Pearson v Police
[2020] NZHC 3514
•22 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2020-404-409
[2020] NZHC 3514
BETWEEN PAUL SELWYN PEARSON
Plaintiff
AND
NEW ZEALAND POLICE
Defendant
Hearing: 7 December 2020 Appearances:
C Frans for Appellant
T Stuart for Respondent
Judgment:
22 December 2020
JUDGMENT OF DUFFY J
This judgment was delivered by me on 22 December 2020 at 2.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
C Frans, Barrister, Orewa Crown Solicitor, Auckland
PEARSON v NEW ZEALAND POLICE [2020] NZHC 3514 [22 December 2020]
[1] In the District Court at North Shore, Paul Pearson pleaded guilty to one charge of driving (third or subsequent) whilst impaired with blood showing evidence of a qualifying drug (methamphetamine),1 and four charges of trespass.2 He was sentenced on 17 September 2020 by Judge Bennett to 11 months’ imprisonment, with six months’ release conditions and a disqualification from driving for one year and one day.3 He now appeals against the sentence of imprisonment on the grounds it is manifestly excessive and the sentence should have been one of home detention.
Offending
[2] On 9 January 2019, Mr Pearson was at Bunnings Warehouse, Wairau. The manager handed him a trespass notice trespassing him from all Auckland Bunnings Warehouse stores for a period of two years.
[3] Between 21 February – 20 March 2020, Mr Pearson went to four different Auckland Bunnings Warehouse stores and attempted to obtain refunds for items.4
[4] On 20 March 2020, Mr Pearson was stopped by police for a breath alcohol test. He passed the test but appeared to a police officer to be under the influence of a substance other than alcohol and so he was required to accompany the officer for the purposes of a compulsory impairment test. Mr Pearson failed the test; his blood was analysed by ESR5 and found to contain methamphetamine.
Personal circumstances
[5] Mr Pearson is 38 years’ old. Although born in Sydney, Australia he is Māori. He spent to first 12 years of his life in Australia and then he and his whānau returned to Aotearoa New Zealand. The pre-sentence report (PAC report) records his iwi as “Ngati Paro”.
1 Land Transport Act 1998, ss 57A(1) and (3); maximum penalty imprisonment not exceeding two years or a fine not exceeding $6,000, and compulsory disqualification from driving for more than one year.
2 Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty imprisonment not exceeding 3 months or a fine not exceeding $1,000.
3 Police v Pearson [2020] NZDC 19177.
4 21 February 2020, Bunnings Warehouse Grey Lynn; 24 February 2020, Bunnings Warehouse Wairau and Rosedale; 20 March 2020, Bunnings Warehouse Rosedale.
5 The Crown Institute of Environmental Science and Research.
[6] Mr Pearson’s parents separated when he was three years old. He told the PAC writer he has a close relationship with his mother but is “somewhat estranged from his biological father”.
[7] Before Mr Pearson was sentenced to imprisonment, he was unemployed. He was living in a house he rented from his mother with two flat mates.
[8] The PAC writer reports that Mr Pearson began using methamphetamine at 16 years old and he continues to do so socially. He completed an alcohol smoking and substance involvement screening test based on his self-represented history of illicit drug use, which included “LSD, cocaine, ketamine, methamphetamine and mushrooms”. He advised the PAC writer that he primarily uses methamphetamine to “forget his worries and to escape the daily stresses of life in general”. He said that at present he uses 0.1 grams of methamphetamine once a month or so, whenever he can afford to purchase it or when he can share it socially with friends.
[9] His criminal and traffic history relevantly disclose three prior convictions for driving whilst impaired,6 24 convictions for other drug offending,7 and 4 convictions for other driving offending.8 He has breached community work on three occasions.9
[10] The PAC report writer identifies Mr Pearson’s risk of reoffending as medium due to his extensive criminal history and sustained drug use. His ability to comply with further community-based sentences was assessed as low, in the light of his three prior breaches of community work. Further, he was recorded as lacking insight into the seriousness of his actions, and the danger that he continues to pose to other road users. He did not express any genuine remorse for his actions.
[11] For the appeal Mr Pearson’s mother, Ms Julia Moahiraia–Reeves, provided a letter dated 23 November 2020 in which she outlined how she could support her son if he were to receive a sentence of home detention. She asserts that she would support
6 2 April 2004, 22 April 2013, 8 March 2018.
7 Possession of drugs (2011, 2010, 2008, 2007, 2004, 2003, 2002); possession of utensils
(2011,2010, 2007, 2004).
8 Speeding (2014); unlicensed driver failed to comply with prohibition (2011); dangerous driving (2007); drove while license suspended or revoked (2009).
9 2013, 2012, 2009.
her son in any rehabilitative efforts, and she would also provide him with work in her property maintenance business.
