IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-197 [2014] NZHC 2409

BARRY PAULEY

v

NEW ZEALAND POLICE

Hearing:	29 September 2014	

Appearances:	
J Bragg for the Appellant
C Henley for the Respondent	

Judgment:	
2 October 2014	

JUDGMENT OF THOMAS J

This judgment was delivered by me on 2 October 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Services, Manukau. Meredith Connell, Auckland.

PAULEY v NEW ZEALAND POLICE [2014] NZHC 2409 [2 October 2014]

Introduction

[1]       Mr Pauley appeals against a sentence of 20 months’ imprisonment for one charge of doing an indecent act in a public place, an offence which carries a maximum penalty of two years’ imprisonment.

Facts

[2]       At approximately 1 pm on Thursday 13 December 2012 Mr Pauley was in his car in the Ngati Otara car park in Otara. This is a public car park open every day and frequented by sports groups and families.  Mr Pauley was in the driver’s seat of his vehicle parked in an angle park in the car park.  The victim was having lunch with her four year old daughter four car parks away from Mr Pauley facing the same direction.  She noticed that Mr Pauley’s wing and rear vision mirrors were directed towards her daughter.  She noticed Mr Pauley jerking with his right hand.  She yelled out to him, “you better not be doing what I think you’re doing”.  At that point Mr Pauley opened his car door to show that his pants were around his knees and he was masturbating.

[3]       In her impact statement the victim said that she was haunted to think there were people prepared to do this in front of children.

Pre-sentence report

[4]       Mr Pauley continued to deny the offending, admitting being in the car park but saying he was wiping coffee off his leg not masturbating.  Departmental records note that Mr Pauley’s maintaining his innocence is a common theme considered arguably to be a barrier to his successfully addressing his treatment needs.   The report notes that Mr Pauley’s conviction history is littered with similar offending. The report writer observes that a sentence of five months’ home detention imposed in May 2012 did not deter Mr Pauley’s offending behaviour and therefore a sentence of imprisonment was recommended.

[5]       Mr Pauley was considered to be at very high risk of sexual re-offending based on his past and current offending.  As his behaviour indicated a willingness to

engage a more vulnerable victim group, namely children, it was considered that the risk of harm to others was escalating.

District Court decision

[6]       The  sentencing  Judge  outlined  the  salient  factors  from  the  pre-sentence report, noted Mr Pauley’s very late guilty plea and referred to his over 30 previous convictions for similar behaviour.   He noted the offending took place while Mr Pauley was subject to post-detention conditions imposed on his last sentence for exactly the same behaviour.  Taking all those factors into account the Judge adopted a starting point of two years’ imprisonment, saying:

That is the maximum but I cannot imagine too many individuals having more previous convictions to their name for doing exactly the same thing than you, which means I have to start at the very maximum that is available. I have to do that because I have to deter you from committing this type of offence again.   I have denounced your conduct and I have to protect the community.

[7]       The only mitigating factor was considered to be the guilty plea in respect of which the Judge indicated he was prepared to give a discount of 5 – 10 per cent.  In fact, he took rather more than that and concluded with a term of imprisonment of 20 months.  He did not consider an option other than imprisonment was available.  A special release condition requiring Mr Pauley to attend an assessment and treatment with a departmental psychologist was imposed.

Appeal against sentence

Approach to appeal

[8]       Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a) for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b) a different sentence should be imposed.

[9]       In any other case, the Court must dismiss the appeal.1

1	Criminal Procedure Act 2011, s 250(3).

[10]     The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.2  Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.3

[11]     The approach taken under the former Summary Proceedings Act was set out in Yorston v Police where the Court said:4

(a) There  must  be  an  error  vitiating  the  lower  Court’s  original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.

[12]    The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.5

Appellant’s submissions

[13]     The appeal is advanced on the grounds that the starting point of 24 months’ imprisonment and final sentence of 20 months’ imprisonment was manifestly excessive and too much weight was placed on the appellant’s previous convictions.

[14]     Ms Bragg submitted that the offending was at the lower end of the scale and a starting  point  not  exceeding  12  months’ imprisonment  should  have  been  taken. Given that the Judge imposed a starting point of 24 months after taking account of
prior convictions, this must mean, in Ms Bragg’s submission, that the uplift for prior

2	Tutakangahau v R [2014] NZCA 279 at [26]-[27].
3	At [33] and [35].
4	Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13].
5	Ripia v R [2011] NZCA 101 at [15].

offending must have been double the starting point.   It was, therefore, not proportionate and was manifestly excessive in her submission.

