PEARCE v NEW ZEALAND POLICE [2021] NZHC 2212

PEARCE v NEW ZEALAND POLICE [2021] NZHC 2212 [26 August 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000095[2021] NZHC 2212BETWEEN KIEL ANDREW PEARCEAppellantAND NEW ZEALAND POLICEDEPARTMENT OF CORRECTIONSRespondentsHearing: 26 August 2021Appearances: K E Bucher for AppellantS M H McManus for RespondentsJudgment: 26 August 2021ORAL JUDGMENT OF GENDALL JIntroduction[1] The appellant, Mr Kiel Pearce, was sentenced to 16 months' imprisonment byJudge Mark Callaghan in the District Court on one charge of breaching an extendedsupervision order1 and one charge of doing an indecent act.2[2] He appeals that sentence on the basis it was manifestly excessive.Facts[3] Turning now to the factual background in this matter, on 25 August 2009,Mr Pearce became subject to an extended supervision order for 10 years. That order1 Parole Act 2002, s 107T2 Crimes Act 1961, s 125.was renewed on 18 December 2020. A special condition stated he was "not topurchase, possess or consume alcohol and/or illicit drugs ". On 2 February 2021,CCTV footage from Countdown Hornby in Christchurch shows Mr Pearce purchasingalcohol, namely a 3 litre cleanskin. The next day, 3 February 2021, Mr Pearce wasobserved by security staff and on camera at Wigram Lodge drinking from the winebladder. When questioned by his probation officer Mr Pearce admitted his use ofalcohol.[4] As to the indecent act charge, on 2 February 2021, the victim, a young womanof 20 years, was sitting in her car at a retail carpark in Hornby. While she was waitingMr Pearce and an associate walked past her car and observed her. Mr Pearce continuedfor 20 metres then stopped. He turned around and walked back towards the victim.She was not aware of him as she was using her phone. Mr Pearce put his hand intothe front of his trousers and stopped at her car so that his groin area was at the sameheight as the window. The victim became aware of him at her window. Mr Pearcepulled down the waistband of his pants with one hand, exposing his penis. He pulledout his penis and stretched it towards the victim before pulling it back. The victimlooked away. Mr Pearce walked away towards his associate. The victim movedquickly to the nearby Mitre 10 shop seeking safety.District Court decision[5] Turning now to the District Court decision, Judge Callaghan there took theindecent act as the lead offending. He assessed the aggravating factors aspremeditation and a clear intent to offend. He considered the significant harm causedto the victim. The Judge took a starting point of 10 months' imprisonment.[6] Turning to the breach of the ESO charge, the Judge counted 29 previousbreaches by Mr Pearce. He considered, first, the fact Mr Pearce at the time knew theESO was in place, knew its terms and, secondly, that this was a blatant breach of theESO. In considering these factors the Judge uplifted the starting point by a further10 months, leading to an overall starting point of 20 months' imprisonment.[7] Judge Callaghan then considered whether that was appropriate on a totalitybasis. The Judge found it was, considering he would not impose an uplift forMr Pearce's previous convictions.[8] In terms of mitigating factors, the Judge gave a discount of 20 per cent forMr Pearce's delayed guilty plea which left an end sentence of 16 months'imprisonment. He did not grant leave for Mr Pearce to apply for home detention.Principles on appeal[9] Turning now to the principles to be applied on appeal, appeals against sentenceare allowed as of right by s 244 of the Criminal Procedure Act 2011 and must bedetermined in accordance with s 250 of that Act. An appeal against sentence may onlybe allowed by this Court if it is satisfied that there has been an error in the impositionof the sentence and that a different sentence should be imposed.3 As the Court ofAppeal mentioned in Tutakangahau v R quoting the lower court's decision, a "courtwill not intervene where the sentence is within the range that can properly be justifiedby accepted sentencing principles".4 It is only appropriate for this Court to interveneand substitute its own views if the sentence being appealed is "manifestly excessive"and not justified by the relevant sentencing principles.5SubmissionsAppellant's submissions[10] Turning now to the appellant's submissions, Mr Bucher, counsel for Mr Pearce,noted that this appeal relates solely to the length of the sentence imposed in the DistrictCourt, which he contended was manifestly excessive. Before me, arguments for theappellant began with the suggestion the global starting point adopted in the Districtcourt was excessive and ought to have been in the range of 10-12 months rather thanthe total 20 months adopted by the Judge.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Ripia v R [2011] NZCA 101 at [15].[11] In terms of the indecent act charge, Mr Bucher accepted significant harm wascaused here to the young victim. However, he contended the Judge had erred whenhe referred to the offending as premeditated. Mr Bucher referred to Ashqar v Police,6Jury v Police7 and Walker v Police are relevant authorities.8 I will turn to considerthese cases in my analysis overall which will follow. As to what is suggested shouldhave been a proper starting point, Mr Bucher submitted this should have been in theregion of four to six months' imprisonment.