Pauley v Police - [2014] NZHC 2409

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pauley v Police

Details

AGLC: Pauley v Police [2014] NZHC 2409
Case: [2014] NZHC 2409
Decision Date: 2 October 2014

CaseChat Overview and Summary

The case of Pauley v Police involved Barry Pauley appealing against a 20-month imprisonment sentence imposed for committing an indecent act in a public place. Pauley argued that the sentence was manifestly excessive and that too much weight was placed on his previous convictions. The respondent argued that the sentence was appropriate given Pauley's extensive history of similar offenses and the need to protect the community. The court considered the relevant cases and the aggravating factors of the offense, including the deliberate exposure to a four-year-old girl and the premeditation involved. The court determined that a starting point of around 14 months' imprisonment was appropriate and an uplift of around four months for previous convictions was sufficient. The court also considered the minimal discount for a late guilty plea and concluded that the sentence of 20 months' imprisonment was not manifestly excessive. The appeal was dismissed.

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