[15]     Ms Bragg then referred to a report from a Departmental Psychologist which was not available to the sentencing Judge which, in her submission, showed Mr Pauley had indeed made progress.   He was, in her submission, suitable to be considered for a sentence of home detention.

Respondent’s submission

[16]     Mr Henley addressed the aggravating features of the offending and applicable case law and concluded that a starting point in the 14 – 15 month range was well open to the Judge.

[17]     Mr Henley then referred to Mr Pauley’s “immense” history for this type of offending. He noted that Mr Pauley has essentially committed this type of offending unabated since his first conviction in 1978.  In Mr Henley’s submission, a significant uplift was required for the protection of the community and to denounce Mr Pauley’s offending.

[18]     Mr Henley did not oppose the admission of the most recent psychologist’s report into evidence.  However, he pointed out that Mr Pauley continued vehemently to deny the offending and, while he made some progress, he stopped attending the sessions following the expiry of his post-detention conditions.

[19]     In Mr Henley’s submission a significant uplift was in those circumstances appropriate and an end sentence before considering the guilty plea at the maximum of two years’ imprisonment, whilst stern, was not manifestly excessive.

[20]     Furthermore, Mr Henley submitted that Mr Pauley was not suitable for a sentence of home detention.

Relevant cases

Ashby v Police6

[21]     Mr  Ashby  was  41  years  of  age.  While  driving  in  his  car  Mr  Ashby approached a young woman and drove slowly alongside her as she walked along the footpath. He asked her if she wanted a lift and stopped his motor vehicle. He then said to her "Do you know men sometimes grow?" and, while doing so, had both his hands down his trousers touching his genitals. A week later, in the same road, Mr Ashby parked his motor vehicle and squatted down beside the rear wheel. He was wearing shorts without underpants and on two occasions he allowed his penis to poke out of the side of the shorts. A woman standing across the road saw this. Mr Ashby’s behaviour was deliberate.

[22]     Mr Ashby had 13 sex-related convictions dating back to 1981, including seven convictions for indecent exposure, five for committing an indecent act, and others for offensive behaviour. A psychological assessment noted that his behaviour was of a predatory nature, that he did not express any remorse for his victims, and showed little insight into his behaviour and the effects of that behaviour on his victims. He expressed a willingness to undergo treatment but had had numerous opportunities in the past to undertake rehabilitative programmes and his offending continued unabated. He was assessed as having a high risk of re-offending.

[23]     The   District   Court   Judge   imposed   an   end   sentence   of   18   months’

imprisonment. On appeal, Randerson J held:7

I am not persuaded that the sentence is manifestly excessive given this man's serious history as a recidivist offender, his lack of remorse, his lack of insight into the obvious psychological difficulties he is suffering from, and the effects of his behaviour on the young women who he approached. This kind  of conduct is frightening and  upsetting and can  also lead to  more serious offending if it gets out of control. While the sentence was stern and while, as MS Green  pointed  out, the  appellant  had not previously been sentenced to imprisonment, he has had numerous opportunities in the past and has not availed himself of them.

6	Ashby v Police HC Hamilton CRI-2004-419-102, 5 November 2004.
7	At [10].

[24]     Randerson  J  agreed  with  the  DC  Judge  that  home  detention  was  not

appropriate given Mr Ashby’s the long history for similar offending.

Hosking v Police8

[25]     The Court of Appeal described the lead offence in Hosking as follows: 9

The complainants… were three girls aged 11 who were playing together in the playground at their school. They saw a man with a young red-haired boy. He came over to the girls and stood beside the playground watching them. Two of the girls gave evidence about what they saw. They said that the man opened and closed his legs and that they could see his penis. This made them giggle. He then went and stood by some steps at the entrance to the school hall and masturbated. The man then left the school with the young boy. The girls went over to the steps where they had seen him masturbating. They saw on the steps a substance which they described as a lumpy white cream. The Police were informed and investigated. The Constable observed the white substance and took swabs of it for testing. Those tests showed that semen was present and that it was extremely likely that the DNA on the swabs was that of the accused.

