Pearce v Police
[2021] NZHC 2212
•26 August 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000095
[2021] NZHC 2212
BETWEEN KIEL ANDREW PEARCE
Appellant
AND
NEW ZEALAND POLICE
DEPARTMENT OF CORRECTIONS
Respondents
Hearing: 26 August 2021 Appearances:
K E Bucher for Appellant
S M H McManus for Respondents
Judgment:
26 August 2021
ORAL JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Mr Kiel Pearce, was sentenced to 16 months’ imprisonment by Judge Mark Callaghan in the District Court on one charge of breaching an extended supervision order1 and one charge of doing an indecent act.2
[2]He appeals that sentence on the basis it was manifestly excessive.
Facts
[3] Turning now to the factual background in this matter, on 25 August 2009, Mr Pearce became subject to an extended supervision order for 10 years. That order
1 Parole Act 2002, s 107T
2 Crimes Act 1961, s 125.
PEARCE v NEW ZEALAND POLICE [2021] NZHC 2212 [26 August 2021]
was renewed on 18 December 2020. A special condition stated he was “not to purchase, possess or consume alcohol and/or illicit drugs … ”. On 2 February 2021, CCTV footage from Countdown Hornby in Christchurch shows Mr Pearce purchasing alcohol, namely a 3 litre cleanskin. The next day, 3 February 2021, Mr Pearce was observed by security staff and on camera at Wigram Lodge drinking from the wine bladder. When questioned by his probation officer Mr Pearce admitted his use of alcohol.
[4] As to the indecent act charge, on 2 February 2021, the victim, a young woman of 20 years, was sitting in her car at a retail carpark in Hornby. While she was waiting Mr Pearce and an associate walked past her car and observed her. Mr Pearce continued for 20 metres then stopped. He turned around and walked back towards the victim. She was not aware of him as she was using her phone. Mr Pearce put his hand into the front of his trousers and stopped at her car so that his groin area was at the same height as the window. The victim became aware of him at her window. Mr Pearce pulled down the waistband of his pants with one hand, exposing his penis. He pulled out his penis and stretched it towards the victim before pulling it back. The victim looked away. Mr Pearce walked away towards his associate. The victim moved quickly to the nearby Mitre 10 shop seeking safety.
District Court decision
[5] Turning now to the District Court decision, Judge Callaghan there took the indecent act as the lead offending. He assessed the aggravating factors as premeditation and a clear intent to offend. He considered the significant harm caused to the victim. The Judge took a starting point of 10 months’ imprisonment.
[6] Turning to the breach of the ESO charge, the Judge counted 29 previous breaches by Mr Pearce. He considered, first, the fact Mr Pearce at the time knew the ESO was in place, knew its terms and, secondly, that this was a blatant breach of the ESO. In considering these factors the Judge uplifted the starting point by a further 10 months, leading to an overall starting point of 20 months’ imprisonment.
[7] Judge Callaghan then considered whether that was appropriate on a totality basis. The Judge found it was, considering he would not impose an uplift for Mr Pearce’s previous convictions.
[8] In terms of mitigating factors, the Judge gave a discount of 20 per cent for Mr Pearce’s delayed guilty plea which left an end sentence of 16 months’ imprisonment. He did not grant leave for Mr Pearce to apply for home detention.
Principles on appeal
[9] Turning now to the principles to be applied on appeal, appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
Submissions
Appellant’s submissions
[10] Turning now to the appellant’s submissions, Mr Bucher, counsel for Mr Pearce, noted that this appeal relates solely to the length of the sentence imposed in the District Court, which he contended was manifestly excessive. Before me, arguments for the appellant began with the suggestion the global starting point adopted in the District court was excessive and ought to have been in the range of 10-12 months rather than the total 20 months adopted by the Judge.
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
[11] In terms of the indecent act charge, Mr Bucher accepted significant harm was caused here to the young victim. However, he contended the Judge had erred when he referred to the offending as premeditated. Mr Bucher referred to Ashqar v Police,6 Jury v Police7 and Walker v Police are relevant authorities.8 I will turn to consider these cases in my analysis overall which will follow. As to what is suggested should have been a proper starting point, Mr Bucher submitted this should have been in the region of four to six months’ imprisonment.
