PEARCE v R [2018] NZCA 228

PEARCE v R [2018] NZCA 228 [29 June 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA497/2017[2018] NZCA 228BETWEEN LOGAN ASHLEY SHANNON PEARCEAppellantAND THE QUEENRespondentHearing: 18 April 2018Court: Williams, Wylie and Thomas JJCounsel: C J Tennet for AppellantM L Wong for RespondentJudgment: 29 June 2018 at 4.00 pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal is allowed.C The sentence is quashed and a sentence of eight years and six months'imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] Logan Pearce was convicted in the District Court at Hamilton, having pleadedguilty immediately prior to the commencement of trial to charges relating to anattempted escape from Waikeria Prison. The offending was carried out withco-offender Joshua Tryselaar who entered guilty pleas nine months earlier.Mr Tryselaar was separately sentenced to eight years' imprisonment.1 The chargesMr Pearce faced were as follows:(a) aggravated wounding of Officer Prasad;(b) aggravated injury of Officer Morris;(c) unlawful detention of Officer Morris;(d) attempted escape from custody; and(e) intentional damage.[2] The sentencing history in this matter is somewhat more complex than usual.On 12 November 2012 Judge Burnett in the District Court at Hamilton sentencedMr Pearce to nine years and three months' imprisonment.2 She had given him asecond-strike warning on conviction.3 Then his first-strike conviction (for priorunrelated offending) was subsequently overturned on appeal.4 This necessitatedMr Pearce's re-sentence on the prison-escape charges and the down-grading of hisstrike warning from a second strike to a first strike. Apart from that matter,Judge Burnett's approach on re-sentence did not vary from the first sentencing. A finaleffective sentence of nine years and three months' imprisonment was re-imposed on23 April 2013.[3] It will be seen that this appeal is filed some years out of time. An extension oftime to appeal is therefore required and sought. We will address that matter at the endof this judgment.1 Tryselaar v R [2012] NZCA 353.2 R v Pearce DC Hamilton CRI-2012-019-1000, 12 November 2012.3 He had earlier received a first strike warning in relation to prior sexual offending.4 Pearce v R [2012] NZCA 596.Factual backgroundEarlier offending[4] On 21 January 2011 Mr Pearce was sentenced on a charge ofaggravated robbery to three years and three months' imprisonment. He was servingthis sentence at the time of the attempted escape offending — the subject of this appeal.[5] On 27 July 2011 Mr Pearce was also convicted by a jury in the District Courtat Hamilton on charges of sexual violation by rape and sexual violation by unlawfulsexual connection. He was given a first-strike warning in relation to that offendingbut had not been sentenced by the time of the relevant offending in this appeal. Theconvictions for the July 2011 offences were subsequently quashed by this Court.5Index offending[6] The facts of the offending — the subject of this appeal — are as follows.On 30 July 2011 Messrs Pearce and Tryselaar were serving inmates in the Nikau Unitat Waikeria Prison. Each was accommodated individually in his own cell. Earlier thatday Messrs Pearce and Tryselaar had removed metal support brackets from beneaththe sink housing in their cells.[7] At approximately 2 pm Corrections Officers Deborah Morris and Anil Prasadcommenced a late shift duty in the Nikau Unit. They were in the guard room which isseparated by a high metal mesh fence from the area accommodating the cells.[8] At approximately 8 pm Mr Pearce smashed the glass window in the front ofhis cell. In order to limit the noise of the glass being smashed a duvet was placed overthe window as the glass was broken. He then climbed out through the window, ranover to the guard room and concealed himself below the window. Mr Tryselaar thensmashed his window using his duvet. He climbed out of the window and ran to whereMr Pearce was hiding. Both men were carrying their respective metal brackets to useas weapons.5 Pearce v R, above n 4.[9] As this happened some of the other inmates in the Nikau Unit became noisy.Officers Prasad and Morris were inside the guard room and heard the commotionoutside. Officer Prasad noticed two inmates looking out of their cell windows. Bothofficers then decided to investigate, turning off the light in the guard room to afford abetter view of events outside. Officer Prasad opened a window and saw an inmateindicating someone was running.