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Pearce v R [2018] NZCA 228 (29 June 2018)

Last Updated: 23 July 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA497/2017
[2018] NZCA 228

	BETWEEN	LOGAN ASHLEY SHANNON PEARCE Appellant
	AND	THE QUEEN Respondent

Hearing:	18 April 2018
Court:	Williams, Wylie and Thomas JJ
Counsel:	C J Tennet for Appellant M L Wong for Respondent
Judgment:	29 June 2018 at 4.00 pm

JUDGMENT OF THE COURT

The application for an extension of time is granted.
The appeal is allowed.

The sentence is quashed and a sentence of eight years and six months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

[1] Logan Pearce was convicted in the District Court at Hamilton, having pleaded guilty immediately prior to the commencement of trial to charges relating to an attempted escape from Waikeria Prison. The offending was carried out with cooffender Joshua Tryselaar who entered guilty pleas nine months earlier. Mr Tryselaar was separately sentenced to eight years’ imprisonment.^[1] The charges Mr Pearce faced were as follows:

(a) aggravated wounding of Officer Prasad;

(b) aggravated injury of Officer Morris;

(c) unlawful detention of Officer Morris;

(d) attempted escape from custody; and

(e) intentional damage.

[2] The sentencing history in this matter is somewhat more complex than usual. On 12 November 2012 Judge Burnett in the District Court at Hamilton sentenced Mr Pearce to nine years and three months’ imprisonment.^[2] She had given him a secondstrike warning on conviction.^[3] Then his first-strike conviction (for prior unrelated offending) was subsequently overturned on appeal.^[4] This necessitated Mr Pearce’s resentence on the prison-escape charges and the down-grading of his strike warning from a second strike to a first strike. Apart from that matter, Judge Burnett’s approach on re-sentence did not vary from the first sentencing. A final effective sentence of nine years and three months’ imprisonment was re-imposed on 23 April 2013.
[3] It will be seen that this appeal is filed some years out of time. An extension of time to appeal is therefore required and sought. We will address that matter at the end of this judgment.

Factual background

Earlier offending

[4] On 21 January 2011 Mr Pearce was sentenced on a charge of aggravated robbery to three years and three months’ imprisonment. He was serving this sentence at the time of the attempted escape offending — the subject of this appeal.
[5] On 27 July 2011 Mr Pearce was also convicted by a jury in the District Court at Hamilton on charges of sexual violation by rape and sexual violation by unlawful sexual connection. He was given a first-strike warning in relation to that offending but had not been sentenced by the time of the relevant offending in this appeal. The convictions for the July 2011 offences were subsequently quashed by this Court.^[5]

Index offending

[6] The facts of the offending — the subject of this appeal — are as follows. On 30 July 2011 Messrs Pearce and Tryselaar were serving inmates in the Nikau Unit at Waikeria Prison. Each was accommodated individually in his own cell. Earlier that day Messrs Pearce and Tryselaar had removed metal support brackets from beneath the sink housing in their cells.
[7] At approximately 2 pm Corrections Officers Deborah Morris and Anil Prasad commenced a late shift duty in the Nikau Unit. They were in the guard room which is separated by a high metal mesh fence from the area accommodating the cells.
[8] At approximately 8 pm Mr Pearce smashed the glass window in the front of his cell. In order to limit the noise of the glass being smashed a duvet was placed over the window as the glass was broken. He then climbed out through the window, ran over to the guard room and concealed himself below the window. Mr Tryselaar then smashed his window using his duvet. He climbed out of the window and ran to where Mr Pearce was hiding. Both men were carrying their respective metal brackets to use as weapons.
[9] As this happened some of the other inmates in the Nikau Unit became noisy. Officers Prasad and Morris were inside the guard room and heard the commotion outside. Officer Prasad noticed two inmates looking out of their cell windows. Both officers then decided to investigate, turning off the light in the guard room to afford a better view of events outside. Officer Prasad opened a window and saw an inmate indicating someone was running.
[10] Officer Morris opened the guard room door. She saw Mr Tryselaar jump the fence with the metal bracket in his hand and head towards her. Mr Tryselaar then hit Officer Morris on the head with the metal bar. She screamed and crossed her arms over her face and head in a defensive posture. Mr Tryselaar continued to lunge and attack her with the metal bracket forcing her to move backwards towards the guard room. He then pushed her towards the guard room and told both officers not to contact anyone.
[11] By this time Mr Pearce had also jumped the fence and entered the guard room. He too was armed with his bracket. Mr Tryselaar then attacked Officer Prasad. He struck him heavy blows to the head causing him to fall to the ground. Mr Pearce demanded the keys to the unit. Officer Prasad said that he did not have the keys. Mr Pearce then demanded Officer Prasad’s own house and car keys. When Officer Prasad refused he was struck a further volley of blows though the Crown did not allege Mr Pearce delivered any of those blows. Officer Prasad was rendered unconscious by this attack.
[12] Seeing this, Officer Morris ran from the guard room in search of a room with a lock. She radioed communications for help and informed them that there was an officer down. Officer Morris then ran into the toilet block and locked the door behind her.
[13] Messrs Pearce and Tryselaar ran after her. They kicked in the door of the cubicle where Officer Morris was hiding. They then walked Officer Morris back toward the guard room and demanded that she open the gates. Officer Morris radioed to Officer Prasad, begging him to open the gates but received no response.
[14] The escaping pair, still armed with metal brackets, then marched Officer Morris to the outside perimeter fence and entrance gate. As they approached the gate they were met by other corrections officers who were on the outside of the fence and had come to her aid.
[15] Mr Pearce physically held Officer Morris as a hostage while they tried to negotiate their escape with the other prison officers. After about 15 minutes they handed over their weapons and gave themselves up.
[16] Shortly after the defendants were secured, Officer Prasad was located in the guard room bleeding and unconscious.
[17] Both officers were taken to Waikato Hospital. Officer Morris had a two centimetre laceration on her forehead, a large laceration on the top of her head, extensive bruising around her left ear, bruising on her arms and cuts to her hands. Officer Prasad suffered several large lacerations to his head. These required stitches and stapling. He suffered blood loss, severe bruising and consequent severe concussion.

