Pearson v Police - [2020] NZHC 3514

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…

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 Pearson v Police

Details

AGLC: Pearson v Police [2020] NZHC 3514
Case: [2020] NZHC 3514
Decision Date: 22 December 2020

CaseChat Overview and Summary

Paul Pearson appealed against his sentence of imprisonment, imposed following a guilty plea to one charge of driving (third or subsequent) whilst impaired with blood showing evidence of a qualifying drug (methamphetamine), and four charges of trespass. He contended that the sentence was manifestly excessive and that a sentence of home detention should have been imposed. The Crown contended there was no error in the District Court’s imposition of a sentence of imprisonment. The High Court found that the District Court had erred in law by making an uplift to the starting point for the driving charge of two months. The Court found that there should have been no uplift in light of the fact that the District Court had decided to disregard a prior offending for sentencing purposes. The Court found that an uplift of one month was appropriate to recognise the 2018 offending. The Court found that the District Court had erred in its calculation of the discount for mitigating factors. The Court found that a discount of 30% was appropriate. This discount was to be calculated from the adjusted starting point without uplifts for personal aggravating factors being taken into account. The Court found that the sentence of imprisonment was manifestly excessive. The appeal was allowed, the sentence of imprisonment was set aside and substituted with a sentence of eight months’ imprisonment. The release conditions and period of disqualification imposed in the District Court remained in place.

Orders