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Pearce v The King

Pearce v The King

Case [2024] NZHC 3925 19 December 2024

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-126

[2024] NZHC 3925

TIMOTHY HALLET PEARCE

v

THE KING

Hearing: 16 December 2024

Appearances:

G A Walsh for Appellant A Penney for Respondent

Judgment:

19 December 2024

JUDGMENT OF MUIR J

Appeal against sentence

This judgment was delivered by me on 19 December 2024 at 12 pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Solicitors: Hamilton Legal

PEARCE v R [2024] NZHC 3925 [19 December 2024]

Introduction

[1] Timothy Pearce appeals his sentence of two years and six months’ imprisonment in respect of three methamphetamine related charges, being:1

(a)charge one — possession of methamphetamine for supply —155 grams;

(b)charge two — supply of methamphetamine — two grams; and

(c)charge three — offers to supply methamphetamine — 0.75 grams.

[2] He says that the sentence was manifestly excessive for two reasons. First, the starting point of five years adopted by the Judge was too high and should have been in the range of four to four and a half years. Secondly, the Judge declined to grant a discount for remorse which should have been allowed to the extent of approximately five per cent of the assessed starting point.

The facts

[3] For approximately 45 years Mr Pearce has been in a personal relationship with Ms Lynmarie Carter. They share children, grandchildren and great grandchildren together. Both are in their early 60s.

[4] In September 2021 police commenced an investigation into a wholesale methamphetamine supplier operating in the Waikato area. An analysis of communications led them to Ms Carter who was operating a well established street level methamphetamine operation together with Mr Pearce. The evidence established purchase of wholesale quantities of methamphetamine for the purposes of supply to a recurring retail customer base throughout the Waikato. The communications further identified Mr Pearce’s support role as including delivery of drugs and enforcement of debt collection.

1 R v Pearce [2024] NZDC 27595.

[5] In late October 2021 Ms Carter became seriously ill with COVID-19 and was hospitalised for an extended period. Mr Pearce communicated with the wholesale supplier, indicating that his partner was unavailable and that he would be taking over the retail operation. He admitted to possession of 155 grams of methamphetamine between 30 October 2021 and 6 January 2022. He also admitted to supplying two grams of methamphetamine to six different retail customers.2 While Ms Carter remained in hospital there were also two identifiable offers to supply methamphetamine made by Mr Pearce, the offers being for half a gram and a quarter of a gram respectively.

The District Court decision

[6] The Judge considered that Mr Pearce’s offending placed him within Band 2 of Zhang v R with the result that the indicated starting point was between two and nine years.3 Having referenced the decision in R v Su’a, he adopted the Crown’s suggested starting point of five years’ imprisonment.4

[7] Although Mr Pearce had convictions…

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] NZHC 3925
Case: [2024] NZHC 3925
Decision Date: 19 December 2024

CaseChat Overview and Summary

Timothy Pearce appeals the sentence of two years and six months’ imprisonment imposed by the District Court for possession and supply of methamphetamine. The appeal focuses on two key issues: the appropriateness of the starting point of five years, and the absence of a discount for remorse. Pearce argues that the starting point should have been between four to four and a half years and that a five per cent discount for remorse was warranted.

The court considered the evidence and circumstances of Pearce's involvement in a methamphetamine operation. Pearce played a significant role, particularly after his partner, Ms Lynmarie Carter, was hospitalised. He took over the operation, communicated with the wholesale supplier, arranged supply, and made deliveries. The operation involved substantial quantities of methamphetamine, which caused harm to the community. The District Court Judge adopted a starting point of five years, considering Pearce’s significant role in the operation.

The court examined the guideline authority and relevant case law, including Zhang v R, Berkland v R, and Epapara v R, among others. The court concluded that the starting point of five years was appropriate given Pearce's significant role in the operation, which involved considerable quantities of methamphetamine and substantial harm to the community. The court found that the District Court Judge's starting point was firm but available and did not err in adopting it.

Regarding the discount for remorse, Pearce submitted a letter expressing remorse for his involvement in drug dealing and the harm it caused. However, the court noted that the letter primarily focused on the impact of a custodial sentence on his family rather than tangible evidence of remorse, such as participation in restorative justice processes or drug rehabilitation programs. The District Court Judge did not err in not allowing a discount for remorse, considering the lack of substantial evidence of genuine remorse beyond the letter.

The court dismissed the appeal, upholding the sentence imposed by the District Court. The sentence of two years and six months’ imprisonment remains appropriate, reflecting the seriousness of the offending and the principles of denunciation and deterrence.

Orders