Sentencing

[18] On re-sentencing Mr Pearce, the Judge adopted a starting point of 10 years on the aggravated wounding charge and uplifted it by one year for the remaining offending but with particular reference to the aggravated injury charge in relation to Officer Morris.^[6] This effective 11-year starting point was then reduced by 15 per cent.^[7] The Judge did not indicate the reason for this reduction, but it was almost certainly because of the late guilty plea. The Judge considered whether to grant a further discount for mental illness. Mr Pearce, she acknowledged, suffered from psychotic depression.^[8] But she rejected this option. She found rather that “his unchecked impulses meant his risk of harm to others remained high”.^[9] A final sentence of nine years and three months’ imprisonment was imposed for the aggravated wounding and unlawful detention.^[10] Concurrent sentences of five years’ imprisonment were imposed for the aggravated injury and four years for each of the attempted escape and the intentional damage charges.^[11]
[19] In her sentencing remarks the Judge calibrated this sentence against that imposed earlier by another Judge on Mr Tryselaar.^[12] That Judge adopted the same starting point of 10 years’ imprisonment on the aggravated wounding charge in relation to Officer Prasad but in the case of Mr Tryselaar a two-year uplift was imposed because (unlike Mr Pearce) he faced a second aggravated wounding charge. This related to Officer Morris. The one-year difference in starting points between the co-offenders was, as Judge Burnett pointed out, explicable because of the lesser injuring charge Mr Pearce faced in relation to Officer Morris.
[20] It is worth noting that Mr Tryselaar’s final sentence was shorter than that for Mr Pearce at eight years’ imprisonment. This was because of the 33 per cent discount given by Judge Spiller for Mr Tryselaar’s guilty plea. This Court in the context of an appeal by Mr Tryselaar, described that discount as “generous”.^[13] Mr Tryselaar’s sentence was cumulative on an existing seven-year sentence while Mr Pearce’s was cumulative on a shorter three years and three months sentence for his aggravated robbery charge.

Submissions

[21] For Mr Pearce, Mr Tennet mounted five appeal grounds:

(a) The Judge wrongly ignored the fact that Mr Pearce’s prior rape and sexual violation convictions had been quashed before his re-sentencing. The Judge should have acknowledged the appellant’s reduced offending history in the sentence reimposed.

(b) Mr Pearce’s mental health issues justified a modest discount particularly in light of the fresh evidence filed on appeal.

(c) The one-year differentiation in overall starting point between Messrs Pearce and Tryselaar failed to properly reflect the difference in culpability between the two offenders, nor did the end sentences properly reflect Mr Tryselaar’s more serious history of violent offending.

(d) The 15 per cent discount for guilty plea was manifestly inadequate when compared to the 33 per cent discount given to Mr Tryselaar. Justice required similar treatment for both offenders.

(e) In relation to the same matter, the Judge failed to take into account the need to preserve to prisoners the ameliorative effect of substantial guilty-plea discounts given the settled principle that prison offending is to be met with condign cumulative sentences.

[22] In rejoinder the Crown submitted:

(a) The sexual violation convictions played no part in Mr Pearce’s original sentencing and so did not warrant any discount in the re-sentencing.

(b) It was open to the Judge to set aside mental health issues as not warranting a discount for the reason she gave. Further the new reports provided on appeal gave no material advantage to Mr Pearce’s position.

