Edwards v Police HC Auckland CRI 2010-404-232 [2010] NZHC 1942 (28 October 2010)

Last Updated: 12 November 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-000232}

GREGORY JUNIOR EDWARDS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 26 October 2010

Appearances: S M Cowdell for Appellant

J Carlyon for Respondent

Judgment: 28 October 2010 at 2:00 pm

JUDGMENT OF COURTNEY J ON APPEAL AGAINST SENTENCE

This judgment was delivered by Justice Courtney on 28 October 2010 at 2:00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date............................

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] –

Counsel: S M Cowdell, P O Bxo 76683, Manukau City 2241

_{Fax: [phone]}

EDWARDS V NZ POLICE HC AK CRI-2010-404-000232 28 October 2010

Introduction

[1] Gregory Junior Edwards appeals the sentence of two-and-a-half years for a charge of burglary imposed by Judge Everitt in the District Court at Papakura on

18 June 2010. Mr Edwards was also sentenced on charges of possession of a knife and unlawful taking, for which he received concurrent sentences.

[2] There are two grounds of appeal. The first is that the starting point of four years imprisonment was too high. The second is that the Judge failed to take into account the appellant’s mental health issues.

Starting point

[3] The offence occurred on 15 April 2010. The appellant broke into a residential address in Papakura carrying with him a pocketknife stolen in an earlier burglary. He took goods and jewellery to a value of more than $5,000.

[4] Now aged 22, the appellant has accumulated 55 convictions of which 34 relate to dishonesty offences including theft, burglary, unlawful taking of a motor vehicle and conversion. On the basis of this history the Judge treated the appellant as a recidivist burglar within the R v Senior categories, saying that:[1]

[4] ...I have noted from his history that burglary is a chronic offence so far as he is concerned which includes aggravated robbery back in 2005. He is also into car conversion in a big way. That is continuing. His aggravated assaults and the last sentence of any length received was burglary.

[5] The starting point must be in the vicinity of four years imprisonment for this continuous recidivist burglary [sic] and I take into account that he has pleaded guilty at the earliest opportunity...

[5] In Senior, the Court of Appeal described the recidivist burglar as follows:

[30] The more typical case in this category is likely to involve a burglar who has appeared on previous occasions (with perhaps 20 or 30 previous convictions for burglary) and who is appearing for sentence on only one or a limited number of offences. This burglar will probably be a professional burglar in the sense of being a person who burgles and steals for a living and

often enough to sustain a drug habit but at what might be regarded as a subsistence level.

[6] Ms Cowdell, for the appellant, submitted that, notwithstanding his many previous convictions, the appellant should not have been treated as a recidivist burglar within the meaning of category 2 in Senior because he has only three previous burglary convictions as an adult and three as a youth, which falls well short of Court of Appeal’s description of a recidivist burglar in Senior. Ms Cowdell submitted that a starting point closer to two years would have been appropriate and

points, as closer comparisons, to the cases of R v Columbus,[2] Monsall v Police[3] and

Shedden v Police.[4]

[7] The offending in Columbus involved an offender with a long history of dishonesty offences of which 13 were for burglary. In discussing the appropriate starting point where the offender has both burglary and other dishonesty convictions the Court of Appeal said:

[13] ...The starting point identifies the culpability inherent in the offending by reference to its circumstances; R v Taueki [2005] 3 NZLR 372 at [42] – [44] (CA). The same principle applies in burglary sentencing, where “the intrinsic nature and gravity of the offence charged” is the primary consideration: R v Power [1973] 2 NZLR 617 and 618 (CA). The dual purposes of transparency and of providing the basis for assessing consistency between cases are served by this approach.

[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe[5], previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police (2000) 18 CRNZ 340 at [27]-[30] HC.

[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of

themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principle inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.

[8] The circumstances of the burglary in Columbus had similarities with the present case but the present case is more serious because Mr Edwards was carrying a knife. In Columbus the Court of Appeal considered that the offending did not justify a starting point of more than one year’s imprisonment but that that starting point could properly be adjusted upwards by applying the totality principle (Mr Columbus was also sentenced on other theft and minor drug-related charges). An appropriate adjustment on the totality aspect would, in the Court’s view, have justified an additional six months. A further increase was also regarded as appropriate to recognise the previous dishonesty convictions, being an increase of one year. This resulted in a starting point for the burglary of two-and-a-half years’ imprisonment.

