Police v Edwards [2017] NZDC 11841 (2 June 2017)

Last Updated: 20 November 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-004-004379 [2017] NZDC 11841

NEW ZEALAND POLICE

Prosecutor

v

PHILLIP LAYTON EDWARDS

_Defendant

Hearing:	2 June 2017
Appearances:	Sergeant S McErlean for the Prosecutor J Corby for the Defendant
Judgment:	2 June 2017

_{NOTES OF JUDGE G A FRASER ON SENTENCING}

[1] Mr Edwards, you appear for sentence on three charges; male assaults female, intentional damage and wilfully attempting to pervert the course of justice. Clearly the lead charge for this offending is the wilfully attempting to pervert the course of justice. That carries with it a maximum sentence of seven years. That is an indication of the seriousness of the offending.

[2] In regards to the male assaults female charge, the summary sets out that

3 January you had an argument with [the victim] which seems to have been motivated by jealously. You lost your temper and you struck her to the right side of her face causing bruising. It is not clear exactly whether that was with an open hand or a fist. It is also alleged that there was some slight injury consequential upon that. You then grabbed her phone and bent it causing it to smash after she threatened to

_{call the police.}

NEW ZEALAND POLICE v PHILLIP LAYTON EDWARDS [2017] NZDC 11841 [2 June 2017]

[3] 4 January, the summary says that there was a heated argument. [The victim] was going to leave, you pushed and shoved her to stop her from leaving. You then snapped her car key in half and smashed her television causing her to run from the room and call the police out of fears for her safety.

[4] In regards to the lead charge, the victim of the male assaults female offending provided a formal written statement indicating that you had struck her to the right side of her face with a closed fist causing bruising to her right eye a couple of days prior to your arrest. You were then remanded in custody.

[5] Between 6 January and 6 March 2017 you made numerous telephone calls from Mt Eden to her. 16 January at about 4.07 pm you rang her asking her to submit an alibi affidavit to your lawyer so he could use it to argue in Court that the charges were false with the hope that the Judge would dismiss your charges. You told her that if she got cross-examined by the police prosecutor during the trial, she must say “Nah I wasn’t lying I was just angry he snapped my car keys” and that if she did not do the affidavit that you would be convicted and sentenced for three years’ imprisonment.

[6] 17 January at 10.03 in the morning you rang her again asking her to get an alibi affidavit because you desperately wanted to have your charges withdrawn. Same day at about 2.49 you rang her and directed her to tell the police in charge of the case that she had lied about the threatened to kill accusation against you. You then directed her to tell the police that she was angry about you snapping her car keys and smashing them.

[7] 14 February 4.06 pm you rang again and told her that the alibi witness who she had provided was an non-credible witness because he had just finished serving his sentence in prison for the similar charge male assaults female. She replied to you that he was just wasting his money. You advised her if your case was heard in Court, she would need to give evidence in the trial saying, “No he didn’t do it.” And the police prosecution would have to drop the charges at trial. As a result of your attempt to pervert the course of justice, the victim provided a second formal witness statement to the police stating that the domestic assault and the threaten to kill

charges did not occur. She then organised and paid $60 cash to the named party in the summary to submit an alibi witness affidavit to the Court to state that you were present at the scene. He was to state in his affidavit that the complainant was not present on the day when the alleged domestic assault and threaten to kill incidents occurred, which he did. The victim did this as a result of pressure by you to organise an alibi witness. The other person admitted to what he had been directed to do and that he was told by the victim to sign the affidavit so that he would get paid $100 in cash and he had yet to receive the balance of $40.

[8] That is the summary for both offences. I note looking at your record you have got 10 previous convictions for violence and you have nine previous convictions for what I call “quasi violence”. To give you an idea of what I am talking about, offences such as obstruction and hindering, wilful damage, behaving threateningly and charges of that ilk. You have also got 18 convictions for breaching what I call “community based Court sentences”. The most recent was June of 2013. You have got 15 convictions for dishonesty, again the most recent being August of

2013.

[9] The probation report that has been filed indicates that even if the point where the probation officer spoke to you, you were claiming that the decision to obtain alibi evidence was made by the victim without any pressure laid on her by you. You also went on, and it is noted here, that when you were given the opportunity you would shift all the blame and ownership of your actions to other parties.

