularly in light of Mr Edwards’ background of offending with the same victim.

[8] In setting the starting point, the Judge referred to two comparable cases, where the offenders received sentences of 10 and 12 months’ imprisonment, each for two protection order breaches.³ In this case, the Judge found the relevant aggravating factors were the threats to burn down the victim’s house; abusive threats; multiple breaches of the protection order and multiple incidents of past offending (including while on release conditions and in the face of a police warning). The Judge set a starting point of 12 months’ imprisonment, considering the number of offences.

[9] The Judge uplifted this starting point by three months to reflect Mr Edwards’

previous convictions. That resulted in a sentence of 15 months’ imprisonment.

[10] The Judge then gave “full credit” for his guilty plea, and noted this was “in fact, slightly more” to bring the sentence down to an end sentence of 12 months’ imprisonment for each breach (served concurrently).⁴ The Judge also imposed six months of special release conditions to apply, following the expiry of the sentence date.

Approach to appeal

[11] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the

sentence imposed and a different sentence should be imposed.⁵ The focus is on the

final sentence and whether that was in the available range, rather than the exact process by which it was reached.⁶

Mr Edward’s position

[12] Mr Edwards contends the sentence of 12 months’ imprisonment was manifestly excessive and there was an error in calculating the guilty plea, which means that a

_{lesser sentence should be imposed.}

³ Beck v Police [2016] NZHC 2281; and Kumar v Police [2015] NZHC 1575.

⁴ Edwards, above n 2, at [12].

⁵ As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

⁶ Ripia v R [2011] NZCA 101 at [15].

[13] In submitting the sentence imposed was manifestly excessive, Counsel for

Mr Edwards compared other similar cases:

(a) Iyer v Police: a starting point of two years and six months’ imprisonment was upheld on appeal for one charge of breaching a protection order.⁷ Mr Iyer was subject to a final protection order with his off-on partner and breached this by visiting the victim’s home, whilst intoxicated, and damaged a stereo and threw a brick through the window of the victim’s car. A child was present in the house at the time and Mr Iyer refused to leave after being repeatedly asked. Mr Iyer had

17 previous convictions for protection order breaches, with five against the current victim.

(b) Bartlett v Police: a starting point of 14 months’ imprisonment was upheld on appeal for two charges of breaching a protection order and one charge of breaching prison release conditions.⁸ Mr Bartlett was subject to a final protection order in favour of his ex-partner, had breached the order three times previously and was sentenced to imprisonment for that offending. Upon release, he was not to communicate or contact his former partner. He then went to the victim’s work, verbally abused her and later abused her via telephone and email. Mr Bartlett had eight similar protection order breaches within the last two years.

(c) Mitchell v R: a starting point of 18 months’ imprisonment was upheld for one charge of breach of a protection order.⁹ At the time, the maximum penalty was only two years’ imprisonment.¹⁰ Ms Mitchell left two abusive messages on the victim’s phone, went to the victim’s house with a tyre iron, smashed several windows and the front door and

_{yelled abuse at the occupants after entering. Ms Mitchell had nine}

⁷ Iyer v New Zealand Police [2017] NZHC 353.

⁸ Bartlett v Police [2016] NZHC 850.

⁹ Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.

¹⁰ Ms Mitchell was first sentenced on 10 September 2013, prior to the Domestic Violence

Amendment Act 2013 coming into effect on 25 September 2013. Section 11(1) of that Act amended the maximum penalty from two years’ to three years’ imprisonment.

previous protection order breaches. The Court of Appeal noted that her sentence was appropriate as it was a very serious case of its type. There was a wilful and terrorising breach of the order, made more serious as it was part of a continuing pattern and made in the face of a previous judicial warning about this offending. Ms Mitchell was also sentenced for a charge of intentional damage.

(d) Beck v Police: Mr Beck was sentenced to 15 months’ imprisonment for two charges of breaching a protection order and one charge of breaching release conditions.¹¹ Mr Beck and the victim had a history of domestic violence, assault convictions against the same victim, four previous breaches of protection orders and a final protection order was in place. Mr Beck sent 45 text messages to the victim and in one of these he threatened to kill her. The following day he contacted her repeatedly and then tried to enter the victim’s home. A totality starting point of 15 months’ imprisonment was upheld on appeal for the two protection order breaches.

(e) Kumar v New Zealand Police: a 12 month starting point was imposed on appeal for two charges of breaching a protection order.¹² The offending occurred as part of a pattern of ongoing abuse including recent breaches of a protection order, which had only just been imposed. Mr Kumar confronted his former partner in person about being with his brother, took her wallet and then returned it. About a

month later, he sent psychologically abusive text messages to the victim, pleading her to be with him as he was depressed and wanted to die.

[14] In the present case, Mr Edwards submits his offending was less serious than all of these cases and the offending justified a starting point of 10 months’ imprisonment at the highest. Mr Edwards’ offending is accepted as being repeat

_{conduct and included a serious threat to burn down the victim’s home. However,}

¹¹ Beck v Police [2014] NZHC 931.

12. Kumar v New Zealand Police [2015] NZHC 1575. There was also a charge of driving while disqualified, which was dealt with by way of an uplift.

Counsel submits this threat was suggested as nothing more than letting off steam; it did not involve any harm to property or person and there was no physical contact at all. Both incidents were relatively short-lived and there were only five previous protection order breaches.

[15] Further, Mr Edwards submits there was an error in calculating the reduction for the guilty plea at sentencing. The 25 per cent reduction was calculated from the starting point of 12 months’ imprisonment, not 15 months’ imprisonment, once other factors had been considered. This, it was submitted, is contrary to the Supreme Court’s approach in Hessell v R.¹³ The 25 per cent discount should have been deducted from the uplifted starting point of 15 months’ imprisonment, which would have given a final sentence off 11 months’ and one week.