[12] Mr Burcher also maintained before me that the uplift for the ESO breach wastoo high. He accepted that Mr Pearce has amassed 29 convictions for breaching theESO but he argued that this particular breach was at the lower end of the scale relatingas it did to the purchase of alcohol. In this aspect he referred me to Otene v Police andMcGreevy v Department of Corrections. I will also consider those cases in my analysisto follow.[13] Finally, Mr Bucher argued the Judge erred in his assessment of totality.Mr Bucher characterised the offending as relatively brief and opportunistic here and,therefore, he suggested it did not justify the sentence imposed of 20 months'imprisonment.Respondent's submissions[14] Turning now to the respondent's submissions, Ms McManus, for the Crown,also considered the cases referred to by Mr Bucher. She submitted they did supportand justify a starting point reached of 10 months' imprisonment for the indecent act.She disagreed with Mr Bucher here on the premeditation issue and argued the Judge'soverall assessment was accurate. On the ESO breach, Ms McManus quite rightlypointed out that, in the cases referred to by Mr Bucher, the Court was discussing endsentences rather than starting points. She said it would be incorrect to conclude astarting point here of 10 months' imprisonment was out of range on the basis of theauthority of these cases. Ms McManus then went on to submit too that6 Ashqar v Police [2019] NZHC 1184.7 Jury v Police [2015] NZHC 2587.8 Walker v Police HC Auckland CRI-2004-362, 17 August 2005.Judge Callaghan did consider the totality principle and he did not err, in her view, indeclining to reduce the global starting point to reflect this.Analysis[15] Turning to my analysis in this matter, like Judge Callaghan, I take the indecentact charge to be the lead offence. There is no tariff case for such offending.[16] The aggravating factors here, as I see it, are Mr Pearce's clear intention to causeharm and the significant harm he actually caused.[17] To an extent, I agree with Mr Bucher on one aspect here. That being thequestion of premeditation. It seems to me Judge Callaghan and, in her submissionshere, Ms McManus may have conflated intention and premeditation. The offendingwould be premeditated if Mr Pearce went to the carpark with the intention of exposinghimself to a woman alone in her vehicle. There is nothing that was before the Courtto suggest that this was the case. The offending is intentional if Mr Pearce deliberatelyidentified and walked up to a woman to expose himself. I consider this offendinggenerally was opportunistic, not premeditated. It is a similar situation, as I see it, to arecidivist burglar walking down the street who notices the front door to an emptyhouse is open. If he subsequently burgles the house, even if he had continued to walkaway down the street for a moment before returning and burgling the house, theoffending would be opportunistic. It would be premeditated only if he was walkingdown the street looking for a house to burgle.[18] Nonetheless, such opportunism as occurred here in all the circumstances, inmy view, is highly destructive and must be deterred. And as one particular factor here,I accept the impact of this offending on the young victim was indeed profound. Thisis clear from her victim impact statement.[19] I now turn to the cases put before me.[20] In Pauley v Police,9 the victim was having lunch with her four-year-olddaughter near Mr Pauley, who was sitting in his car. The victim noticed the car'smirrors were angled towards her daughter and that Mr Pauley was jerking with hisright hand. She yelled out "you better not be doing what I think you're doing".Mr Pauley opened the car door to reveal himself masturbating. The Judge thereadopted a starting point accepted at 14 months' imprisonment.[21] In the case of Jury v Police,10 Mr Jury was being interviewed by his lawyer,the victim. They were separated by a pane of glass. The victim was reading a letterMr Jury had written for the Court in relation to other charges. When she looked up,she noticed Mr Jury had his hands inside his trousers. He began to masturbate whilewatching her. He stood up from his chair and continued masturbating. He instructedthe victim to continue reading the letter. On appeal Muir J in this Court said thestarting point adopted of four or five months' imprisonment was appropriate.[22] In the decision in Walker v Police,11 Mr Walker was subject to a protectionorder against his former partner. While visiting her to request she remove the order,Mr Walker exposed himself and asked if she "wanted some". On appeal, Potter Jthought a starting point of three months' imprisonment was appropriate. That startingpoint also encompassed a charge of breaching the protection order.[23] Then in the decision Ashqar v Police,12 the offender stood outside a house withhis penis exposed. When two women walked past, he masturbated "profusely" andfollowed them to the end of the road. Palmer J in this Court stated the appropriatestarting point was six months' imprisonment.