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Pearson v R

Pearson v R

Case [2020] NZCA 573 18 November 2020

Aggravated & Exemplary Damages

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA308/2020
[2020] NZCA 573

BETWEEN	SAMUEL PEARSON Appellant
AND	THE QUEEN Respondent

Hearing:	6 October 2020
Court:	French, Mallon and Ellis JJ
Counsel:	G A Walsh and M J James for Appellant B F Fenton for Respondent
Judgment:	18 November 2020 at 11 am
Recalled and Reissued:	23 November 2020
Effective date of Judgment:	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…

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 R

Details

AGLC: Pearson v R [2020] NZCA 573
Case: [2020] NZCA 573
Decision Date: 18 November 2020 at 11 am

CaseChat Overview and Summary

The case of Pearson v R involved an appeal by Samuel Pearson against his sentence for multiple criminal offences, including aggravated burglary, wounding with intent, and assault. The appeal was heard by the Court of Appeal of New Zealand, consisting of French, Mallon, and Ellis JJ. The key issues before the court were whether the starting point for the sentence was too high and whether the cultural report discount was appropriate.

The court found that the starting point of eleven years was indeed too high, considering the circumstances of the case and analogous cases. The court noted that while the offending was serious, involving threats to a young child and significant violence, it was not as severe as some of the cases cited by the lower court. The court substituted a starting point of nine years, which it considered more appropriate given the specific circumstances of the case.

Regarding the cultural report discount, the court found that the 15-month reduction was appropriate. The court emphasized that the assessment of such discounts is highly fact-specific and left to the discretion of the sentencing judge, provided it is meaningful and well-reasoned. The court also addressed the application of its recent decision in Moses v R, concluding that the error correction made in that case applied retrospectively and was thus applicable to this appeal.

The court allowed the appeal, quashed the original sentence, and substituted a sentence of seven years and six months' imprisonment with a minimum period of imprisonment of 50 per cent. The decision was recalled and reissued to correct minor errors and ensure accuracy in the judgment.

Orders