[10] Officer Morris opened the guard room door. She saw Mr Tryselaar jump thefence with the metal bracket in his hand and head towards her. Mr Tryselaar then hitOfficer Morris on the head with the metal bar. She screamed and crossed her armsover her face and head in a defensive posture. Mr Tryselaar continued to lunge andattack her with the metal bracket forcing her to move backwards towards theguard room. He then pushed her towards the guard room and told both officers not tocontact anyone.[11] By this time Mr Pearce had also jumped the fence and entered the guardroom. He too was armed with his bracket. Mr Tryselaar then attacked Officer Prasad.He struck him heavy blows to the head causing him to fall to the ground. Mr Pearcedemanded the keys to the unit. Officer Prasad said that he did not have thekeys. Mr Pearce then demanded Officer Prasad's own house and carkeys. When Officer Prasad refused he was struck a further volley of blows though theCrown did not allege Mr Pearce delivered any of those blows. Officer Prasad wasrendered unconscious by this attack.[12] Seeing this, Officer Morris ran from the guard room in search of a room witha lock. She radioed communications for help and informed them that there was anofficer down. Officer Morris then ran into the toilet block and locked the door behindher.[13] Messrs Pearce and Tryselaar ran after her. They kicked in the door of thecubicle where Officer Morris was hiding. They then walked Officer Morris backtoward the guard room and demanded that she open the gates. Officer Morris radioedto Officer Prasad, begging him to open the gates but received no response.[14] The escaping pair, still armed with metal brackets, then marchedOfficer Morris to the outside perimeter fence and entrance gate. As they approachedthe gate they were met by other corrections officers who were on the outside of thefence and had come to her aid.[15] Mr Pearce physically held Officer Morris as a hostage while they tried tonegotiate their escape with the other prison officers. After about 15 minutes theyhanded over their weapons and gave themselves up.[16] Shortly after the defendants were secured, Officer Prasad was located in theguard room bleeding and unconscious.[17] Both officers were taken to Waikato Hospital. Officer Morris had a twocentimetre laceration on her forehead, a large laceration on the top of her head,extensive bruising around her left ear, bruising on her arms and cuts to herhands. Officer Prasad suffered several large lacerations to his head. These requiredstitches and stapling. He suffered blood loss, severe bruising and consequent severeconcussion.Sentencing[18] On re-sentencing Mr Pearce, the Judge adopted a starting point of 10 years onthe aggravated wounding charge and uplifted it by one year for the remainingoffending but with particular reference to the aggravated injury charge in relation toOfficer Morris.6 This effective 11-year starting point was then reduced by15 per cent.7 The Judge did not indicate the reason for this reduction, but it was almostcertainly because of the late guilty plea. The Judge considered whether to grant afurther discount for mental illness. Mr Pearce, she acknowledged, suffered frompsychotic depression.8 But she rejected this option. She found rather that "hisunchecked impulses meant his risk of harm to others remained high".9 A finalsentence of nine years and three months' imprisonment was imposed for the6 R v Pearce DC Hamilton CRI-2012-019-1000, 23 April 2013 at [13].7 At [13].8 At [14].9 At [14].aggravated wounding and unlawful detention.10 Concurrent sentences of five years'imprisonment were imposed for the aggravated injury and four years for each of theattempted escape and the intentional damage charges.11[19] In her sentencing remarks the Judge calibrated this sentence against thatimposed earlier by another Judge on Mr Tryselaar.12 That Judge adopted the samestarting point of 10 years' imprisonment on the aggravated wounding charge inrelation to Officer Prasad but in the case of Mr Tryselaar a two-year uplift was imposedbecause (unlike Mr Pearce) he faced a second aggravated wounding charge. Thisrelated to Officer Morris. The one-year difference in starting points between theco-offenders was, as Judge Burnett pointed out, explicable because of the lesserinjuring charge Mr Pearce faced in relation to Officer Morris.