Pearson v R
[2020] NZCA 573
•18 November 2020 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA308/2020 [2020] NZCA 573 |
| BETWEEN | SAMUEL PEARSON |
| AND | THE QUEEN |
| Hearing: | 6 October 2020 |
Court: | French, Mallon and Ellis JJ |
Counsel: | G A Walsh and M J James for Appellant |
Judgment: | 18 November 2020 at 11 am |
Recalled and Reissued: | 23 November 2020 |
Effective date | 18 November 2020 |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of nine years and three months’ imprisonment with an MPI of 50 per cent is quashed.
CA sentence of seven years and six months’ imprisonment with an MPI of 50 per cent is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Mr Pearson pleaded guilty to aggravated burglary,[1] wounding with intent to injure,[2] assault with intent to injure,[3] male assaults female,[4] and intentional damage.[5] The charges arose from two separate incidents, less than a week apart. The first involved Mr Pearson assaulting his partner and her brother and damaging a car. The second involved Mr Pearson breaking into a stranger’s house and threatening a three-year-old with a knife, before threatening and stabbing her father.
[1]Crimes Act 1961, s 232(1)(b) [maximum penalty of 14 years’ imprisonment].
[2]Section 188(2) [maximum penalty of seven years’ imprisonment].
[3]Section 193 [maximum penalty of three years’ imprisonment].
[4]Section 194(b) [maximum penalty of two years’ imprisonment].
[5]Section 269(2)(a) [maximum penalty of seven years’ imprisonment].
On 5 June 2020, Judge Cocurullo sentenced Mr Pearson to nine years and three months’ imprisonment, with a minimum period of imprisonment (MPI) of 50 per cent.[6]
[6]R v Pearson [2020] NZDC 10248 [Sentencing Notes].
Mr Pearson now appeals that sentence on the grounds that it is manifestly excessive. He says that the starting point was too high and that the Judge took insufficient account of matters canvassed in a s 27 report.
The offending
The Ngaruawahia offending
On the evening of 13 October 2018, Mr Pearson’s then partner, Corinna Kanara, messaged her brother (David Kanara),[7] asking him to collect her from Mr Pearson’s house because he had become abusive.
[7]Her brother David, their brother Dylan, and Dylan’s partner Ms Whitaker responded to her call for help.
Mr Kanara, together with another brother and his partner, drove to Mr Pearson’s house. The two brothers began to move Ms Kanara’s belongings from the house to the car. While they were doing this, Mr Pearson ran up to the car and smashed the windscreen with a scooter, causing considerable damage. Mr Pearson swung the scooter at Mr Kanara; he then dropped it and punched Mr Kanara in the face.
Mr Pearson and some associates continued to advance on Mr Kanara, causing him to retreat. Mr Kanara was then kicked in the thigh with enough force to cause him to fall to the ground. While he was on the ground, Mr Pearson punched him on the head and ribs. When Mr Kanara attempted to protect himself with his arms, one of Mr Pearson’s associates pulled Mr Kanara’s sweatshirt over his head so that he could not see what was going on. Mr Kanara was kicked and punched while he lay on the ground.
Ms Kanara came out of the house and walked towards the car. Mr Pearson grabbed her from behind in a headlock. He held her like that for around 30 seconds and dragged her backwards, into the house.
Mr Kanara and his brother eventually managed to get back in their car and drove away, without their sister. A short time later they returned with the police and were able to collect Ms Kanara. Mr Pearson was arrested, charged, and released on bail.
As a result of this offending, Mr Kanara suffered bruising and swelling to the right side of his face, a cut on the inside of his lip, and abrasions to his right elbow, below his ribs, and to his shoulder blade. He also had skin missing from his right palm.
The Hamilton offending
Less than a week later, just after midnight on 18 October, Mr Pearson broke into a Hamilton house — either through a broken window, or the ranch slider. He grabbed a butcher’s knife from the kitchen. He went into a bedroom where two little girls (aged three and four) were sleeping. The three-year-old awoke and screamed; her father came to investigate.