[9] In Monsall, where a starting point of two years was considered appropriate, the actual offence was at the lower end of the spectrum in seriousness, having been spontaneous, arising from a desire to enter premises to watch pornography and with only a marker pen worth $3 being stolen. This meant that many of the features that are significant in burglary offences such as premeditation and taking of personal items or items of value were absent. Self-evidently the offending was less serious than the present case.

[10] In Shedden, where a two year starting point was taken, although the number and nature of the previous convictions was similar, there had been an 18 year gap without any burglary convictions. So any uplift for prior offending had to reflect that fact.

[11] Ms Carlyon, for the Crown, submitted, by reference to other cases, that a starting point of four years was within the range available to the Judge. In R v Southon[6] the offender had 15 previous burglary convictions and many other property-related offences. The Court of Appeal was explicit that recidivist burglars could not assume that Senior could be relied on to limit sentences to three years’

imprisonment and affirmed the Judge’s starting point of six years. Ms Carlyon also referred to Gray v Police[7] where a starting point of four years’ imprisonment was taken for offenders with 16 and 21 previous convictions for burglary. In Howe v Police[8] a starting point of four years’ imprisonment was upheld on appeal, the appellant having a long criminal history including 30 convictions for burglary and other crimes.

[12] I consider the offending in this case to be more serious than Columbus, Monsall and Shedden because Mr Edwards took a knife with him when he committed the burglary, a point which the Judge properly took into account. On the other hand, having regards to the nature and number of his various convictions I am not satisfied that they justified an uplift to four years. I find that the appropriate starting point was 18 months adjusted by a year to reflect previous convictions and a further six months to reflect the totality of the offending. This results in a starting point before personal factors of three years.

Mental health issues

[13] The pre-sentence report identified drug and substance abuse as a contributing factor in the offending but recorded that Mr Edwards presented no health issues. As a result, unsurprisingly, the Judge did not refer to any mental health issues when sentencing. Ms Cowdell, however, submitted that Mr Edwards, in fact, has a long history of mental health problems and was supposed to be taking prescription anti- depressant medication at the time of the offending. She tendered an email from the writer of the pre-sentence report to Auckland Central Remand Prison seeking clarification of various matters for the purposes of the pre-sentence report. These included Mr Edwards’ claim that he was taking Prozac and waiting to see a psychiatrist. There is no indication as to what, if any, response was received to that email and the pre-sentence report made no reference to any fact that might have alerted the Judge to potential mental health issues. There is, therefore, no criticism of the sentencing Judge for failing to consider this aspect.

[14] For the purposes of the appeal Mr Edwards was referred for a psychiatric assessment under s 38(2)(b) Criminal Procedure (Mentally Impaired Persons) Act

2003. The report, prepared by Dr Tapsell of Health Waikato, outlines Mr Edwards’ extremely disadvantaged childhood and troubled history as a teenager. Mr Edwards’ claims include the fact that he had no real connection with his father, who was the president of a Mongrel Mob chapter, that his mother was a heavy drug user and that he himself used drugs and alcohol heavily throughout his teenage years. He spent a good deal of his childhood in foster homes and claims to have been physically and sexually abused by various caregivers. He claims that he has had a long association with the Mongrel Mob gang and part of the stresses in his life now are the result of pressure from the gang to maintain that involvement despite his desire to move away from it. It appears that over the last year or so Mr Edwards has come to the notice of Forensic Psychiatric Services and has received medication.

[15] Dr Tapsell’s opinion is that Mr Edwards cannot currently be considered mentally disordered within the meaning of s 2 Mental Health (Compulsory Assessment and Treatment) Act 1992. However, he does consider that Mr Edwards’ history is consistent with an early onset conduct disorder and a personality structure predominated by borderline and anti-social personality traits. He has previously suffered bouts of depression but his mood is currently stable. Dr Tapsell identifies steps in terms of assessment, possible medication and counselling that would assist Mr Edwards in the future.