[20] It is worth noting that Mr Tryselaar's final sentence was shorter than that forMr Pearce at eight years' imprisonment. This was because of the 33 per cent discountgiven by Judge Spiller for Mr Tryselaar's guilty plea. This Court in the context of anappeal by Mr Tryselaar, described that discount as "generous".13 Mr Tryselaar'ssentence was cumulative on an existing seven-year sentence while Mr Pearce's wascumulative on a shorter three years and three months sentence for his aggravatedrobbery charge.Submissions[21] For Mr Pearce, Mr Tennet mounted five appeal grounds:(a) The Judge wrongly ignored the fact that Mr Pearce's prior rape andsexual violation convictions had been quashed before his re-sentencing.The Judge should have acknowledged the appellant's reducedoffending history in the sentence reimposed.10 At [15].11 At [15].12 R v Tryselaar DC Hamilton CRI-2011-019-6085, 17 February 2012.13 Tryselaar v R, above n 1, at [14].(b) Mr Pearce's mental health issues justified a modest discountparticularly in light of the fresh evidence filed on appeal.(c) The one-year differentiation in overall starting point betweenMessrs Pearce and Tryselaar failed to properly reflect the difference inculpability between the two offenders, nor did the end sentencesproperly reflect Mr Tryselaar's more serious history of violentoffending.(d) The 15 per cent discount for guilty plea was manifestly inadequatewhen compared to the 33 per cent discount given to Mr Tryselaar.Justice required similar treatment for both offenders.(e) In relation to the same matter, the Judge failed to take into account theneed to preserve to prisoners the ameliorative effect of substantialguilty-plea discounts given the settled principle that prison offending isto be met with condign cumulative sentences.[22] In rejoinder the Crown submitted:(a) The sexual violation convictions played no part in Mr Pearce's originalsentencing and so did not warrant any discount in the re-sentencing.(b) It was open to the Judge to set aside mental health issues as notwarranting a discount for the reason she gave. Further the new reportsprovided on appeal gave no material advantage to Mr Pearce's position.(c) The 15 per cent discount given to Mr Pearce for his late guilty plea wasappropriate and even generous. Further Mr Tryselaar's 33 per centdiscount was overly generous and that error would have beencompounded if the same discount were offered to Mr Pearce.(d) There is no basis in principle for the argument that in the case of prisonoffending any guilty plea at any point should be given a 25 per centdiscount.AnalysisCredit for quashed convictions[23] This argument depends for its efficacy on the proposition that Judge Burnetttook these unrelated 2011 convictions into account in her original sentencing whensetting either the initial starting point or the uplift. She did not suggest this was thecase in her sentencing comments. The initial starting point was set at 10 years'imprisonment because the Judge considered the two co-offenders to be equallyculpable with respect to the attack on Officer Prasad. The one-year uplift focussedprimarily on Mr Pearce's lesser role (as the Judge saw it) in relation to the attack onOfficer Morris. The Judge specifically noted that she "added a one year uplift todistinguish that Mr Pearce was convicted of aggravated injury on Officer Morris, incontrast with aggravated wounding by Mr Tryselaar".14 The quashed convictionsplayed no role in either the starting point or the uplift.[24] We therefore see no merit in this ground of appeal.Mental health[25] As this court noted in Shailer v R:15[44] Mental health disorders falling short of the defence of insanity maybe taken into account in the sentencing process at two points.[45] First, logically and in accordance with s 8(a), it may affect the startingpoint of a sentencing exercise. That provision acknowledges the gravity ofthe offending is affected by the degree of culpability of the offender — andmental health is potentially relevant to that. However its influence onstarting point is not confined to the discrete question of culpability, as we willsee. Secondly, it may be taken into account as a mitigating circumstancerelevant to the offender (rather than the offending).(footnotes omitted.)14 At [13].15 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629.