Pearce v Police HC Christchurch CRI 2010-409-146

[2010] NZHC 1764

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000146

JEREMY ALEXANDER PEARCE

Appellant

v

POLICE

Respondent

Hearing:         7 October 2010

Counsel:         P J Doody for Appellant

T J Mackenzie for Respondent

Judgment:      7 October 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a sentence of 21 months imprisonment imposed by the District Court Judge N A Walsh on 29 June.

[2]      The grounds of appeal were three:

1.That the starting point in the lead charge was too high leading to the final sentence total being excessive;

2.That  insufficient  credit  was  given  to  his  guilty plea  and  personal circumstances; and

PEARCE V POLICE  HC CHCH CRI 2010-409-000146  7 October 2010

3.That the underlying mental health issue has now been addressed in the prison setting.

[3]      In oral argument Mr Doody did not pursue an argument against the starting point and uplift on aggravating factors which brought the sentence to 25 months imprisonment.   His principal argument was that although the Judge had identified mitigating factors  he had  not  given  any credit  for  the mitigating factors  before applying a four month credit for the guilty pleas.

[4]      In paragraph [6] of the Judge’s notes he records the appellant’s recognition of the abuse that he had given to his former partner.  In paragraph [7] he notes to the appellant’s  credit  that  the  appellant  had  almost  completed  a  stopping  violence course, and in paragraph [9] he records that for a period of 11 years it would appear that the appellant’s criminal offending ceased, and the Judge says:

... It appears that for a period of time, between 1997 and 2008, you actually got your life on track, including getting into a meaningful relationship with [appellant’s former partner] and obtaining work as a mill hand.

[5]      The appeal was adjourned because of the request of counsel for the appellant, Mr Doody, to obtain an update on the appellant’s mental health.   He has had a history of depression including low grade psychosis.   His current state of health seems to be significantly improved although I note he has been on medication now for some time.  His mental health may have had something to do with some of the bizarre nature of the offending including the use of a telephone to indecently offend a radio talkback host in a cruel way.

[6]      There was no direct argument by Mr Doody for a reduction in sentence on the basis that there was a nexus between the offending and his mental health and I do not propose to make any allowance in this appeal.   I do note though that reading through the reports from the psychiatrists part of his recent anxieties and depression are due to feeling he had been unfairly treated in the sentencing.

[7]      Mr Mackenzie has pointed out that as a result of Hessell v R [2010] 2 NZLR

298 this appellant’s positive conduct in acknowledging the harm he has caused to his

former partner does not get any additional credit as all of that is wrapped up in the guilty plea.   I regard myself as bound by Hessell in that regard.

[8]      Similarly, Mr Mackenzie also says no weight should be given to the credit that the Judge acknowledged that the appellant had almost completed the stopping violence course.  That was required as a consequence of a protection order that his former partner obtained.  Thirdly, however, there remains the fact the Judge found that for a period of 11 years, at least on the probabilities, he managed to break free from a criminal lifestyle.

[9]      I think for reasons of therapeutic jurisprudence it is appropriate that this appellant be given some recognition for that effort in the hope that he will consider it worthwhile to do so again upon his release and that, with respect to the experienced Judge, is a deficiency in his reasoning which I think can be addressed on appeal.

[10]     So from the end point of 25 months reached from the starting point plus uplift I deduct three months by way of discount for previous efforts to try to get on track and then apply the Hessell approach of the sentencing Judge which was in the order of 16% and reduce the sentence further by four months resulting in an end sentence of 18 months.

[11]     The appeal is allowed to that extent.  This is to be achieved by reducing the concurrent sentences on the burglary charges to 11 months.   The standard release conditions continue to apply.

Solicitors:

P J Doody, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent