PEARCE v NEW ZEALAND POLICE (Appeal against sentence) [2023] NZHC 640

PEARCE v NEW ZEALAND POLICE (Appeal against sentence) [2023] NZHC 640 [28 March 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI 2022-488-000106[2023] NZHC 640BETWEEN DOUGLAS PEARCEAppellantAND NEW ZEALAND POLICERespondentHearing: 27 March 2023 (via VMR)Appearances: M C Nicholls for the AppellantB M O'Connor for the RespondentJudgment: 28 March 2023Reissued: 15 September 2023JUDGMENT OF TAHANA J(Appeal against sentence)This judgment was delivered by me on 28 March 2023 at 10.00amand re-delivered by me on 15 September 2023 in accordance with High Court Rules 2016, r 11.10Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor (Marsden Woods Inskip Smith), WhangareiMartin Nicolls Limited, KerikeriIntroduction[1] Mr Douglas Pearce was sentenced to two years and five months' imprisonmentin the Kaikohe District Court on 7 December 20221 on the following charges:(a) Possession of an offensive weapon;2(b) Unlawful taking of a motor vehicle;3(c) Burglary (x 8);4(d) Attempted burglary;5(e) Contravention of a protection order;6 and(f) Breach of release conditions.7[2] Mr Pearce appeals on the basis that an arithmetic error was made in calculatingthe discounts applied to his sentence.[3] While the Crown accepts that the sentencing judge erred in calculating andapplying the discounts identified, it opposes the appeal and says that the end sentenceis not manifestly excessive and is within range.Background facts[4] Mr Pearce's charges relate to offending across a period of approximately17 months between March 2020 and August 2021. In relation to the charge ofunlawfully taking a motor vehicle, on 13 March 2020 Mr Pearce was loitering nearby1 Police v Pearce [2022] NZDC 24296.2 Crimes Act 1961, s 202A(4)(a). Maximum penalty three years' imprisonment.3 Section 226(1). Maximum penalty seven years' imprisonment.4 Section 231(1)(a). Maximum penalty 10 years' imprisonment.5 Sections 231(1)(a) and 72. Maximum penalty 10 years' imprisonment.6 Family Violence Act 2018, ss 90(a), 9 and 112(1)(a).7 Sentencing Act 2002, s 96(1). Maximum penalty one year imprisonment or a fine not exceeding$2000.a dairy in Whenuapai when the complainant dropped his car keys on the footpath.Mr Pearce found the keys and took the vehicle without permission.[5] Mr Pearce's burglary charges can be categorised by him entering businessesthroughout the Auckland, Northland and Wellington regions and taking cash from thetill or other goods. Across seven occasions in 2020 and 2021, Mr Pearce took cash invalues ranging between $140 and $778 from the business' till or safe. On anotheroccasion, Mr Pearce took a mobile phone valued at $300 from the office of thebusiness. The attempted burglary charge relates to Mr Pearce's attempt to break intoa computer shop in Kerikeri on 15 August 2021. He used force to try and enter thebuilding for approximately 20 minutes before Police arrived. Following this incident,Mr Pearce's vehicle was searched. Police recovered a knife approximately 40 to 50centimetres in length and two screwdrivers. Mr Pearce was subsequently charged withpossession of an offensive weapon.[6] Furthermore, following his release from Northern Region CorrectionalFacility, Mr Pearce breached his release conditions when he failed to report asinstructed, without reasonable excuse, on 21 July 2021.[7] Mr Pearce is the respondent named in a protection order issued in 2012, whichis now final. On 22 July 2021 following a verbal altercation, Mr Pearce punched thecomplainant to the forehead multiple times, causing the complainant to fall to the floor.While on the floor, Mr Pearce continued to punch her to the head and arms, eventuallycausing her to blackout for a short period of time. This sequence of events forms thebasis of Mr Pearce's final charge of contravening a protection order.District Court decision[8] Judge Shortland, after considering the sentencing indication given by JudgeDavis in November 2021, set a starting point of four years imprisonment for all 13charges. His Honour considered the aggravating features of Mr Pearce's offending tobe entering properties and businesses without permission, taking items/cash that didnot belong to him, offending while on bail and the use of violence.8 In his view, therewere no mitigating features of the offending.[9] Judge Shortland then turned to Mr Pearce's personal factors, beginning bynoting that he has an extensive criminal history and the fact that his prior placementat the Grace Foundation "did not work out for [him]."9 In terms of mitigation, theJudge considered that Mr Pearce's s 27 report outlined a direct connection between hisbackground, upbringing and trauma/stress and his offending, and was therefore animportant mitigating factor.10 Given Mr Pearce's difficult background, JudgeShortland also recognised the fact that Mr Pearce was undertaking AccidentCompensation Corporation (ACC) counselling and encouraged him to continue.