IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-197 [2014] NZHC 2409
BARRY PAULEY
v
NEW ZEALAND POLICE
Hearing: 29 September 2014 Appearances:
J Bragg for the Appellant
C Henley for the RespondentJudgment:
2 October 2014
JUDGMENT OF THOMAS J
This judgment was delivered by me on 2 October 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Public Defence Services, Manukau. Meredith Connell, Auckland.
PAULEY v NEW ZEALAND POLICE [2014] NZHC 2409 [2 October 2014]
Introduction
[1] Mr Pauley appeals against a sentence of 20 months’ imprisonment for one charge of doing an indecent act in a public place, an offence which carries a maximum penalty of two years’ imprisonment.
Facts
[2] At approximately 1 pm on Thursday 13 December 2012 Mr Pauley was in his car in the Ngati Otara car park in Otara. This is a public car park open every day and frequented by sports groups and families. Mr Pauley was in the driver’s seat of his vehicle parked in an angle park in the car park. The victim was having lunch with her four year old daughter four car parks away from Mr Pauley facing the same direction. She noticed that Mr Pauley’s wing and rear vision mirrors were directed towards her daughter. She noticed Mr Pauley jerking with his right hand. She yelled out to him, “you better not be doing what I think you’re doing”. At that point Mr Pauley opened his car door to show that his pants were around his knees and he was masturbating.
[3] In her impact statement the victim said that she was haunted to think there were people prepared to do this in front of children.
Pre-sentence report
[4] Mr Pauley continued to deny the offending, admitting being in the car park but saying he was wiping coffee off his leg not masturbating. Departmental records note that Mr Pauley’s maintaining his innocence is a common theme considered arguably to be a barrier to his successfully addressing his treatment needs. The report notes that Mr Pauley’s conviction history is littered with similar offending. The report writer observes that a sentence of five months’ home detention imposed in May 2012 did not deter Mr Pauley’s offending behaviour and therefore a sentence of imprisonment was recommended.
[5] Mr Pauley was considered to be at very high risk of sexual re-offending based on his past and current offending. As his behaviour indicated a willingness to
engage a more vulnerable victim group, namely children, it was considered that the risk of harm to others was escalating.
District Court decision
[6] The sentencing Judge outlined the salient factors from the pre-sentence report, noted Mr Pauley’s very late guilty plea and referred to his over 30 previous convictions for similar behaviour. He noted the offending took place while Mr Pauley was subject to post-detention conditions imposed on his last sentence for exactly the same behaviour. Taking all those factors into account the Judge adopted…
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- [2014] NZHC 2409
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CaseChat Overview and Summary
The final orders of the court were to dismiss the appeal. The court found that the sentence imposed by the District Court was not manifestly excessive and that the purposes and principles of sentencing were adequately addressed by the sentence of imprisonment. The court also found that home detention was not an appropriate sentence given Pauley's history of similar offenses and the risk of re-offending. The appeal was therefore dismissed, and the original sentence of 20 months' imprisonment was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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