Edwards v R [2024] NZHC 1762 (2 July 2024)

Last Updated: 17 July 2024

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-11 [2024] NZHC 1762

BETWEEN	TIHINA EDWARDS Appellant
AND	THE KING Respondent

Hearing:	26 June 2024
Appearances:	T D A Harré for Appellant L Fiennes for Respondent
Judgment:	2 July 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 2 July 2024 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

EDWARDS v THE KING [2024] NZHC 1762 [2 July 2024]

Introduction

• [1] Tihina Edwards was sentenced by Judge Ruth on 18 January 2024 to three years’ imprisonment on one charge of assault with intent to rob.¹ The appellant appeals this decision on the grounds:

(a) the Judge provided insufficient discount for personal background factors; and

(b) no uplift should have been provided for the appellant’s previous convictions.

Facts

• [2] On 10 November 2021, the appellant was released from prison on parole with conditions which included electronic monitoring until August 2022. On 4 January 2022 he removed his EM bracelet, in breach of his release conditions. Although both a warrant to recall him and a police warrant to arrest him, issued, he continued to evade police.

• [3] At around 8.50 am on 23 January 2022, the appellant, his brother, Mr Dallas Edwards, and an unknown associate parked their vehicle outside Growers Direct Market on Yaldhurst Road.

• [4] The three men entered the shop in heavy disguise. There were two employees and a customer present. Dallas Edwards pointed a pistol at the head of an employee. The associate and Dallas Edwards dragged both employees to an area near the stairs and the appellant ran up the stairs, kicking open the door to a room containing a safe. Dallas Edwards and the associate punched the employees whilst the appellant attempted to open the safe.

• [5] Dallas Edwards walked out of the shop followed by the others. He handed a pistol to the associate who walked back into the shop and pointed it at a third employee. Together with the appellant, they dragged the employee into the shop and

¹ R v Edwards [2024] NZDC 933.

demanded the code to the safe. All three men then ran from the store and as they got in the car to drive away, the unknown associate pointed the pistol in the air and fired it. He then fired the pistol at a shop patron, which missed.

District Court decision

• [6] Judge Ruth first addressed the question of what role the appellant played in the offending with reference to CCTV footage and the summary of facts. The Judge determined he was a “full participant” but acknowledged the appellant was not to be sentenced on the basis that he did more than could be proven.²

• [7] The aggravating features of the offending were identified with reference to those identified in the tariff decision R v Mako to assist with establishing a starting point.³ The Crown submitted that a clear aggravating feature of the offending was planning and premeditation and the Judge agreed. The property targeted was a busy, suburban market and there was a “patent” risk of danger to members of the public and staff members. The use of disguises was also noted, as was the use of violence. While it was submitted that no use of the firearm was to be attributed to the appellant, the Judge was satisfied that the appellant knew of the firearm’s presence and therefore knew what he was getting into. While the Crown proposed a starting point of around four years and six months, the Judge selected a starting point of three years and six months which was nearer to the three year starting point proposed by counsel for the appellant.

• [8] The Judge considered the appellant’s long history of dishonesty, drink-driving, breaches of Court orders, burglary, violence and firearms offending. When he was sentenced for a series of offending in 2018, the Judge, on that occasion, noted that the appellant’s background was tragic and a distinct and discrete discount of 12 months was awarded to recognise the clear nexus between that background and the offending.⁴

• [9] The Crown, however, submitted that because those background factors were the subject of generous discounts before the previous judge, he had to be cautious and

² At [4].

³ R v Mako [2000] 2 NZLR 170 (CA).

⁴ R v Edwards [2018] NZDC 26032 at [29].

restrained in the quantum of any discount for these factors. In support of that submission, counsel for the respondent cited Carroll v New Zealand Police which found that although a discount was justified due to background factors, that should be at a rate lesser than a previous discount to reflect the deliberate nature of the subsequent offending and the lack of prospects of rehabilitation.⁵ Counsel did not persuade the Judge that he could distinguish this decision. However, the Judge did accept that the appellant’s background “was a tragic one”.⁶

• [10] The Judge then uplifted the starting point of three years and six months, by three months for relevant previous offending as well as three months for offending while on parole. A discount of 18.5 per cent (nine months) was given for the guilty plea and six per cent (three months) was given for the factors canvassed in the s 27 report. This resulted in an end sentence of three years’ imprisonment.

