Pearce v The King
[2024] NZCA 60
•18 March 2024 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA97/2023 [2024] NZCA 60 |
| BETWEEN | ANTHONY PEARCE |
| AND | THE KING |
| Hearing: | 23 August 2023 |
Court: | Goddard, Whata and Downs JJ |
Counsel: | G H Vear and S R Noakes for Appellant |
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[2]At [20]; and Sentencing Act 2002, s 86C, which was repealed with effect from 16 August 2022 by s 5 of the Three Strikes Legislation Repeal Act 2022.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 two months.
Denial of parole for that additional period cannot be rationally justified by reference to the purposes of sentencing identified in the Sentencing Act. But that disconnect from sentencing principles was a deliberate feature of the three strikes regime enacted by Parliament. Mr Pearce’s offending was very serious, and squarely within the policy intent of that regime. We are not persuaded that the high threshold of gross disproportionality set by s 9 of NZBORA is crossed in Mr Pearce’s case.
Our reasons are set out in more detail below.
Extension of time to appeal
Mr Pearce brought this appeal one year and four months out of time. He attributes this delay to a misunderstanding about the likely effect of the proposed repeal of the three strikes regime. The Crown does not oppose an extension of time to appeal.
It was not unreasonable for Mr Pearce to await repeal of the three strikes regime, in the hope that it would render an appeal against the non-parole order unnecessary. We therefore grant an extension of time to appeal.
Background
Mr Pearce’s first strike offence
On the evening of 29 June 2017, the 19-year-old victim was sleeping at her home in Wairoa when Mr Pearce broke into her home. The victim woke to Mr Pearce, a stranger, standing in her bedroom with a firearm over each shoulder and wearing his Mongrel Mob patch. He pointed a .22 calibre cut-down firearm directly at her face. He told her, “[t]he cops are after me, they are all outside”. Agitated and pacing, he instructed the victim to roll him a smoke, close the curtains and lock all the doors and windows. He followed her around the house while she did so.
Mr Pearce then directed the victim back into her bedroom and told her to wipe down his firearms, put them away and tell the Police they belonged to her dad. She complied.
After removing his Mongrel Mob gang patch, Mr Pearce got into the victim’s bed. He grabbed the front of her jersey and pulled her down onto the bed with him. Pinning her down, he said, “[t]ell me I’m your boyfriend”. She feared she was going to be raped.
Eventually, the victim managed to convince Mr Pearce to leave. The Police were then called and apprehended Mr Pearce in the back yard.
Mr Pearce pleaded guilty to aggravated burglary and kidnapping (both serious violent offences as defined in the Sentencing Act) as well as two charges of unlawful possession of a firearm.[4] From a starting point of four years and two months, Judge W P Cathcart imposed a sentence of 33.5 months’ imprisonment.[5] The Judge declined to impose an MPI, explaining:[6]
With respect to the minimum period of imprisonment, I consider this factor is interlinked to the youth issue … Because of the potential crushing effect of a long term of imprisonment, and also the prospect of rehabilitation that still exists, I consider a minimum period of imprisonment is not appropriate. He should still be given the opportunity to be released after a third of his sentence in the hope it assists with the rehabilitation of this young man. …
Mr Pearce’s second strike offence
[4]R v Pearce [2017] NZDC 28659 at [1].
[5]At [5].
[6]At [4], quoting R v Pearce DC Gisborne CRI-2017-082-000269, 30 November 2017 at [32].
Approximately three years after being sentenced for his first strike, on 10 October 2020, Mr Pearce was socialising with his partner and other members of the Mongrel Mob (some from a different chapter, including the victim) in Kawerau. Around 9.00 pm the group decided to travel to a local bar. By this point, Mr Pearce and his partner suspected members of the group had stolen his partner’s phone and a box of alcohol.
When they arrived at the bar’s carpark, Mr Pearce inspected the victim’s car while his partner challenged them over the missing items.
At some point, the victim moved over to the car and leaned over the open right rear door. Without any warning and in one continuous motion, Mr Pearce removed a boning knife from his sleeve and plunged it deep into the victim’s neck. The blade passed through the victim’s C6 and C7 vertebrae, lacerating his spinal cord and instantly paralysing him. He collapsed to the ground.
Mr Pearce and his partner left the scene, with the victim on the ground bleeding, paralysed and with the knife still lodged in his neck.
The victim was taken to Tauranga Hospital, then Middlemore Hospital, where the knife was surgically removed. The injury has had profound and likely lifelong consequences for the victim. At the time of sentencing, he was in constant need of a wheelchair. It is possible that in the long term that he may not be entirely dependent on the wheelchair, but he suffers from spasticity (uncontrolled muscle reflexes due to spinal injury) and his left side will be permanently damaged.
