THE QUEEN v DEANE RICKSON EDWARDS [2000] NZCA 279 (18 April 2000)

IN THE court of appeal of new zealand

ca 67/00

THE QUEEN

V

DEANE RICKSON EDWARDS

Hearing:	17 April 2000
Coram:	Gault J Doogue J Goddard J
Appearances:	O S Winter for the Appellant J M Jelas for the Crown
Judgment:	18 April 2000

judgment of the court DELIVERED BY GODDARD J

[1] The appellant was charged indictably with aggravated robbery and possession of an offensive weapon (an axe) in a public place.He elected trial by jury and was committed following a preliminary hearing.Prior to trial he entered pleas of guilty to both counts.He was sentenced to six years imprisonment for the aggravated robbery and one year imprisonment concurrently for possession of the axe.He appeals against the sentence of six years imprisonment.

Background Facts

[2] At 1.30am on 28 May 1999 the appellant broke into the house of a neighbour, gaining entry through a side window.The householder was awoken by a scratching noise outside the house followed by a noise inside his lounge.He got out of bed and went to investigate.As he switched on the lounge light he saw the appellant behind the settee on his hands and knees and recognised him. The appellant stood up brandishing a white handled butcher's knife and ran at the householder with the knife held aloft in a threatening manner.The householder retreated into his bedroom and attempted to shut the door but was prevented from doing so by the appellant, who managed to put his shoulder through the open doorway.The appellant then pulled back from the bedroom doorway and left the house.

[3] The Police were alerted and a short time later a Police dog handler located the appellant in some bushes outside his house.He was wearing camouflage clothing and carrying a backpack.He had an axe slung over his shoulder.He was not co-operative and required disarming and handcuffing.During the arrest the butcher's knife fell out of his sleeve.Inside the backpack were a black beanie with eyeholes cut out and a bent fork.

The Appellant's Conviction History

[4] The appellant is aged 29 years.Since age 15, he has amassed an unenviable list of convictions for similar and other serious offending and can justly be described as a hard-core recidivist.A pattern of violence is discernible from his record as well as a multiple of dishonesty offences.His probation officer has described him as "firmly entrenched in the criminal lifestyle" and advised the Court on sentencing that "rehabilitative approaches see little change".

[5] To be exact:the appellant has amassed 22 previous convictions for burglary over the period 1984-1998, for which he has received sentences of imprisonment (including corrective training) on nine occasions; convictions for aggravated robbery, robbery by assault, assault with a weapon and other crimes of violence for which he has also received sentences of imprisonment; and numerous assorted dishonesty charges.

[6] The present offending was committed whilst the appellant was serving a community based programme for a burglary committed in July 1998.At the time of sentencing he was serving a sentence of 15 months imprisonment for a further burglary committed in December 1998 and for assault and possession of an offensive weapon - these offences noted by the sentencing Judge as entirely consistent with the case before him.

The Appellant's Personal Circumstances

[7] The appellant is said to have suffered a "fractured upbringing" providing a "cocktail of social problems" in his adult life.Examination of his personal history reveals this to be so.The appellant was involved with Social Welfare agencies from birth and spent his childhood in various foster situations, from which he frequently ran away.He became institutionalised from about the age of 12 years.His early teenage years were spent on the street where he developed alcohol and cannabis addiction problems and became involved in the Mongrel Mob.He has been admitted to almost all of the established alcohol and drug treatment programmes: such as, Odyssey House, the Bridge Programme, Hamner Springs and NSAD at Marton.He has failed to complete any of those programmes, either walking out of them or being discharged for breaking the rules or for other behavioural reasons.He has spent most of the past 14 years in prison, remaining at liberty for only 18 months at the most during that time.His participation in the workforce has been on a casual basis.On the personal front he has been in a relationship with a woman for four years.She also has alcohol and drug abuse problems.

[8] The appellant's motivation to change has been inconsistent although lately he has involved himself in various rehabilitation programmes at Linton Prison. He has received good reports from these although there is some equivocality about his ability to really commit to change.