Mr Pearson then threatened to hurt the child, pushing her head into a pillow and holding the knife to her head. The girls’ father lunged at him, tackling him into a wall. Mr Pearson punched the father, and stabbed him several times with the knife. Responding to yells for help, the girls’ mother took the children from the room and called the police. Mr Pearson was able to be subdued before police arrived; the father was able to tackle him to the ground.
Mr Pearson was again arrested and charged.
During the attack, the girls’ father sustained stab wounds to his face, chest, abdomen, shoulder, and inside cheek. He had to take time off work to heal from his injuries. Since the offending he has struggled to sleep; he is constantly fearful of break-ins. The family have said they feel violated and robbed of their home. They have had to move elsewhere.
District Court sentencing
Judge Cocurullo took the Hamilton offending as the lead charges, and he excoriated Mr Pearson for the violence against the child:
[11] Before I come to a truncated overview of the respective lawyer’s submissions, clearly the Hamilton offending and within that the aggravated burglary is the lead charge and lead incident, my approach is to appreciate the aggravated burglary with reference to the wounding charge combined. Frankly, one could not conceive in a physical violence parameter a much more frightening circumstance than what you put this three year old through. She was entitled to be safe, secure, cared for and protected in the sanctity of her own home. Her parents were entitled to knowing that they had placed her in that room to sleep within the sanctity of their own home and Mr Pearson it is abundantly clear to me that your offending broke their life.
[12] One might surmise the difficulties that this three year old may in fact end up as a result of what you did. I have certainly seen what her father has had to say. They cannot even live in a place that they used to consider safe because of you. Your effect on their life is profound and ongoing and will be with them for a very, very long time. You should be disgusted in your behaviour because I consider your invasion of privacy here extreme and abhorrent.
The Judge then turned to the starting point for that offending. The Crown submitted that a 12-and-a-half year starting point was appropriate; the defence submitted seven years. A key point of difference between the parties was the level of culpability for Mr Pearson’s use of the knife. The Crown said that it demonstrated planning and preparation; the defence said that it showed a lesser degree of premeditation because Mr Pearson did not bring the knife to the house.[8] The Judge agreed with the Crown, saying that Mr Pearson had armed himself with a knife as an “insurance policy”.[9]
[8]Sentencing Notes, above n 6, at [16] and [18].
[9]At [19].
After referring to R v Mako,[10] the Judge considered — but rejected — the defence submission that the Hamilton offending was less serious than the offending in the recent cases of Enoka v R[11] and Schimanski v R[12], where starting points of nine years’ imprisonment had been adopted on charges of aggravated burglary and wounding with intent to cause grievous bodily harm (Enoka) and wounding with intent to cause grievous bodily harm (Schimanski):
[23] I have taken the view Mr Pearson that for the Hamilton offending when I look at all of the factors that I have set out, your offending is more serious than the Enoka v R and Schimanski v R decisions and I say for the aggravated burglary together with the wounding charge a start point for you is 11 [years’] imprisonment.
[10]R v Mako [2000] 2 NZLR 170 (CA).
[11]Enoka v R [2018] NZCA 185.
[12]Schimanski v R [2018] NZCA 50.
He then addressed uplifts:
[24] A totality uplift for that to express the Ngaruawahia offending in my view is nine months and I say there is a [discrete] uplift of offending whilst on bail of three months and I apply a modest uplift of three months also to take into account your previous conviction list. I am mindful there that whilst you have serious previous convictions, you are still a relatively young man and the position I have taken to there is one of 12 years and three months’ imprisonment.
Next, the Judge turned to the s 27 cultural report. He said he was impressed by its content and acknowledged that it showed a nexus between Mr Pearson’s offending and poverty of circumstance:
[25] … I know that it is called a cultural report but in my view the significance of it is less about this issue of disenfranchisement to culture that has caused a nexus to offending and more about the utterly impoverished upbringing that you had and the deprivation of circumstances that you … have had.
[26] Out of respect for you I am not going to detail those matters in open Court. As a child and young man you were exposed to horrible things. You were exposed to things that no child should have been exposed to. You had the right to be cared for and protected and you were not and I intend to take into account to the extent that I can, those mitigating features in this exercise. My worry for you is these scars of your past and the amount of time that you have had to have spend in jail to date and the time that you will be in jail, will be that any release in the future will require careful and sophisticated management if the community is to be safe from you.