The Police apprehended Mr Pearce about four weeks later, on 5 November 2020. When searched, he had three knives on his person: a bait knife in a sheath concealed under the waist band of his shorts and a box cutter knife and 10 cm paring knife in a belt bag.
Following a sentence indication, Mr Pearce pleaded guilty to wounding with intent to cause grievous bodily harm and possession of offensive weapons.
Mr Pearce’s upbringing
Mr Pearce is of Tuwharetoa and Tainui descent, but told the pre-sentence report writer he does not feel a strong connection with his Māori background. He grew up in a gang environment. His father was a methamphetamine user and a member of the Mongrel Mob, as were other family members. His parents separated when he was seven years old. His mother suffered from mental illness and was “not around”. She was also a methamphetamine user, including (according to his father) while pregnant with him. He remembers his mother stabbing his father with scissors when he was very young, and seeing her taken away in a straitjacket. She was treated in the mental health ward of the local hospital on this and other occasions: he remembers visiting her there, and going with his father to pick her up when she was released.
In short, Mr Pearce had a very disadvantaged childhood, growing up in an environment in which gang membership, drug use and violence were normalised.
Mr Pearce left school when he was 12 years old, followed by six months of alternative education. He has mostly been unemployed since then.
Mr Pearce began using methamphetamine when he was 12, and has done so “on and off” since then. He began drinking alcohol and using cannabis from around 13. He says he drinks socially, and occasionally uses other drugs. At the time of his second strike offending he was using methamphetamine daily. He has had mental health issues, including a suicide attempt when aged 17 or 18, and in-patient treatment in a mental health ward in 2020. He was prescribed antidepressants when previously in prison. However he was adamant when speaking with the pre-sentence report writer that he does not currently suffer from mental health issues.
While still a teenager Mr Pearce became a member of the Mongrel Mob, based in Kawerau. He was a patched member of the Mongrel Mob at the time of his first and second strike offending.
Mr Pearce has three children with three partners. His two daughters live with his sister, who does not allow him to see them. His current partner gave birth to their son in July 2021.
Mr Pearce expressed a desire to the pre-sentence report writer to “get out of the gang environment and focus on my son”. But he was unable to articulate a plan to do so.
The sentencing Judge had the benefit of a thorough and insightful s 27 report prepared by Ms Maria Pipi. Mr Pearce’s parents did not respond to Ms Pipi’s approaches, but she met with his grandparents and his partner. His grandparents confirmed Mr Pearce’s account of the challenges he faced as a child, and expressed a willingness to continue to provide support and encouragement to him while in prison and following his release. His partner also expressed a strong commitment to supporting Mr Pearce, and ensuring he maintains contact with their child.
With encouragement from Ms Pipi, Mr Pearce wrote letters to the victim, to his grandparents, and to his partner. Those letters express his regret and remorse, and indicate an awareness of the seriousness of his offending and its impact on his victim, and the pain he has caused to his family. The letters set out a clear commitment to change, while recognising that this will not be easy.
Ms Pipi’s report canvassed in some detail the programmes and other forms of support that Mr Pearce will need in order to address his mental health issues, substance dependency, use of violence, and parenting issues, in order to transition back into the community.
District Court sentencing decision
Mr Pearce was sentenced on 17 September 2021. In accordance with the sentence indication that Mr Pearce had accepted, the Judge adopted a starting point of 11 years’ imprisonment on the principal charge of wounding with intent to cause grievous bodily harm.[7]
[7]Sentencing decision, above n 1, at [3].
The Judge considered that the other charge required an uplift of six months, resulting in an overall starting point of 11 years and six months’ imprisonment.[8]
[8]At [19].
Mr Pearce was aged 24 at the time of the offending. The Judge noted that he already had a long list of previous convictions, but these related to offending that did not, by and large, involve serious violence.[9] He had been to prison before for various offences, and had received a first strike warning in December 2017 in relation to the kidnapping charge described above.[10]
[9]At [13].
[10]At [13].
The Judge accepted that Mr Pearce was genuinely remorseful, and that he came from a highly dysfunctional background. The Judge said:[11]
[14] I have a pre-sentence report which talks about your past. It mentions what I accept as your genuine remorse. For a man such as you, who has not taken to impulses of serious violence in the past, to do what you did must leave you with deep regret for what you have done to a colleague. He was not in the same chapter as you but he was a brother and you have left him in a bad way. I agree that you must be remorseful in a genuine way.
[15] Mr Hine has obtained a report under s 27 of the Sentencing Act 2002. The uncorroborated matters you raised with the pre-sentence report writer are borne out by that report. You had a fairly rough passage through life as a boy and as a teenager. There were many dysfunctions within your family. There was the influence of alcohol, violence and gangs.
