PEARSON v NEW ZEALAND POLICE [2020] NZHC 3514

PEARSON v NEW ZEALAND POLICE [2020] NZHC 3514 [22 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2020-404-409[2020] NZHC 3514BETWEEN PAUL SELWYN PEARSONPlaintiffAND NEW ZEALAND POLICEDefendantHearing: 7 December 2020Appearances: C Frans for AppellantT Stuart for RespondentJudgment: 22 December 2020JUDGMENT OF DUFFY JThis judgment was delivered by me on 22 December 2020 at 2.30 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:C Frans, Barrister, OrewaCrown Solicitor, Auckland[1] In the District Court at North Shore, Paul Pearson pleaded guilty to one chargeof driving (third or subsequent) whilst impaired with blood showing evidence of aqualifying drug (methamphetamine),1 and four charges of trespass.2 He was sentencedon 17 September 2020 by Judge Bennett to 11 months' imprisonment, with six months'release conditions and a disqualification from driving for one year and one day.3 Henow appeals against the sentence of imprisonment on the grounds it is manifestlyexcessive and the sentence should have been one of home detention.Offending[2] On 9 January 2019, Mr Pearson was at Bunnings Warehouse, Wairau. Themanager handed him a trespass notice trespassing him from all Auckland BunningsWarehouse stores for a period of two years.[3] Between 21 February – 20 March 2020, Mr Pearson went to four differentAuckland Bunnings Warehouse stores and attempted to obtain refunds for items.4[4] On 20 March 2020, Mr Pearson was stopped by police for a breath alcohol test.He passed the test but appeared to a police officer to be under the influence of asubstance other than alcohol and so he was required to accompany the officer for thepurposes of a compulsory impairment test. Mr Pearson failed the test; his blood wasanalysed by ESR5 and found to contain methamphetamine.Personal circumstances[5] Mr Pearson is 38 years' old. Although born in Sydney, Australia he is Māori.He spent to first 12 years of his life in Australia and then he and his whānau returnedto Aotearoa New Zealand. The pre-sentence report (PAC report) records his iwi as"Ngati Paro".1 Land Transport Act 1998, ss 57A(1) and (3); maximum penalty imprisonment not exceeding twoyears or a fine not exceeding $6,000, and compulsory disqualification from driving for more thanone year.2 Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty imprisonment not exceeding 3 monthsor a fine not exceeding $1,000.3 Police v Pearson [2020] NZDC 19177.4 21 February 2020, Bunnings Warehouse Grey Lynn; 24 February 2020, Bunnings WarehouseWairau and Rosedale; 20 March 2020, Bunnings Warehouse Rosedale.5 The Crown Institute of Environmental Science and Research.[6] Mr Pearson's parents separated when he was three years old. He told the PACwriter he has a close relationship with his mother but is "somewhat estranged from hisbiological father".[7] Before Mr Pearson was sentenced to imprisonment, he was unemployed. Hewas living in a house he rented from his mother with two flat mates.[8] The PAC writer reports that Mr Pearson began using methamphetamine at 16years old and he continues to do so socially. He completed an alcohol smoking andsubstance involvement screening test based on his self-represented history of illicitdrug use, which included "LSD, cocaine, ketamine, methamphetamine andmushrooms". He advised the PAC writer that he primarily uses methamphetamine to"forget his worries and to escape the daily stresses of life in general". He said that atpresent he uses 0.1 grams of methamphetamine once a month or so, whenever he canafford to purchase it or when he can share it socially with friends.[9] His criminal and traffic history relevantly disclose three prior convictions fordriving whilst impaired,6 24 convictions for other drug offending,7 and 4 convictionsfor other driving offending.8 He has breached community work on three occasions.9[10] The PAC report writer identifies Mr Pearson's risk of reoffending as mediumdue to his extensive criminal history and sustained drug use. His ability to complywith further community-based sentences was assessed as low, in the light of his threeprior breaches of community work. Further, he was recorded as lacking insight intothe seriousness of his actions, and the danger that he continues to pose to other roadusers. He did not express any genuine remorse for his actions.