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Pearce v The King

Pearce v The King

Case [2024] NZCA 60 18 March 2024

Natural Justice & Procedural Fairness

Criminal Law

Sentencing

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA97/2023
[2024] NZCA 60

BETWEEN	ANTHONY PEARCE Appellant
AND	THE KING Respondent

Hearing:	23 August 2023
Court:	Goddard, Whata and Downs JJ
Counsel:	G H Vear and S R Noakes for Appellant P D Marshall and T C Didsbury for Respondent
Judgment:	18 March 2024 at 10.00 am

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction and summary

In September 2021 Mr Pearce, then aged 25, pleaded guilty to a charge of wounding with intent to cause grievous bodily harm and a charge of possession of an offensive weapon. He was sentenced to six years and four months’ imprisonment.[1] Because the wounding charge was a “second strike offence” under the three strikes regime that was then in force, Judge P G Mabey KC ordered that the sentence be served without parole.[2]
[1]R v Pearce [2021] NZDC 18656 [Sentencing decision].
[2]At [20]; and Sentencing Act 2002, s 86C, which was repealed with effect from 16 August 2022 by s 5 of the Three Strikes Legislation Repeal Act 2022.
Mr Pearce understood from trial counsel that the government had announced its intention to repeal the three strikes regime. He believed that this meant that he would be eligible for parole in the ordinary way. However the Three Strikes Legislation Repeal Act 2022, which was enacted in August 2022, did not contain any transitional provisions relating to sentences that had already been imposed under that regime. The order that Mr Pearce serve his full term of imprisonment without parole remained in place.
Mr Pearce then took steps to appeal to this Court against his sentence, relying on decisions of the Supreme Court and of this Court to the effect that the three strikes regime must be read subject to an unexpressed qualification that it is subject to s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides that everyone has the right not to be subjected to disproportionately severe punishment. As this Court held in Matara v R, s 86C(4) of the Sentencing Act 2002 did not require a judge to order that a sentence be served in full, without parole, if that sentence would be disproportionately severe for the purposes of s 9 of NZBORA. Rather, ordinary sentencing principles would apply.[3]
[3]Matara v R [2021] NZCA 692 at [61]–[62].
In the absence of the order made under s 86C(4) requiring Mr Pearce to serve the whole of his term of imprisonment without parole, we consider that a minimum period of imprisonment (MPI) of 50 per cent would have been imposed. So Mr Pearce would have been eligible for parole after serving half of his sentence: three years and two months. The effect of the non-parole order is that he will be denied eligibility for parole for an additional three years 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 The King

Details

AGLC: Pearce v The King [2024] NZCA 60
Case: [2024] NZCA 60
Decision Date: 18 March 2024 at 10.00 am

CaseChat Overview and Summary

In Pearce v The King, the Court of Appeal of New Zealand considered an appeal against a sentence imposed under the three strikes regime, which has since been repealed. The appellant, Mr Pearce, was sentenced to six years and four months’ imprisonment for a charge of wounding with intent to cause grievous bodily harm and a charge of possession of an offensive weapon. Because the wounding charge was a “second strike offence” under the three strikes regime, Judge Mabey ordered that the sentence be served without parole. Mr Pearce appealed to the Court of Appeal, arguing that the non-parole order breached the New Zealand Bill of Rights Act 1990 (NZBORA).

The Court of Appeal considered whether the non-parole order rendered the sentence so grossly disproportionate that it was inconsistent with s 9 of NZBORA. The Court found that in the absence of the order, an MPI of 50 per cent would have been imposed. The non-parole order extended the period during which Mr Pearce was not eligible for parole by a multiple of two, from three years and two months to six years and four months. The Court found that there was no rational justification, by reference to sentencing principles, for the additional punishment effected by the non-parole order. However, the Court concluded that the non-parole order did not render the sentence so grossly disproportionate as to shock the national conscience. The appeal was dismissed.

Orders