R v Edwards CA 362/97 [1998] NZCA 20 (25 February 1998)

Last Updated: 31 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND CA362/97

THE QUEEN

v

ELLIOT IAPETA PATENE EDWARDS

Coram: Richardson P Tipping J Anderson J

Hearing: 25 February 1998 (at Auckland)

Counsel: H S Edward for Appellant

R Burns for Crown

_{Judgment: 25 February 1998}

_{JUDGMENT OF THE COURT DELIVERED BY TIPPING J}

This appeal is from a sentence of 14 years imprisonment for sexual violation by rape. The appellant pleaded guilty to that charge, and also to a related charge of causing grievous bodily harm with intent to do so. On that charge he was sentenced to 6 years imprisonment concurrent. There is no appeal from that sentence.

The victim was a 29 year old social worker from Germany who was visiting New Zealand with her boyfriend. She is very small of stature and only 156 cm in height. On 24 April 1997 she was in Rotorua. She went for a walk. Her boyfriend was unwell and did not accompany her. She was approached by the appellant, who asked her for a cigarette. She declined. The appellant continued to talk to her, but she made it clear she was not interested in his joining her and asked him to leave.

At this stage it was getting dark. He left her but followed at a distance. She initially thought he was going his own way. A few minutes later she heard running footsteps, then a noise directly behind her. She turned and was struck about the head and face by the appellant. She was knocked to the ground unconscious.

He then dragged her to some nearby bushes where he kicked her in the head and face three or four times with his steel capped boots. He proceeded to rape her while she remained unconscious. After three or four minutes, he ejaculated inside her. When finished, he simply left leaving her unconscious where she lay. She was found dazed and disorientated and did not regain full consciousness for about

45 minutes. She had, and continues to have, no recall of events after the first punch. She was admitted to hospital with substantial head injuries. These included two fractures of her right eye socket. She needed surgery to repair the damage on her return to Germany. She also sustained severe bruising about her face, neck, mouth and throat. She was in hospital for two days.

When apprehended, the appellant said he became irritated when she would not give him a cigarette. He indicated that this made him feel bad. He therefore decided to follow her and punched her for making him feel that way. He claims to have decided to rape her only when he saw her lying unconscious on the ground.

The pre-sentence report disclosed that the appellant had had a number of hospital admissions over recent years on account of his mental condition. His interview with the probation officer revealed considerable delusional thinking. He showed little comprehension of the consequences of his actions for the victim. He claimed to have raped the victim five times recently, the last time about 200 years ago. He said he recognised her from previous associations and mentioned that these encounters had all happened at the same time and place. At the end of the interview, the appellant stated quite calmly that the probation officer would probably think he was nuts, but these earlier events of which he had spoken had really occurred.

There were short psychiatric reports available to the Judge prepared in November 1996 and February 1997 for unrelated purposes. Surprisingly there was before the Judge no comprehensive report prepared for the purposes of this case. The first of the earlier reports spoke of the appellant’s history of hospital admissions for what was described as bipolar affective disorder manic. The consultant psychiatrist stated that the appellant’s poor insight and non-compliance with treatment had precipitated what he described as frequent inpatient referrals.

The second report said that the appellant’s bipolar disorder was compounded by both cannabis and alcohol use and by a lack of insight into his condition. It was said that his illness then, (i.e. as at February 1997, two months before the events in question) had been in remission for some months due to his being in custody on an unrelated matter. This was said to have limited his access to substances of abuse. It is, however, only too apparent that within a short time of gaining his freedom the appellant committed these present crimes.

The victim impact statement describes vividly the terrible effects on the complainant, both physically, mentally and emotionally. She has acute feelings of fear at small things, like a car door slamming. She has suffered from bad dreams and feelings of uselessness. She has no interest in food, and eats only to keep going. She has intense fear of sexual difficulties in the future. She is also worried about how these events will affect her career as a social worker.

The sentencing Judge said that in his view the appellant’s guilty plea counted for very little, for reasons which he expressed. We will return to this topic. He referred to the appellant’s mental condition without any extended discussion of what effect this had on his sentencing decision. He expressed the intention of putting the appellant in a position where he could not reoffend for as long as possible consistent with the principles of justice and sentencing. On that basis, and describing the case as one of the worst he had ever heard, the Judge passed the sentence of 14 years, now in issue.