[16] When I read about you, I am reminded of what Williams J said in Rakuraku v R when he was dealing with a young man from the Mongrel Mob. When he examined his past the judge talked about the magnifying effect of deprived upbringings of young men who have gang influences from a very early age and who aspire for their patch to give them a sense of belonging, community, brotherhood and family. That could be you he was talking about. Not everyone starts from the same position in life and many people start way behind others and, unfortunately, you are one of them.
[11]Footnote omitted.
The sentence indication contemplated credit of 25 per cent for a guilty plea.[12] The Judge considered that the factors he had outlined needed to be taken into account by increasing the overall discount to 45 per cent, to reflect Mr Pearce’s reduced moral culpability due to the causative effect of his upbringing.[13]
[12]Sentencing decision, above n 1, at [4].
[13]At [17].
Applying the 45 per cent discount to the starting point of 11 years and six months’ imprisonment resulted in a term of imprisonment of six years and four months for the charge of wounding with intent to cause grievous bodily harm. The Judge imposed a concurrent sentence of one year’s imprisonment on the charge of possession of offensive weapons.[14]
[14]At [20].
The Judge recorded his understanding that the law obliged him to order that the sentence be served without parole, and made that order.[15]
[15]At [20].
Finally, the Judge imposed a three year disqualification from holding or obtaining a driver’s licence.[16]
The three strikes sentencing regime
[16]At [21].
The three strikes regime was set out in ss 86A to 86I of the Sentencing Act, which were inserted into that Act with effect from 1 June 2010 by the Sentencing and Parole Reform Act 2010. These provisions applied to sentencing following conviction for a “serious violent offence”, a term defined in s 86A. Any offence against a long list of offence provisions is treated as a serious violent offence for the purposes of the three strikes regime.
Section 86B governed sentencing for a first strike offence. The court was required to give the offender a “first warning” of the consequences if the offender is convicted of any serious violent offence committed after that warning. The warning was given orally, following entry of the conviction, and in a written notice.[17]
[17]Sentencing Act, s 86B(1) and (4).
Section 86C governed sentencing for second strike offences other than murder. As relevant, it provided:
86CStage-2 offence other than murder: offender given final warning and must serve full term of imprisonment
(1)When, on any occasion, a court convicts an offender of 1 or more stage-2 offences other than murder, the court must at the same time—
(a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning (whether or not that further serious violent offence is different in kind from any stage-2 offence for which the offender is being convicted); and
(b)record, in relation to each stage-2 offence, that the offender has been warned in accordance with paragraph (a).
(2)It is not necessary for a Judge to use a particular form of words in giving the warning.
…
(4)If the sentence imposed on the offender for any stage-2 offences is a determinate sentence of imprisonment, the court must order that the offender serve the full term of the sentence and, accordingly, that the offender,—
(a)in the case of a long-term sentence (within the meaning of the Parole Act 2002), serve the sentence without parole; and
(b)in the case of a short-term sentence (within the meaning of the Parole Act 2002), not be released before the expiry of the sentence.
…
(6)If, but for the application of this section, the court would have ordered, under section 86, that the offender serve a minimum period of imprisonment, the court must state, with reasons, the period that it would have imposed.
(7)The court must give the offender a written notice that sets out the consequences if the offender is convicted of any serious violent offence committed after the warning given under subsection (1)(a).
Section 86D governed sentencing for third strike offences other than murder. Section 86D(2), which was the focus of the Supreme Court decision in Fitzgerald v R,[18] provided as follows:
86DStage-3 offences other than murder: offender sentenced to maximum term of imprisonment
…
(2)Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.
…
[18]Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
Section 86D(3) provided that when the court sentences an offender under s 86D(2), the court must order that the offender serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.
Section 86H provided that for the purposes of pt 6 of the Criminal Procedure Act 2011, which governs appeals, an order under s 86D(3) or (4) is a sentence.
Section 86I provided for ss 86B to 86E to prevail over inconsistent provisions:
86I Sections 86B to 86E prevail over inconsistent provisions
A provision contained in sections 86B to 86E that is inconsistent with another provision of this Act or the Parole Act 2002 prevails over the other provision, to the extent of the inconsistency.
Parole where three strikes regime does not apply
Eligibility for parole is governed by the Parole Act 2002. An offender such as Mr Pearce who has been sentenced to a fixed term of imprisonment of more than two years is generally eligible for parole after serving one third of that sentence.[19] As soon as practicable after an offender’s parole eligibility date, the Parole Board considers the offender for release on parole.[20] The guiding principles for the Parole Board are set out in s 7 of the Parole Act. The “paramount consideration for the Board in every case is the safety of the community”.[21]
[19]Parole Act 2002, ss 20 and 84.
[20]Section 21(1).
[21]Section 7(1).