[24] Turning to consider those authorities, as I see the position, the case Pauley vPolice is the most serious of these, reflected by its higher starting point. The offendingthere involved a child and premeditation. The present offending, as I have said, is notas serious. However, I do agree with Ms McManus that the instant offending is moreserious than Ashqar, Walker and Jury because the victim, a young woman stranger,9 Pauley v Police [2014] NZHC 2409.10 Jury v Police [2015] NZHC 2587.11 Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005.12 Ashqar v Police [2019] NZHC 1184.was vulnerable in her vehicle, demonstrable harm was caused, and Mr Pearce was inextremely close proximity to her. She could not escape until he had left. In Jury theoffender and victim were separated by a solid pane of glass and were known to eachother. And in Ashqar the victims were down the street. Walker involved a domesticsituation as opposed to a public context and so is ultimately, in my view, not anappropriate case for comparison.[25] Overall, in all the circumstances here, I regard the starting point of 10 months'imprisonment for the indecency charge as an appropriate one.[26] As for the ESO charge, the starting point there, in my view, is unimpeachable.A letter from Mr Pearce's probation officer records his ongoing disregard for ESOconditions and his refusal to engage in treatment. Substance use is a direct link to hisoffending, and that is what appears to have occurred here. The probation officer is ofthe view too that he has limited insight, remorse or regard for the consequences of hisoffending. The fact Mr Pearce continues to breach the conditions of the order aftermore than 10 years is a clear and significant aggravating factor.[27] In the decision of Otene v Department of Corrections13 which was referred tome, an offender with less previous breaches was sentenced to six months'imprisonment for breaching a no alcohol condition. In McGreevy v Department ofCorrections14 the offender essentially went AWOL for nearly two hours, breaching acurfew condition. His explanation was that he had gone for a walk and intended tohand himself in. Pankhurst J in this Court dismissed an appeal against an end sentencein that case of six months' imprisonment.[28] As Ms McManus identified before me, both those cases discuss the endsentence of imprisonment. There is no reference to a starting point or indeed theordinary sentencing methodology. Having regard to the fact Mr Pearce has moreprevious breaches, poses a risk due to consistent disregard of his ESO conditions andthe fact that alcohol is a specific risk aggravating factor of his offending, I considerthe uplift of 10 months' imprisonment fairly represented his culpability on that ESO13 Otene v Department of Corrections [2013] NZHC 766.14 McGreevy v Department of Corrections HC Auckland CRI-2009-409-207, 17 December 2009.breach charge. Assuming the offenders in Otene and McGreevy pleaded guilty, thiswould only be some two months higher than a likely starting point where themethodology is considered to reach the end sentence in those cases.[29] No issue here was taken with the 20 per cent guilty plea discount nor theabsence of other mitigating factor discounts.[30] I turn finally to totality. Where cumulative sentences of imprisonment areimposed Judges must always stand back and consider whether the overall period ofimprisonment is not wholly out of proportion to the gravity of the overall offending.15Where the end sentence is not wholly out of proportion, no reduction is required.16[31] The end sentence here is 16 months' imprisonment. I am satisfiedJudge Callaghan did consider totality. He properly did not impose an uplift forMr Pearce's previous convictions, recognising they were accounted for by thesignificant uplift for the ESO breach. I agree with the Judge that this was anappropriate sentence of imprisonment. This offending involved Mr Pearceconsciously breaching a condition of his ESO relating to a known risk factor and thenthat risk actually manifesting with him causing considerable harm to an innocentvictim, a young woman. He purchased the alcohol and offended against the victim onthe same day.[32] The fact the offending was opportunistic as opposed to premeditated, in myview, has a problematic quality too. It indicates Mr Pearce, a high-risk individual, isfailing to manage himself. Similarly, he appears consciously disengaged fromrehabilitative efforts. By way of example, drug use is a driver of his offending, butMr Pearce indicated to the pre-sentence report writer that he would like to work in theviticulture industry as he considers there is regular cannabis use available during theday. He openly admitted to his own continued usage for self-medication. The presentbreach involving his purchase and use of alcohol is a further example of this.15 Sentencing Act 2002, s 85.16 Ashcroft v R [2014] NZCA 551 at [32].[33] Deterrence and protection of the community were clearly and rightlyprioritised here. A stern response, in my view, was warranted. I consider the Judge'ssentence was justified in principle and on a totality basis. The sentence imposed wasnot manifestly excessive, in my view.Conclusion[34] This appeal is dismissed....................................................Gendall JSolicitors:Anselm Williams, Barrister, ChristchurchCrown Solicitor, Raymond Donnelly & Co, Christchurch