Eddington v R [2024] NZHC 3193 (31 October 2024)

Last Updated: 14 November 2024

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2024-476-18 CRI-2024-476-19 CRI-2024-476-20 [2024] NZHC 3193

BETWEEN	JAMES WILLIAM EDDINGTON Appellant
AND	THE KING Respondent

Hearing:	30 October 2024
Appearances:	T A McRae for Appellant C J Mitchelmore and S M H McManus for Respondent
Judgment:	31 October 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 31 October 2024 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

EDDINGTON v R [2024] NZHC 3193 [31 October 2024]

Introduction

• [1] On 6 September 2024, Mr Eddington was sentenced to six months’ imprisonment on the following charges:¹

(a) breach of release conditions (x 2);²

(b) possession of class C controlled drug (cannabis);³

(c) possession of a methamphetamine pipe;⁴

(d) possession of a knife;⁵

(e) possession of medicines;⁶ and

(f) breach of bail.⁷

Facts

• [2] On 12 July 2023 the appellant was released on parole from Christchurch Men’s Prison where he had been serving a term of imprisonment for which he was sentenced in 2016.⁸ On the day of his release he was fully inducted into the requirements of his parole, including the special condition not to possess, use or consume alcohol, controlled drugs or psychoactive substances except for controlled drugs prescribed by a health a professional.

¹ Police v Eddington [2024] NZDC 21557.

2. Parole Act 2002, s 71(1) — maximum penalty: sentence of imprisonment of one year or a fine not exceeding $2,000.
3. Misuse of Drugs Act 1975, ss 7(1)(a) and (2) — maximum penalty: sentence of imprisonment of one year or a fine not exceeding $500.
4. Misuse of Drugs Act, ss 13(1)(a) and (3) — maximum penalty: sentence of imprisonment of one year or a fine not exceeding $500.
5. Summary Offences Act 1981, s 13A — maximum penalty: sentence of imprisonment of three months or a fine not exceeding $2,000.
6. Medicines Act 1981, ss 46 and 78 — maximum penalty: sentence of imprisonment of three months or a fine not exceeding $500.

⁷ Bail Act 2000, s 24 — maximum sentence of imprisonment of three months or a fine not exceeding

$1,000.

⁸ R v Eddington [2016] NZHC 434.

• [3] The appellant was recalled to prison and then, when released on 1 December 2023, he was again inducted into the requirements of his parole order.

• [4] On 24 June 2024, the appellant was instructed to report to the Transport Drug Detection Agency van for drug and alcohol testing. Mr Eddington reported as required and completed a urine sample for alcohol and drug testing. The sample was tested as invalid and synthetic. This gave rise to the first charge of breaching parole conditions.

• [5] On 9 July 2024 Mr Eddington explained to Probation that his address was no longer suitable and he was of no fixed abode. They acknowledged that and gave him an instruction to report twice weekly, with his first report to be on 12 July 2024. Mr Eddington did not report on that date. This gives rise to the second breach of release conditions charge.

• [6] At about 2 am on 16 July 2024, the appellant was parked in his car at Mobil, Bealey Avenue. A female associate of the defendant was parked next to him in her own car. Police observed the appellant and his associate exchange hand to hand an unknown item through their driver’s windows.

• [7] Police conducted a vehicle stop. A warrantless search for drugs was performed pursuant to the Search and Surveillance Act 2012 on both the appellant’s and associate’s vehicles. The defendant was hiding a small unlabelled blue pill container in his closed left hand. Inside the container was 1.99 grams of cannabis and 10 quetiapine pills.

• [8] A clear retractable snap-off knife and broken glass methamphetamine pipe was located on the defendant in the left chest pocket of his jersey. The pipe was broken by Police when they pressed him against the patrol car during the search.

• [9] Mr Eddington was released on police bail on 16 July, to reappear in the Christchurch District Court on 17 July 2024. Mr Eddington says he went to the Court on that morning to seek an adjournment because he had pre-existing plans to fly to Wellington that day to visit his family, and prioritised that over having his Court matters dealt with.
• [10] Mr Eddington’s conditions of parole expired on 17 August 2024.

District Court decision

• [11] The Judge began by noting that the pre-sentence report had some “concerning comments in it”. These were that Mr Eddington was assessed as being at high risk of re-offending and causing harm to others, noting he had a significant history of violence in his past. The Judge noted he did not favour an electronically monitored sentence because of the concerns expressed by the pre-sentence report writer. Instead, he felt the appropriate penalty was imprisonment because, given Mr Eddington’s current risk profile, it seemed that every time he was released from prison he would quickly relapse into drug use.

• [12] The Judge also noted, with concern, that Mr Eddington was not prepared to commit to residential treatment. However, he also accepted that this appeared to be partly explained by Mr Eddington’s motivation to get back with his son, and he did note that Mr Eddington was willing to accept other assistance, acknowledging that he needed it.