Section 20(5) governed eligibility for parole of an offender subject to a fixed‑term sentence for a second strike or third strike offence:
20 Parole eligibility date
…
(5)If an offender is required, by an order under section 86C(4) or 86D(3) of the Sentencing Act 2002, to serve a sentence without parole, the offender—
(a)does not have a parole eligibility date in respect of the sentence; and
(b) may not be released on parole in respect of that sentence.
…
Where a sentencing court considers that the standard non-parole period specified in the Parole Act of one-third of the sentence is insufficient, it may impose an MPI under s 86 of the Sentencing Act:
86Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
…
(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of—
(a)two-thirds of the full term of the sentence; or
(b)10 years.
…
Interpreting the three strikes regime to ensure consistency with NZBORA
In Fitzgerald v R the Supreme Court considered the implications of NZBORA for sentencing on conviction for a third strike offence under s 86D of the Sentencing Act. Mr Fitzgerald had been convicted of indecent assault. The offending was at the bottom end of the range for an indecent assault: the sentencing Judge considered that standing alone, and leaving aside any aggravating features of the offender, the offending would not attract a term of imprisonment.[22] But because it was a third strike offence, Mr Fitzgerald was sentenced to the maximum sentence for indecent assault of seven years’ imprisonment.[23]
[22]R v Fitzgerald [2018] NZHC 1015 at [21].
[23]At [27] and [28(a)]. See Crimes Act 1961, s 135.
The Supreme Court held that this sentence was so disproportionately severe that it breached s 9 of NZBORA.[24] Parliament did not intend, in enacting the three strikes regime, to require judges to impose sentences that breach s 9 of NZBORA and New Zealand’s international obligations. It was possible, and thus necessary, to interpret s 86D(2) so that it did not require the imposition of sentences that would breach s 9.[25]
[24]Fitzgerald v R, above n 18.
[25]At [3].
The four Judges in the majority concluded that s 86D(2) of the Sentencing Act must be read as subject to an unexpressed qualification to ensure consistency with s 9 of NZBORA.[26]
[26]The Judges adopted somewhat different paths to that conclusion, as explained in Matara v R, above n 3, at [52]–[56].
In Matara v R this Court held that it follows from Fitzgerald v R that the direction to the sentencing Judge set out in s 86C(4) of the Sentencing Act must be read subject to the same and unexpressed qualification that it is subject to s 9 of NZBORA.[27] Thus in that case it was necessary to consider whether Mr Matara’s sentence of 10 years and two months’ imprisonment, to be served without parole, was disproportionately severe for the purposes of s 9 of NZBORA. If it was, then the unexpressed qualification would apply and the Court was not required to make the non-parole order provided for in s 86C(4). Rather, consistent with the view of the majority in Fitzgerald v R, ordinary sentencing principles would apply.[28]
[27]Matara v R, above n 3, at [58].
[28]At [62].
This Court began by considering the difference between the sentence that would have been imposed on Mr Matara in the absence of a non-parole order, and the impact on him of the non-parole order:[29]
[29]Footnotes omitted.
[65] If that order had not been made, Mr Matara would have been subject to an order under s 86 of the Sentencing Act setting an MPI of 40 per cent of his term of imprisonment. The Judge considered, and we agree, that such a sentence would be appropriate having regard to the purposes of sentencing under the Sentencing Act. In particular, it would be sufficient to meet the objectives referred to in s 86(2) of holding Mr Matara accountable for the harm done by his offending, denouncing his conduct, deterring him and others from committing such offences, and protecting the community from the offender.
[66] It follows that the additional six years of ineligibility for parole is not justified by those objectives, or by any other sentencing purpose. That is, Mr Matara is denied the possibility of parole for an additional six years even though there is no rational connection between that denial and the purposes of sentencing identified in the legislation under which the order was made.
[67] Nor is this difference in treatment capable of being justified by the fact that in 2012 Mr Matara received a first warning under s 86B of the Sentencing Act. The sentence that would otherwise have been imposed by the sentencing Judge takes into account Mr Matara’s previous offending, and the fact that he has continued to offend despite the sentence previously imposed on him. And whatever the relevance of such warnings might be in other cases, Mr Matara’s mental illness and psychosis go to the heart of his ability to understand, and act on, warnings of this kind. It could not reasonably be suggested that Mr Matara deserves to be punished substantially more severely because in May 2016, at a time when he was mentally unwell and probably psychotic, he did not turn his attention to, and act on, the warning given to him some four years earlier.
[68] The additional severity of the sentence imposed on Mr Matara under s 86C has a number of facets. Most obviously, it denies Mr Matara the possibility of parole for an additional six years. Even if he is sufficiently rehabilitated at some point after the four-year mark so that his release would pose no material risk to the safety of the community, he will continue to be detained in prison. Moreover because he was not eligible for parole after four years, Mr Matara has not been provided with the same rehabilitative support that he would have otherwise received in the initial years of his sentence. And he will have less incentive and less encouragement to take measures of his own directed towards rehabilitation, or to take full advantage of any rehabilitative support that might be offered to him, throughout his sentence. Nothing he does by way of rehabilitation can make any difference to the length of time he serves in prison.