Principles on appeal

• [11] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁷ A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.⁸ When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.⁹

⁵ Carroll v Police [2023] NZHC 3293.

⁶ R v Edwards, above n 1, at [29].

⁷ Criminal Procedure Act 2011, s 250(2) and (3).

8. Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].

⁹ Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].

Submissions

Appellant’s submissions

• [12] The appellant appeals Judge Ruth’s sentence on two grounds. The first ground is that the Judge erred by failing to distinguish Carroll, meaning that an inadequate discount was afforded to the appellant for personal mitigating features set out in the s 27 report. The second ground was that the uplift in respect of previous offending was not justified.

• [13] With regards to Carroll, counsel submits that while the appellant did receive a material discount in respect of his background in 2018, the offending to which this appeal relates was not recidivist in nature. His most recent dishonesty offending is a shoplifting charge from 2015 and his most recent violence conviction, excluding family violence, was in 2012. Whilst the Judge considered the ways in which the appellant’s background has led to the present offending, counsel submits that the Judge erred in adopting the respondent’s view that Carroll broadly applied to the discounts available for matters raised in s 27 reports which have previously been the subject of a discount.

• [14] If the Judge had not taken this view, counsel submits that a significantly greater discount would have been applied. The Judge’s analysis of the issues shows a close connection between Mr Edwards’ upbringing, and the offending to which he has pleaded guilty to. Furthermore, the appellant could not be said to have declined to take advantage of rehabilitative options since his release from prison because none have been made available to him. In these circumstances, the s 27 report supports a conclusion that the appellants’ criminal culpability is lessened and a discount of 20 per cent would be available.¹⁰

• [15] With regard to the uplift for previous convictions, counsel notes that while the Judge recorded that there was no opposition to such an uplift, this was a “simple mistake” and counsel’s submissions detailed the reasons why no uplift was appropriate. While the appellant does have a long, consistent and varied criminal

¹⁰ Noting this is the level of discount afforded by the sentencing Judge in 2018.

history, there was insufficient connection between those convictions and the present offending to justify an uplift.

• [16] Finally, counsel submits that because the appellant had been recalled to prison to continue serving his sentence on which he had been paroled, the uplift for previous convictions has an aspect of “double counting”. The appellant has had his sentence lengthened due to the offending being while on parole but has not had the credit applied in respect of time spent on recall. Counsel submits a credit comprising two thirds of the time spent on recall is appropriate, citing Cossey v R.¹¹ This would be a credit of around one month.

• [17] In conclusion, counsel submits that the correct approach to sentencing would be to retain the starting point of three and a half years’ imprisonment, but apply an uplift of three months to reflect offending while on parole, a discount of 18.5 per cent to reflect the appellant’s guilty plea, a discount of 20 per cent to reflect the various factors outlined in the s 27 report, resulting in an end sentence of approximately 26 months’ imprisonment.

Respondent’s submissions

• [18] Ms Fiennes, for the respondent, submits that Judge Ruth correctly applied Carroll and a “tempering of the discounts available was appropriate in the circumstances”. The respondent accepts that Carroll did not set a formal tariff for reduced agency discounts for repeat offenders. However, when considering the circumstances, the Judge was correct to conclude that he was bound by Carroll and a reduced discount for personal mitigating features was required in this case.

• [19] The 2018 offending for which the initial s 27 report was prepared involved two tranches. The second tranche was committed while on bail for the first and while the appellant was on the run from Police for several weeks. The Judge allowed a 12 month (or 20 per cent) discount for the appellant’s personal background factors outlined in the s 27 report as well as the appellant’s willingness to engage in intervention and rehabilitation programmes.

¹¹ Cossey v R [2021] NZCA 677, at [21].

• [20] Drawing an analogy to Carroll, counsel submits that here, the appellant had only been released from his previous sentence several months prior to this offending and was still subject to parole. The previous convictions for violence and firearms were linked to this present offending. Further, the offending was not instinctive and was significantly more premeditated than the December 2018 offending.