District Court decision
[12] Mr Pearson was sentenced on 17 September 2020.10 The Judge observed that, if she did not count Mr Pearson’s conviction for driving under the influence of a drug in 2002, the index offending would be his third conviction for driving whilst so impaired.11 She decided that given the age of the first offence she would ignore it.12 The Judge also observed that on 18 March 2018 Mr Pearson was sentenced to the maximum period of two years’ intensive supervision and six months’ community detention for the same type offending relating to an incident on 19 November 2016.13 The sentence of intensive supervision would, therefore, have concluded on 18 March 2020 and then on 20 March 2020 he had re-offended in the same way, which brought him back before the Court on the present offences.
[13] The Judge adopted a starting point of 12 months’ imprisonment,14 which she then uplifted by two months’ to account for his previous convictions, and one further month to account for the charges of trespass.15
[14] By way of discount, the Judge gave Mr Pearson the full 25 per cent discount for his early guilty pleas. She rounded the discount, of 3.75 months, up to four months, which brought the sentence to 11 months’ imprisonment.16
[15] The Judge was not persuaded that a further sentence of home detention was warranted. In particular, she was concerned by Mr Pearson’s attitudes. She considered his rehabilitative prospects to be “poor at best”.17 Accordingly, she imposed a sentence of 11 months’ imprisonment, with six months’ release conditions and a disqualification from driving for one year and one day.18
10 Police v Pearson [2020] NZDC 19177.
11 At [9].
12 At [9].
13 At [11].
14 At [15].
15 At [16].
16 At [18].
17 At [19].
18 At [22].
Approach on appeal
[16] Section 250(2) of the Criminal Procedure Act 2011 provides the Court must allow an appeal against sentence if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.19 In deciding whether to impose a different sentence, the Court does not substitute its own view for that of the original sentencing Judge.20 Rather, it must be shown that the sentence imposed is manifestly excessive or wrong in principle.21 The focus is on the end result rather than the process by which the sentence was reached.22
[17] There are two key issues on appeal: (a) whether the Judge erred in law; and if she did, (b) whether a different sentence should now be imposed.
[18] Of especial relevance to this appeal are the principles expressed in ss 16 and 17 of the Sentencing Act 2002 (the Act):
16Sentence of imprisonment
(1)When considering the imposition of a sentence of imprisonment…, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2)The court must not impose a sentence of imprisonment unless it is satisfied that,–
(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.
…
19 Section 250(3).
20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
21 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]–[35].
22 Ripia v R [2011] NZCA 101 at [15].
17Imprisonment may be imposed if offender unlikely to comply with other sentences
Nothing in this Part limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.
[19] In determining whether a sentence of home detention ought to be imposed, the Court has a broad discretion. The exercise of this discretion involves a considered and principled choice between two forms of sentence, home detention and imprisonment, and recognition that both forms serve the principles of denunciation and deterrence.23 The role for the Court is to determine which form better qualifies as the least restrictive sentence. This requires a consideration of all the relevant circumstances, including the nature of the offending and the mitigating factors relating to the offender.
Submissions
For the appellant
[20] Mr Frans, for the appellant, submits that the Judge erred in putting too much emphasis on the denunciation and deterrent aspects of sentencing.
[21] He submits that a different sentence, of home detention, should now be imposed. In particular, he highlights that the appellant’s most recent failure to comply with a community-based sentence was in 2013, and that the appellant served a sentence of community detention in 2018 without any breaches. He also underscores that the appellant’s last serious offending of a similar nature was in 2016, and that the appellant is willing to complete any appropriate programmes to fully address the dependencies which fuel his offending.
For the respondent
[22] Mr Stuart, for the respondent, submits there was no error in the Judge’s imposition of a sentence of imprisonment. He submits that the Judge’s sentencing
23 Fairbrother v R [2013] NZCA 340 at [30].
notes demonstrate that she appropriately turned her mind to ss 7, 8 and 16 of the Sentencing Act.
[23] In particular, Mr Stuart submits that a sentence of home detention cannot satisfy the purposes and principles of sentencing in this case for the following reasons:
(a)Mr Pearson has been subject to a variety of community-based sentences in the past, none of which have stemmed his offending.
(b)Mr Pearson has demonstrated a non-compliant attitude to court- imposed orders, breaching community work twice, escaping Police custody once, and offending repeatedly on bail.
(c)Mr Pearson has a history of drug-offending, including three prior convictions for driving while impaired.
(d)Mr Pearson was sentenced to two years’ intensive supervision and six months community detention for similar offending in 2018. A short- term sentence of imprisonment is required to deter him from continuing this pattern.
[24] Finally, Mr Stewart highlights the Court of Appeal’s observations in R v D as regards the appropriate deference this Court must show the District Court in marginal cases:24
In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.