• [13] The Judge took the breach of release conditions to be the lead offending, for which he imposed a start point of six months’ imprisonment on both charges. This was uplifted by two months in respect to all other charges that the defendant was facing to give a “nominal starting point of eight months”.⁹

• [14] A full 25 per cent discount was given for Mr Eddington’s guilty plea, resulting in an end sentence of six months’ imprisonment for the breach of release conditions charges (which the Judge noted was likely nearly half served already) and one month of imprisonment on the other charges, to be served concurrently. Judge Savage also imposed the release conditions outlined in the pre-sentence report dated 30 August 2024.

⁹ At [8].

Principles on appeal

• [15] 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 may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.¹⁰ As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.¹¹ It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.¹²

Submissions

Appellant’s submissions

• [16] Ms McRae for the appellant submits that the starting point adopted by the Judge was manifestly excessive when considering comparable case law. Ms McRae cites a number of cases in support of her submission that a lower starting point is appropriate.¹³

• [17] However, the primary ground of appeal advanced was that the Judge did not properly consider or acknowledge the supporting information that was supplied to the Court, namely, material that detailed the appellant’s rehabilitative progress and the prospect of further rehabilitation given his strong whānau and community support, including:

(a) A letter of support from Mr Eddington’s partner Deborah Kavanagh, dated 4 September 2024, along with copies of 2 prior letters provided by her to the Parole Board;

¹⁰ Criminal Procedure Act 2011, ss 250(2) and 250(3).

¹¹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

¹² Ripia v R [2011] NZCA 101 at [15].

¹³ Allen v Department of Corrections [2017] NZHC 2902; Jenkins v Department of Corrections [2014] NZHC 2895; Whichman v Department of Corrections [2013] NZHC 3075; Crosswell v Police [2012] NZHC 2435; Forsyth v Police [2013] NZHC 139; Wright v Police [2012] NZHC 493; King v Department of Corrections [2013] NZHC 3378; and Walker v Police [2021] NZHC 2149.

(b) A letter of support from Mr Eddington’s sister and brother-in-law, dated 6 September 2024;

(c) A confirmation of Mr Eddington's offer of employment through the Waitaki Trap and Transfer Programme;

(d) A pre-sentence report dated 30 August 2024, and an updating Memorandum from Community Corrections dated 4 September 2024.

• [18] It is said that the failure to provide a 10–15 per cent discount for this factor has led to a manifestly excessive sentence having regard to all the circumstances, with the appropriate sentence being one of three and a half months’ imprisonment. While the maximum change to the end sentence that Judge Savage came to may only be minor, it is submitted that this will have a meaningful impact on Mr Eddington.

Respondent’s submissions

• [19] Mr Mitchelmore, for the respondent, submits that the District Court Judge’s starting point is within range. Indeed, some of the cases identified by Ms McRae support the starting point Judge Savage adopted.

• [20] In respect of the second ground of appeal, being that a discount should have been provided for rehabilitative factors, it is submitted that the Judge considered the appellant’s relevant history in coming to the end sentence, and there was no material which justified giving a separate discount for rehabilitative prospects.

Analysis

Was the starting point manifestly excessive?

• [21] There is no tariff judgment for offending of this type. However, in Johnson v Department of Corrections citing Tennant v Police,¹⁴ Allan J said the following in relation to a failure to comply with parole conditions:¹⁵

¹⁴ Johnson v Department of Corrections HC Hamilton CRI-2009-419-93, 13 April 2010; and

Tennant v Police HC Palmerston North CRI-2009-454-20, 10 June 2009 at [5].

¹⁵ At [18].

The starting point is that the Court regards a failure to comply with parole conditions as significant, and not minor offending. As was observed by Miller J in Tennant v Police HC Palmerston North CRI-2009-454-20, 10 June 2009, release conditions are imposed in order to maintain a degree of control over behaviour, and in order to protect the community. Failure to comply with parole conditions is accordingly a matter of significance.

Allan J went on to say that “[p]arole condition breaches by high risk offenders will generally require a firm response from the Court.”¹⁶

• [22] I agree with Mr Mitchelmore that Johnson bears a close factual similarity to the present case. The appellant in that case moved out of the address with his foster parents with whom he was required to reside with as a condition of his parole, and failed to report to his probation officer a few months after his release from prison and thereafter until he was subsequently arrested.¹⁷ He was similarly regarded as a high-risk offender,¹⁸ and had a significant record of prior offending.¹⁹ The Court held that the District Court Judge was “perfectly correct to characterise these breaches as serious and deliberate” and upheld the sentence of six months’ imprisonment (to be served cumulatively against the ongoing sentence that the appellant was on parole for).²⁰

• [23] The earlier case of McLean v Police is also of assistance.²¹ That case dealt with two breaches of release conditions (the appellant failed to report to the Community Probation Service, received a warning letter, but failed to report again following that date, then changed his address without telling a probation officer).²² A starting point of 12 months’ imprisonment was adopted by the District Court Judge in that case. The Judge considered the offending was serious and the offender had been recalled to prison for breaching release conditions and had a drug problem which continued to affect him, despite having had opportunities to address this.²³ An end sentence of eight months’ imprisonment was not considered to be manifestly excessive

¹⁶ At [23].