[26] As to the second of these two stages, reference was made to the earlier decisionof this Court in E (CA689/10) v R.16 At that second stage, discounts of between 12 and30 per cent had been applied in previous sentencing examples.17[27] As that Court noted however all relevant considerations are to be taken intoaccount.18 In particular "[m]ental illness or mental impairment may affect the risk ofa repetition of offending. This in turn may direct attention to issues of personaldeterrence or public protection." 19 This was the stance taken by the sentencing judgein the case before us.20 On the facts it seems that Mr Pearce had stopped taking hismedication and, as he advised the author of his pre-sentence report, had been off hismedication for a "couple of months". This caused the voices in his head "to becomestronger". While at one level that scenario does suggest reduced culpability at the timeof the offending, there are two contrary factors. The first was referred to by the Judge— psychotic mental illness makes Mr Pearce more dangerous triggering thecounter-veiling consideration of public protection. The second was not referred to —Mr Pearce appears to have chosen not to take his medication. If that was the case, hemust carry some responsibility for that.[28] We have considered the additional material provided by Mr Pearce inthis appeal. It covers attendances by psychiatrists on Mr Pearce during the period2009–2010. It relates to a period a year or more prior to the offending but in any caseit is generally unhelpful to him. First it records that when he was medicated, Mr Pearcewas very well and able to function normally. Second it indicates there were risks tothose around him when he is not taking his medication. This does not advance matterseither at stage one or two of the Shailer two stage assessment. There is also a muchlater psychological report dated 16 February 2018. It was prepared for Mr Pearce'sParole Board hearing. The report records that Mr Pearce: committed the further violent offending in prison after being removed fromhis medication. Mr Pearce's depression has been associated with recurrentsuicide attempts and as part of his psychosis he had command hallucinationsfor violence to himself and others. He currently reports that he has maintained16 E (CA689/20) v R [2011] NZCA 13, (2011) 25 CRNZ 411.17 At [71].18 At [69].19 At [69].20 R v Pearce, above n 6, at [14].good mental health since his discharge from the [forensic mental health]service and has not been prescribed psychiatric medications since before hisdischarge.[29] The writer recorded:Mr Pearce has completed offence focussed treatment relevant to his assessedmoderate risk of violence recidivism. He has a safety plan that he has sharedwith his community supports. Mr Pearce's mental health is currentlystabilised and he has developed a wellness plan for use after release.This writer notes, however, that deterioration in his mental health is asignificant risk factor for future violence.[30] Although the Judge dealt with this issue in a summary fashion, her conclusionhas some basis in the available clinical assessments of Mr Pearce. We are thereforeunable to conclude that her refusal to grant a mental health discount was in error.Disparate starting points[31] The Judge's sentencing notes proceed on the basis that Mr Pearce struck atleast Officer Prasad. For example the Judge recorded that "[t]he two offenders hadturned on Mr Prasad and delivered a number of heavy blows to the head, causing himto fall to the ground."21[32] It will be recalled that Officer Prasad was beaten unconscious and left bleedingon the guard room floor. This clearly was the most serious attack.[33] This conclusion by the Judge as to the level of Mr Pearce's involvement wasnot supported by the Crown summary of facts. As the Crown accepted in writtensubmissions "at sentencing, the Crown did not assert that the appellant delivered anyof the blows to Officer Prasad".[34] The Judge's error was probably the result of her express reliance on therendition of the facts contained in the judgment of this Court with respect toMr Tryselaar's appeal.22 The same allegation was made in that Court's rendition ofthe facts, although given it was Mr Tryselaar's appeal, this was not material. It seemsto have occurred because the original police summary did allege Mr Pearce joined the21 At [5].22 Tryselaar v R, above n 1, at [4].attack on Officer Prasad, but this allegation was dropped by the time of Mr Pearce'sguilty plea.