[11] For the appeal Mr Pearson's mother, Ms Julia Moahiraia–Reeves, provided aletter dated 23 November 2020 in which she outlined how she could support her sonif he were to receive a sentence of home detention. She asserts that she would support6 2 April 2004, 22 April 2013, 8 March 2018.7 Possession of drugs (2011, 2010, 2008, 2007, 2004, 2003, 2002); possession of utensils(2011,2010, 2007, 2004).8 Speeding (2014); unlicensed driver failed to comply with prohibition (2011); dangerous driving(2007); drove while license suspended or revoked (2009).9 2013, 2012, 2009.her son in any rehabilitative efforts, and she would also provide him with work in herproperty maintenance business.District Court decision[12] Mr Pearson was sentenced on 17 September 2020.10 The Judge observed that,if she did not count Mr Pearson's conviction for driving under the influence of a drugin 2002, the index offending would be his third conviction for driving whilst soimpaired.11 She decided that given the age of the first offence she would ignore it.12The Judge also observed that on 18 March 2018 Mr Pearson was sentenced to themaximum period of two years' intensive supervision and six months' communitydetention for the same type offending relating to an incident on 19 November 2016.13The sentence of intensive supervision would, therefore, have concluded on 18 March2020 and then on 20 March 2020 he had re-offended in the same way, which broughthim back before the Court on the present offences.[13] The Judge adopted a starting point of 12 months' imprisonment,14 which shethen uplifted by two months' to account for his previous convictions, and one furthermonth to account for the charges of trespass.15[14] By way of discount, the Judge gave Mr Pearson the full 25 per cent discountfor his early guilty pleas. She rounded the discount, of 3.75 months, up to four months,which brought the sentence to 11 months' imprisonment.16[15] The Judge was not persuaded that a further sentence of home detention waswarranted. In particular, she was concerned by Mr Pearson's attitudes. She consideredhis rehabilitative prospects to be "poor at best".17 Accordingly, she imposed a sentenceof 11 months' imprisonment, with six months' release conditions and a disqualificationfrom driving for one year and one day.1810 Police v Pearson [2020] NZDC 19177.11 At [9].12 At [9].13 At [11].14 At [15].15 At [16].16 At [18].17 At [19].18 At [22].Approach on appeal[16] Section 250(2) of the Criminal Procedure Act 2011 provides the Court mustallow an appeal against sentence if satisfied that for any reason, there is an error in thesentence imposed on conviction and a different sentence should be imposed. In anyother case, the Court must dismiss the appeal.19 In deciding whether to impose adifferent sentence, the Court does not substitute its own view for that of the originalsentencing Judge.20 Rather, it must be shown that the sentence imposed is manifestlyexcessive or wrong in principle.21 The focus is on the end result rather than the processby which the sentence was reached.22[17] There are two key issues on appeal: (a) whether the Judge erred in law; and ifshe did, (b) whether a different sentence should now be imposed.[18] Of especial relevance to this appeal are the principles expressed in ss 16 and17 of the Sentencing Act 2002 (the Act):16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment,the court must have regard to the desirability of keeping offenders inthe community as far as that is practicable and consonant with thesafety of the community.(2) The court must not impose a sentence of imprisonment unless it issatisfied that,–(a) a sentence is being imposed for all or any of the purposes insection 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the application ofthe principles in section 8 to the particular case.19 Section 250(3).20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].21 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]–[35].22 Ripia v R [2011] NZCA 101 at [15].17 Imprisonment may be imposed if offender unlikely to comply withother sentencesNothing in this Part limits the discretion of a court to impose asentence of imprisonment on an offender if the court is satisfied onreasonable grounds that the offender is unlikely to comply with anyother sentence that it could lawfully impose and that would otherwisebe appropriate.[19] In determining whether a sentence of home detention ought to be imposed, theCourt has a broad discretion. The exercise of this discretion involves a considered andprincipled choice between two forms of sentence, home detention and imprisonment,and recognition that both forms serve the principles of denunciation and deterrence.23The role for the Court is to determine which form better qualifies as the least restrictivesentence. This requires a consideration of all the relevant circumstances, includingthe nature of the offending and the mitigating factors relating to the offender.SubmissionsFor the appellant[20] Mr Frans, for the appellant, submits that the Judge erred in putting too muchemphasis on the denunciation and deterrent aspects of sentencing.