…
[70] In short, we accept Mr Ellis’ submission that the effect of the non‑parole order is to deprive Mr Matara of the hope, encouragement and support that are important features of New Zealand’s parole system for some six years beyond what can rationally be justified.
[71] Because the sentence imposed on Mr Matara is more severe than the (proportionate) sentence that the Judge would otherwise have imposed, it is disproportionate. Is it so disproportionate that it crosses the s 9 threshold?
[72] The threshold for assessing whether a sentence is disproportionately severe for the purposes of s 9 of NZBORA has been expressed in different ways. There is a consensus that it is a high threshold. It has variously been described as treatment so excessive as to outrage contemporary standards of decency, conduct so severe as to shock the national conscience, treatment grossly disproportionate to the circumstances or such as to shock the national conscience. A majority in the Supreme Court assumed that because the threshold is so high, such cases would be rare.
…
[74] In the present case we consider that denial of parole for an additional six years is grossly disproportionate to the circumstances, especially having regard to Mr Matara’s mental illness and psychosis at the time of offending. The loss of opportunity for rehabilitation and release — the loss of hope — for a period two and a half times what would otherwise be justified is both exceptionally harsh and without rational justification.
In Matara v R, the sentencing Judge had recorded that but for the operation of s 86C(4), she would have imposed an MPI of 40 per cent. This Court imposed the sentence that ought to have been imposed, reading the Sentencing Act together with NZBORA: a sentence of 10 years and two months’ imprisonment, with an MPI of 40 per cent.[30]
[30]Matara v R, above n 3, at [78].
A similar approach was adopted by this Court in Crowley-Lewis v R.[31] On a second strike offence the appellant had been sentenced to nine years’ imprisonment to be served in full without parole. This Court held that the appropriate sentence was eight years and six months’ imprisonment, with a 50 per cent MPI.[32] Requiring the appellant to serve the full term of imprisonment — which would involve a 100 per cent increase in the length of time before parole eligibility — would breach s 9 of NZBORA. So a non-parole order was not required.[33]
[31]Crowley-Lewis v R [2022] NZCA 235.
[32]At [36].
[33]At [28]–[34].
In Tamiefuna v R, the appellant had been convicted of aggravated robbery and sentenced to four years and 11 months’ imprisonment to be served without parole, for a second strike offence.[34] The sentencing Judge recorded that but for s 86C an MPI would not have been imposed.[35] This Court noted that it followed that the length of time before parole eligibility would be increased by approximately 200 per cent (that is, from one-third of the sentence to the full term of the sentence). That represented a greater disproportion than in Matara v R, where the effect of the s 86C(4) order was to increase the length of time before parole eligibility by about 150 per cent.[36] This Court concluded that the sentence was disproportionately severe, and the
non-parole order should be quashed. This Court rejected the submission that the absence of mental health issues of the kind present in Fitzgerald v R and Matara v R precluded a finding that s 9 of NZBORA was engaged, saying:[37]Aside from his drug and alcohol issues, we accept Mr Tamiefuna has not been diagnosed with any mental health issues, which were an important consideration in Fitzgerald and Matara. However, there was also no suggestion that the appellant in Crowley-Lewis had been diagnosed with any mental health issues. The absence of such issues is not decisive to the s 9 inquiry. It is nevertheless the case that Mr Tamiefuna came from a disadvantaged background which contributed to his offending. His background demonstrates the importance of him being able to access rehabilitative support, a consideration that the Judge emphasised in allowing a five per cent reduction to encourage him to continue to develop insights into and understanding of the reasons for his offending. Those insights had been reflected in a letter written to the Court at the time of sentencing. That sort of outcome would be hampered by the maintenance of the non-parole order.
The effect of setting aside a non-parole order
[34]Tamiefuna v R [2023] NZCA 163, [2023] 3 NZLR 108.
[35]R v Tamiefuna [2021] NZHC 2880 at [50].
[36]Tamiefuna v R, above n 34, at [117].
[37]At [120].
We pause to emphasise that setting aside a non-parole order does not mean that the offender is entitled to parole, and will be released once their parole eligibility date is reached. The offender must still be considered for release by the Parole Board, which applies the test set out in the Parole Act, with a particular focus on community safety.[38] Thus, for example, following this Court’s decision in Matara v R, Mr Matara was considered for parole by the Parole Board on a number of occasions, and on each occasion parole was declined. Thus although Mr Matara’s parole eligibility date was 2 June 2020 following the success of his appeal against the non-parole order, he was still in prison in October 2023 at the time the High Court dismissed claims brought by him for breach of NZBORA.[39] The High Court held that the original non-parole order had not resulted in Mr Matara being incarcerated longer than was justified, taking into account the Parole Board’s subsequent decisions declining parole.