The Judge concluded that Mr Pearson’s sentence should be reduced by 15 months on account of the matters raised in the report.[13] The 11-year figure was then further discounted by 15 per cent (21 months) for Mr Pearson’s guilty pleas, yielding the end sentence of nine years and three months’ imprisonment.[14] The Judge imposed an MPI of 50 per cent, on the basis that the “overarching issue here is the protection of the community.”[15]
The appeal
[13]Sentencing Notes, above n 6, at [27].
[14]At [28].
[15]At [29].
As noted earlier, the appeal challenges both the starting point and the s 27 report discount. As well, a question was raised about the way in which the discounts were applied, in light of this Court’s recent decision in Moses v R.[16]
[16]Moses v R [2020] NZCA 296.
No issue is taken with the uplifts for the Ngaruawahia offending, the offending while on bail, or the previous convictions. Mr Walsh also accepted the 15 per cent discount for the guilty plea and the appropriateness of the MPI.
Discussion
Starting point
As the District Court Judge acknowledged, sentencing for aggravated burglary usually proceeds by way of analogy to the tariff case for aggravated robbery: R v Mako.[17]And in Mako this Court relevantly stated:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.
[17]R v Mako, above n 10; and see R v Watson CA224/03, 24 October 2003 where this Court at [27] accepted that the principles stated in Mako are equally applicable to the crime of aggravated burglary.
The reference to “ten years” in this passage must be read in light of the fact that there used to be a higher maximum penalty for an aggravated robbery or burglary that involved home invasion.[18] The home invasion provisions were repealed when the Sentencing Act 2002 (the Act) was enacted; 14 years’ imprisonment is now the maximum sentence for an aggravated robbery or burglary involving home invasion.[19] Nonetheless, s 9(1)(b) of the Act now recognises that unlawful entry into a private home is an aggravating factor for sentencing purposes.[20]
[18]19 years’ imprisonment compared to 14 years’ imprisonment.
[19]Crimes (Home Invasion) Amendment Act 1999, s 2 amending the Crimes Act, s 17C(1)(n) and (p), repealed by s 164(a) of the Sentencing Act 2002.
[20]Sentencing Act, s 9(1)(b).
On our reading of the sentencing notes, the Judge identified a number of aggravating factors:
(a)the home invasion at night when the family was asleep;
(b)the brandishing and use of a lethal weapon;
(c)the injuries suffered by the father;
(d)the particular vulnerability of the young children and the threats made to the younger one;
(e)the victim impact; and
(f)the planning and pre-meditation, as evidenced by the knife.
The last factor is still disputed by Mr Walsh on behalf of Mr Pearson. But we tend to agree with the Judge. There is little distinction between deciding beforehand to bring a knife to a burglary and picking up a knife (which Mr Pearson must have known would have been present in the house) in the course of a burglary. That said, however, the carriage of a weapon is already an element of the aggravated burglary offence — it is important not to double count. And we also acknowledge that there does not appear to have been much wider planning or premeditation here.
The central question on appeal is whether the Judge’s 11-year starting point was too high. Based on our review of sentences in other similar cases, including those referred to by the Judge, we have concluded that it was.
As noted earlier, the two cases expressly referred to by the Judge were Enoka and Schimanski. Of those, Enoka is the more comparable.[21] The Judge there adopted a starting point of nine years’ imprisonment on the charges of aggravated burglary and wounding with intent to injure.[22] There were aggravating features not present in Mr Pearson’s case: the involvement of three offenders and an element of disguise. But those two absences are more than offset by the acute vulnerability of the victims here. And not only did Mr Pearson’s offending involve the two little girls, it also occurred (unlike Enoka) at an hour when all the victims were asleep. For those reasons we would regard the offending in Enoka as slightly less serious than this case.
[21]In Schimanski v R, above n 12, a starting point of nine years was adopted on a charge of wounding with intent to cause grievous bodily harm. Although the facts involved a home invasion, it was not at night. No weapon was taken by the lone offender and hence there was no scope for a charge of aggravated burglary. But the violence inflicted was severe and prolonged; the injuries sustained by the victim were profound.
