Paterson v Police
[2020] NZHC 1532
•1 July 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-418-000004
[2020] NZHC 1532
BETWEEN PHILIP PATERSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 July 2020 Appearances:
Appellant in person
J H Whitcombe for the Respondent
Judgment:
1 July 2020
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Mr Paterson, pleaded guilty to a charge of wilful trespass in the District Court.1 On 5 September 2018 he was convicted and ordered to appear for sentence if called upon within nine months.2
Procedural history
[2] On 29 July 2019, Dunningham J in the High Court dismissed Mr Paterson’s appeal against conviction.3
1 Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty three months’ imprisonment, or a fine not exceeding $1,000.
2 Police v Paterson [2018] NZDC 21458.
3 Paterson v Police [2019] NZHC 1796.
PATERSON v NEW ZEALAND POLICE [2020] NZHC 1532 [1 July 2020]
[3] On 4 May 2020, the Court of Appeal declined Mr Paterson’s application to bring a second appeal against conviction.4 The Court also declined leave to bring a second appeal against sentence, for want of jurisdiction. The Court noted that the first appeal 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 Farm located at 4093 State Highway 6, Hari Hari, Westland. They were recorded on camera around 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 was a 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 tank was on the Wilberg Farm; the map given on the trespass notice was not clear; and his reason for being at the water tank was to ensure no 1080 pellets entered the water supply.
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 that Mr 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 the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.
[13] A sentence appeal is an appeal against a discretion, and only if the sentence is manifestly excessive or contains an error in principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.6 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.7
Submissions
Appellant’s submissions
[14] Mr Paterson contends that the water tank was not on the Wilberg Farm property, but rather on Crown land. In support of this contention he produced a map from the Westland District Council Land Information NZ Data, which he contends shows the water intake is outside the property boundary. Mr Paterson submitted that if 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 the Wilberg Farm property. In support of this, he referred to a letter written by Mr Richard Cox dated 5 September 2018, in which Mr Cox states “at no time did we enter the forbidden land”. Mr Paterson says Mr Cox was present at the time the trespass 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 criminal record, but rather to another person’s criminal record at sentencing. Relying incorrectly on that information, Mr Paterson says, caused the sentence imposed to be manifestly excessive.
Respondent’s submissions
[17] Mr Whitcombe for the respondent accepted that the sentencing Judge may have had the wrong criminal record before him when he sentenced Mr Paterson. The District 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 be characterised as serious. Further, the co-defendant has a more substantial record that includes convictions for burglary. Mr Whitcombe submitted, however, that given the sentence imposed, it does not appear the Judge placed much weight on the criminal record.
[19] Mr Whitcombe refers to Wall v Police in which the appellants occupied a site of a land development after kōiwi (human remains) were discovered.8 The appellants in 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; his explanation for going to the water tank was to ensure that no 1080 pellets had entered the water supply. As in Wall, Mr Whitcombe submitted the offending ought to be balanced against the genuineness of Mr Paterson’s motives. In Mr Whitcombe’s submission, 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 sentence is reached.9 Accordingly, the question for this Court is whether the sentence was manifestly 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 Court Judge referred to the wrong criminal record, namely his co-defendant’s record, at sentencing. That being said, Mr Paterson has four prior convictions for reckless driving, common assault, possession of cannabis, and excess breath alcohol. The convictions are not recent, dated between 1993 and 2011. I accept Mr Whitcombe’s submission that these convictions cannot be characterised as “quite serious”.
[23] The issues relating to the location of the water tank were addressed by Dunningham J, in the appeal against conviction decision.10 The evidence presented by 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 with a boundary of the farm, showing the water tank located within that boundary.11 It appears Mr Paterson is attempting to re-run the same argument regarding the location of the water tank, in the context of this appeal against sentence. Further, I note there are evidentiary issues with the documents produced by Mr Paterson.
[24] I consider the sentencing principles of deterrence and denunciation to be important in this case.12 Mr Paterson was warned to stay off the Wilberg Farm property. He did not heed that warning. There is a need to both deter and denounce blatant 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 that Mr 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 very lower end of the scale. It is not punitive but precautionary: offering the offender the opportunity to comply with the sentence, and in doing so not receive a more serious sentence. In other words, this sentence was a warning to Mr Paterson that if he breached the law within the nine months following the conviction, he would face a substantive 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 doing so erred. However, having regard to all relevant factors, including Mr Paterson’s criminal 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 J
Solicitors:
Crown Solicitor, Christchurch
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