24 R v D [2008] NZCA 254 at [66].
Discussion
[25] Before considering whether the Judge erred by refusing to grant home detention I consider it is important to look at the structure of the end sentence.
[26] The maximum sentence for driving whilst impaired third or subsequent offence is a sentence of imprisonment not exceeding two years.25 The offending was detected through Mr Pearson being stopped by police following a driving complaint, although nothing is said in the summary of facts as to what the nature of the driving was.
[27] Whilst persons who drive under the influence of drugs are a danger to the public, someone who has not been involved in a traffic accident and for whom this was the second such offence could typically expect to receive a non-custodial sentence. Although this was Mr Pearson’s third offence of this kind, a starting point of half of the maximum sentence of imprisonment was on the high side. This was then exacerbated by the Judge uplifting the starting point by two months to take account of the previous driving under the influence of drugs history. The Judge did not tie this uplift to the fact Mr Pearson had only recently completed the sentence for the offending in 8 March 2018, which I accept can be regarded as an aggravating factor.
[28] Once an offender moves into the realm of committing the offence of driving whilst impaired (third or subsequent) that person is facing a different sentence structure from the offence of driving whilst impaired simpliciter, which carries a maximum sentence of imprisonment of three months’ imprisonment.26 Accordingly, the starting point of a sentence for an offence that qualifies as a third or subsequent driving whilst impaired offence necessarily reflects the earlier offending, because that is what makes an offender eligible for the two year maximum sentence. It follows that the Judge was wrong in law to uplift the starting point by two months simply to take account of Mr Pearson’s earlier driving whilst impaired offending. Particularly once she had decided to disregard the 2002 offending for sentencing purposes. In combination with the high starting point, the regard paid to previous criminal history
25 See s 57A(3) of the Land Transport Act 1998.
26 See s 57A(2).
as warranting an uplift in the sentence is an error of law which requires this Court to sentence Mr Pearson afresh.
[29] I consider the Judge was right not to take account of the 2002 offending but I also consider she should have similarly disregarded the 2013 offending. This is because those offences are what caused Mr Pearson to be facing a charge of driving whilst impaired third or subsequent, which carried a heavier maximum penalty and therefore made him liable to receive a heavier penalty than he did for offences one (2002) and two (2013).
[30] Regarding the starting point for the offending the summary of facts discloses that no one else was involved in the incident. Little is known from the summary of facts about the circumstances that led to a complaint being made about Mr Pearson’s driving. The most that the summary of facts discloses is moderately serious offending. Without more an offender in those circumstances would typically receive a non- custodial sentence. However, if a Taueki approach to sentencing is to be adopted here I consider an appropriate starting point would be between nine and 10 months’ imprisonment for the driving offending.27 I propose to adopt nine months’ that being the least restrictive period of imprisonment I consider to be appropriate as a starting point.28
The adjusted starting point
[31] The Judge also uplifted the starting point by one month to take account of the trespass charges. I see no basis to interfere with that uplift and would adopt it, which brings the adjusted starting point to 10 months’ imprisonment.
Should there be any uplift for aggravating factors relevant to Mr Pearson?
[32] The fact Mr Pearson re-offended with the same type of offence only a short time (a matter of weeks) after completing his sentence for the previous such offending indicates a failure on his part to learn from the earlier offending and to respond positively to the rehabilitative sentence he received for the 2018 offending. This can
27 R v Taueki [2005] 3 NZLR 372 (CA).
28 See Sentencing Act 2002 s 8(g).
indicate the need for a stern approach next time around. On the other hand it can indicate he is in the grip of a substance abuse problem and other personal difficulties, which will see him continue to re-offend until they are addressed. As I shall return to later, not enough is known about Mr Pearson’s personal circumstances to enable a full understanding of the role they play in his offending.
[33] It is important when dealing with this type of offending to ensure that any uplift for previous offending does not result in a double counting given the higher maximum sentence it carries, which is predicated on the commission of earlier such offending, albeit with a far lower maximum sentence. Here I consider some recognition of the 2018 offending (which also carried the maximum sentence of two years’ imprisonment) is required by way of uplift to deter and denounce the subsequent offending. Here I pay regard solely to the 2018 offending, and I do so because of the recent gap in time between the completion of the sentence for the 2018 offending and the commission of the 2020 offending. I consider an uplift of one month is appropriate. In this way some acknowledgement is made of the context in which the present offending occurred. But without knowing more about Mr Pearson I have nothing to justify any uplift beyond this level. Added to the adjusted starting point this brings the sentence to 11 months’ imprisonment.