[22]R v Enoka, above n 11, at [21].
Like the District Court Judge, we consider the key aggravating feature here was the direct threats made to a three year old child in the presence of her four year old sister. For that reason, we have found other sentences imposed for aggravated burglary and/or aggravated robbery instructive. Those we have considered include (in chronological order):[23]
[23]We have considered only cases that post-date the enactment of the Sentencing Act 2002 (and the repeal of the home invasion law).
(a)Spicer v R: the victim was terminally ill and recovering from major surgery.[24] Two disguised offenders who were after his morphine, forced their way into his house, armed with a chisel and a knife. In the course of what ensued the victim was hit on the head and suffered internal bleeding due to damage done to his surgical wounds. This Court endorsed the 10 year starting point adopted in the District Court on an aggravated burglary charge.[25]
[24]Spicer v R CA440/03, 1 June 2004.
[25]At [13].
(b)Police v Grant, where a couple and their daughters (aged between 8 and 14) were the victims of a home invasion at night by three disguised offenders, armed with a steel bar and claw hammers.[26] The male victim was hit on the head, across his back, shoulder blades, the base of his neck and buttocks with a claw hammer, by two of the men but then managed to escape. His wife and children were confined in a bedroom, and threatened with the steel bar. On appeal, the “lowest possible starting point” on charges of aggravated burglary and kidnapping was said to be nine years’ imprisonment.[27]
(c)Paul v R: a pre-meditated home invasion by two disguised offenders using a knife taken from the victim’s kitchen.[28] The victim was an 86‑year-old man who was tied up but not seriously injured. The starting point was 10 years’ imprisonment.
(d)Fenton v R, in which a 14-year-old girl was one of the victims of an early morning home invasion involving approximately five offenders armed with a bat and a machete.[29] The intruders bound the girl’s hands and feet and struck her father on the head with the bat. The father was injured further while escaping. A starting point of 10 years on a charge of aggravated burglary was upheld.
(e)Royal v R, in which a 13-year-old girl was similarly part of a family of six whose home was invaded in the middle of the night by three offenders dressed as police and armed with firearms and a sledgehammer.[30] The family (including the girl) was bound, gagged and intimidated. One of them (a man) was punched to the floor, kicked to the head and body, and cut with a knife. On a charge of aggravated robbery as a party, the Court of Appeal upheld an inferred starting point of 11 years.
(f)Walker v R: a pre-meditated home invasion at night by four offenders using disguises. The victim — a 61-year-old man living alone in a remote area — was tied up, detained and threatened. The victim committed suicide three weeks after the offending.[31]
(g)Pomare v R: a pre-meditated home invasion at night, while the victims were sleeping, by three offenders carrying knives.[32] The victims were an elderly woman and her middle‑aged daughter. Both were tied up and threatened; they suffered minor injuries, and the daughter suffered from ongoing PTSD. The starting point on two charges of aggravated robbery (upheld on appeal) was 10 years’ imprisonment.
(h)Tiori v R which involved a premeditated plan whereby four offenders exacted retaliation on the occupant of a house he shared with a number of others, including two children under the age of two.[33] The disguised offenders burst into the house at 11.30 pm brandishing a slug gun and a hammer. One of the occupants was hit on the back of the head with the slug gun. Property was stolen. The 10 year starting point adopted in the District Court on a charge of aggravated robbery was reduced to eight years on appeal.[34]
(i)Kingi v R, where three disguised offenders forced their way into the female victim’s address and pushed her down onto her back.[35] All the offenders all took turns straddling her chest and threatening her with a knife. One of them held a knife to the throat of her 18 month old baby, eventually dropping the child onto a couch. On charges of aggravated burglary, aggravated robbery and possession of cannabis for sale, the District Court Judge’s starting point of eight years’ imprisonment was upheld on appeal.[36]
(j)Frank v R where one of the victims of a home invasion by three disguised offenders was on crutches due to having suffered from polio.[37] He was threatened with a knife and punched repeatedly in the face. The eight-year starting point imposed in the District Court on the lead aggravated robbery charge was upheld on appeal.[38]
(k)Watene v R where four disguised offenders armed with a shotgun entered the house of two men and a woman who was in labour (the men were about to take her to hospital).[39] Threats were made and Mr Watene attempted to kick the woman. A starting point of nine years’ imprisonment on an aggravated robbery charge was upheld on appeal.[40]
[26]Police v Grant HC Wellington CRI 2005-485-162, 3 March 2006.