[21] He submits that a different sentence, of home detention, should now beimposed. In particular, he highlights that the appellant's most recent failure to complywith a community-based sentence was in 2013, and that the appellant served asentence of community detention in 2018 without any breaches. He also underscoresthat the appellant's last serious offending of a similar nature was in 2016, and that theappellant is willing to complete any appropriate programmes to fully address thedependencies which fuel his offending.For the respondent[22] Mr Stuart, for the respondent, submits there was no error in the Judge'simposition of a sentence of imprisonment. He submits that the Judge's sentencing23 Fairbrother v R [2013] NZCA 340 at [30].notes demonstrate that she appropriately turned her mind to ss 7, 8 and 16 of theSentencing Act.[23] In particular, Mr Stuart submits that a sentence of home detention cannotsatisfy the purposes and principles of sentencing in this case for the following reasons:(a) Mr Pearson has been subject to a variety of community-based sentencesin the past, none of which have stemmed his offending.(b) Mr Pearson has demonstrated a non-compliant attitude to court-imposed orders, breaching community work twice, escaping Policecustody once, and offending repeatedly on bail.(c) Mr Pearson has a history of drug-offending, including three priorconvictions for driving while impaired.(d) Mr Pearson was sentenced to two years' intensive supervision and sixmonths community detention for similar offending in 2018. A short-term sentence of imprisonment is required to deter him from continuingthis pattern.[24] Finally, Mr Stewart highlights the Court of Appeal's observations in R v D asregards the appropriate deference this Court must show the District Court in marginalcases:24In a case like this, the sentencing Judge is required to form a judgment onwhether imprisonment is necessary or home detention can respond adequatelyto the seriousness of the offending. The closer one gets to the dividing line,the more difficult it becomes to articulate reasons for preferring one approachto the other. In such cases, the view of a sentencing Judge from the jurisdictionin which crimes of the type in issue are frequently tried assumes greaterweight. He or she will be in a much better position than an appellate Court todetermine which type of offending falls on one side of the line or another. Thebroader the base of similar offending a particular Judge sees, the more likelyit is that the chosen sentencing response will be appropriate.24 R v D [2008] NZCA 254 at [66].Discussion[25] Before considering whether the Judge erred by refusing to grant homedetention I consider it is important to look at the structure of the end sentence.[26] The maximum sentence for driving whilst impaired third or subsequent offenceis a sentence of imprisonment not exceeding two years.25 The offending was detectedthrough Mr Pearson being stopped by police following a driving complaint, althoughnothing is said in the summary of facts as to what the nature of the driving was.[27] Whilst persons who drive under the influence of drugs are a danger to thepublic, someone who has not been involved in a traffic accident and for whom thiswas the second such offence could typically expect to receive a non-custodialsentence. Although this was Mr Pearson's third offence of this kind, a starting pointof half of the maximum sentence of imprisonment was on the high side. This was thenexacerbated by the Judge uplifting the starting point by two months to take account ofthe previous driving under the influence of drugs history. The Judge did not tie thisuplift to the fact Mr Pearson had only recently completed the sentence for theoffending in 8 March 2018, which I accept can be regarded as an aggravating factor.[28] Once an offender moves into the realm of committing the offence of drivingwhilst impaired (third or subsequent) that person is facing a different sentencestructure from the offence of driving whilst impaired simpliciter, which carries amaximum sentence of imprisonment of three months' imprisonment.26 Accordingly,the starting point of a sentence for an offence that qualifies as a third or subsequentdriving whilst impaired offence necessarily reflects the earlier offending, because thatis what makes an offender eligible for the two year maximum sentence. It follows thatthe Judge was wrong in law to uplift the starting point by two months simply to takeaccount of Mr Pearson's earlier driving whilst impaired offending. Particularly onceshe had decided to disregard the 2002 offending for sentencing purposes. Incombination with the high starting point, the regard paid to previous criminal history25 See s 57A(3) of the Land Transport Act 1998.26 See s 57A(2).as warranting an uplift in the sentence is an error of law which requires this Court tosentence Mr Pearson afresh.