Edwards v Police

[2015] NZHC 60

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000100 [2015] NZHC 60

BETWEEN

TIHINA JOSEPH EDWARDS

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing:	3 February 2015
Appearances:	A McCormick for Appellant K B Bell for Respondents
Judgment:	3 February 2015

ORAL JUDGMENT OF GENDALL J

[1]      The appellant Mr Edwards was sentenced by Judge Garland1 on a cumulative basis to a term of 18 months imprisonment on charges of driving with excess breath alcohol (third or subsequent),2 driving while disqualified (third or subsequent),3 breach of release conditions4 and breach of bail.5

[2]      He now appeals against the sentences imposed on the sole basis that he desires to obtain help for his alcohol addiction, which he acknowledges to be the driving force behind his offending.   Indeed, there is no assertion that the sentence imposed was outside of the available range.  Such a suggestion would be a difficult row to hoe given that he pleaded following a sentence indication and was then

sentenced in accordance with such indication.

1      Police v Edwards DC Christchurch CRI-2014-009-2636, 8 September 2014.  This followed a sentencing indication on 10 July 2014 where a  sentence of 18 months’ imprisonment was indicated.

2      Land Transport Act 1998, s 56(1) and (4).

3      Section 32(1)(a) and (4).

4      Sentencing Act 2002, s 96(1).

5      Bail Act 2000, s 37(a).

EDWARDS v NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS [2015] NZHC 60 [3

February 2015]

Jurisdiction

[3]      Mr Edwards is able to appeal to this Court the sentence imposed as of right.6

This Court, as first appeal Court,7 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence  should  be  imposed.8      In  a  recent  judgment  the  Court  of Appeal  has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).9

Discussion

[4]      The basis for this appeal is that “given the compelling report prepared by ADAS the prospect of his rehabilitation should have been given a greater degree of primacy in the sentence imposed [rather] than simply being addressed in the post release conditions”.  I take this to mean that because the ADAS report was not before the Court at the time the sentencing indication was given, but was at the time of sentencing,  circumstances  had  arisen  which  would  justify  departure  from  the

indication.  A similar situation arose in Areaiti v Police,10  where Mander J allowed

an appeal in similar circumstances.

[5]      From what I can gather, Mr Edwards desires to obtain a place on the He Waka Tapu alcohol programme, which runs for approximately eight weeks.  I understand that Mr Edwards has been offered a place in the programme, which commences on

9 March 2015. A problem arises, however, as I am advised that his release date from his current sentence is some nine days later on 18 March 2015.

[6]      I repeat that the sentence imposed by Judge Garland, in light of the facts as they stood at the time, is beyond impeachment.  However, I am of the view that the combination of the favourable ADAS report, coupled with the offer of a placement

on the He Waka Tapu alcohol programme is a sufficient change in circumstances to

6      Criminal Procedure Act 2011, s 244.

7      Section 247.

8      Section 250.

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

10     Areaiti v Police [2014] NZHC 2413, which followed the interim judgment [2014] NZHC 2150.

warrant  revisiting the sentence.   This  is  all the more so  in  this  case given the relatively trivial alteration required to the sentence to ensure Mr Edwards is able to obtain the help he not only desperately needs, but actively seeks.

[7]      I therefore allow the appeal on the following terms:

(a)      The original sentences which comprised one sentence of 14 months and one sentence of four months to be served cumulatively are now varied to the extent that the 14 month imprisonment sentence is to remain but the four month imprisonment sentence is reduced to a term of three months and eight days, such that:

(i)       Mr Edwards is to be released from prison on Monday, 9 March

2015.

(ii)Mr Edwards is directed to be taken from the prison direct to the He Waka Tapu programme at that time on 9 March 2015.

(iii)Mr Edwards is to remain at the He Waka Tapu programme until the completion of the programme on Thursday, 30 April

2015.

Result

[8]      As a result this appeal is allowed subject to the conditions which I have set out at in the preceding paragraph.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Brandts-Giesen McCormick, Rangiora