PATERSON v NEW ZEALAND POLICE [2020] NZHC 1532

PATERSON v NEW ZEALAND POLICE [2020] NZHC 1532 [1 July 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-418-000004[2020] NZHC 1532BETWEEN PHILIP PATERSONAppellantAND NEW ZEALAND POLICERespondentHearing: 1 July 2020Appearances: Appellant in personJ H Whitcombe for the RespondentJudgment: 1 July 2020JUDGMENT OF DOOGUE JIntroduction[1] The appellant, Mr Paterson, pleaded guilty to a charge of wilful trespass in theDistrict Court.1 On 5 September 2018 he was convicted and ordered to appear forsentence if called upon within nine months.2Procedural history[2] On 29 July 2019, Dunningham J in the High Court dismissed Mr Paterson'sappeal against conviction.31 Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty three months' imprisonment, or a finenot exceeding $1,000.2 Police v Paterson [2018] NZDC 21458.3 Paterson v Police [2019] NZHC 1796.[3] On 4 May 2020, the Court of Appeal declined Mr Paterson's application tobring a second appeal against conviction.4 The Court also declined leave to bring asecond appeal against sentence, for want of jurisdiction. The Court noted that the firstappeal against sentence in the High Court had not yet been considered.[4] Mr Paterson now appeals his sentence to this Court.Facts[5] On 25 August 2018 Mr Paterson and his co-offender entered Wilberg Farmlocated at 4093 State Highway 6, Hari Hari, Westland. They were recorded on cameraaround a water supply tank which supplies water to a number of local residents.[6] Mr Paterson had previously been served with a trespass notice. Included wasa map of the area, showing the boundaries of the Wilberg Farm property.[7] In explanation of his actions, Mr Paterson stated he did not think the water tankwas on the Wilberg Farm; the map given on the trespass notice was not clear; and hisreason for being at the water tank was to ensure no 1080 pellets entered the watersupply.District Court decision[8] Mr Paterson pleaded guilty to the offence at his first appearance.[9] Judge Garland noted that Mr Paterson had a number of previous convictions,including some that were "quite serious."5 However, it was also noted thatMr Paterson had no previous convictions for this type of offending.[10] Accordingly, the Judge considered it was appropriate, in the circumstances,that Mr Paterson be ordered to appear for sentence if called upon within nine months.This was noted to be a kind of probation; if Mr Paterson continued to breach the law,he would face a further sentence.4 Paterson v Police [2020] NZCA 139.5 Police v Paterson, above n 2, at [2].[11] Mr Paterson was convicted and ordered to pay court costs.Approach on appeal[12] This is an appeal against sentence pursuant to s 244(1) of theCriminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on convictionand that a different sentence should be imposed.[13] A sentence appeal is an appeal against a discretion, and only if the sentence ismanifestly excessive or contains an error in principle should the appellate courtre-exercise the discretion. An error of principle includes an error of fact or law, failingto take into account a relevant consideration, or if the decision was plainly wrong.6The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.7SubmissionsAppellant's submissions[14] Mr Paterson contends that the water tank was not on the Wilberg Farmproperty, but rather on Crown land. In support of this contention he produced a mapfrom the Westland District Council Land Information NZ Data, which he contendsshows the water intake is outside the property boundary. Mr Paterson submitted thatif the water tank is not located on Wilberg Farm, then the appeal ought to be allowed.[15] Mr Paterson reiterated that he never had any intention of trespassing on theWilberg Farm property. In support of this, he referred to a letter written byMr Richard Cox dated 5 September 2018, in which Mr Cox states "at no time did weenter the forbidden land". Mr Paterson says Mr Cox was present at the time thetrespass occurred.6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].7 Ripia v R [2011] NZCA 101 at [15].[16] Mr Paterson submitted that the sentencing Judge did not refer to his criminalrecord, but rather to another person's criminal record at sentencing. Relyingincorrectly on that information, Mr Paterson says, caused the sentence imposed to bemanifestly excessive.Respondent's submissions[17] Mr Whitcombe for the respondent accepted that the sentencing Judge may havehad the wrong criminal record before him when he sentenced Mr Paterson. TheDistrict Court has confirmed that the only copy of any criminal record appearing on"the court file" is that of Mr Paterson's co-defendant.[18] Although Mr Paterson does have some prior convictions, none of them can becharacterised as serious. Further, the co-defendant has a more substantial record thatincludes convictions for burglary. Mr Whitcombe submitted, however, that given thesentence imposed, it does not appear the Judge placed much weight on the criminalrecord.[19] Mr Whitcombe refers to Wall v Police in which the appellants occupied a siteof a land development after kōiwi (human remains) were discovered.8 The appellantsin that case were required to come up for sentence if called upon within 12 months.[20] Underlying this case are Mr Paterson's views about the use of 1080 poison; hisexplanation for going to the water tank was to ensure that no 1080 pellets had enteredthe water supply. As in Wall, Mr Whitcombe submitted the offending ought to bebalanced against the genuineness of Mr Paterson's motives. In Mr Whitcombe'ssubmission, the sentence was appropriate and proportional in the circumstances.Analysis[21] The focus on appeal is the end sentence, not the process by which that sentenceis reached.9 Accordingly, the question for this Court is whether the sentence wasmanifestly excessive.8 Wall v Police HC Rotorua CRI-2008-463-23, 6 August 2008.9 Islam v R [2020] NZCA 140 at [32].[22] There appears to be merit in Mr Paterson's submission that the District CourtJudge referred to the wrong criminal record, namely his co-defendant's record, atsentencing. That being said, Mr Paterson has four prior convictions for recklessdriving, common assault, possession of cannabis, and excess breath alcohol. Theconvictions are not recent, dated between 1993 and 2011. I accept Mr Whitcombe'ssubmission that these convictions cannot be characterised as "quite serious".[23] The issues relating to the location of the water tank were addressed byDunningham J, in the appeal against conviction decision.10 The evidence presentedby Mr Paterson did not assist her in determining the precise location of the water tank.Rather, Dunningham J preferred the evidence of the police, which included a map witha boundary of the farm, showing the water tank located within that boundary.11 Itappears Mr Paterson is attempting to re-run the same argument regarding the locationof the water tank, in the context of this appeal against sentence. Further, I note thereare evidentiary issues with the documents produced by Mr Paterson.[24] I consider the sentencing principles of deterrence and denunciation to beimportant in this case.12 Mr Paterson was warned to stay off the Wilberg Farmproperty. He did not heed that warning. There is a need to both deter and denounceblatant disregard of trespass notices.[25] The charge of wilful trespass carries a maximum penalty of three months'imprisonment, or a fine not exceeding $1,000.13 The sentence imposed was thatMr Paterson was required to appear for sentence if called upon within nine months.In the hierarchy of sentencing options available to the Court, it represents the verylower end of the scale. It is not punitive but precautionary: offering the offender theopportunity to comply with the sentence, and in doing so not receive a more serioussentence. In other words, this sentence was a warning to Mr Paterson that if hebreached the law within the nine months following the conviction, he would face asubstantive sentence.10 Paterson v Police, above n 3.11 At [19].12 Sentencing Act 2002, ss 7 and 8.13 Trespass Act, ss 4(4) and 11(2)(a).[26] I accept the Judge may have relied on the wrong criminal record and in doingso erred. However, having regard to all relevant factors, including Mr Paterson'scriminal conviction history, his guilty plea, and the maximum penalty for the offence,I do not consider the end sentence to be manifestly excessive.Result[27] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, Christchurch