[35] In light of the Crown concession that there was insufficient evidence Mr Pearceactually hit either Officer, it is difficult to see how he should have been charged with,let alone pleaded guilty as a principal to, injury and wounding charges. He would ofcourse have been guilty as a party under either of the s 66 of the Crimes Act 1961heads but that is not how he was charged. The charges appear to have been a roughand ready means of differentiating between Messrs Tryselaar and Pearce's culpability.[36] The Crown nonetheless argued that an overall starting point one year lowerthan Mr Tryselaar's was all that was justified on the facts. The Crown emphasisedMr Pearce's joint responsibility; the fact that he was present and armed with a weaponwhen the violence was inflicted by Mr Tryselaar, and that he was the one whodemanded the keys to the unit between the physical assaults.[37] There can be no doubt that Mr Pearce was a co-offender in a reasonably violentand serious attack on prison officers for their jointly agreed purpose of escape.His involvement was central to the venture, not peripheral. To that extent the Crownsubmission is well justified. But the fact is, there was no evidence to indicate thatMr Pearce participated in the physical aspect of the violence. We agree that a one-yearreduction in the applicable uplift was justified in recognition of the lesser chargeMr Pearce faced in relation to Officer Morris. But there had also to be separaterecognition of the fact that, despite Mr Pearce's wholesale and active support for theventure, there was no evidence that he actually struck Officer Prasad.[38] An example of a similar distinction between a co-offender whose participationin an aggravated wounding case was either not violent at all or considerably lessviolent than the lead co-offender may be seen in R v Laumemea, where Asher Jconsidered the distinction warranted a reduction of 18 months.23 Similarly, inCoulter v R, this Court accepted that in a group attack on a single victim, two of the23 R v Laumemea [2012] NZHC 651.attackers whose violence was less serious than that of the lead attacker should receivestarting points 15 months lower than that for the lead attacker.24[39] We consider that as a matter of principle the starting point in respect of theattack on Officer Prasad should be have been nine years' imprisonment for Mr Pearceto mark the distinctive roles of the co-offenders rather than the 10 years the Judgeadopted. We agree that there ought to be a one year uplift for the remaining offending,with particular reference to the aggravated injury charge in relation to Officer Morris.This means the starting point after uplift should have been 10 years rather than 11.The discount for guilty plea of 15 per cent is 18 months on that reduced figure. Theend sentence should therefore have been eight years six months.Guilty plea[40] Mr Tryselaar was the happy beneficiary of an overly generous discount for theguilty plea he entered on 7 October 2011. But for that significant discount, thediscount given to Mr Pearce for his much later guilty plea, could itself be seen asrelatively generous. We do not see that there is any force in the proposition that justicerequires uniform treatment in Mr Pearce's favour.[41] We also do not see any merit in the suggestion that generous discounts shouldbe maintained with respect to prison offending as "a matter of fairness" in light of thecondign sentences that are generally imposed for such offending. Such considerationsare best left to the circumstances of individual cases. We see no basis either in thiscase or as a matter of general principle for the adoption of a discount regime for guiltypleas that departs from the Hessell v R regime by which, in any event, we are bound.25Extension of time to appeal[42] While the appeal was brought out of time by a considerable margin, it isnonetheless in the interests of justice taking into account all the relevant circumstancesto grant the extension pursuant to s 388(2) of the Crimes Act. That is because the24 Coulter v R [2013] NZCA 336.25 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.sentencing judge imposed a sentence based on a mistaken view of the facts and thismistake caused Her Honour to adopt a starting point which was manifestly excessive.Disposition[43] The application for an extension of time is granted.[44] The appeal is allowed.[45] The sentence is quashed and a sentence of eight years and six months'imprisonment is substituted.Solicitors:Crown Law Office, Wellington for Respondent