Discounts for mitigating factors relevant to Mr Pearson
[34] The Judge only recognised the guilty plea as a mitigating factor. Mr Pearson’s criminal history is consistent with him having on-going substance abuse issues. This is also borne out by the PAC report. The writer reports that Mr Pearson’s sustained drug use has contributed to the “recidivist nature of his offending” and causes him to pose a serious risk of harm to the general public. The only available information I have is contained in the PAC report. I consider that a report on Mr Pearson’s substance abuse and addiction as well as a s 27 report on cultural factors would have been appropriate. Certainly, it would have provided the sentencing Judge with a better appreciation of the drivers behind Mr Pearson’s offending.
[35] The PAC report informs me that Mr Pearson began using methamphetamine at 16 years old and he continues to do so socially. Mr Pearson completed an alcohol
smoking and substance involvement screening test based on his self-represented history of illicit drug use including “LSD, cocaine, ketamine, methamphetamine and mushrooms”. He advised the PAC writer that he primarily uses methamphetamine to “forget his worries and to escape the daily stresses of life in general”. He says that at present he uses 0.1 grams of methamphetamine once a month or so, whenever he can afford to purchase it or when he can share it socially with friends.
[36] Before he was sentenced Mr Pearson was unemployed. It is to his credit that his only offending for drug dealing occurred in 2004 and 2002. Since then the drug offending has been lower level possession of drugs or possession of utensils associated with drug use. He is someone whose drug use has not led to an ongoing involvement in the supply of drugs to fund his own addiction. By far the most serious risk he poses to others through his substance abuse is when he drives a motor vehicle under the influence of illicit drugs.
[37] It is not clear to me from the available information to what extent his driving offending is the result of his drug problems as opposed to bad conduct on his part and an antisocial refusal to recognise the harm he poses to others when he behaves in this way. Altogether not enough is known about Mr Pearson for the purpose of sentencing. Despite the absence of specialist reports on his substance abuse and cultural reports under s 27, I consider that nonetheless, there is enough information from which certain inferences can be drawn. There is undeniably an ongoing substance abuse problem which needs to be addressed if further offending is to be avoided.
[38] Mr Pearson must have suffered some cultural dislocation through the experience of living the first 12 years of life in Australia and then a return to New Zealand. I do not know to what extent if at all that Mr Pearson had an opportunity to engage with Māoritanga in Sydney, Australia and later on his return to Aotearoa New Zealand. Certainly, without any engagement his pathway as a Māori, in Aotearoa New Zealand in particular, would have been difficult.
[39] Albeit in the context of sentencing for drug offending under the Misuse of Drugs Act 1975, Zhang v R recognises that addiction causative of offending is a
mitigating consideration.29 Also poverty and deprivation potentially but not necessarily resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that can be regarded to have impaired choice and moral culpability. Here there are no reports to draw the necessary nexus between those factors and Mr Pearson’s criminal offending. However, his personal circumstances and criminal history are consistent with persons whose life opportunities and prospects have been diminished by those factors. I consider there is enough information available to warrant me drawing an inference that some recognition should be given to those factors, albeit less than to the extent identified in Zhang v R.30 Whilst here the offending is under the Land Transport Act it has been initiated by Mr Pearson’s substance abuse. Accordingly, I consider a 5% discount to recognise the influence of drug addiction and cultural dislocation on Mr Pearson’s conduct. Added to the 25% discount for a guilty plea, this brings the total discount to 30%.
Conclusion on sentence calculation
[40] The approach in Moses v R requires that mitigation discounts are to be calculated from the adjusted starting point without uplifts for personal aggravating factors being taken into account.31 That means the 30% discount I have arrived at should be deducted from the 10 months adjusted starting point (being the adjusted starting point minus the one month uplift for the aggravating factor relevant to Mr Pearson). This gives a sentence of seven months. To this I would add the uplift of one month to reflect the personal aggravating factor that I have identified. This leads to an end sentence of eight months’ imprisonment. The eight month sentence I have arrived at is considerably less than the 11 months the Judge imposed. It shows that sentence to be manifestly excessive.
[41] Here the error of law the Judge made has also led to her imposing a manifestly excessive sentence. Accordingly the appeal against the sentence of imprisonment should be allowed.
29 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
30 At [10](k) and (l).
31 See Gray v R [2020] at [31].
[42] Given the date of the sentencing (17 September 2020) I see no alternative now but a sentence of imprisonment. Given the term of imprisonment is a short term of imprisonment Mr Pearson will qualify for release after having served half the sentence.32 This renders moot the arguments counsel for Mr Pearson and the respondent made regarding the imposition of a sentence of home detention.
Result
[43] The appeal against the sentence of imprisonment imposed in the District Court is allowed. That sentence of imprisonment is set aside and substituted with a sentence of eight months’ imprisonment.
[44] The release conditions imposed in the District Court and the period of disqualification are unaffected by the appeal and so they remain in place.
Duffy J
32 See s 4 of the Sentencing Act 2002 for the definition of “short-term sentence”; see also Parole Act 2002, s 4 definition of “short-term sentence”.
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