Pearce v Police - [2023] NZHC 640

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI 2022-488-000106

[2023] NZHC 640

BETWEEN
DOUGLAS PEARCE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 March 2023 (via VMR)

Appearances:

M C Nicholls for the Appellant

B M O’Connor for the Respondent

Judgment:

28 March 2023

Reissued:

15 September 2023

JUDGMENT OF TAHANA J

(Appeal against sentence)

This judgment was delivered by me on 28 March 2023 at 10.00am
and re-delivered by me on 15 September 2023 in accordance with High Court Rules 2016, r 11.10

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor (Marsden Woods Inskip Smith), Whangarei Martin Nicolls Limited, Kerikeri

PEARCE v NEW ZEALAND POLICE (Appeal against sentence) [2023] NZHC 640 [28 March 2023]

Introduction

[1] Mr Douglas Pearce was sentenced to two years and five months’ imprisonment in the Kaikohe District Court on 7 December 20221 on the following charges:

(a)Possession of an offensive weapon;2

(b)Unlawful taking of a motor vehicle;3

(c)Burglary (x 8);4

(d)Attempted burglary;5

(e)Contravention of a protection order;6 and

(f)Breach of release conditions.7

[2] Mr Pearce appeals on the basis that an arithmetic error was made in calculating the discounts applied to his sentence.

[3] While the Crown accepts that the sentencing judge erred in calculating and applying the discounts identified, it opposes the appeal and says that the end sentence is not manifestly excessive and is within range.

Background facts

[4] Mr Pearce’s charges relate to offending across a period of approximately 17 months between March 2020 and August 2021. In relation to the charge of unlawfully taking a motor vehicle, on 13 March 2020 Mr Pearce was loitering nearby

1      Police v Pearce [2022] NZDC 24296.
2      Crimes Act 1961, s 202A(4)(a). Maximum penalty three years’ imprisonment.
3      Section 226(1). Maximum penalty seven years’ imprisonment.
4      Section 231(1)(a). Maximum penalty 10 years’ imprisonment.
5      Sections 231(1)(a) and 72. Maximum penalty 10 years’ imprisonment.
6      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a).
7      Sentencing Act 2002, s 96(1). Maximum penalty one year imprisonment or a fine not exceeding
$2000.

a dairy in Whenuapai when the complainant dropped his car keys on the footpath. Mr Pearce found the keys and took the vehicle without permission.

[5] Mr Pearce’s burglary charges can be categorised by him entering businesses throughout the Auckland, Northland and Wellington regions and taking cash from the till or other goods. Across seven occasions in 2020 and 2021, Mr Pearce took cash in values ranging between $140 and $778 from the business’ till or safe. On another occasion, Mr Pearce took a mobile phone valued at $300 from the office of the business. The attempted burglary charge relates to Mr Pearce’s attempt to break into a computer shop in Kerikeri on 15 August 2021. He used force to try and enter the building for approximately 20 minutes before Police arrived. Following this incident, Mr Pearce’s vehicle was searched. Police recovered a knife approximately 40 to 50 centimetres in length and two screwdrivers. Mr…

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 Pearce v Police

Details

AGLC: Pearce v Police [2023] NZHC 640
Case: [2023] NZHC 640
Decision Date: 28 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Douglas Pearce appeals against his sentence of two years and five months’ imprisonment imposed by the Kaikohe District Court. The appeal focuses on an arithmetic error in calculating the discounts applied to his sentence. Pearce was convicted of multiple charges including possession of an offensive weapon, unlawful taking of a motor vehicle, and burglary. The central issue in this case is whether the arithmetic error in calculating the sentence discount warrants a correction by the High Court.

The court considered the legal framework governing sentencing appeals, particularly the requirement to correct an arithmetic error that results in a sentence more severe than intended, even if the sentence is within the available range. The court examined the sentencing notes to determine the sentencing judge's intended discount. The notes indicate that the judge aimed for a "something like" 70% discount but did not clearly specify the exact discount, resulting in an effective discount of approximately 40%. This discrepancy suggests an arithmetic error, as the actual discount applied was less than the intended one. The court acknowledged that the Crown accepted the arithmetic error and that the end sentence of two years and five months’ imprisonment was less severe than the judge’s apparent intention.

Given that the arithmetic error led to a sentence less severe than intended and does not appear to have resulted in serious offending being unrecognized, the court deemed it appropriate to correct the error. The court applied the total discount of 55% to the starting point of four years’ imprisonment, resulting in a sentence of 22 months. The court rejected the defendant's argument for an additional discount for time spent on electronically-monitored bail due to the defendant's breach of bail conditions.

The appeal is allowed, and the original sentence is quashed, with a new sentence of 22 months’ imprisonment substituted.

Orders