Paulsen v The Queen - [2018] NZHC 3201

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000099

[2018] NZHC 3201

BETWEEN
MICHAEL ALEXANDER PAULSEN

Appellant

AND

THE CROWN

Respondent

Hearing: 29 November 2018

Appearances:

A M S Williams for the Appellant S J Mallett for the Respondent

Judgment:

10 December 2018

JUDGMENT OF NATION J

Introduction

[1] Michael Paulsen pleaded guilty to some 30 charges of dishonesty offending. On 4 September 2018, Judge Gilbert sentenced Mr Paulsen to two and a half years’ imprisonment in respect of those charges.

[2] Mr Paulsen appeals his sentence on the basis that it was manifestly excessive. In particular, he submits that the sentencing Judge did not give sufficient weight to his mental health at the time of offending. Mr Paulsen seeks either a reduction in sentence to two years, or that a report should be ordered under s 38(1)(c) and (d) of the Criminal Procedure (Mentally Impaired Persons Act 2003) and the matter be remitted back to the District Court so that Mr Paulsen can be sentenced with due regard to the report.

PAULSEN v R [2018] NZHC 3201 [10 December 2018]

Charges

[3]Judge Gilbert set out the charges as follows:1

(a) three charges of theft under $500;

(b) one charge of theft over $1,000;

(c) four charges of burglary, two of which were residential, two of which were more commercial in nature;

(d) one charge of being unlawfully in an enclosed yard;

(e) one charge of causing loss by deception;

(f) six charges of using a document to obtain a pecuniary advantage;

(g) one charge of receiving between $500-$1,000;

(h) one charge of receiving over $1,000;

(i) one charge of using another person’s passport;

(j) one charge of unlawfully interfering with a motor vehicle;

(k) one charge of unlawfully getting into a motor vehicle;

(l) three charges of dishonestly accessing a computer to obtain a pecuniary advantage;

(m) two charges of possession of a knife;

(n) one charge of possession of a methamphetamine pipe; and

(o) three charges of failing to answer bail.

Facts

[4] The offending occurred between 7 October 2017 and 10 May 2018. Judge Gilbert helpfully summarised that offending as follows:

[4] The first summary I have records that on 7 October last year you went to The Warehouse in Eastgate. You selected a power bank used for charging mobile phones and headed straight towards the exit without making any attempt to pay. You were stopped by store security and handed back the power bank and then left the store. That was valued at $15 and accounts for one of the theft charges.

1 R v Paulsen [2018] NZDC 18749 at [1].

[5] On 7 December, you obtained a prescription from your doctor for Tramadol. You used an online photoshop tool to alter that prescription and then tried to redeem it for Codeine a week later on 13 December. The pharmacist became suspicious and you left the store when that occurred. That accounts for a charge of using…

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 Paulsen v The Queen

Details

AGLC: Paulsen v The Queen [2018] NZHC 3201
Case: [2018] NZHC 3201
Decision Date: 10 December 2018

CaseChat Overview and Summary

In this case, Michael Alexander Paulsen appeals his two-and-a-half-year prison sentence for multiple charges of dishonesty. Paulsen claims the sentence was manifestly excessive and that his mental health issues, specifically his schizophrenia, were not given sufficient weight by the sentencing Judge. Paulsen seeks either a reduced sentence of two years or that a report be ordered under s 38(1)(c) and (d) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, and the matter be remitted back to the District Court for resentencing with due regard to the report. The court must determine whether the sentence imposed was manifestly excessive and if the sentencing judge erred in the imposition of the sentence. The court will only intervene and substitute its own views if the sentence being appealed is manifestly excessive and not justified by the relevant sentencing principles. In this case, the court found that the sentence was not manifestly excessive and that the sentencing judge had properly considered Paulsen's mental health as a mitigating factor. Therefore, the appeal is dismissed.

Orders