Submissions on appeal
Appellant’s submissions
[38]Parole Act, s 7.
[39]Matara v Attorney-General [2023] NZHC 2888.
Mrs Vear noted that the term of imprisonment imposed on Mr Pearce did not include any adjustment to that term of the kind that this Court in Barnes v R identified as permissible in certain cases to reflect the non-parole order.[40]
[40]Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49 at [77]–[79].
Mrs Vear also noted that there was no discussion in the sentencing decision of an MPI that would have been imposed in the absence of s 86C. She submitted that as s 86C(6) requires the sentencing Judge to identify any MPI that would have been imposed, and give reasons for that MPI, an inference can be drawn that the sentencing Judge did not consider that an MPI was required in this case. Such an inference would be consistent with the emphasis the Judge placed on Mr Pearce’s genuine remorse, and his prospects of rehabilitation. As this Court confirmed in Zhang v R, an MPI should not be imposed as a matter of routine or in a mechanistic way; a reasoned analysis is required both as regards the imposition of an MPI and its length.[41] In this case, Mrs Vear submitted, the Judge did not undertake any such analysis. And if that analysis is undertaken now, there is no justification for imposing an MPI.
[41]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(n)].
In the absence of an MPI, Mrs Vear noted, the effect of an order that Mr Pearce serve his sentence without parole would be to increase by a multiplier of 3 the relevant non-parole period. Rather than approximately two years and one month, the effective non-parole period would be six years and four months. In absolute terms, that represents an additional four years and three months during which eligibility for parole would be denied. For that additional period, Mr Pearce would be deprived of the encouragement and hope that the prospect of parole is intended to provide.
Mrs Vear submitted that the multiplier of 3 for the non-parole period in this case was the same as in Tamiefuna v R and R v Wirihana, where it was held that a sentence without parole would breach s 9 of NZBORA.[42] The cases where it was found that a non-parole order would not be grossly disproportionate, in breach of s 9, all involve lesser multipliers: the multiplier in Allen v R was 2.3, and in Liai v R was between 1.67 and 2.[43]
[42]Tamiefuna v R, above n 34; and R v Wirihana [2022] NZHC 863.
[43]Allen v R [2022] NZCA 630; and Liai v R [2023] NZCA 326.
Mrs Vear accepted that Mr Pearce’s first and second strike offending was serious. However she submitted that the first offence was less serious, and did not involve violence.
Mrs Vear also accepted that this was not a case like Matara v R where mental illness affected a defendant’s ability to understand and respond to a first strike warning. However she submitted that this was a single impulsive act, not a sustained attack, and that carrying weapons and violence had been normalised for Mr Pearce by his upbringing.
Mrs Vear put particular emphasis on the relevance of personal factors, and the impact of a non-parole order in light of those factors. She submitted that Mr Pearce is a young man who is at a turning point in his life, as confirmed by the s 27 report and Mr Pearce’s letters to the victim and others. The sentencing Judge accepted that this was the case. In light of those personal factors, she said, it would be disproportionately severe to deny Mr Pearce the prospect of parole.
Crown submissions
Mr Marshall, who appeared for the Crown, emphasised that the threshold for finding that a non-parole order will breach s 9 of NZBORA is high. It is not sufficient that the sentence is disproportionate. It must be grossly disproportionate, such that it would shock the national conscience.
In this case, Mr Marshall accepted that the sentence imposed is disproportionate. But he submitted that it is not grossly disproportionate, and would not shock the conscience of the community, having regard to the seriousness of the relevant offending. The first strike offending was very serious: it involved a home invasion, while armed, and would have been terrifying for the victim. The sentence imposed, which included a youth discount, was designed to give Mr Pearce the opportunity to rehabilitate. He was also given a first strike warning. Despite this, some three years later, following his release from prison, he committed the second strike offence. That involved arming himself with a knife, travelling to the carpark where the group that included the victim was located, and stabbing the victim with such force that the knife was driven into his neck to its full length of 13 cm. The consequences for the victim were profound and will be life-long.
Mr Marshall submitted that the seriousness of the offending in this case was similar to that in Liai v R, where the non-parole order was upheld by this Court. Similar starting points were adopted for sentencing in that case and for Mr Pearce’s second strike offence.
Mr Marshall also submitted that this was a case in which an MPI would have been appropriate. The absence of any discussion of an MPI in the sentencing decision could simply be an oversight. As this Court emphasised in R v Taueki, MPIs are not rare or even uncommon in cases of serious violence, given “denunciation and deterrence are both important sentencing values and … protection of the community from the offender may well be a relevant factor”.[44] In this case, Mr Marshall submitted, in the absence of the three strikes regime an MPI of at least 50 per cent would have been appropriate for Mr Pearce’s second strike offending.