(c) The 15 per cent discount given to Mr Pearce for his late guilty plea was appropriate and even generous. Further Mr Tryselaar’s 33 per cent discount was overly generous and that error would have been compounded if the same discount were offered to Mr Pearce.

(d) There is no basis in principle for the argument that in the case of prison offending any guilty plea at any point should be given a 25 per cent discount.

Analysis

Credit for quashed convictions

[23] This argument depends for its efficacy on the proposition that Judge Burnett took these unrelated 2011 convictions into account in her original sentencing when setting either the initial starting point or the uplift. She did not suggest this was the case in her sentencing comments. The initial starting point was set at 10 years’ imprisonment because the Judge considered the two co-offenders to be equally culpable with respect to the attack on Officer Prasad. The one-year uplift focussed primarily on Mr Pearce’s lesser role (as the Judge saw it) in relation to the attack on Officer Morris. The Judge specifically noted that she “added a one year uplift to distinguish that Mr Pearce was convicted of aggravated injury on Officer Morris, in contrast with aggravated wounding by Mr Tryselaar”.^[14] The quashed convictions played no role in either the starting point or the uplift.
[24] We therefore see no merit in this ground of appeal.

Mental health

[25] As this court noted in Shailer v R:^[15]

[44] Mental health disorders falling short of the defence of insanity may be taken into account in the sentencing process at two points.

[45] First, logically and in accordance with s 8(a), it may affect the starting point of a sentencing exercise. That provision acknowledges the gravity of the offending is affected by the degree of culpability of the offender — and mental health is potentially relevant to that. However its influence on starting point is not confined to the discrete question of culpability, as we will see. Secondly, it may be taken into account as a mitigating circumstance relevant to the offender (rather than the offending).

(footnotes omitted.)

[26] As to the second of these two stages, reference was made to the earlier decision of this Court in E (CA689/10) v R.^[16] At that second stage, discounts of between 12 and 30 per cent had been applied in previous sentencing examples.^[17]
[27] As that Court noted however all relevant considerations are to be taken into account.^[18] In particular “[m]ental illness or mental impairment may affect the risk of a repetition of offending. This in turn may direct attention to issues of personal deterrence or public protection.”^[19] This was the stance taken by the sentencing judge in the case before us.^[20] On the facts it seems that Mr Pearce had stopped taking his medication and, as he advised the author of his pre-sentence report, had been off his medication for a “couple of months”. This caused the voices in his head “to become stronger”. While at one level that scenario does suggest reduced culpability at the time of the offending, there are two contrary factors. The first was referred to by the Judge — psychotic mental illness makes Mr Pearce more dangerous triggering the counterveiling consideration of public protection. The second was not referred to — Mr Pearce appears to have chosen not to take his medication. If that was the case, he must carry some responsibility for that.
[28] We have considered the additional material provided by Mr Pearce in this appeal. It covers attendances by psychiatrists on Mr Pearce during the period 2009–2010. It relates to a period a year or more prior to the offending but in any case it is generally unhelpful to him. First it records that when he was medicated, Mr Pearce was very well and able to function normally. Second it indicates there were risks to those around him when he is not taking his medication. This does not advance matters either at stage one or two of the Shailer two stage assessment. There is also a much later psychological report dated 16 February 2018. It was prepared for Mr Pearce’s Parole Board hearing. The report records that Mr Pearce:

... committed the further violent offending in prison after being removed from his medication. Mr Pearce’s depression has been associated with recurrent suicide attempts and as part of his psychosis he had command hallucinations for violence to himself and others. He currently reports that he has maintained good mental health since his discharge from the [forensic mental health] service and has not been prescribed psychiatric medications since before his discharge.

[29] The writer recorded:

Mr Pearce has completed offence focussed treatment relevant to his assessed moderate risk of violence recidivism. He has a safety plan that he has shared with his community supports. Mr Pearce’s mental health is currently stabilised and he has developed a wellness plan for use after release. This writer notes, however, that deterioration in his mental health is a significant risk factor for future violence.

[30] Although the Judge dealt with this issue in a summary fashion, her conclusion has some basis in the available clinical assessments of Mr Pearce. We are therefore unable to conclude that her refusal to grant a mental health discount was in error.