• [21] While the respondent acknowledges the appellant has completed minimal rehabilitation, counsel notes that he was removed from his last programme due to the use of violence. In addition, while it is accepted that some discount was required to account for the appellant’s background factors, the six per cent discount provided was within range.

• [22] With regards to the uplift for previous convictions, counsel reiterates that the appellant has a significant criminal history, recent convictions for violence and firearms offending and slightly older convictions for relevant dishonesty offending. Despite the more recent offending being for violence in a family harm context, counsel submits that the Judge was entitled to consider the proximate violence and firearms offending as there are clear parallels.

• [23] With regards to the submission that he should have a credit for being recalled, counsel accepts that care must be taken to ensure the uplift applied does not amount to double punishment. The District Court Judge did not uplift the appellant’s sentence to take into account the fact the appellant not only offended while subject to parole, but seriously breached his release conditions by removing his EM tracker. In these circumstances, no further adjustment was required.

Analysis

Section 27 report

• [24] The first issue on appeal is whether the Judge was right to say that he was bound by the decision in Carroll which meant that a greater discount for the appellant’s background could not be awarded.¹²

¹² Carroll v Police, above n 5.

• [25] In Carroll, the appellant had pleaded guilty to a raft of family violence related offending. In May 2022, he was sentenced and the Judge allowed a 15 per cent discount for the personal mitigating factors relating to the appellant’s background. Less than two months later, the appellant committed further family violence offending against the same victim. When sentencing the appellant for this offending, the Judge acknowledged the information canvassed in the original s 27 report. However, no further discount was given due to the fact the offending was repeat offending against the complainant.

• [26] On appeal, the Court considered Berkland v R and accepted that there was a causal nexus between the appellant’s background and the offending.¹³ The Judge concluded, however, that given the circumstances of more recent offending and the appellant’s history, there was some doubt over whether his agency continued to be reduced by the factors identified in the s 27 report. The Judge noted that the offending was not purely instinctive. It happened just under two months after his release from prison for previous, similar offending and this was the third sentence Mr Carroll has received for offending against that complainant. The Judge held that if some level of discount was justified due to his background, it should have been at a rate lesser than his previous discount.

• [27] In Mr Edwards case, I accept that the assault with intent to rob charge is different in nature from the 2018 offending which was primarily family violence-related. However, the spate of 2018 offending still involved firearms charges, a clear disregard for court-imposed orders and violent offending. The offending involves similar themes, even if the actual offences differ. Furthermore, the current charges involved premeditated offending which occurred very shortly after release.

• [28] It is clear that the Judge in Carroll was not expressing a general legal principle that must apply at sentencing. What he was deciding was whether, in the circumstances of the case, a lesser discount should have been afforded for background factors (thereby prioritising the sentencing principles of denunciation, community

¹³ Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [89].

protection and protection of the victim). In Mr Carroll’s case, it was appropriate for the Judge to give no, or at least a lesser discount, than the previous discount “to reflect the heightened need to denounce his conduct, and to protect the community, and to recognise the lower likelihood of rehabilitation.”¹⁴

• [29] In the present case, the District Court Judge described himself as “bound by” the High Court decision in Carroll even though “the outcome is not one that I necessarily would agree with for myself.”¹⁵ As Whata J said in Smith v Police, the Judge in Carroll:¹⁶

... was not attempting to fix any type of tariff for reduced agency discounts for repeat offenders. His observations must be seen in the specific context to which they relate.

• [30] In this case it was clear the Judge did not consider the circumstances warranted a significant limit on the discount for factors identified in the s 27 report. Indeed, he says that he accepted “the need for your rehabilitation”, had “feelings of sympathy and understanding of the matters that are raised in your cultural report”, and acknowledged that Mr Edward’s life path was “pretty much written in stone before you were even born.”¹⁷ Similarly, the Judge, at [40], felt he was unable to get to the end sentence which “I might from my own point of view want to put into place.”

• [31] In my view, the Judge was in error in considering that where there was repeated serious offending following quickly after a sentencing for other serious offending, he was bound to give a much lower discount for background factors that had a causal nexus to the offending. He was not constrained in that way, if he did not think that was appropriate in the particular circumstances of the case.