[16] Ms Cowdell submitted that Mr Edwards was entitled to be sentenced taking into account his mental health issues. Ms Carlyon, however, submitted that none of the issues identified by Dr Tapsell can be regarded as causative of the offending and that there is no basis on which to reduce the starting point.

[17] Section 8(h) Sentencing Act 2002 requires that, in sentencing, the Court:

Must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance be disproportionately severe.

[18] Previous cases show that the relevance of mental illness in sentencing is largely connected to the issue of culpability. In R v Wright,[9] the Court of Appeal said of mental disorder:

It is a factor which will inform a just sentence having regard to the character of the disorder and the weight it ought to carry when balancing sentencing objectives. Its character may indicate a lesser degree of moral culpability or a greater subjective impact of penalty. It may suggest a more or less risk of a repetition of offending so as to direct particular attention to issues of personal deterrence or public protection. And these considerations must by synthesised with the sentencing elements of denouncing the fact of violence in our society and acknowledging grievous effects on victims.

[19] Commenting on that statement, the Court of Appeal said in R v Tuia:[10]

The “lesser degree of moral culpability” follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend. The less the moral capacity for constraint the lower the moral culpability in terms of the spectrum ending with the verdict of not guilty on the grounds of insanity.

[20] In Tuia the appellant had been diagnosed with a serious mental illness (schizophrenia). The evidence showed that this mental illness was not the dominant cause of the offence but that he was, nevertheless, predisposed by it to commit the offence. The Court observed that, in those circumstances:

The appellant is not to be sentenced as a well man but as one whose offending has been contributed to by the medical condition for which he bears no responsibility.

[21] In this case I understood Ms Cowdell to accept that Mr Edwards did not suffer from a significant mental illness of the kind that the appellant in Tuia suffered from and nor could it be said that there was any causative link between the mental health issues he did suffer from and the offending. But nevertheless, she invited me to conclude that this observation by the Court of Appeal was apt to describe Mr Edwards’ situation.

[22] I accept that Mr Edwards does suffer from depression, for which he was being medicated at the time of the offending. I accept that he shows signs of suffering from a personality disorder which may well have been the result of his

tragic and deprived upbringing. However, I am unable to accept that these factors played a part in Mr Edwards’ offending. Mr Edwards was frank with the police when arrested and described offences motivated by the urgent need for somewhere to sleep and money to live on. The offending was a rational and premeditated act.

[23] I note here that, on the information before me, it appears that Mr Edwards was released from prison only days before the offending without any or adequate arrangements in place for him. The lack of support in this regard was undoubtedly the main contributor to his offending. If better support could be afforded Mr Edwards on his next release a repeat of the current offending might be avoided.

[24] It is impossible not to feel sympathy for Mr Edwards. There is, however, no basis on which to find that his mental health issues reduce his culpability for the purposes of sentencing. I note also that Mr Edwards can continue to be treated for his depression and for the other issues identified by Dr Tapsell. In these circumstances Mr Edwards’ mental health issues do not make the otherwise appropriate sentence for this offence disproportionately harsh.

Result

[25] The starting point taken was too high and should be reduced to three years. The reduction of 33% in recognition of Mr Edwards’ guilty plea would bring the final sentence to two years.

[26] The appeal is allowed. The sentence of two-and-a-half years is quashed and a sentence of two years substituted.

P Courtney J

---

[1] R v Senior (2002) 18 CRNZ 340
[2] _{R v Columbus [2008] NZCA 192}
[3] _{Monsall v Police HC Taurange 21 August 2000 Asher J}
[4] _{Shedden v Police HC Auckland 21 June 2010 Courtney J}

[5] R v Lowe CA 62/05, 4 July 2005
[6] R v Southon [2003] NZCA 9; (2003) 20 CRNZ 104 (CA)

[7] _{Gray v Police HC Invercargill, 2 October 2007 Hansen J}

[8] Howe v Police HC Rotorua, 19 February 2007 Heath J
[9] R v Wright [2001] 2 NZLR 22

[10] CA 312/02, 27 November 2002 Anderson, Williams and Baragwanath JJ