The Queen v Edwards [2008] NZCA 205 (3 July 2008)

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The Queen v Edwards [2008] NZCA 205 (3 July 2008)

Last Updated: 9 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA159/08

[2008] NZCA 205

THE QUEEN

v

EDDIE KAURANGA EDWARDS

Hearing: 23 June 2008

Court: Ellen France, Gendall and Ronald Young JJ

Counsel: G C McArthur for Appellant
S B Edwards for Crown

Judgment: 3 July 2008 at 3.30 pm

JUDGMENT OF THE COURT

Appeal dismissed.

REASONS OF THE COURT

(Given by Gendall J)

[1] The appellant pleaded guilty in the District Court at Tauranga to three counts, namely assaulting a female; having in his possession in a dwelling house an offensive weapon (a machete), in circumstances that prima facie showed an intention to use it to commit an offence involving bodily injury, or the threat or fear of violence; and assaulting the female complainant using a knife as a weapon.
[2] In addition, he had pleaded guilty to a charge of theft.
[3] He was sentenced by Judge Bidois to five months’ home detention on the three indictable matters subject to special conditions as to residence, undertaking counselling, and standard and special post detention conditions relating to counselling. Further, he was sentenced to 100 hours community work and an order for reparation of $600. A cumulative sentence of one month’s home detention and reparation of $1,414.00 was imposed on the theft conviction: DC TAU CRI 2007-070-2699 12 March 2008.
[4] The appellant appeals against the sentence of six months’ home detention, on the basis that it is manifestly excessive and inappropriate.

Background facts

[5] On 15 July 2007, the appellant was at the address of the female complainant with whom he had in the past had a relationship. She asked him to leave. He resisted and violently set upon the complainant, punching her above the eye and in the chest. He obtained a machete and threatened to kill the complainant. He then went to the kitchen, obtained a knife with a blade approximately six inches long, and put the knife to the complainant’s chest. He pushed her backwards, piercing her skin, but in a relatively minor way. He continued his attack by punching the complainant on her jaw.
[6] The theft charge related to him selling items that he obtained from a video shop. He did not return them and used the money he obtained to acquire drugs.
[7] The sentencing Judge referred to the appellant having a history of violence and a harmful pattern of drug abuse and gambling. The appellant was said to be remorseful and was described as a low risk offender, provided he abstained from drugs and alcohol. If not, he was at high risk of reoffending.
[8] The Judge referred to the appellant’s previous convictions, which included some involving serious violence, and to the fact that he had served a term of 15 months’ imprisonment for assault with a weapon. The Judge accepted as mitigating factors the appellant’s guilty plea and acceptance of responsibility, together with the motivation and family support that he had, which provided some hope of rehabilitation.
[9] The Judge then went on to say:

[18] I have to assess the overall seriousness of the offending. This was a very frightening experience for the victim. It involved you assaulting her physically with your fists and you are a big strapping man. You threatened her with a machete and a knife, and it was a highly emotionally charged scene. There is no doubt that she would have at some times feared for her safety.

[10] Having regard to the totality of the offending, the Judge said a sentence of imprisonment was inevitable and took as the lead offence the count of assault using the knife as a weapon, and then fixed a starting point of eight months. He said it had to “escalate” to reflect associated offending with the use of the machete, assaulting the complainant with fists, and the previous convictions: at [20]. This required an uplift to 16 months. A discount to reflect the mitigating factors including the guilty plea, remorse, apology, offer of amends, motivation and family support, and time spent in custody whilst on remand, was then given, leading to a term of nine and a half months’ imprisonment.
[11] The Judge then decided that home detention should be granted. In fixing its length he said he had regard to the fact that the appellant had been on electronically monitored bail (for a little over six months), and as a consequence imposed a final sentence of five months’ home detention on the three indictable matters, together with one month’s cumulative home detention on the theft charge.
[12] The Judge said that he did not give credit for the time spent on electronic bail to reduce the starting point of the prison term, but regarded it as a significant factor when considering whether to impose, and the length of, home detention.

Appellant’s submissions

[13] Mr McArthur, on behalf of the appellant, submitted that the Judge’s sentence was manifestly excessive and that the Judge erred in:

• (a) Failing to make any reduction to the term of home detention to recognise time spent on bail while subject to the condition of electronic monitoring.
• (b) Not allowing a one for one deduction to reflect the time the appellant spent on such bail.
• (c) The Judge’s decision lacked “transparency” in the allowance he purported to give for the time the appellant spent on electronic bail. Counsel’s argument was that there was not in fact any reduction, given that a prison sentence of nine and a half months, if appropriate, would result in release after four and three-quarter months, or alternatively the term of home detention was not reduced by the same period of time which the appellant spent on electronic bail. Counsel proposed an intricate calculation, which involved one month’s imprisonment to equate to 100 hours’ community work which was imposed, which therefore would equate to two weeks’ home detention, so as to lead to a deduction of six and a half months from the nine and a half month prison term considered appropriate. That process, counsel submitted, would leave a three month home detention period as being appropriate.