The Sentencing Judgment

[9] The Judge approached the sentencing task on the basis that deterrence and denunciation were clearly needed and required prominent focus in the appellant's case, particularly in the climate of today.Whilst recognising that the offending preceded the enactment of the Crimes (Home Invasion) Amendment Act 1999, he found nevertheless that the current maximum sentence provided an appropriate framework within which to sentence the appellant.He noted that repeat burglaries of dwelling houses in Hawke's Bay (where he is based) generally attract sentences of 3-4 years imprisonment.He cited the decision in R v Ataria (CA 318/98, 15 December 1998) as authority for a sentence of seven years in a "worst" case scenario.Ataria dealt with a case of aggravated robbery of a service station but the sentencing principles and ranges for that type of offending are applicable to aggravated burglary.

[10] The Judge took account of the appellant's appalling record, the fact that he is now aged 29 years and the risk factors inherent in armed burglary of a dwelling house by night and determined that six years imprisonment was appropriate, concurrent with one year for possession of the axe.The Judge saw no room "for any measurable allowance" for the appellant's guilty pleas.

Grounds of Appeal

[11] The appeal was advanced on two broad grounds.First, that the Judge erred in declining to make any allowance for the appellant's guilty pleas notwithstanding established policy reasons favouring a discount; and the absence of an identifiable starting point leading to the inference that six years was both the start and end point of the sentence.

[12] The second and related ground was that on the basis of those factors, the sentence was manifestly excessive in the circumstances.

Discussion

[13] The seriousness of the appellant's offending cannot be minimised, involving as it did the inherent risk factors identified by the Judge.The start and end point of six years imprisonment was determined on an assessment of the facts, the appellant's demonstrated recidivism and the lack of any true mitigating features, save for the late guilty pleas.

[14] The approach to be taken on sentencing, is as described in R v Mako (CA 446/99, 23 March 2000):

It is the particular combination of ... variable features which requires assessment for sentencing in each case.Once the seriousness of a particular combination of features is assessed and a starting point reached, it will be necessary to consider whether overall the crime is aggravated or mitigated by the offender's particular personal circumstances such that the sentence be imposed should be higher or lower than the starting point.We emphasise to dispel any doubt that in this context a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial.[para 34]

... the criminality in any aggravated robbery offence must be assessed by the particular combination of features of which it is composed.That assessment must be made as a matter of judgment unconstrained by over-emphasis on one feature such as the nature of the target premises.[para 52]

When positioned on the scale of seriousness in this way, a staring point for sentence as identified in para [34] should be determined.This is the true point of comparison with other offending before individual aggravating and mitigating factors are taken into account.Fixing the starting point is the mechanism for seeking consistency in sentencing.

[15] Likewise, in the appellant's case, his criminality required assessment based on the particular combination of its essential features and by reference to any discernible sentencing range for comparable cases.Available authorities which provide a comparable sentencing range are:Ataria and R v Richards (CA 311/98,

1 December 1998), in which sentences of seven and six years respectively were imposed.

[16] Given the appellant's history the sentence of six years imprisonment, when viewed against the maximum of 14 years imprisonment, does not seem remarkable, particularly when account is taken of the fact that this offending occurred only months after an almost identical burglary which involved threatening behaviour with a weapon.Only a year earlier, in December 1988, the appellant had been imprisoned for common assault by stabbing.On the basis of that combined recent history alone, the Judge was accurate in describing the current offending as a "very real risk" for the victim in "light of the appellant's proven character".

[17] In the appellant's case a sentence was required which would take account of the serious nature of the facts and his proven track record in denunciatory terms.Personal deterrence was also called for in his case.A condign sentence also serves to ensure that members of the public receive some respite from the continuous depredations of offenders like the appellant.

[18] There are no personal circumstances of a nature or degree to warrant any particular reduction of sentence from the starting point of six years.Some credit, however, ought to be allowed for the guilty pleas, late though they were.The evidence was strong however, the victim recognising the appellant and the Police locating him close to the victim's home shortly afterwards in compromising circumstances.The victim was obliged to give evidence at the preliminary hearing.Therefore, the discount cannot be as great as it might have been, had early guilty pleas been entered.In the circumstances, we find that a reduction of six months is appropriate.

Conclusion

[19] Assessing the sentence overall, it cannot be described as excessive.A reduction of six months should be given however.On that basis, the appeal is allowed and the sentence of six years imprisonment is quashed.A sentence of five years and six months imprisonment is imposed in lieu.

Solicitors:

Crown Law Office, Wellington, for the Crown

Barltrop Graham, Fielding, for the Appellant