Pearce v The Queen - [2018] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA497/2017
[2018] NZCA 228

BETWEEN	LOGAN ASHLEY SHANNON PEARCE Appellant
AND	THE QUEEN Respondent

Hearing:	18 April 2018
Court:	Williams, Wylie and Thomas JJ
Counsel:	C J Tennet for Appellant M L Wong for Respondent
Judgment:	29 June 2018 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
B The appeal is allowed.
CThe sentence is quashed and a sentence of eight years and six months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

Logan Pearce was convicted in the District Court at Hamilton, having pleaded guilty immediately prior to the commencement of trial to charges relating to an attempted escape from Waikeria Prison. The offending was carried out with co‑offender Joshua Tryselaar who entered guilty pleas nine months earlier. Mr Tryselaar was separately sentenced to eight years’ imprisonment.[1] The charges Mr Pearce faced were as follows:
(a)aggravated wounding of Officer Prasad;
(b)aggravated injury of Officer Morris;
(c)unlawful detention of Officer Morris;
(d)attempted escape from custody; and
(e)intentional damage.
[1]Tryselaar v R [2012] NZCA 353.
The sentencing history in this matter is somewhat more complex than usual. On 12 November 2012 Judge Burnett in the District Court at Hamilton sentenced Mr Pearce to nine years and three months’ imprisonment.[2] She had given him a second‑strike warning on conviction.[3] Then his first-strike conviction (for prior unrelated offending) was subsequently overturned on appeal.[4] This necessitated Mr Pearce’s re‑sentence on the prison-escape charges and the down-grading of his strike warning from a second strike to a first strike. Apart from that matter, Judge Burnett’s approach on re-sentence did not vary from the first sentencing. A final effective sentence of nine years and three months’ imprisonment was re-imposed on 23 April 2013.
[2]R v Pearce DC Hamilton CRI-2012-019-1000, 12 November 2012.
[3]He had earlier received a first strike warning in relation to prior sexual offending.
[4]Pearce v R [2012] NZCA 596.
It will be seen that this appeal is filed some years out of time. An extension of time to appeal is therefore required and sought. We will address that matter at the end of this judgment.

Factual background

Earlier offending

On 21 January 2011 Mr Pearce was sentenced on a charge of aggravated robbery to three years and three months’ imprisonment. He was serving this sentence at the time of the attempted escape offending — the subject of this appeal.
On 27 July 2011 Mr Pearce was also convicted by a jury in the District Court at Hamilton on charges of sexual violation by rape and sexual violation by unlawful sexual connection. He was given a first-strike warning in relation to that offending but had not been sentenced by the time of the relevant offending in this appeal. The convictions for the July 2011 offences were subsequently quashed by this Court.[5]

Index offending

[5]Pearce v R, above n 4.

The facts…

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 Queen

Details

AGLC: Pearce v The Queen [2018] NZCA 228
Case: [2018] NZCA 228
Decision Date: 29 June 2018 at 4.00 pm

CaseChat Overview and Summary

Logan Pearce appeals against his conviction and sentence for offences relating to an attempted escape from Waikeria Prison. The respondent, the Crown, contends the appeal is out of time and should not be heard. The appeal raises issues as to the sentence imposed on Pearce, including whether the sentencing judge erred in her approach to his offending history, mental health, and the discount for his guilty plea. The Court was required to determine whether the appeal was brought out of time, and if not, whether the sentence imposed was excessive or otherwise inappropriate.

The Court found that Pearce’s appeal was brought out of time but granted an extension of time to appeal in the interests of justice. The Court found that the sentencing judge imposed a sentence based on a mistaken view of the facts and that this mistake caused Her Honour to adopt a starting point which was manifestly excessive. The Court found no merit in the argument that Pearce’s prior rape and sexual violation convictions should have been taken into account in his re-sentencing. The Court also found that Pearce’s mental health issues did not warrant a discount on sentence and that the sentencing judge was entitled to reject this as a mitigating factor. The Court found that Pearce’s starting point should have been nine years’ imprisonment for the attack on Officer Prasad and that the appropriate end sentence should have been eight years and six months’ imprisonment.

The application for an extension of time is granted. The appeal is allowed. The sentence is quashed and a sentence of eight years and six months’ imprisonment is substituted.

Orders