Crown’s position

[16] The Crown opposes the appeal and submits the sentence was within the available range. The Crown submits the sentence imposed was consistent with cases involving similar offending and the Judge acted in accordance with the accepted approach for this type of offending. The Crown notes that for this type of offending it is preferable to take into account previous convictions for breaches of protection orders against the same victim in setting the starting point, rather than applying a subsequent uplift.¹⁴ However, there is no single consistent approach adopted.

[17] The Crown submits Mr Edwards’ offending is most comparable with the cases of Bartlett, discussed above, and Palmer v Police where starting points of 14 months’ imprisonment were adopted.¹⁵ In Palmer, a starting point of 14 months’ imprisonment was adopted for three protection order breaches. Mr Palmer had previously breached the order on six occasions over four years. The victim and offender were trying to work on their relationship. Over a period of four days Mr Palmer breached the order on three occasions by being verbally abusive, pulling on her hair and refusing to leave the address for two days until police were called. Mr Palmer did initially have the

_{victim’s permission to be at the address.}

¹³ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [14] and [73].

¹⁴ Mitchell, above n 9, at [12] and Palmer v Police [2015] NZHC 143 at [17]–[18].

¹⁵ Palmer, above n 14.

[18] Although Mr Edwards did not use physical violence, he did not have permission at any stage to be at the victim’s address. The offending took place at the victim’s home and Mr Edwards has an extensive history of breaching protection orders against her. On this basis, the Crown submits a starting point between 12 to 14 months’ imprisonment would have been appropriate. This takes into account Mr Edwards’ previous protection order breaches, but not his previous violent convictions. Although the Judge did not explicitly address which of Mr Edwards’ previous convictions applied to the three month uplift imposed, the Crown submits a three month uplift for the previous violent convictions against the same victim alone was well within the range.

[19] The Crown accepts there was an error in the guilty plea calculation although submits the effect of this error was minimal. The difference was between a final sentence of 12 months’ the Judge imposed and the correct sentence of 11 months’ and one week imprisonment. The Crown submits the end sentence was not significantly more severe than it ought to have been having regard to the offending and the offender.

[20] Although the Judge did not address the question of home detention, the Crown submits a home detention address was not available and would not have been appropriate in the circumstances. A sentence of home detention would not have adequately denounced Mr Edwards’ conduct, particularly considering this is a case of repeated breaches of a protection order.

Discussion

Starting point

[21] There is no tariff decision for breaches of protection orders. This is unsurprising, considering that this offending varies enormously in culpability and the degree of the threat posed to the protected person.¹⁶ The cases provided by both counsel provide helpful comparisons with Mr Edwards’ offending.

[22] I accept the Crown’s submission that the starting point of 12 months’

_{imprisonment was well within the available range. I consider Mr Edwards’ offending}

¹⁶ Iyer, above n 7, at [11].

as more serious than that in Bartlett, where a starting of 14 months’ imprisonment for two breaches and a breach of release conditions occurred. I acknowledge Mr Edwards has fewer previous convictions for the same offending (five) than Mr Bartlett (eight).

[23] The offending in Palmer is also comparatively similar to Mr Edwards as it occurred at the victim’s property, over a period of a few days and was verbally abusive. Mr Palmer’s offending might be considered more serious as he was also physically abusive. However, Mr Palmer was only charged with three protection order breaches, whereas Mr Edwards has been charged with four.

[24] The other cases are not particularly helpful as the offending is more serious than Mr Edwards’ offending; the offenders had a greater number of previous convictions for breaches; and the case of Mitchell involved a lower statutory penalty.

[25] I consider a starting point of 12 months’ imprisonment was well within the available range for Mr Edwards’ offending. His offending was repeated over a prolonged two day period. It involved entering the victim’s home and making abusive threats, including a serious threat to burn the victim’s house down. I do not accept that the threat of arson was anything more than “letting off steam”, when it was the culmination of two days of abusive behaviour and where the victim obviously feared for her safety. Although Mr Edwards did not use physical violence, he stood over her threateningly on several occasions, with his fists closed.

[26] Although the Judge did not specify which convictions justified the three month uplift, it would have been appropriate to give such an uplift for the four previous violent convictions Mr Edwards has against the same victim. Overall, an end starting point of 15 months’ imprisonment was not in error for the offending, Mr Edwards previous convictions and for the five previous protection order breaches.

Guilty plea discount

[27] Both counsel accept there has been a mathematical error in calculating the guilty plea. The Judge should have made the 25 per cent discount once all of the

aggravating and mitigating factors were considered, as was affirmed in Hessell.¹⁷ It appears the Judge calculated the discount from the 12 month starting point.

[28] The full 25 per cent credit for Mr Edwards’ guilty plea should have been deducted from the term of 15 months’ imprisonment. This would have resulted in a final sentence of 11 months’ and one week, or rounding down to 11 months’ imprisonment if appropriate.

[29] The Judge made a mathematical error, which should be corrected on appeal, to give Mr Edwards full credit for his guilty plea.

Conclusion

[30] The starting point and sentence otherwise imposed was well within the available range and appropriate in light of the current offending and Mr Edwards’ pattern of previous offending towards the same victim.

[31] The appeal is allowed in part, to correct the error made in calculating the discount for the guilty plea. The sentence of 12 months’ imprisonment is quashed. In substitution, a sentence of 11 months’ imprisonment is imposed.

Cull J

Solicitors: Elvidges, Napier

¹⁷ Hessell, above n 13, at [14] and [73].