[29] I consider the Judge was right not to take account of the 2002 offending but Ialso consider she should have similarly disregarded the 2013 offending. This isbecause those offences are what caused Mr Pearson to be facing a charge of drivingwhilst impaired third or subsequent, which carried a heavier maximum penalty andtherefore made him liable to receive a heavier penalty than he did for offences one(2002) and two (2013).[30] Regarding the starting point for the offending the summary of facts disclosesthat no one else was involved in the incident. Little is known from the summary offacts about the circumstances that led to a complaint being made about Mr Pearson'sdriving. The most that the summary of facts discloses is moderately serious offending.Without more an offender in those circumstances would typically receive a non-custodial sentence. However, if a Taueki approach to sentencing is to be adopted hereI consider an appropriate starting point would be between nine and 10 months'imprisonment for the driving offending.27 I propose to adopt nine months' that beingthe least restrictive period of imprisonment I consider to be appropriate as a startingpoint.28The adjusted starting point[31] The Judge also uplifted the starting point by one month to take account of thetrespass charges. I see no basis to interfere with that uplift and would adopt it, whichbrings the adjusted starting point to 10 months' imprisonment.Should there be any uplift for aggravating factors relevant to Mr Pearson?[32] The fact Mr Pearson re-offended with the same type of offence only a shorttime (a matter of weeks) after completing his sentence for the previous such offendingindicates a failure on his part to learn from the earlier offending and to respondpositively to the rehabilitative sentence he received for the 2018 offending. This can27 R v Taueki [2005] 3 NZLR 372 (CA).28 See Sentencing Act 2002 s 8(g).indicate the need for a stern approach next time around. On the other hand it canindicate he is in the grip of a substance abuse problem and other personal difficulties,which will see him continue to re-offend until they are addressed. As I shall return tolater, not enough is known about Mr Pearson's personal circumstances to enable a fullunderstanding of the role they play in his offending.[33] It is important when dealing with this type of offending to ensure that any upliftfor previous offending does not result in a double counting given the higher maximumsentence it carries, which is predicated on the commission of earlier such offending,albeit with a far lower maximum sentence. Here I consider some recognition of the2018 offending (which also carried the maximum sentence of two years'imprisonment) is required by way of uplift to deter and denounce the subsequentoffending. Here I pay regard solely to the 2018 offending, and I do so because of therecent gap in time between the completion of the sentence for the 2018 offending andthe commission of the 2020 offending. I consider an uplift of one month isappropriate. In this way some acknowledgement is made of the context in which thepresent offending occurred. But without knowing more about Mr Pearson I havenothing to justify any uplift beyond this level. Added to the adjusted starting pointthis brings the sentence to 11 months' imprisonment.Discounts for mitigating factors relevant to Mr Pearson[34] The Judge only recognised the guilty plea as a mitigating factor. Mr Pearson'scriminal history is consistent with him having on-going substance abuse issues. Thisis also borne out by the PAC report. The writer reports that Mr Pearson's sustaineddrug use has contributed to the "recidivist nature of his offending" and causes him topose a serious risk of harm to the general public. The only available information Ihave is contained in the PAC report. I consider that a report on Mr Pearson's substanceabuse and addiction as well as a s 27 report on cultural factors would have beenappropriate. Certainly, it would have provided the sentencing Judge with a betterappreciation of the drivers behind Mr Pearson's offending.[35] The PAC report informs me that Mr Pearson began using methamphetamine at16 years old and he continues to do so socially. Mr Pearson completed an alcoholsmoking and substance involvement screening test based on his self-representedhistory of illicit drug use including "LSD, cocaine, ketamine, methamphetamine andmushrooms". He advised the PAC writer that he primarily uses methamphetamine to"forget his worries and to escape the daily stresses of life in general". He says that atpresent he uses 0.1 grams of methamphetamine once a month or so, whenever he canafford to purchase it or when he can share it socially with friends.