Discussion

[14] The argument that no credit has in fact been given for the time spent on electronic bail was based on the appellant’s submission that a Judge would normally impose a term of home detention which would equate with half the prison term that would otherwise have been imposed. If the relevant mathematical exercise is undertaken here, Mr McArthur says it is apparent that the Judge has not followed that course.
[15] The short answer to this submission is that the Judge has treated the appellant’s compliance with his strict bail conditions as an aspect of the personal circumstances on which the Judge placed significant weight in determining that he could impose home detention in a situation where imprisonment was otherwise “inevitable”. In fact, credit has been given for this factor.
[16] In any event, while a term of home detention will in some cases equate with half the prison term that would otherwise have been imposed, that will not always be so. In some cases it may be less than one-half and it others more. While the maximum period of home detention that can be imposed (12 months) equates with the maximum period an offender sentenced to a short term sentence of imprisonment is required to serve, it does not automatically follow that the appropriate term of home detention will be half the appropriate sentence of imprisonment in every case. Where there is jurisdiction to impose home detention when a short-term sentence of imprisonment would otherwise have been imposed, then the home detention term is to be fixed after an overall assessment of all factors relevant to the offender and his or her background and circumstances. The term should be consistent with the purposes and principles of the Sentencing Act, including imposing the least restrictive sentence appropriate.
[17] We reject the submission that there should be given to an offender, when fixing a term of home detention, a day for day allowance for time he or she may have spent whilst on bail subject to electronic monitoring conditions. The legislation provides that time spent in custody when on remand is to be so treated. But if Parliament wished it to be the case that restrictive bail conditions existing prior to sentence should be likewise treated when fixing a term for a sentence of home detention, then it would have said so.
[18] The Judge’s approach was consistent with that endorsed by this Court in R v Tamou [2008] NZCA 88. There, this Court noted the difficulties in equating time spent on restrictive bail with time spent as a remand prisoner, and made it clear that what is required is an evaluative assessment of all the circumstances in the particular case. An arithmetic approach was specifically rejected. There may be a need for a Judge, in determining mitigating or discounting factors, to reflect the fact that an offender was subject to a restrictive bail regime, which might otherwise have been taken into account in the manner in which a term of imprisonment was calculated. The Court said:

[19] None of the cases have adopted an arithmetic approach and that is understandable. It is difficult to equate time spent on even restricted bail with time spent as a remand prisoner. What is required is an evaluative assessment of all the circumstances which are involved. There will be occasions when no allowance is required at all, as demonstrated by the very different fact situation in R v Nichols CA 406/02 16 June 2003.

[20] It is unhelpful to single out individual items of mitigation and ascribe a time period to them. Rather, there should be an overall evaluative process in which recognition is given to all matters which are relevant.

[19] The degree of restrictive conditions on bail vary widely. They may include a degree of curfew, restriction of travel or movement within certain areas, restriction on accommodation or places of residence, or electronic bail monitoring. Because of such variation, it is inappropriate for any fixed rule to be laid down other than a Judge being required to apply a measured assessment to all the individual relevant circumstances that apply.
[20] We are satisfied the sentencing Judge’s approach did precisely this.
[21] The “transparency” argument was based upon the contention that the Judge did not differentiate between allowances for the guilty plea, the electronic bail issue and other mitigating factors. It may have been preferable to do so, but the approach adopted was understandable in light of the comments in R v Tamou. The Judge did not err in his sentencing approach.
[22] In any sentence appeal, in the end the issue is whether the final sentence was reached through a proper application of relevant factors, within the permissible range, so as not to be manifestly excessive.
[23] In our view, the end sentence was lenient and well within the boundaries available to the Judge. The initial starting point that he adopted of eight months was generous to the appellant. It was increased to 16 months because of the totality of criminal actions and previous convictions. Traditionally the latter do not form part of a “starting point”, but are aggravating matters to be applied later in the process but that is immaterial in this case.
[24] In the end the sentence of five months’ home detention was very lenient and the Judge was not required to give further discount than he did, for any of the mitigating factors including time spent on bail subject to the condition of electronic monitoring on a 24 hour curfew.
[25] It follows that the appeal is dismissed.

Solicitors:
G C McArthur, Tauranga
Crown Law Office, Wellington