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Pell v Police

Pell v Police

Case [2019] NZHC 1513 1 July 2019

Criminal Liability

Aggravated & Exemplary Damages

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-128

CRI-2019-404-129 [2019] NZHC 1513

BETWEEN
PAUL PELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 July 2019

Appearances:

G P Timms for Appellant

H E Macdonald and R N T Thompson for Respondent

Judgment:

1 July 2019

ORAL JUDGMENT OF PALMER J

Solicitors:
Public Defence Service, Auckland Crown Solicitor, Auckland

PELL v NEW ZEALAND POLICE [2019] NZHC 1513 [1 July 2019]

What happened?

[1] Mr Paul Pell, aged 42, had a troubled early life, infused with alcohol, abuse, a head injury and offending. He has been addicted to methamphetamine for the last three years. He has an extensive criminal history. He wants to address his alcohol and drug use. He has four children. In January and February 2018, he burgled three homes in Ponsonby, Snell’s Beach and Grey Lynn, Auckland, entering through open windows. He stole electronics, jewellery, keys, bank cards, cash, air pistols and other personal items, worth $28,800, and a Volkswagen Amarok worth $40,000. There is CCTV footage of him, and an associate, using one of the bank cards from Ponsonby. He was disturbed by a victim at the Snell’s Beach property, where he left a sock with his DNA. There is no suggestion the other properties were occupied at the time of the burglaries. Some of the property from Grey Lynn was found in his car, as well as property stolen from another Grey Lynn residence. Mr Pell was charged with three counts of burglary, using a bank card to pecuniary advantage and receiving stolen property worth less than $500. These offences carry maximum sentences of 10 years’ imprisonment, seven years and three months’ imprisonment respectively. He pleaded guilty to all charges.

[2] On 19 July 2018, Mr Pell was given a sentence indication of two years and nine months’ imprisonment, as part of a determination hearing in the Alcohol and Other Drug Treatment Court. I do not have a copy of that. I have seen the impressive Alcohol and other Drug Treatment Court Report. I have also seen Corrections’ pre- sentence advice which assessed Mr Pell as at high risk of re-offending. He pleaded guilty and was accepted into the Court’s programme. He absconded from the programme after 154 days and has been exited from it. On 27 March 2019, Judge B A Gibson sentenced Mr Pell to three years and six months’ imprisonment.1 He noted Mr Pell’s past criminal offending, including 17 convictions for burglary, which have become frequent in recent years, probably largely driven by his addiction to methamphetamine.2 He accepted Mr Pell had developed insight into his offending and acknowledged a letter in which he expressed regret but noted Mr Pell finds prison easier than the outside world. Mr Pell did not want to seek home detention so as not

1 Police v Pell [2019] NZDC 5651.
2 At [2]–[3].

to put his sister to trouble. Judge Gibson identified as aggravating factors: the fact…

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 Pell v Police

Details

AGLC: Pell v Police [2019] NZHC 1513
Case: [2019] NZHC 1513
Decision Date: 1 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Paul Pell, an appellant with a significant criminal history, appealed against his sentence for burglary, use of a bank card to gain pecuniary advantage, and receiving stolen property. He was sentenced to three years and six months' imprisonment by Judge Gibson, who considered various aggravating and mitigating factors. The court was tasked with determining whether the starting point and overall sentence were materially excessive.

The central legal issue was whether the starting point and the resulting sentence were within the available range under the Criminal Procedure Act 2011. The appellant argued that the starting point of five years was manifestly excessive and disproportionate to the gravity of his offending, while the respondent contended that the sentence was within the permissible range and that the judge had properly distinguished the case from the cited authorities.

The court reviewed the sentencing principles set out in Arahanga v R, noting that the risk of confrontation in residential burglaries is a significant aggravating factor. It determined that the starting point in Arahanga, which set a starting point of four years, was appropriate guidance. The court found that the differences between the facts of Arahanga and the present case did not justify a higher starting point. It concluded that the additional burglary committed by the appellant was more than outweighed by the risk of confrontation embraced by the offenders in Arahanga. The court accepted the discounts applied by Judge Gibson as appropriate. Consequently, the court found a material error in the sentence and substituted the sentence with two years and nine months' imprisonment.

In summary, the court upheld the appeal, finding that the original sentence was materially excessive and substituting a sentence of two years and nine months' imprisonment.

Orders