Pearce v Police - [2021] NZHC 2212

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,…

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 [2021] NZHC 2212
Case: [2021] NZHC 2212
Decision Date: 26 August 2021

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal against sentence brought by Kiel Andrew Pearce. The appellant was sentenced to 16 months’ imprisonment by the District Court for breaching an extended supervision order and for an indecent act. Pearce argued the sentence was manifestly excessive. The central issues were whether the starting points and uplifts applied by the District Court were appropriate, and whether the overall sentence was disproportionate.

The High Court found the starting point of 10 months for the indecent act was appropriate, noting the harm caused to the victim despite the offending being opportunistic rather than premeditated. The Court also found the 10-month uplift for the extended supervision order breach was justified given Pearce's history of non-compliance and substance use being a risk factor. The Court concluded the overall sentence of 16 months was proportionate and not manifestly excessive, taking into account the totality principle. The appeal was dismissed.

The final orders were that the appeal against sentence brought by the appellant was dismissed. The original sentence of 16 months’ imprisonment imposed by the District Court was affirmed.

Orders