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 Pearce was subsequently charged with possession of an offensive weapon.

[6]    Furthermore, following his release from Northern Region Correctional Facility, Mr Pearce breached his release conditions when he failed to report as instructed, without reasonable excuse, on 21 July 2021.

[7]    Mr Pearce is the respondent named in a protection order issued in 2012, which is now final. On 22 July 2021 following a verbal altercation, Mr Pearce punched the complainant to the forehead multiple times, causing the complainant to fall to the floor. While on the floor, Mr Pearce continued to punch her to the head and arms, eventually causing her to blackout for a short period of time. This sequence of events forms the basis of Mr Pearce’s final charge of contravening a protection order.

District Court decision

[8]    Judge Shortland, after considering the sentencing indication given by Judge Davis in November 2021, set a starting point of four years imprisonment for all 13 charges. His Honour considered the aggravating features of Mr Pearce’s offending to be entering properties and businesses without permission, taking items/cash that did

not belong to him, offending while on bail and the use of violence.8 In his view, there were no mitigating features of the offending.

[9]    Judge Shortland then turned to Mr Pearce’s personal factors, beginning by noting that he has an extensive criminal history and the fact that his prior placement at the Grace Foundation “did not work out for [him].”9 In terms of mitigation, the Judge considered that Mr Pearce’s s 27 report outlined a direct connection between his background, upbringing and trauma/stress and his offending, and was therefore an important mitigating factor.10 Given Mr Pearce’s difficult background, Judge Shortland also recognised the fact that Mr Pearce was undertaking Accident Compensation Corporation (ACC) counselling and encouraged him to continue.

[10]   Ultimately, Judge Shortland considered a discount of 25 per cent to be appropriate for Mr Pearce’s guilty pleas in line with Hessel v R,11 and 30 per cent for the factors relevant to the s 27 report. A further five per cent discount was discussed in relation to time already spent in custody, though the Judge later noted that “calculations and times” are “a matter for the prison and Parole Board to look at”.12 After considering the steps Mr Pearce had taken towards rehabilitation and recognising that rehabilitation is a long and difficult process, Judge Shortland landed on a total discount of “something like” 70 per cent.13 Applying this to a four year starting point, his Honour calculated the end sentence to be two years and five months’ imprisonment.

Approach on appeal

[11]   Mr Pearce has an appeal as of right under s 244 of the Criminal Procedure Act 2011 (the CPA).

8      Police v Pearce, above n 1, at [9].

9 At [11].

10     At [12]–[13].

11     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

12     Police v Pearce, above n 1, at [18].

13 At [17].

[12]   Under s 250 of the CPA an appeal must be allowed if the court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.

[13]   Generally, a court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles, reflecting the current approach that the focus is on the sentence imposed rather than the process by which the sentence is reached.14 Despite this, in cases where the appeal is based solely on the grounds of the sentencing Judge making an arithmetic error, an exception must be made:15

… we need to acknowledge that there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range. A straightforward example is where an explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the sentencing judge at the time. In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge’s intentions.

[14]   The Court of Appeal has held it would be unjust to leave uncorrected a plain mathematical error resulting in a sentence more severe than the Judge intended, even if the sentence imposed was still within the available range.16 In Ferris-Bromley v R the approach to be followed by the court in instances of a mathematical error was summarised as follows:17

(a)A mathematical error resulting in a sentence more severe than the Judge patently intended must be corrected, even if the sentence imposed was still within the available range. In such a case of plain error, it would be unjust for that error to be left uncorrected.

(b)If it is not clear that the Judge made a mathematical error in arriving at the sentence imposed, the usual test will apply: is the sentence manifestly excessive (that is, beyond the available range)?

(c)An error favouring a defendant will not be corrected unless it has resulted in a sentence manifestly inadequate or inappropriate. In practice this approach is only taken on a prosecution appeal, brought with the Solicitor-General’s consent under s 246 of the Criminal Procedure Act.

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

15 At [36].

16     At [36]; Koroheke v R [2012] NZCA 368 at [21]; Ferris-Bromley v R [2017] NZCA 115 at [18].See also Paekau v R [2020] NZCA 332.

17     Ferris-Bromley v R, above n 16, at [15] (footnotes omitted).

[15]   However, the Court of Appeal has also accepted that correction of a mathematical error may not be appropriate in unique circumstances:18

… It is not appropriate to leave such serious offending unrecognised by simply correcting the error in relation to the discounts. Therefore, in the unique circumstances of this case, we do not consider that the arithmetical error should be corrected. It would only be appropriate to allow the appeal, if taking into account the grievous bodily harm offending, the end sentence of six years was manifestly excessive.

[16]   In Smith v R, the sentencing Judge clearly intended to impose a sentence of five years’ imprisonment. The Judge made a mistake by adding six months to the sentence when that time was intended to be deducted for mitigating factors. The end result was that Mr Smith was sentenced to six years’ imprisonment instead of five years’ imprisonment. Mr Smith appealed this sentence asserting not only that the error should be corrected, but also that even if corrected the end sentence of five years’ imprisonment would have been manifestly excessive.