• [32] Here, the s 27 cultural report discloses that Mr Edwards was exposed to alcohol and substance abuse from a young age with his father being a Mongrel Mob member. He was placed in state care where he was also physically abused to a level he describes as “tortured”. He has witnessed family violence and started drinking frequently from

¹⁴ Carroll v Police, above n 5, at [29].

¹⁵ R v Edwards, above n 1, at [33].

¹⁶ Smith v Police [2024] NZHC 858 at [21].

¹⁷ R v Edwards, above n 1, at [35]–[36].

the age of 16. At 18, the appellant was sentenced to four years’ imprisonment and since then, has spent the majority of his life in prison with his longest period out of prison being approximately 11 months. He joined the Black Power gang whilst in prison and began using methamphetamine as a result. He now has a methamphetamine addiction.

• [33] It is clear that the appellant’s personal situation is harrowing and there is a nexus between the offending and these factors. That was acknowledged by the Judge in the District Court. That is also confirmed by the affidavits filed by Mr Edwards in advance of sentencing which reflect his aspirations for changing his life but his despair at how difficult he finds it to remove himself from his cycle of offending, saying he feels “stuck in a loop of imprisonment”.

• [34] While in 2018 a 20 per cent discount was awarded to reflect the impact of these background factors, I am satisfied a 15 per cent discount is appropriate in the present case, and is more likely that the District Court Judge would have awarded had he not erroneously considered himself “bound” by Carroll.

Uplift for previous convictions

• [35] The second point on appeal is whether there should have been an uplift for the appellant’s previous convictions.

• [36] The first point noted by counsel for the appellant is that the District Court erred when recording there was no opposition to an uplift for Mr Edwards’ previous conviction. The Judge stated that he would adopt that part “as if it were by agreement”. When reading the original submissions for the defendant, it was acknowledged that an uplift might be available to reflect the fact that this offending occurred whilst on parole. However, the defence clearly opposed any uplift for previous offending. The Judge did err in assuming that this issue could be determined on the basis the parties were in agreement.

• [37] Mr Edwards’ previous convictions may be regarded as relevant insofar as they bring into focus issues of specific personal deterrence and the need to protect the community however the Court must be careful to avoid double-punishment where

appropriate.¹⁸ The appellant does have an expansive criminal history. His previous offending includes numerous types of offending including driving, violence, firearms, resisting police, failure to answer bail and dishonesty offences. The appellant was convicted of shoplifting in 2017 and has other dishonesty offences scattered through his record. Whilst in the last few years there has not been any offending of a similar nature to the present, there is still a clear recent history of violence and firearms offending that needs to be taken into account. I agree with the respondent that the three-month uplift was modest and well within the available range.

• [38] Finally, the appellant submits that because Mr Edwards had been recalled to prison to continue serving his sentence on which he had been paroled, the uplift for previous convictions has an aspect of “double counting”. The respondent submits that the District Court did not uplift the appellant’s sentence to take into account the fact the appellant not only offended while subject to parole, but seriously breached his release conditions by removing his EM tracker. The Judge does mention the fact the bracelet had been removed and when determining the quantum, states that the uplift was for “the fact [Mr Edwards] [was] offending on parole and on the run as it were”. The cutting off of the bracelet was a serious, intentional breach and I am satisfied that, with this in mind, the three-month uplift was appropriate and within range.

• [39] The Judge adjusted the sentence by adding and subtracting months rather than percentages. I also note when he converts the uplifts and discounts to percentages, the calculations do not always tally exactly. To adjust the District Court sentence to reflect the ground on which I have allowed the appeal, I retain the two three month uplifts and the nine month guilty plea discount and adjust the discount for s 27 factors up to 15 per cent of six and a half months. That means, a net adjustment to the sentence of nine and a half months discount making an end sentence of 32 and a half months or two years and eight and a half months.

¹⁸ Beckham v R [2012] NZCA 290.

Conclusion

• [40] The appeal is allowed. The sentence of three years’ imprisonment on the charge of assault with intent to rob is quashed and a sentence of two years and eight and a half months is substituted.

Solicitors:

Crown Solicitor, Christchurch

Copy to:

T D A Harré, Barrister, Christchurch