[10] Ultimately, Judge Shortland considered a discount of 25 per cent to beappropriate for Mr Pearce's guilty pleas in line with Hessel v R,11 and 30 per cent forthe factors relevant to the s 27 report. A further five per cent discount was discussedin relation to time already spent in custody, though the Judge later noted that"calculations and times" are "a matter for the prison and Parole Board to look at".12After considering the steps Mr Pearce had taken towards rehabilitation andrecognising that rehabilitation is a long and difficult process, Judge Shortland landedon a total discount of "something like" 70 per cent.13 Applying this to a four yearstarting point, his Honour calculated the end sentence to be two years and five months'imprisonment.Approach on appeal[11] Mr Pearce has an appeal as of right under s 244 of the Criminal Procedure Act2011 (the CPA).8 Police v Pearce, above n 1, at [9].9 At [11].10 At [12]–[13].11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.12 Police v Pearce, above n 1, at [18].13 At [17].[12] Under s 250 of the CPA an appeal must be allowed if the court is satisfied thatthere is an error in the imposed sentence and that a different sentence should beimposed.[13] Generally, a court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles, reflecting the currentapproach that the focus is on the sentence imposed rather than the process by whichthe sentence is reached.14 Despite this, in cases where the appeal is based solely onthe grounds of the sentencing Judge making an arithmetic error, an exception must bemade:15 we need to acknowledge that there may be cases, although not common,where what has gone wrong is such as to require correction albeit the sentenceimposed is within range. A straightforward example is where an explicitarithmetical error has occurred and would have been corrected if it had beendrawn to the attention of the sentencing judge at the time. In thosecircumstances, we expect the appeal court will impose the corrected sentence,giving effect to the sentencing judge's intentions.[14] The Court of Appeal has held it would be unjust to leave uncorrected a plainmathematical error resulting in a sentence more severe than the Judge intended, evenif the sentence imposed was still within the available range.16 In Ferris-Bromley v Rthe approach to be followed by the court in instances of a mathematical error wassummarised as follows:17(a) A mathematical error resulting in a sentence more severe than theJudge patently intended must be corrected, even if the sentenceimposed was still within the available range. In such a case of plainerror, it would be unjust for that error to be left uncorrected.(b) If it is not clear that the Judge made a mathematical error in arrivingat the sentence imposed, the usual test will apply: is the sentencemanifestly excessive (that is, beyond the available range)?(c) An error favouring a defendant will not be corrected unless it hasresulted in a sentence manifestly inadequate or inappropriate. Inpractice this approach is only taken on a prosecution appeal, broughtwith the Solicitor-General's consent under s 246 of the CriminalProcedure Act.14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].15 At [36].16 At [36]; Koroheke v R [2012] NZCA 368 at [21]; Ferris-Bromley v R [2017] NZCA 115 at [18].Seealso Paekau v R [2020] NZCA 332.17 Ferris-Bromley v R, above n 16, at [15] (footnotes omitted).[15] However, the Court of Appeal has also accepted that correction of amathematical error may not be appropriate in unique circumstances:18 It is not appropriate to leave such serious offending unrecognised by simplycorrecting the error in relation to the discounts. Therefore, in the uniquecircumstances of this case, we do not consider that the arithmetical errorshould be corrected. It would only be appropriate to allow the appeal, if takinginto account the grievous bodily harm offending, the end sentence of six yearswas manifestly excessive.[16] In Smith v R, the sentencing Judge clearly intended to impose a sentence offive years' imprisonment. The Judge made a mistake by adding six months to thesentence when that time was intended to be deducted for mitigating factors. The endresult was that Mr Smith was sentenced to six years' imprisonment instead of fiveyears' imprisonment. Mr Smith appealed this sentence asserting not only that the errorshould be corrected, but also that even if corrected the end sentence of five years'imprisonment would have been manifestly excessive.[17] The Court of Appeal did not consider it appropriate to correct the error. TheCourt of Appeal considered the starting point adopted by the sentencing Judge was"lenient" and that a further 12 months should have been added as an uplift foradditional offending. When considering the discount allowed for rehabilitation, theCourt of Appeal also noted that the "Judge took a very lenient attitude".19 The Courtof Appeal was not satisfied that the end sentence of six years' imprisonment wasmanifestly excessive notwithstanding the Judge's error in adding rather thansubtracting one of the discounts. In those circumstances, the Court of Appealconsidered it was not appropriate to interfere with the sentence.Analysis[18] The sole contention for the appellant is that the sentence imposed of two yearsand five months' imprisonment involved an error in the overall calculation of thesentence. The end sentence of two years five months' imprisonment amounts to adiscount of approximately 40 per cent from the starting point of 48 months'18 Smith v R [2020] NZCA 586 at [26].19 At [35].imprisonment. That is less than the 70 per cent discount referred to at [17] of thesentencing notes.