Pearson v Department of Corrections

[2019] NZHC 2252

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000058/59

[2019] NZHC 2252

BETWEEN

TOKO MARCUS PEARSON

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	5 September 2019
Counsel	RT Nye-Wood for Appellant BT Vaili for Respondent
Judgment:	9 September 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 9 September 2019 at 3.30 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Hamilton. Crown Solicitor, Hamilton.

PEARSON v DEPARTMENT OF CORRECTIONS [2019] NZHC 2252 [9 September 2019]

The appeal

[1]    Mr Toko Pearson is subject to a 10-year, extended supervision order imposed in 2011. The order exists because Mr Pearson committed sexual offences and is at risk of committing more. On 15 July 2019, Judge B P Callaghan sentenced Mr Pearson to an 11-month term of imprisonment for twice breaching the order.1 The offences constitute  the  fourteenth  and  fifteenth  conviction  for  offending  of  this  type.  Mr Pearson appeals. He contends the sentence is manifestly excessive.2

Facts

[2]    On 14 December 2018 and 2 May 2019, drug tests revealed Mr Pearson had used cannabis. The order precludes Mr Pearson from using alcohol or controlled drugs; Mr Pearson committed at least some of his sexual offending after he had been drinking. In March 2019, Mr Pearson pleaded guilty to the December offence. He was convicted and ordered to return for sentence if he re-offended within 12 months. Mr Pearson’s May offence meant both were before Judge Callaghan.

The sentence

[3]    The Judge adopted a global starting point of 18 months’ imprisonment, largely because of Mr Pearson’s poor record of compliance with the extended supervision order. The Judge deducted five months for Mr Pearson’s guilty pleas, and a further two months for his apparent willingness to comply with release conditions. As observed, this produced an 11-month term of imprisonment.

A precis of the arguments

[4]    Mr Pearson contends the starting point was too high and his sentence ought not have been greater than eight months’ imprisonment. The respondent argues the sentence is within range.

1      Police v Pearson [2019] NZDC 13695.

2      A sentence appeal may be allowed only if the Judge erred and a different sentence should have been imposed; Criminal Procedure Act 2011, s 250(2).

Analysis

[5]    Extended supervision orders are made to protect the community from violent or sexual offenders who pose “a real and ongoing risk”.3 Standard conditions include where an offender may live; where they may work; and with whom they may associate.4 As this case illustrates, an offender may also be prohibited from using alcohol or drugs. It is a criminal offence to breach an extended supervision order without reasonable excuse.5 The maximum penalty is two years’ imprisonment. Some case examples follow.

[6]    Mr Williamson breached his extended supervision order three times within two months. He failed to comply with an employment condition, possessed devices capable of accessing the web and, more seriously, went to a recreational area where there were likely to be children. The first-instance Judge adopted cumulative starting points of eight months, eight months and nine months. Mitigating features produced a 21-month term of imprisonment. The High Court reduced the sentence by three months to ensure the sentence was not wholly out  of proportion  to the totality of  Mr Williamson’s offending.6

[7]    Mr Lake breached his extended supervision order twice, having previously been warned for non-compliance. Mr Lake failed to take a call from the probation officer and entered an excluded area. The Judge adopted a starting point of nine months’ imprisonment and deducted two months for mitigating features. The High Court quashed the sentence and imposed a three-month term of imprisonment.7 Gendall J held the starting point ought to have been not more than four months’ imprisonment because the two offences arose out of the same incident; and Mr Lake had no convictions for breaching the order.

[8]    Mr Williams received a sentence of two years’ imprisonment in relation to five breaches of his extended supervision order; two charges of unlawfully being in an enclosed yard; and one of offensive behaviour. Mr Williams went to a holiday park,

3      Parole Act 2002, s 107I.

4      Section 107J(a).

5      Section 107T.

6      Williamson v Department of Corrections [2014] NZHC 98.

7      Lake v Department of Corrections [2015] NZHC 1542.

and into a shower cubicle. He made obscene comments. Mr Williams then went elsewhere in the park and opened an insecure window. He returned the next day but ran away when confronted. Mr Williams had 10 earlier convictions for breaching the order. The Judge adopted a global starting point of 18 months’ imprisonment and added 12 months for Mr Williams history. The High Court held the starting point was warranted, but the uplift too high. Duffy J concluded this should have been six months’ imprisonment.8 The High Court substituted an 18-month prison sentence.

[9]    This leaves Otene v Department of Corrections.9 Mr Otene received a six- month term of imprisonment in relation to a single charge of breaching an extended supervision order. Mr Otene drank alcohol in violation of the order. Mr Otene had seven convictions for like offending. The High Court held the sentence was within range. It is not clear what the starting point was, or what discounts, if any, Mr Otene received.

[10]   All this suggests an 18-month starting point was available. The Judge could have imposed cumulative seven-month terms for each offence (compare Williamson), and then a four-month uplift for Mr Pearson’s history of non-compliance (compare Williams). Or, slightly shorter cumulative terms, and a slightly longer uplift. No totality adjustment was required because this level of sentence is not out of all proportion to the gravity of the offending. Mr Pearson’s use of cannabis posed risk in contravention of a regime designed to mitigate that. And, his history of non- compliance required an appreciable uplift. An eleven-month sentence is comfortably within range.

Result

[11]The appeal is dismissed.

……………………………..

Downs J

8      Williams v Department of Corrections [2012] NZHC 304.

9      Otene v Department of Corrections [2013] NZHC 766.