[10] Under the identified offending related factors there is reference to the fact there is high sense of entitlement reactive and instrumental anger in shifting blame onto others and the propensity for violence in relationships. Imprisonment is recommended by Probation. Reference to a sense of entitlement evidence by your attempts to pressure and influence the victim and in regards to your ability to comply with sentences, the report says, “Previously shown poor compliance with community based sentences, therefore his ability to comply is assessed as low.”

[11] The police have filed sentencing submissions. They are of some magnitude. In regards to the lead offending, they submit a start point sentence of two years, six

months to three years, with an uplift for your previous convictions. A further uplift of two months for the wilful damage, seven months’ uplift for the male assaults female. A further uplift in regards to previous history and a discount in the vicinity of 20 to 25 percent.

[12] The police submissions make reference to a sentence which must be denunciating and deterrent for perverting the course of justice or attempting to pervert the course of justice. They also reference some case law which is directed to me for the purposes of determining the start points. They also reference your previous convictions. Finally they submit that there should be no adjustment for totality in relation to their submitted start and the end points.

[13] Mr Corby has also filed submissions for you. He acknowledges as he must that the lead offending is the wilfully attempting to pervert the course of justice. He directs for that a start point of two years’ imprisonment acknowledging in his submission that the offending was prolonged, but hardly sophisticated or likely to succeed.

[14] In regards to the male assaults female he is suggesting a three month start point and an additional one month for the wilful damage and discounts for guilty plea. End point sentence in his view would be two years and three months’ imprisonment resolving with discounts to a final sentence of 18 months as he has submitted today.

[15] In terms of sentencing, you must be made accountable for the harm that you have done, and no doubt you have heard all of this before Mr Edwards, so it will not come as any surprise. I am obliged to take into account the interests of the victim and I do so recognising the harm that has been done to her. I acknowledge the most important aspect of sentencing for wilfully attempting to pervert the course of justice and that is denunciation and deterrence. The least restrictive outcome is a sentence of imprisonment.

[16] In terms of aggravating factors (inaudible) actual violence used, harm that was done, damage done to property, and the fact that the victim was vulnerable. In

regards to the wilfully attempting to pervert the course of justice, clearly that offending was premeditated.

[17] You have previous significant convictions for violence as I have indicated. Of concern is that the lead charge was committed whilst you were in a custodial facility.

[18] You get credit for your guilty plea and I acknowledge the expressions of remorse in the letter that I have read today. I have no ability to test whether that is genuine or not, but I certainly acknowledge the time that you have spent putting that together for me and I have read it with some interest.

[19] I agree with you that prison is a waste of time but some offending is so serious that the Court has no choice but to send you to prison. In terms of this offending, on the lead charge of offending of the wilfully attempting to pervert the course of justice, it was sustained offending. It involved two parties, not just the victim of the assault.

[20] In terms of the authorities, in a decision the Court of Appeal of M v R1 the Court confirmed that any attempt to disturb the process of administration of justice is to be deplored and in all but the most exceptional is to be met with a moderately lengthy term of imprisonment.

[21] In a decision of Coombes and Crown Law2 Dunningham J said this.

On the basis of the appellant attempted to enlist his father to help him to pressure the victim to withdraw her charge, attempted to bribe the victim and the victim did actually succumb to the pressure, a two year six month start point does not appear to me to be out of the range compared to what the Judge could have imposed. It is around the lower third of the available sentence for the crime so in my view pegs the offending at the low to moderate level. This I consider reflects the factors in absence of violence, threats.

[22] Recognising the comments by both the Court of Appeal and the High Court I

_{see a start point for the lead offence of two and a half years. I uplift that for the}

1 M v R

2 Coombes v Crown Law

assault and wilful damage by four months. I also uplift for previous recognising dishonesty which is part of the lead offending here as well, and the previous violence includes assaults on the victim, and previous wilful damage. That uplifts six months. This is a start point sentence of 40 months. In my view in terms of totality that is about right. No adjustment is required.

[23] I take off a discount for your guilty plea of 10 months which leaves an end point sentence of 30 months. That is made up as follows. On the lead charge you have got a two year, two month sentence and that is uplifted by the three months on the assault charge and one month on the wilful damage.

[24] So that factors in that way Mr Edwards. It is a long sentence. I cannot impose conditions on release. Those are matters for Parole in due course. You have got lots of time to reflect on what you have said in the letter. If you are genuine about that I guess we will not see you back. If you are not, then there is a guarantee that you will be back.

G A Fraser

District Court Judge