[27]At [21].
[28]Paul v R CA409/05, 26 April 2006. The charges were aggravated robbery and kidnapping.
[29]Fenton v R [2008] NZCA 379.
[30]Royal v R [2009] NZCA 65.
[31]Walker v R [2010] NZCA 534. The charges were aggravated robbery and kidnapping.
[32]Pomare v R [2011] NZCA 83.
[33]Tiori v R [2011] NZCA 355.
[34]At [22].
[35]Kingi v R [2013] NZCA 393.
[36]At [12].
[37]Frank v R [2013] NZCA 447.
[38]There were also charges of aggravated burglary, kidnapping, assault with intent to injure and two counts of threatening to kill.
[39]Watene v R [2014] NZCA 357.
[40]At [35].
Viewed against that background, the other case involving elderly victims relied on for Mr Pearson by Mr Walsh — Lal v R — seems something of an outlier.[41] Mr Lal broke into the home of a 76-year-old woman during the daytime. He threatened her with a knife, tied her up and blindfolded her, rubbed his erect penis on her back through his clothing, punched her unconscious, and threw her to the ground. He left after stealing about $200 in cash. The victim suffered long term back pain and enduring emotional distress. There, a starting (and end) point of seven and half years’ imprisonment was adopted for aggravated burglary, kidnapping, and indecent assault.
[41]Lal v R [2016] NZCA 234.
A number of the cases discussed at [28] above involve aggravating features that are absent in Mr Pearson’s case: multiple offenders, the use of disguises and greater planning and premeditation (use of ties and bringing weapons). Equally, not all of the cases involve serious injury. Viewing these cases overall, however, we think the 11 year starting point adopted by the Judge in Mr Pearson’s case was manifestly excessive; we consider a nine-year starting point was appropriate here.
As we have said, no issue was taken with the uplifts for the Ngaruawahia offending (nine months), the offending while on bail (three months), or for previous convictions (three months).
Discounts
In our view, the 15-month discount afforded by the District Court Judge for cultural factors was an appropriate and meaningful reflection of the s 27 report. That constitutes a discount of 13 per cent. Although Mr Walsh maintained before us that the s 27 discount should be 15 per cent, we note that in the District Court he submitted 12.5 per cent was appropriate. And as this Court recently noted, “[t]he assessment of an appropriate allowance to recognise matters raised in s 27 report[s] is a very fact specific exercise in each case”.[42] That is the exercise the Judge conducted here.
[42] Carr v R [2020] NZCA 357 at [63] (referring to Whittaker v R [2020] NZCA 241 at [51]).
The 15 per cent discount for the guilty pleas is not — and in our view could not be — impugned.
Moses v R
The Crown submitted the decision in Moses should not be applied in Mr Pearson’s case because it is not expressly stated to have retrospective effect. We do not accept that submission. The change to sentencing practice effected by Moses was a situation of error correction. That being so, it applies to this case.
So, Mr Pearson’s substituted sentence will be made up as follows:
(a)A nine-year starting point for the Hamilton offending. When adjusted to take account of the Ngaruawahia offending, that comes to an adjusted starting point of nine years and nine months (117 months).
(b)That figure is then uplifted by six months for aggravating personal factors and simultaneously reduced by the discounts for mitigating personal factors (15 months) and guilty plea discount (15 per cent of 117months = 18 months),[43] giving an end sentence of seven years and six months’ imprisonment.
[43]The discount for mitigating personal factors is calculated as a percentage of the adjusted starting point (not including uplifts for aggravating personal factors).
An MPI of 50 per cent was not contested by Mr Walsh or the Crown, and we see no reason to alter it.
Result
The appeal is allowed.
The sentence of nine years and three months’ imprisonment is quashed.
We substitute a sentence of seven years and six months’ imprisonment with an MPI of 50 per cent, being three years and nine months’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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