[17]   The Court of Appeal did not consider it appropriate to correct the error. The Court of Appeal considered the starting point adopted by the sentencing Judge was “lenient” and that a further 12 months should have been added as an uplift for additional offending. When considering the discount allowed for rehabilitation, the Court of Appeal also noted that the “Judge took a very lenient attitude”.19 The Court of Appeal was not satisfied that the end sentence of six years’ imprisonment was manifestly excessive notwithstanding the Judge’s error in adding rather than subtracting one of the discounts. In those circumstances, the Court of Appeal considered it was not appropriate to interfere with the sentence.

Analysis

[18]   The sole contention for the appellant is that the sentence imposed of two years and five months’ imprisonment involved an error in the overall calculation of the sentence. The end sentence of two years five months’ imprisonment amounts to a discount of approximately 40 per cent from the starting point of 48 months’

18     Smith v R [2020] NZCA 586 at [26].

19 At [35].

imprisonment. That is less than the 70 per cent discount referred to at [17] of the sentencing notes.

[19]   Counsel for the appellant responsibly acknowledged that it is unclear how the 70 per cent discount was calculated but it is clear that discounts of 25 per cent for guilty pleas and 30 per cent for matters identified in the s 27 report were intended.

[20]   The decision in Ferris-Bromley, indicates that a mathematical error resulting in a sentence more severe than the Judge patently intended must be corrected. In considering whether there is a mathematical error, the Court of Appeal noted that the primary question is what was intended by the Judge:20

It may be, for instance, that the Judge was determining credit on the basis of a period of months, and expressing the percentage in the alternative and only approximately. In such a case, if the period of months does not equate exactly to the percentage, there is no failure of intent, no patent error and no basis to intervene.

[21]   In Tutakangahau the Court of Appeal noted that correction of a mathematical error was an exception to the general rule that the court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. This exception applies where an explicit mathematical error “would have been corrected if it had been drawn to the attention of the sentencing Judge at the time.”21

[22]   The question is whether the sentence imposed is more severe than what the sentencing Judge patently intended when sentencing Mr Pearce. The sentencing notes state:22

So, really, I am looking at something like a 70 per cent discount. That brings it down to two years five months. That does not meet the threshold for Home Detention, in my view, and this has got to be a sentence of deterrence. When you have nine burglaries like you have been involved in, there has got to be a statement to say there has got to be some serious consequences, but I have given you as much discount as I think that you are appropriately entitled to, given your history, and the information put before me, so that brings it down to a sentence of two years five months.

20     Ferris-Bromley v R, above n 16, at [17].

21     Tutakangahau v R, above n 1414, at [36].

22     Police v Pearce, above n 1, at [17].

[23]   The reference to “something like” a 70 per cent discount is not definitive. A 70 per cent discount would result in an end sentence of one year and 2.4 months’ imprisonment. That is significantly less than two years five months’ imprisonment. It is not clear from the sentencing notes how the end sentence of two years and five months’ imprisonment was reached by the Judge.

[24]   The subsequent comments of the sentencing Judge regarding home detention and the need for a “sentence of deterrence” however, suggest that he did not intend to apply a full 70 per cent discount.23 The sentencing Judge also refers to “calculations and times” and says “that is a matter for the prison and the Parole Board to look at.”24 That statement indicates that the sentencing Judge did not intend to apply a 5 per cent discount for time served. This further indicates there was no intention to impose an overall 70 per cent discount.

[25]   The sentencing notes explicitly refer to discounts of 25 per cent for guilty plea, 30 per cent for s 27 report matters and 5 per cent for time served (which, as discussed, was subsequently rejected). The notes do not refer to a percentage discount for rehabilitation or remorse. Here, the end sentence equates to a discount of 40 per cent which is less than the 25 per cent discount for guilty plea and 30 per cent discount for the s 27 report (a total of 55 per cent). This does appear to be a mathematical error, and this is accepted by the Crown.

[26]   The Court of Appeal in Ferris-Bromley indicates I have no discretion to ignore that mathematical error. I must correct it unless there are unique circumstances of the kind referred to in Smith v R that justify the error not being corrected. I do not consider that applying a 55 per cent discount results in serious offending being unrecognised in this case. That may well have been the case if a full discount of 70 per cent was applied but I have determined that there was no intention to impose the full 70 per cent discount.

23 At [18].

24 At [18].

[27]   I therefore apply the 55 per cent discount to the starting point of four years’ imprisonment, resulting in an end sentence of 21.6 months or 22 months’ imprisonment (rounded up to the nearest month).

[28]   Counsel for the defendant submit that a further discount of two months should be applied to account for time spent on electronically-monitored (EM) bail. The Crown oppose any discount for EM bail and say the defendant breached the conditions of EM bail. I do not consider that a further discount for time spent on EM bail is appropriate given this breach.

[29]   I consider that imprisonment is appropriate and consistent with a sentence of deterrence, which the sentencing Judge noted was appropriate in all the circumstances.

Result

[30]The appeal is allowed.

[31]   The sentence of two years and five months’ imprisonment is quashed, and a sentence of 22 months’ imprisonment is substituted.

Tahana J