[19] Counsel for the appellant responsibly acknowledged that it is unclear how the70 per cent discount was calculated but it is clear that discounts of 25 per cent forguilty pleas and 30 per cent for matters identified in the s 27 report were intended.[20] The decision in Ferris-Bromley, indicates that a mathematical error resultingin a sentence more severe than the Judge patently intended must be corrected. Inconsidering whether there is a mathematical error, the Court of Appeal noted that theprimary question is what was intended by the Judge:20It may be, for instance, that the Judge was determining credit on the basis ofa period of months, and expressing the percentage in the alternative and onlyapproximately. In such a case, if the period of months does not equate exactlyto the percentage, there is no failure of intent, no patent error and no basis tointervene.[21] In Tutakangahau the Court of Appeal noted that correction of a mathematicalerror was an exception to the general rule that the court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples. This exception applies where an explicit mathematical error "would havebeen corrected if it had been drawn to the attention of the sentencing Judge at thetime."21[22] The question is whether the sentence imposed is more severe than what thesentencing Judge patently intended when sentencing Mr Pearce. The sentencing notesstate:22So, really, I am looking at something like a 70 per cent discount. That bringsit down to two years five months. That does not meet the threshold for HomeDetention, in my view, and this has got to be a sentence of deterrence. Whenyou have nine burglaries like you have been involved in, there has got to be astatement to say there has got to be some serious consequences, but I havegiven you as much discount as I think that you are appropriately entitled to,given your history, and the information put before me, so that brings it downto a sentence of two years five months.20 Ferris-Bromley v R, above n 16, at [17].21 Tutakangahau v R, above n 1414, at [36].22 Police v Pearce, above n 1, at [17].[23] The reference to "something like" a 70 per cent discount is not definitive. A70 per cent discount would result in an end sentence of one year and 2.4 months'imprisonment. That is significantly less than two years five months' imprisonment. Itis not clear from the sentencing notes how the end sentence of two years and fivemonths' imprisonment was reached by the Judge.[24] The subsequent comments of the sentencing Judge regarding home detentionand the need for a "sentence of deterrence" however, suggest that he did not intend toapply a full 70 per cent discount.23 The sentencing Judge also refers to "calculationsand times" and says "that is a matter for the prison and the Parole Board to look at."24That statement indicates that the sentencing Judge did not intend to apply a 5 per centdiscount for time served. This further indicates there was no intention to impose anoverall 70 per cent discount.[25] The sentencing notes explicitly refer to discounts of 25 per cent for guilty plea,30 per cent for s 27 report matters and 5 per cent for time served (which, as discussed,was subsequently rejected). The notes do not refer to a percentage discount forrehabilitation or remorse. Here, the end sentence equates to a discount of 40 per centwhich is less than the 25 per cent discount for guilty plea and 30 per cent discount forthe s 27 report (a total of 55 per cent). This does appear to be a mathematical error,and this is accepted by the Crown.[26] The Court of Appeal in Ferris-Bromley indicates I have no discretion to ignorethat mathematical error. I must correct it unless there are unique circumstances of thekind referred to in Smith v R that justify the error not being corrected. I do not considerthat applying a 55 per cent discount results in serious offending being unrecognised inthis case. That may well have been the case if a full discount of 70 per cent was appliedbut I have determined that there was no intention to impose the full 70 per centdiscount.23 At [18].24 At [18].[27] I therefore apply the 55 per cent discount to the starting point of four years'imprisonment, resulting in an end sentence of 21.6 months or 22 months'imprisonment (rounded up to the nearest month).[28] Counsel for the defendant submit that a further discount of two months shouldbe applied to account for time spent on electronically-monitored (EM) bail. TheCrown oppose any discount for EM bail and say the defendant breached the conditionsof EM bail. I do not consider that a further discount for time spent on EM bail isappropriate given this breach.[29] I consider that imprisonment is appropriate and consistent with a sentence ofdeterrence, which the sentencing Judge noted was appropriate in all the circumstances.Result[30] The appeal is allowed.[31] The sentence of two years and five months' imprisonment is quashed, and asentence of 22 months' imprisonment is substituted.______________________Tahana J