[44]R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 at [57]. See also Tuau v R [2013] NZCA 623.
The non-parole order means that he will serve at most (assuming he is granted parole when first eligible) an additional three years and two months: a multiplier of 2. Mr Marshall said that while harsh, this Court had upheld similar levels of disparity in Allen v R (a multiplier of 2.3), Waitokia v R (a multiplier of 3.5),[45] and Liai v R (a multiplier of between 1.67 and 2). Given the seriousness of Mr Pearce’s offending, Mr Marshall said there is no sense in which he can be considered an “inadvertent and unforeseen casualty of the three strikes regime”.[46]
[45]Waitokia v R [2023] NZCA 224.
[46]See Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661 at [28].
Mr Marshall acknowledged that in Crowley-Lewis v R this Court held that a non-parole order on a sentence of eight years and six months’ imprisonment would breach s 9. Instead, the Court imposed a 50 per cent MPI. The disparity avoided was thus four years and three months (a multiplier of 2).[47] However Mr Marshall emphasised this Court’s observation in Liai v R that it was central to the analysis in Crowley-Lewis v R that the appellant’s first strike offence occurred when he was just 18 years old, and involved the appellant and a friend demanding a 16 year old boy’s iPod, wallet and backpack. That offending could have been charged as demanding with menaces, which would not have resulted in a first strike being recorded.[48]
[47]Crowley-Lewis v R, above n 31.
[48]At [33]; and Liai v R, above n 43, at [43].
Mr Marshall submitted that the indications that Mr Pearce has strong prospects of rehabilitation are sparse. Nor, he submitted, are Mr Pearce’s personal circumstances sufficiently mitigating to render his sentence inconsistent with s 9 of NZBORA. There is no suggestion that Mr Pearce did not understand, or was incapable of acting on, the first strike warning he received. No causative mental health issues have been identified. Mr Pearce received as much credit as possible — 28 months — for his personal mitigating factors at sentencing. Given that recognition, and Mr Pearce’s risk of reoffending, the non-parole order is not so grossly disproportionate as to shock the national conscience.
Discussion
It was common ground before us that the non-parole order made under s 86C of the Sentencing Act meant that the sentence imposed on Mr Pearce was disproportionate. The critical question, as in Matara v R, is whether the non-parole order rendered the sentence so grossly disproportionate that it was inconsistent with s 9 of NZBORA. That requires comparison with the sentence that would have been imposed but for s 86C.
Would an MPI be imposed in the absence of a non-parole order?
As already mentioned, the sentencing decision does not address whether an MPI would have been imposed if an order was not made under s 86C(4). We do not know whether this is because the sentencing Judge considered that an MPI was not required, as Mrs Vear submitted, or was a result of inadvertence, as suggested by Mr Marshall.[49] We therefore need to consider whether this is a case in which an MPI would have been required by the Sentencing Act, in the absence of a non-parole order.
[49]Section 86C(6) provided that if but for that section the court would have imposed an MPI, the court must state, with reasons, the MPI that it would have imposed.
Mr Pearce’s offending was very serious. He chose to arm himself with a knife before travelling to the bar to meet the five Mongrel Mob members who he believed had stolen his partner’s phone and a box of alcohol. He anticipated violence and prepared for it. The blow he struck was unprovoked. It was so forceful that the entire length of the knife was embedded in the victim’s neck. The consequences for the victim were extremely serious, and enduring.
We accept Mr Marshall’s submission that an MPI of 50 per cent would have been required in this case, were it not for the three strikes regime.[50] An MPI may be imposed if release after one-third of the sentence is insufficient for the purposes of accountability, denunciation, deterrence, and protection.[51] The imposition of an MPI must not be routine, formulaic, or automatic.[52] But if an MPI is necessary to meet the s 86(2) objectives, it will be justified. Denunciation and deterrence are important sentencing values in cases of serious violence.[53]
[50]Torrington v R [2020] NZCA 301; Fane v R [2015] NZCA 561; and Tuau v R, above n 44 provide broadly similar examples to this case.
[51]Sentencing Act, s 86(2).
[52]See Zhang v R, above n 41, at [169]; Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [71]; and Blackler v R [2019] NZCA 232 at [38].
[53]R v Taueki, above n 44, at [57]–[58].
An MPI was required in this case. The attack was premeditated. It involved extreme violence. Mr Pearce used a potentially lethal weapon. The victim has been profoundly harmed. Indeed, it is difficult to imagine more serious offending in which the victim does not die. There was also an element of vigilante action to the offending. If Mr Pearce were released after approximately two years and one month, the objectives of denunciation and holding Mr Pearce accountable would not be met. These require he serve at least half of the sentence imposed before becoming eligible for parole.