[12] Mr Burcher also maintained before me that the uplift for the ESO breach was too high. He accepted that Mr Pearce has amassed 29 convictions for breaching the ESO but he argued that this particular breach was at the lower end of the scale relating as it did to the purchase of alcohol. In this aspect he referred me to Otene v Police and McGreevy v Department of Corrections. I will also consider those cases in my analysis to follow.
[13] Finally, Mr Bucher argued the Judge erred in his assessment of totality. Mr Bucher characterised the offending as relatively brief and opportunistic here and, therefore, he suggested it did not justify the sentence imposed of 20 months’ imprisonment.
Respondent’s submissions
[14] Turning now to the respondent’s submissions, Ms McManus, for the Crown, also considered the cases referred to by Mr Bucher. She submitted they did support and justify a starting point reached of 10 months’ imprisonment for the indecent act. She disagreed with Mr Bucher here on the premeditation issue and argued the Judge’s overall assessment was accurate. On the ESO breach, Ms McManus quite rightly pointed out that, in the cases referred to by Mr Bucher, the Court was discussing end sentences rather than starting points. She said it would be incorrect to conclude a starting point here of 10 months’ imprisonment was out of range on the basis of the authority of these cases. Ms McManus then went on to submit too that
6 Ashqar v Police [2019] NZHC 1184.
7 Jury v Police [2015] NZHC 2587.
8 Walker v Police HC Auckland CRI-2004-362, 17 August 2005.
Judge Callaghan did consider the totality principle and he did not err, in her view, in declining to reduce the global starting point to reflect this.
Analysis
[15] Turning to my analysis in this matter, like Judge Callaghan, I take the indecent act charge to be the lead offence. There is no tariff case for such offending.
[16] The aggravating factors here, as I see it, are Mr Pearce’s clear intention to cause harm and the significant harm he actually caused.
[17] To an extent, I agree with Mr Bucher on one aspect here. That being the question of premeditation. It seems to me Judge Callaghan and, in her submissions here, Ms McManus may have conflated intention and premeditation. The offending would be premeditated if Mr Pearce went to the carpark with the intention of exposing himself to a woman alone in her vehicle. There is nothing that was before the Court to suggest that this was the case. The offending is intentional if Mr Pearce deliberately identified and walked up to a woman to expose himself. I consider this offending generally was opportunistic, not premeditated. It is a similar situation, as I see it, to a recidivist burglar walking down the street who notices the front door to an empty house is open. If he subsequently burgles the house, even if he had continued to walk away down the street for a moment before returning and burgling the house, the offending would be opportunistic. It would be premeditated only if he was walking down the street looking for a house to burgle.
[18] Nonetheless, such opportunism as occurred here in all the circumstances, in my view, is highly destructive and must be deterred. And as one particular factor here, I accept the impact of this offending on the young victim was indeed profound. This is clear from her victim impact statement.
[19]I now turn to the cases put before me.
[20] In Pauley v Police,9 the victim was having lunch with her four-year-old daughter near Mr Pauley, who was sitting in his car. The victim noticed the car’s mirrors were angled towards her daughter and that Mr Pauley was jerking with his right hand. She yelled out “you better not be doing what I think you’re doing”. Mr Pauley opened the car door to reveal himself masturbating. The Judge there adopted a starting point accepted at 14 months’ imprisonment.
[21] In the case of Jury v Police,10 Mr Jury was being interviewed by his lawyer, the victim. They were separated by a pane of glass. The victim was reading a letter Mr Jury had written for the Court in relation to other charges. When she looked up, she noticed Mr Jury had his hands inside his trousers. He began to masturbate while watching her. He stood up from his chair and continued masturbating. He instructed the victim to continue reading the letter. On appeal Muir J in this Court said the starting point adopted of four or five months’ imprisonment was appropriate.
[22] In the decision in Walker v Police,11 Mr Walker was subject to a protection order against his former partner. While visiting her to request she remove the order, Mr Walker exposed himself and asked if she “wanted some”. On appeal, Potter J thought a starting point of three months’ imprisonment was appropriate. That starting point also encompassed a charge of breaching the protection order.
[23] Then in the decision Ashqar v Police,12 the offender stood outside a house with his penis exposed. When two women walked past, he masturbated “profusely” and followed them to the end of the road. Palmer J in this Court stated the appropriate starting point was six months’ imprisonment.