Disparate starting points

[31] The Judge’s sentencing notes proceed on the basis that Mr Pearce struck at least Officer Prasad. For example the Judge recorded that “[t]he two offenders had turned on Mr Prasad and delivered a number of heavy blows to the head, causing him to fall to the ground.”^[21]
[32] It will be recalled that Officer Prasad was beaten unconscious and left bleeding on the guard room floor. This clearly was the most serious attack.
[33] This conclusion by the Judge as to the level of Mr Pearce’s involvement was not supported by the Crown summary of facts. As the Crown accepted in written submissions “at sentencing, the Crown did not assert that the appellant delivered any of the blows to Officer Prasad”.
[34] The Judge’s error was probably the result of her express reliance on the rendition of the facts contained in the judgment of this Court with respect to Mr Tryselaar’s appeal.^[22] The same allegation was made in that Court’s rendition of the facts, although given it was Mr Tryselaar’s appeal, this was not material. It seems to have occurred because the original police summary did allege Mr Pearce joined the attack on Officer Prasad, but this allegation was dropped by the time of Mr Pearce’s guilty plea.
[35] In light of the Crown concession that there was insufficient evidence Mr Pearce actually hit either Officer, it is difficult to see how he should have been charged with, let alone pleaded guilty as a principal to, injury and wounding charges. He would of course have been guilty as a party under either of the s 66 of the Crimes Act 1961 heads but that is not how he was charged. The charges appear to have been a rough and ready means of differentiating between Messrs Tryselaar and Pearce’s culpability.
[36] The Crown nonetheless argued that an overall starting point one year lower than Mr Tryselaar’s was all that was justified on the facts. The Crown emphasised Mr Pearce’s joint responsibility; the fact that he was present and armed with a weapon when the violence was inflicted by Mr Tryselaar, and that he was the one who demanded the keys to the unit between the physical assaults.
[37] There can be no doubt that Mr Pearce was a co-offender in a reasonably violent and serious attack on prison officers for their jointly agreed purpose of escape. His involvement was central to the venture, not peripheral. To that extent the Crown submission is well justified. But the fact is, there was no evidence to indicate that Mr Pearce participated in the physical aspect of the violence. We agree that a oneyear reduction in the applicable uplift was justified in recognition of the lesser charge Mr Pearce faced in relation to Officer Morris. But there had also to be separate recognition of the fact that, despite Mr Pearce’s wholesale and active support for the venture, there was no evidence that he actually struck Officer Prasad.
[38] An example of a similar distinction between a co-offender whose participation in an aggravated wounding case was either not violent at all or considerably less violent than the lead co-offender may be seen in R v Laumemea, where Asher J considered the distinction warranted a reduction of 18 months.^[23] Similarly, in Coulter v R, this Court accepted that in a group attack on a single victim, two of the attackers whose violence was less serious than that of the lead attacker should receive starting points 15 months lower than that for the lead attacker.^[24]
[39] We consider that as a matter of principle the starting point in respect of the attack on Officer Prasad should be have been nine years’ imprisonment for Mr Pearce to mark the distinctive roles of the co-offenders rather than the 10 years the Judge adopted. We agree that there ought to be a one year uplift for the remaining offending, with particular reference to the aggravated injury charge in relation to Officer Morris. This means the starting point after uplift should have been 10 years rather than 11. The discount for guilty plea of 15 per cent is 18 months on that reduced figure. The end sentence should therefore have been eight years six months.

Guilty plea

[40] Mr Tryselaar was the happy beneficiary of an overly generous discount for the guilty plea he entered on 7 October 2011. But for that significant discount, the discount given to Mr Pearce for his much later guilty plea, could itself be seen as relatively generous. We do not see that there is any force in the proposition that justice requires uniform treatment in Mr Pearce’s favour.
[41] We also do not see any merit in the suggestion that generous discounts should be maintained with respect to prison offending as “a matter of fairness” in light of the condign sentences that are generally imposed for such offending. Such considerations are best left to the circumstances of individual cases. We see no basis either in this case or as a matter of general principle for the adoption of a discount regime for guilty pleas that departs from the Hessell v R regime by which, in any event, we are bound.^[25]

Extension of time to appeal

[42] While the appeal was brought out of time by a considerable margin, it is nonetheless in the interests of justice taking into account all the relevant circumstances to grant the extension pursuant to s 388(2) of the Crimes Act. That is because the sentencing judge imposed a sentence based on a mistaken view of the facts and this mistake caused Her Honour to adopt a starting point which was manifestly excessive.

Disposition

[43] The application for an extension of time is granted.
[44] The appeal is allowed.
[45] The sentence is quashed and a sentence of eight years and six months’ imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

^[1] Tryselaar v R [2012] NZCA 353.

^[2] R v Pearce DC Hamilton CRI-2012-019-1000, 12 November 2012.

^[3] He had earlier received a first strike warning in relation to prior sexual offending.

^[4] Pearce v R [2012] NZCA 596.

^[5] Pearce v R, above n 4.

^[6] R v Pearce DC Hamilton CRI-2012-019-1000, 23 April 2013 at [13].

^[7] At [13].

^[8] At [14].

^[9] At [14].

^[10] At [15].

^[11] At [15].