[36] Before he was sentenced Mr Pearson was unemployed. It is to his credit thathis only offending for drug dealing occurred in 2004 and 2002. Since then the drugoffending has been lower level possession of drugs or possession of utensils associatedwith drug use. He is someone whose drug use has not led to an ongoing involvementin the supply of drugs to fund his own addiction. By far the most serious risk he posesto others through his substance abuse is when he drives a motor vehicle under theinfluence of illicit drugs.[37] It is not clear to me from the available information to what extent his drivingoffending is the result of his drug problems as opposed to bad conduct on his part andan antisocial refusal to recognise the harm he poses to others when he behaves in thisway. Altogether not enough is known about Mr Pearson for the purpose of sentencing.Despite the absence of specialist reports on his substance abuse and cultural reportsunder s 27, I consider that nonetheless, there is enough information from which certaininferences can be drawn. There is undeniably an ongoing substance abuse problemwhich needs to be addressed if further offending is to be avoided.[38] Mr Pearson must have suffered some cultural dislocation through theexperience of living the first 12 years of life in Australia and then a return to NewZealand. I do not know to what extent if at all that Mr Pearson had an opportunity toengage with Māoritanga in Sydney, Australia and later on his return to Aotearoa NewZealand. Certainly, without any engagement his pathway as a Māori, in Aotearoa NewZealand in particular, would have been difficult.[39] Albeit in the context of sentencing for drug offending under the Misuse ofDrugs Act 1975, Zhang v R recognises that addiction causative of offending is amitigating consideration.29 Also poverty and deprivation potentially but notnecessarily resulting from loss of land, language, culture, rangatiratanga, mana anddignity are matters that can be regarded to have impaired choice and moral culpability.Here there are no reports to draw the necessary nexus between those factors and MrPearson's criminal offending. However, his personal circumstances and criminalhistory are consistent with persons whose life opportunities and prospects have beendiminished by those factors. I consider there is enough information available towarrant me drawing an inference that some recognition should be given to thosefactors, albeit less than to the extent identified in Zhang v R.30 Whilst here theoffending is under the Land Transport Act it has been initiated by Mr Pearson'ssubstance abuse. Accordingly, I consider a 5% discount to recognise the influence ofdrug addiction and cultural dislocation on Mr Pearson's conduct. Added to the 25%discount for a guilty plea, this brings the total discount to 30%.Conclusion on sentence calculation[40] The approach in Moses v R requires that mitigation discounts are to becalculated from the adjusted starting point without uplifts for personal aggravatingfactors being taken into account.31 That means the 30% discount I have arrived atshould be deducted from the 10 months adjusted starting point (being the adjustedstarting point minus the one month uplift for the aggravating factor relevant to MrPearson). This gives a sentence of seven months. To this I would add the uplift of onemonth to reflect the personal aggravating factor that I have identified. This leads toan end sentence of eight months' imprisonment. The eight month sentence I havearrived at is considerably less than the 11 months the Judge imposed. It shows thatsentence to be manifestly excessive.[41] Here the error of law the Judge made has also led to her imposing a manifestlyexcessive sentence. Accordingly the appeal against the sentence of imprisonmentshould be allowed.29 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.30 At [10](k) and (l).31 See Gray v R [2020] at [31].[42] Given the date of the sentencing (17 September 2020) I see no alternative nowbut a sentence of imprisonment. Given the term of imprisonment is a short term ofimprisonment Mr Pearson will qualify for release after having served half thesentence.32 This renders moot the arguments counsel for Mr Pearson and therespondent made regarding the imposition of a sentence of home detention.Result[43] The appeal against the sentence of imprisonment imposed in the District Courtis allowed. That sentence of imprisonment is set aside and substituted with a sentenceof eight months' imprisonment.[44] The release conditions imposed in the District Court and the period ofdisqualification are unaffected by the appeal and so they remain in place.Duffy J32 See s 4 of the Sentencing Act 2002 for the definition of "short-term sentence"; see also Parole Act2002, s 4 definition of "short-term sentence".