¹⁷ At [6]–[7].

¹⁸ At [4].

¹⁹ At [10].

²⁰ At [26].

²¹ McLean v Police HC Invercargill CRI-2007-425-34, 1 October 2007.

²² At [3].

²³ At [5].

on appeal, but was noted to be “very stern and at the top of the range available for the particular circumstances of his offence”.²⁴

• [24] I also agree that the cases of Wright and Walker cited by Ms McRae, which adopted lower starting points than in the present case, are distinguishable. In Wright, a starting point of eight months for two breaches of release conditions and one breach of community work was considered manifestly excessive. This was because the breaches occurred towards the end of the appellant’s release period after substantial compliance for over six months. Mr Eddington has not displayed the level of compliance of the appellant in Wright. Indeed, Mr Eddington has returned to prison three times since his initial release (Mr Eddington was recalled to prison twice on his current parole order) and his compliance was described by the pre-sentence report writer as “poor”.

• [25] I reject Ms McRae’s submission that Mr Eddington’s limited history of breaching release conditions renders the starting point excessive. That is a factor relevant to Mr Eddington personally, not his offending, thus cannot inform the starting point.

• [26] The other cases cited by Ms McRae tend to cluster the starting point around the four to six month mark where two breaches of release conditions occurred as were taken as the lead offending in the present case. This supports Mr Mitchelmore’s submission that the sentence imposed by the District Court Judge was within range.

• [27] As observed by the pre-sentence report writer, all of Mr Eddington’s offending happened while subject to parole. I consider that to be a clear aggravating factor of his offending, relevant to setting the starting point.

• [28] The appellant’s relapse into drug use contributed significantly to his non-compliance. Furthermore, the breach relating to him falsifying a urine sample was a serious and deliberate breach of his release conditions. Those conditions were put in place to protect the community as the offending for which he had been convicted and sentenced involved serious offending while under the effects of drugs and alcohol.

²⁴ At [7].

• [29] In light of the authorities relied on by the parties and the nature of the appellant’s offending, I do not consider the starting point adopted by the Judge was out of range.

Rehabilitative prospects

• [30] I consider it is implicit in the Judge’s statement that, upon release from prison, the appellant “gets back on drugs eventually and sometimes this does not take too long”, that the Judge did not consider a discount for rehabilitative factors was appropriate.²⁵ However, I accept, as Ms McRae points out that it is not clear if the Judge did consider all supporting documentation as these are not mentioned in the judgment. I therefore have looked at them afresh in light of her submissions.

• [31] It is submitted by Ms McRae that Mr Eddington’s participation in programmes in custody and following his release, including time at Moana House in Dunedin, the support he has as expressed in letters of support, and the fact that he remains connected to his marae and whakapapa, all demonstrate his rehabilitative prospects. It is further submitted that because the appellant’s offending that is the subject of this appeal is less serious than prior offending, it is open to the Court to consider his rehabilitative efforts, while not perfect, has been making some difference.

• [32] The appellant seeks a discrete discount for his rehabilitative prospects. While such a discount would only alter the sentence by a matter of weeks, I accept it would be a meaningful reduction for Mr Eddington, noting when he was sentenced it was likely he had served nearly half of his sentence.

• [33] However, the real issue is whether, in all the circumstances, much weight could be placed on the evidence of rehabilitative efforts.²⁶ First, there do not appear to be any significant proposals for rehabilitation advanced beyond the offer of employment with the Trap and Transfer Programme delivered by Ngāi Tahu. Nothing concrete is offered by Mr Eddington himself. Furthermore, despite engagement with programmes while in custody, the appellant shows no ability to abstain from drugs.

²⁵ At [3].

26. Mathew Downs (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA9.22] citing R v Ngamo [2009] NZCA 512 at [9].

• [34] While I am sympathetic to the appellant’s concern that rehabilitation in a residential programme will separate him from his son for a long period of time, it does suggest that he still does not fully appreciate the need to address his reliance and dependency on drugs.

• [35] Further, while the support of the appellant’s whānau and, in particular his partner, is encouraging, it has not deterred him from resorting to drug use to date. Indeed, as at 30 August 2024, he was still assessed as being at high risk of re-offending.

• [36] In light of his poor response to participation in prior rehabilitative programmes and repeated relapse into drugs despite family support, I am not satisfied that a discount to acknowledge the appellant’s rehabilitative prospects is warranted in this case.

Conclusion

• [37] The appeal is dismissed.

Solicitors:

Crown Solicitor, Timaru

Copy to:

T A McRae, Barrister, Ashburton