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Pauling v R

Pauling v R

Case [2019] NZHC 1929 8 August 2019

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-443-16

[2019] NZHC 1929

BETWEEN
WAYNE GIBSON PAULING

Appellant

AND

THE QUEEN

Respondent

Hearing: 30 July 2019

Appearances:

N P Bourke for the Appellant G N Milne for the Respondent

Judgment:

8 August 2019

Reissued:

21 July 2020

JUDGMENT OF CULL J

[1] Mr Pauling appeals his sentence imposed by the District Court of two years six months’ imprisonment,1 following his plea of guilty to 11 charges: five of indecency between males,2 and six of indecency between a man and a boy between 1976 and 1981.3

[2] The grounds of appeal are that the end sentence is manifestly excessive because the Judge erred in failing to apply sufficient discounts for mitigating factors and in not imposing home detention.

1      R v Pauling [2019] NZDC 12147.
2      Crimes Act 1961, ss 141(1)(a) and 141(1)(c). Maximum penalty five years’ imprisonment.
3      Sections 140(1)(a) and 140(1)(c). Maximum penalty 10 years’ imprisonment.

PAULING v R [2019] NZHC 1929 [8 August 2019]

[3] It is further submitted that the Judge made an error of law in considering he was entitled to consider home detention only if the end sentence was two years’ imprisonment or less, when this offending occurred before 1 October 2007 and before s 15A of the Sentencing Act 2002 took effect.

[4] The Crown opposes the appeal on the basis that the starting point adopted, and the discounts applied at sentencing, were appropriate. No mitigating factors relating to the appellant were overlooked. Accordingly, the sentence imposed was not manifestly excessive.

Background

Sentencing indication

[5] Mr Pauling pleaded guilty to the 11 charges following a sentencing indication in the District Court. The offending occurred between March 1976 and March 1981. All four male victims were known to Mr Pauling. The first victim was aged between six and nine when the offending occurred. The second, third and fourth victims were all sons of Mr Pauling’s friend; they were brothers, aged between six and 14 years old at the time of offending. The offending was summarised, and accepted by Mr Pauling, in the District Court sentencing decision as follows:4
[4] With respect to [the first child], he was staying with you along with his parents when you were about 20 years of age. During that stay you put one arm round him, your other hand down his pants and rubbed his penis and that went on for some time until he got up and left.

[5] With respect [to] the same child, there was a[n] … occasion that he and you and other[s] … attended. He was nine. He shared a room with you and during that night, you, being 24 by that stage, pulled him off his bed onto yours. You were naked, laid on top of him, pulled his pyjama pants down and he could feel your erect penis on his stomach. You then placed your penis between his legs and attempted to push it…

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 Pauling v R

Details

AGLC: Pauling v R [2019] NZHC 1929
Case: [2019] NZHC 1929
Decision Date: 8 August 2019

CaseChat Overview and Summary

Wayne Gibson Pauling appeals his sentence of two years six months’ imprisonment, imposed by the District Court following his guilty plea to 11 charges of indecency against children. The offending occurred between 1976 and 1981. The grounds of appeal are that the sentence is manifestly excessive because the Judge failed to apply sufficient discounts for mitigating factors and did not impose home detention. The Crown opposes the appeal, arguing that the sentence was appropriate in the circumstances. The High Court found that the starting point was appropriate but that the Judge erred in not applying adequate discounts for mitigating factors. The Judge also erred in considering that he was entitled to consider home detention only if the end sentence was two years’ imprisonment or less. The offending occurred before 1 October 2007, and before section 15A of the Sentencing Act 2002 took effect. The appeal is allowed. The sentence of two years six months’ imprisonment is quashed. A sentence of 12 months’ home detention is substituted, to be served at the proposed address, on the following special conditions: (a) Mr Pauling is not to associate with or contact the victims of his offending without the prior written approval of a Probation Officer. (b) Mr Pauling is to attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer. (c) Mr Pauling is not to associate or otherwise have contact with any person under 16 years of age except in the presence and under the supervision of an “Approved Informed Adult”. An “Approved Informed Adult” means a person who has been given prior approval in writing by a Probation Officer as being suitable for the purpose of this condition. (d) Mr Pauling’s name is to be placed on the Child Sex Offender Register under s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.

Orders