[24] Turning to consider those authorities, as I see the position, the case Pauley v Police is the most serious of these, reflected by its higher starting point. The offending there involved a child and premeditation. The present offending, as I have said, is not as serious. However, I do agree with Ms McManus that the instant offending is more serious than Ashqar, Walker and Jury because the victim, a young woman stranger,
9 Pauley v Police [2014] NZHC 2409.
10 Jury v Police [2015] NZHC 2587.
11 Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005.
12 Ashqar v Police [2019] NZHC 1184.
was vulnerable in her vehicle, demonstrable harm was caused, and Mr Pearce was in extremely close proximity to her. She could not escape until he had left. In Jury the offender and victim were separated by a solid pane of glass and were known to each other. And in Ashqar the victims were down the street. Walker involved a domestic situation as opposed to a public context and so is ultimately, in my view, not an appropriate case for comparison.
[25] Overall, in all the circumstances here, I regard the starting point of 10 months’ imprisonment for the indecency charge as an appropriate one.
[26] As for the ESO charge, the starting point there, in my view, is unimpeachable. A letter from Mr Pearce’s probation officer records his ongoing disregard for ESO conditions and his refusal to engage in treatment. Substance use is a direct link to his offending, and that is what appears to have occurred here. The probation officer is of the view too that he has limited insight, remorse or regard for the consequences of his offending. The fact Mr Pearce continues to breach the conditions of the order after more than 10 years is a clear and significant aggravating factor.
[27] In the decision of Otene v Department of Corrections13 which was referred to me, an offender with less previous breaches was sentenced to six months’ imprisonment for breaching a no alcohol condition. In McGreevy v Department of Corrections14 the offender essentially went AWOL for nearly two hours, breaching a curfew condition. His explanation was that he had gone for a walk and intended to hand himself in. Pankhurst J in this Court dismissed an appeal against an end sentence in that case of six months’ imprisonment.
[28] As Ms McManus identified before me, both those cases discuss the end sentence of imprisonment. There is no reference to a starting point or indeed the ordinary sentencing methodology. Having regard to the fact Mr Pearce has more previous breaches, poses a risk due to consistent disregard of his ESO conditions and the fact that alcohol is a specific risk aggravating factor of his offending, I consider the uplift of 10 months’ imprisonment fairly represented his culpability on that ESO
13 Otene v Department of Corrections [2013] NZHC 766.
14 McGreevy v Department of Corrections HC Auckland CRI-2009-409-207, 17 December 2009.
breach charge. Assuming the offenders in Otene and McGreevy pleaded guilty, this would only be some two months higher than a likely starting point where the methodology is considered to reach the end sentence in those cases.
[29] No issue here was taken with the 20 per cent guilty plea discount nor the absence of other mitigating factor discounts.
[30] I turn finally to totality. Where cumulative sentences of imprisonment are imposed Judges must always stand back and consider whether the overall period of imprisonment is not wholly out of proportion to the gravity of the overall offending.15 Where the end sentence is not wholly out of proportion, no reduction is required.16
[31] The end sentence here is 16 months’ imprisonment. I am satisfied Judge Callaghan did consider totality. He properly did not impose an uplift for Mr Pearce’s previous convictions, recognising they were accounted for by the significant uplift for the ESO breach. I agree with the Judge that this was an appropriate sentence of imprisonment. This offending involved Mr Pearce consciously breaching a condition of his ESO relating to a known risk factor and then that risk actually manifesting with him causing considerable harm to an innocent victim, a young woman. He purchased the alcohol and offended against the victim on the same day.
[32] The fact the offending was opportunistic as opposed to premeditated, in my view, has a problematic quality too. It indicates Mr Pearce, a high-risk individual, is failing to manage himself. Similarly, he appears consciously disengaged from rehabilitative efforts. By way of example, drug use is a driver of his offending, but Mr Pearce indicated to the pre-sentence report writer that he would like to work in the viticulture industry as he considers there is regular cannabis use available during the day. He openly admitted to his own continued usage for self-medication. The present breach involving his purchase and use of alcohol is a further example of this.
15 Sentencing Act 2002, s 85.
16 Ashcroft v R [2014] NZCA 551 at [32].
[33] Deterrence and protection of the community were clearly and rightly prioritised here. A stern response, in my view, was warranted. I consider the Judge’s sentence was justified in principle and on a totality basis. The sentence imposed was not manifestly excessive, in my view.
Conclusion
[34]This appeal is dismissed.
...................................................
Gendall J
Solicitors:
Anselm Williams, Barrister, Christchurch
Crown Solicitor, Raymond Donnelly & Co, Christchurch
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