Ede (aka Gunn) v Police HC Christchurch CRI 2010-409-166 [2010] NZHC 1763 (7 October 2010)

Last Updated: 12 October 2010

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI 2010-409-000166}

JESSICA JAYNE EDE (AKA GUNN)

Appellant

v

POLICE

Respondent

Hearing: 7 October 2010

Counsel: AND Garrett for Appellant

T J Mackenzie for Respondent

Judgment: 7 October 2010

_{JUDGMENT OF FOGARTY J}

[1] This is an appeal against sentence. The appellant was sentenced by District Court Judge J J Moran, on 3 August, on one charge of using a document and a charge of breach of community detention.

[2] The background of the offending was described by the Judge as continued and relatively unabated apart from a period of imprisonment between 1989 and the current time. The appellant has some 30 pages of previous convictions.

[3] Her counsel, Mr Garrett, acknowledged there was no alternative but imprisonment. This appeal, however, is on the grounds that the sentenced imposed

EDE (AKA GUNN) V POLICE HC CHCH CRI 2010-409-000166 7 October 2010

of 12 months was too high and that the uplift of six months for offending while subject to Court sentence was not required in the circumstances of the case.

[4] The context of this is that the appellant is pregnant. Her baby is due on

19 December. She was admitted to Christchurch Women’s Hospital on 31 August, and is due to be released from there, provided there is a satisfactory ultrasound examination, on Monday, 11 October, sending her back to Christchurch Women’s Prison. She is likely to be released from prison on 10 September. If she is released there is a place in the Christchurch Family Help Trust.

[5] All that said, the question becomes now whether there are grounds for adjusting the sentence to accommodate what appears to be a period of two months of further imprisonment.

[6] Given the history of offending it is always going to be difficult to persuade a Judge, in a case such as this, to adjust the judgment of the first instance sentencing Judge. It is not enough for the appellate Judge to think that he or she would have come to a different decision. The onus is to show that the decision is manifestly excessive.

[7] Taking into account the likely outcomes of this sentence, with a release on

10 September, having been in custody since 9 June, I am not disposed to adjust the sentence. There are occasions when one would adjust a sentence taking into account the pregnancy of a woman prisoner. But in this instance it seems to me that if one examines the interest of the unborn child those interests are as secured by the appellant remaining in prison as they would equivalently be by being in the Trust.

[8] For these reasons I am not persuaded that the sentence should be disturbed. The appeal is dismissed.

Solicitors:

AND Garrett, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent