EDWARDS v POLICE [2023] NZHC 2825

EDWARDS v POLICE [2023] NZHC 2825 [10 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-407[2023] NZHC 2825BETWEEN CAMERON PAUL EDWARDSAppellantAND NEW ZEALAND POLICERespondentHearing: 3 October 2023Appearances: J S Kovacevich for AppellantS M Murphy for RespondentJudgment: 10 October 2023JUDGMENT OF ANDERSON JThis judgment was delivered by me on 10 October 2023 at 3:00 pmRegistrar/Deputy RegistrarSolicitors: Meredith Connell, AucklandIntroduction[1] Mr Cameron Edwards pleaded guilty to a representative charge ofstrangulation.1 He was sentenced to 25 months' imprisonment by Judge P J Sinclairin the District Court at Auckland on 17 May 2023.2[2] Mr Edwards appeals this sentence as being manifestly excessive in that:(a) the starting point was too high; and(b) there was insufficient discount applied for his guilty plea, the contentsof his cultural report, his remorse, his participation in restorative justiceand his time spent in custody.[3] The Court must allow an appeal against sentence if it is satisfied there is anerror and a different sentence should be imposed.3 A Court will intervene where thesentence is manifestly excessive,4 but will not engage in "tinkering".5[4] The focus is on whether the sentence is within the appropriate range, ratherthan the process by which the sentence was reached.6Offending[5] Mr Edwards and the victim had been in a relationship for six months. On15 March 2022 they were together at home and argued about the victim not finishingher dinner. Mr Edwards grabbed the victim by the throat and pushed her back againsta wall with sufficient force to cause her head to snap forward. He squeezed her neckfor approximately 30 seconds before releasing the pressure on her throat.1 Crimes Act 1961, s 189A(b), maximum penalty is seven years' imprisonment.2 Police v Edwards [2023] NZDC 9596.3 Criminal Procedure Act 2011, s 250(2).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].5 Maihi v R [2013] NZCA 69 at [21] and Mack v R [2013] NZCA 183 at [16].6 Tutakangahau v R, above n 4, at [36].[6] The victim described the force as feeling like a rope burn after she wasreleased, and further stated her jaw hurt and that it hurt to swallow for a couple ofdays.[7] On 22 March 2022, Mr Edwards and the victim were together at home. Theyargued as the victim believed Mr Edwards was cheating on her. Mr Edwards pushedthe victim on the bed and knelt on her throat before covering her face with a pillowand pressing down on it, preventing her from breathing. He removed the pillow beforeapplying his hands to her nose and mouth to again prevent her from breathing. Heremoved his hands to allow her to breathe, then placed his hands over her nose andmouth a second time, preventing her breathing for a short period.[8] The victim was pinned to the bed for 10 to 15 minutes before Mr Edwardsreleased the pressure from her throat, allowing her to move. The victim received asmall cut to her upper lip.District Court decision[9] The 25-month sentence Judge Sinclair imposed was constructed as follows:(a) a starting point of three years' imprisonment;7(b) an uplift of three months for prior offending;8(c) a compound discount for personal circumstances and attendance at arestorative justice conference of 15 per cent;9 and(d) a discount for guilty plea (not entered at the earliest opportunity) of15 per cent.10[10] There is a calculation error in the Judge's decision in Mr Edwards' favour. HerHonour omitted to include the three-month uplift for previous convictions in her7 Police v Edwards, above n 2, at [13].8 At [13].9 At [17].10 At [18].calculations. The end sentence ought to have been 27 months' imprisonment(rounding down). This resulted in an additional discount of around eight per cent.Starting point before uplift for previous offending[11] The tariff case for strangulation is Shramka v R.11 In that case the Court ofAppeal referred to the legislative history underlying the introduction of a specificoffence of strangulation.12 It set out eight primary aggravating factors relating to theoffence.13 The Court did not suggest bands based on the number of factors presentgiven the degree of overlap and cautioned against an over-mathematical approach.14Rather, the Court provided examples as reference points for comparison in futuresentencing, noting that subsequent decisions at all levels would add to them.15[12] In this case, Judge Sinclair highlighted the key purposes and principles ofsentencing. She noted that a stern approach was required for family harm offendingin general, and strangulation/impeding breathing specifically as it is potentiallylife-threatening offending and implies a serious risk of fatal harm.16[13] Referring to Shramka v R the Judge considered that the two incidents, butparticularly the second, "sit towards the upper end of the spectrum".17 She noted thatgiven Mr Edwards' emotional dysregulation at the time it was fortunate he did notmore seriously harm or kill the victim.18[14] She identified four aggravating features:19(a) the offending took place in a domestic setting where the victim wasentitled to feel safe and secure, and the likelihood of coercion andcontrol was increased;11 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.12 At [14]–[29].13 At [42].14 At [43].15 At [45].16 Police v Edwards, above n 2, at [5]–[7].17 At [9].18 At [9].19 At [9]–[10].(b) the charge is a representative one covering two separate instances, withthe second being "quite prolonged" lasting 10 to 15 minutes andinvolving repeated instances of impeding her breathing;(c) the victim was vulnerable as being smaller and weaker thanMr Edwards, and on the second occasion was lying down and waspinned by Mr Edwards' knee on her neck; and(d) the victim was harmed physically, emotionally, and psychologically.[15] Her Honour noted that in Shramka, a three-year starting point was adopted forsimilar offending; and in Williams v Police,20 a 30-month starting point was adoptedfor two 30-second strangulations on the defendant's partner in her home, which wasaccompanied by other violence.21[16] Mr Kovacevich submits that the Judge came to the three-year starting point byan over-mechanistic application of Shramka, rather than a review of and comparisonwith subsequent cases. He referred me to a range of High Court decisions and oneCourt of Appeal decision.22 All of these cases involved starting points of three yearsor less with the Court applying the principles outlined in Shramka.[17] Mr Kovacevich submits that only one of the Shramka factors is engaged here,being the vulnerability of the victim. He further submits that the case is at a moderatelevel of offending as referred to in Shramka. On the basis of the above, he submitsthat the three-year starting point was too high.[18] I do not consider the Judge to have been in error in applying a three-yearstarting point. While the other cases referred to by Mr Kovacevich involved lowerstarting points, the aggravating features here justify the starting point adopted. AsMs Murphy submits, the first incident bears similarities to Mr Shramka's strangulation20 Williams v Police [2022] NZHC 2583.21 Police v Edwards, above n 2, at [11].22 Williams v Police, above n 22; Miller v Police [2022] NZHC 2636; Parata v Police [2022] NZHC2623; Barnett v Police [2022] NZHC 2662; Riley v R [2023] NZHC 124; Schell v Police and ChiefExecutive of the Department of Corrections [2023] NZHC 636; Mullan v Police [2023] NZHC962; Jackson v Police [2023] NZHC 1100; and Hopa v R [2023] NZCA 320.charge yet the second is more serious and prolonged. Moreover, it was appropriate totreat as aggravating the two separate strangulation events. As the Court of Appeal hasnoted, where strangulation is repeated "there is a pronounced risk of fatality";23 andalso in respect to the second event, "a longer, purposeful period of strangulationwarrant[s] higher culpability".24[19] All things considered, in my view the three-year starting point was well withinrange.Uplift for Mr Edwards' previous family harm offending[20] The Judge uplifted the three-year starting point by three months to reflectMr Edwards' 11 previous family harm offences.25 His counsel in the District Courthad proposed a two-month uplift.26[21] Mr Kovacevich submitted that an uplift is a form of double jeopardy being apenalty on a penalty that is breach of s 26(2) of the New Zealand Bill of Rights Act1990.27 It is however well established in the case law that an uplift will be made inappropriate circumstances.28[22] Mr Kovacevich further submits that there is no legal duty to uplift a sentencejust because of prior offending even when it is of a similar nature. This is certainlycorrect. An uplift should not be given unless relevant and relative.29[23] However, I accept the Crown's submission that an uplift of three months toreflect Mr Edwards' 11 previous family harm offences was appropriately made. Thoseprevious convictions are:(a) doing a threatening act (2019);23 Shramka v R, above n 11, at [42](b).24 Ackland v Police [2019] NZHC 312, (2019) 29 CRNZ 179 at [26](c) as quoted in Shramka v R,above n 11, at [42](e).25 Police v Edwards, above n 2, at [13].26 At [4].27 Which provides "No one who has been finally acquitted or convicted of, or pardoned for, anoffence shall be tried or punished for it again".28 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [8]–[9].29 O'Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [41].(b) assault by a male on a female (2019);(c) possession of a firearm (2019);(d) assault by a male on a female (2018);(e) four charges of breach of protection order (2017);(f) common assault (2017);(g) trespass (2017);(h) speaking threateningly (2017);(i) common assault (2012); and(j) wilful damage (2012).[24] The Judge recorded that the previous convictions are relevant to this offendingas they reflect "a pattern of violence and threats towards intimate partners".30 I acceptthe Crown's submission that the offending showed not just a pattern of violence butone that is escalating. The uplift given was relevant and relative here. I see no basisto interfere with it.Personal and mitigating factors[25] In terms of personal factors, the Judge noted:(a) the pre-sentence report assessed Mr Edwards as posing a moderate tohigh risk of re-offending if untreated, noted he appeared to beremorseful, and recommended a sentence of imprisonment;3130 Police v Edwards, above n 2, at [12]–[13].31 At [14].(b) there was a nexus between Mr Edwards' adverse upbringing and hisoffending;32(c) Mr Edwards attended a productive restorative justice conference inwhich he made some comments that indicated he was aware of theimpact of his offending on the victim;33 and(d) a guilty plea was entered following amendment of the charge, not at theearliest opportunity, but prior to trial.34[26] The Judge allowed a reduction of 15 per cent for Mr Edwards' personalcircumstances and a further 15 per cent for his guilty plea. An end sentence of25 months' imprisonment was imposed.35Personal circumstances[27] Mr Kovacevich submits that a greater combined discount of up to 30 per cent,rather than 15 per cent, for factors raised in the cultural report/other factors would havebeen appropriate.[28] The Crown submits that 15 per cent was available to the Judge but Ms Murphyaccepted that it would have been open to her Honour and in line with authority to takea more generous approach. However, as she submitted, that it would have been opento her Honour to be more generous does not mean that the Judge was in error.[29] In her judgment, the Judge outlined Mr Edwards' personal circumstances fromthe pre-sentence report including reference to his remorse.36 Her Honour had alsobeen handed the cultural report just prior to sentencing.37 This provided insight intoMr Edwards' personal background and circumstances including family violence andalcohol featuring heavily in his childhood and teenage years. There is reference to32 At [15]–[16].33 At [17].34 At [18].35 At [17]–[19].36 At [14].37 At [15].parental neglect and disconnect as well as to Mr Edwards' grandfather dying whenMr Edwards was young leaving a huge gap in his life.38 The Judge was satisfied thatthere was a causal connection between Mr Edwards' background and personal issuesand his offending warranting a discount.39[30] The Judge also referred to Mr Edwards' attendance at a restorative justiceconference.40 This in particular was relied upon by the appellant together with remorseas justifying a greater discount.[31] While I acknowledge that the Court could have been more generous than the15 per cent discount allowed for these factors combined, as noted above, the focus onappeal is whether the sentence is within the appropriate range, rather than the processby which the sentence was reached. Taking into account the eight per cent error madein Mr Edwards' favour, the effective discount is 23 per cent and the end sentence iswell within the available range. I do not consider there is any justification forinterfering with the final sentence imposed.Reduction for guilty plea[32] Mr Kovacevich submits the 15 per cent discount for Mr Edwards' guilty pleawas too low.[33] Mr Edwards' guilty plea was entered approximately one year after the firstappearance and in the face of a relatively strong police case comprised of a recordedstatement, photographic/video records, and text evidence. It followed an amendmentfrom two charges of strangulation covering the two incidents to one representativecharge. There does not appear to have been changes made to the summary of facts.[34] I accept the Crown's submission that the 15 per cent was correct in thecircumstances. Notably, it was at the level proposed by Mr Edwards' counsel in theDistrict Court. While the plea avoided a trial it was not entered at the earliestopportunity. The amendment of the charge was not substantive.38 At [16].39 At [16].40 At [17].Time spent in custody on remand[35] Finally, Mr Kovacevich submits that the approximately six monthsMr Edwards spent in custody on remand is something that could be taken into account.As a custodial sentence was imposed, the Judge was not permitted to take Mr Edwards'time spent in custody into account.41Result[36] In all the circumstances, the sentence is not manifestly excessive. I dismiss theappeal.Anderson J41 Sentencing Act 2002, s 82.