Comparing the sentence imposed with the otherwise applicable sentence
It follows that the non-parole order made under s 86C extended the period during which Mr Pearce is not eligible for parole by a multiple of two, from three years and two months to six years and four months. In absolute terms, that is an increase of three years and two months during which Mr Pearce is not eligible for parole even if he is sufficiently rehabilitated that his release would pose no material risk to the safety of the community, he will continue to be detained in prison. Because he is not eligible for parole after three years and two months, Mr Pearce will not receive the same rehabilitative support that he would otherwise have received in the initial years of his sentence. And he will have less incentive and less encouragement to take measures of his own directed towards rehabilitation, or to take full advantage of any rehabilitative support that might be offered to him throughout his sentence.
That additional period of ineligibility for parole is not justified by the purposes of sentencing set out in the Sentencing Act. There is no rational connection between denying Mr Pearce parole for an additional three years and two months, and the purposes of sentencing identified in that legislation.[54]
[54]See Matarav R, above n 3, at [66].
In Matara v R this Court considered that the first strike warning given to Mr Matara under s 86B of the Sentencing Act could not justify the difference in treatment that resulted from a non-parole order.[55] Mr Matara’s mental illness and psychosis went to the heart of his ability to understand, and act on, warnings of that kind. As Mrs Vear accepted, that does not appear to be a factor in the present case. But any impact that such a warning might have would inevitably be dwarfed by the cumulative impact over many years of Mr Pearce’s violent and dysfunctional upbringing. Mr Pearce’s youth — 24 at the time of the relevant offending — is also relevant to the likely effectiveness of such warnings: it is now well recognised that the ability to exercise mature and informed judgement, and refrain from impulsive acts, is not fully developed at that age.[56] We do not consider that the very significant difference in treatment that results from the non-parole order can be justified on the basis of failure to heed the first strike warning, against that backdrop.
[55]At [67].
[56]See Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [76]–[86]; and Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
It follows that there is no rational justification, by reference to sentencing principles or to the first strike notice, for the additional punishment effected by the non-parole order. Is that additional punishment grossly disproportionate?
The present case is not as clear cut as Matara v R. The multiplier is less (2 times as compared with 2.5 times). The absolute period during which parole is precluded is shorter. And Mr Pearce’s personal circumstances are not as compelling as Mr Matara’s: in particular, there is no evidence of mental illness affecting Mr Pearce’s ability to make decisions at the time of the offending.
There is more similarity with Crowley-Lewis v R, in which this Court found a multiplier of 2 disproportionately severe.[57] However the first strike offence in that case was “at the low end of the range” and could have been appropriately charged so as not to attract a first strike warning.[58] Mr Pearce’s first-strike and second-strike offending were both very serious.
[57]Crowley-Lewis v R, above n 31.
[58]At [33].
In Liai v R,[59] a multiplier of 1.67–2 was held not to breach s 9 of NZBORA. Both strike offences were serious and there were few significant mitigating factors.[60]
[59]Liai v R, above n 43.
[60]At [44]. The appellant was aged 27 years and above when he offended.
The caselaw does not provide unequivocal guidance in this case. The multiplier of 2 falls in a zone where s 9 has been held to apply in some cases, but not in others. However where s 9 has been held to apply in the context of a multiplier of around 2, there have been additional factors that supported that conclusion such as Mr Matara’s mental illness, or Mr Crowley-Lewis’s much less serious first strike offending.
The absence of a rational basis for the non-parole order, founded on sentencing principles, is troubling. But that disconnect from sentencing principles was an inherent feature of the three strikes regime enacted by Parliament. And when the regime was subsequently repealed, Parliament chose not to extend the benefit of that repeal to those like Mr Pearce who had already been sentenced, effectively preserving that disconnect for a small group of offenders.
Given the seriousness of Mr Pearce’s first and second strike offences, it could not be said he is an inadvertent casualty of the three strikes regime (unlike Mr Fitzgerald). Rather, he comes squarely within the policy intent of that regime. Nor are we persuaded that the non-parole order would shock the national conscience, having regard to the seriousness of Mr Pearce’s first and second strike offending. The threshold set by s 9 — gross disproportionality — is high. On balance, weighing all of the relevant factors, we do not consider that the s 9 threshold is crossed in the present case.[61]
[61]Mr Pearce did not argue that his sentence was inconsistent with NZBORA on other grounds such as those referred to by this Court in Matara v R, above n 3, at [75]. Nor did he argue that the order infringed his rights under s 25(a) of NZBORA to a fair and public hearing by an independent and impartial court, an issue discussed by the High Court in Matara v Attorney-General, above n 39. He relied solely on s 9 of NZBORA.
It follows that the appeal must be dismissed.
Result
An extension of time to appeal is granted.
The appeal against sentence is dismissed.
Solicitors:
Public Defence Service | Ratonga Wawao ā-Ture Tūmatanui, Tauranga for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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