In his submissions for the appellant, Mr Edward concentrated on two points. First, he contended the Judge had been in error in allowing very little credit for the pleas of guilty. Second, he referred to and sought to distinguish several previous cases referred to by Mr Burns in his submissions for the Crown. In those submissions Mr Burns properly emphasised the obvious aggravating features of the case; the attack was completely unprovoked, there was extreme violence and danger to the complainant, in addition to the rape itself, the appellant callously left his victim unconscious simply to go about his intended business night clubbing in the city. The appellant also demonstrated a total lack of shame, remorse or insight into his actions and their consequences.

As our decision in this case turns essentially on the question of the pleas of guilty, we do not find it necessary to discuss the cases referred to by counsel, nor to discuss in further detail the appellant’s mental state.

At the age of 25, and in the light of his mental condition, the appellant’s criminal record is not particularly bad. It must be noted, however, that in the last year or so he has committed two serious crimes, as well as the present matters. This shows a disturbing trend, albeit the other offending pales into relative insignificance in comparison with the crimes with which we are concerned.

In his sentencing remarks the Judge said:

I will accept yours was a plea of guilty made at an early time, in view of the explanation given to me by your counsel but, of course, any mitigation reduction in sentence for a plea of guilty must be considered in the light and worth of that plea and in this case, in view of what you subsequently told the police, there was simply no way you could have defended this charge. All that can be said is by your plea of guilty you have saved your victim in having to go through the traumatic experience of giving evidence. In my view it counts for little and very little.

Understandably, Mr Edward submitted that the Judge’s approach could not be supported. He described the sequence of events leading up to the pleas of

guilty. This was presumably what the Judge was referring to when he said in the passage cited above “in view of the explanation given to me by your counsel”.

The appellant was taken into custody on 25 April, the day following the crime. The case proceeded to depositions, and the appellant pleaded guilty on arraignment in August 1997. The sentencing Judge was advised by Mr Edward that the only reason a plea of guilty had not been entered any earlier was because concerns existed about the mental fitness of the appellant and the lack of knowledge of the complainant as to whether or not she had been sexually violated. Accordingly, counsel considered it prudent to await forensic tests to establish independently of the appellant whether or not he had in fact sexually violated the complainant. Once this was affirmatively determined, the Crown were advised that the appellant would be pleading guilty to the two counts.

This was a perfectly proper approach for counsel to take in the unusual and difficult circumstances of this case. The appellant should not suffer as a result of his counsel’s appropriate steps.

On the Judge’s approach of allowing little, very little, for the pleas, it is obvious that his starting point must have been close, indeed very close, to the sentence actually imposed of 14 years. While, as Mr Burns indicated, the pleas in this case did not demonstrate remorse they were still entitled to credit for two reasons. First, and most importantly, they spared the victim the ordeal of a trial and all that this would have entailed. Second, they spared the state the expense and time commitment of a trial. Settled principles and important considerations of policy require those two factors to be recognised in a tangible way. The approach of the Judge can only serve to reduce the incentive to plead guilty almost to vanishing point. That would undermine the reasons why credit is given for pleading guilty and would be detrimental to the public interest.

We do not regard it as appropriate in this case to depart from the Judge’s apparent starting point on account of matters of public safety or otherwise. The medical material before the Court is insufficient to allow such a course. In any

event, in view of the Crown’s approach at sentencing, we do not consider it right to embark on an assessment of whether this was one of those rare cases where an otherwise appropriate level of sentence should be increased on account of public safety considerations. Presumably after due enquiry, the Crown did not suggest to the sentencing Judge that the question of preventive detention should be addressed.

Based on a starting point of close to 14 years, which for offending of such gravity was within the appropriate range and not necessarily at the limit of it, we consider that a proper sentence, reflecting proper credit for the pleas of guilty, is one of 12 years imprisonment. In view of the Judge’s approach, and for the reasons given, the appeal is allowed and the sentence reduced from 14 years to

12 years imprisonment.

Solicitors

Crown Solicitor’s Office, Auckland