[26]     The Court of Appeal stated “[s]hort of placing himself even closer to the complainants, it is hard to imagine a more serious case.”10 The offending had serious consequences on the victims too:11

The   victims   were   of   an   impressionable   age   and   vulnerable,   and unsurprisingly the victim impact statements showed, as Judge Roberts recorded, that there were severe effects on them. The children found the acts disturbing and their parents reported behavioural changes in all five children following the incidents. For instance, one child so lost confidence that she abandoned a plan to take on a newspaper round, and would not venture out from home on her own.

[27]     The Court of Appeal said the starting point of 15 months for this count was in the available range.   The Court considered a starting point of 12 months’ imprisonment appropriate for count six.  That offending involved a short exposure to a mature adult when Mr Hosking had his hand on his semi-erect penis.

Ferguson v Police12

8	Hosking v R [2012] NZCA 460.
9	At [7].
10	At [53].
11	At [54].
12	Ferguson v Police HC Dunedin CRI-2006-412-48, 19 December 2006.

[28]     Hansen J dismissed the appellant’s appeal against an effective sentence of ten months’ imprisonment imposed on him for five charges of doing indecent acts. The offending took place over a forty day period. The appellant had been granted bail after appearing on the first three offences, but continued to offend so that the last two offences were committed while he was on bail. The offences all took place while the appellant was in a motor vehicle. He parked at various locations around Dunedin. He had a pornographic magazine with him and masturbated in his car. He made no attempt to hide his activities. He was seen by various young or teenage girls.

[29]     The   District   Court   Judge   imposed   a   starting   point   of   15   months’

imprisonment. Hansen J stated:

Given this man's persistent offending of this sort, the starting point taken by the Judge cannot be said to be too high, particularly when one refers to the decision of Randerson J in Ashby v Police (HC Hamilton CRI-2004-419-
102, 5 November 2004).

R v Beagle13

[30]     In R v Beagle, Mr Beagle was found guilty on two charges of indecent act in a public place. He had twice been seen by school girls of around 11-12 years of age masturbating in his parked car. On one occasion the window was wound down. He had no similar previous convictions. The District Court imposed an end sentence of
12 months’ supervision with special conditions that he undertake ongoing counselling. Mr Beagle appealed his conviction (unsuccessfully)14 but did not appeal his sentence.

R v Kanhai15

[31]     In Kanhai, the defendant entered a florist and told the woman working there that he wanted a $10 bouquet. As she turned round to face him, she saw that he had pulled his penis out of his pants. He had an erection and began masturbating in front of her. She quickly ushered him out of the shop. A little later the florist saw the
defendant in a car in the car park outside the shop. From the way he was sitting and

13	R v Beagle DC Wellington CRI-2007-091-3001, 2 October 2008.
14	Beagle v R [2010] NZCA 97.
15	Mr Kanhai appealed his conviction but not his sentence: R v Kanhai CA55/04, 15 December
2004. The District Court decision cannot be located.

movements the car was making, the florist inferred that the defendant was continuing to masturbate.

[32]     Mr Kanhai was found guilty at trial. The trial judge sentenced him to six months' supervision and courses/programmes as directed by the probation service.

Starting point

[33]     The respondent referred to the case of Parahi v Police where Priestley J

imposed 12 month sentences on two indecent acts, to be served cumulatively.16

However the facts of that case are very different and not particularly helpful. It involved the defendant entering female ablution blocks at motor camps and peering over shower and toilet cubicles while they were being used.

[34]     The parties disagree as to whether the offending in Hosking is more or less serious than the current offending.   I agree with the appellant that the  Hosking offending was more serious. It involved the defendant approaching three young girls in their playground, and masturbating and ejaculating nearby in their presence. By contrast, while Mr Pauley clearly exposed himself to the victims deliberately by opening his car door, he did not seek them out in the same way. Furthermore, while the child in this case was only four years old, the victims in Hosking were more vulnerable, being three young girls without an accompanying adult.

[35]     The respondent puts weight on the fact that the defendant in Hosking was not as close to the girls as Mr Pauley was to the victims in this case. However, the distance in Hosking is unspecified. I cannot see anything in the Court of Appeal’s judgment to suggest that he was necessarily further away from the three girls than Mr Pauley was from the victims in this case.

[36]     The offending was, however, more serious than count six in the Hosking case. Mr Pauley was masturbating whilst his wing and rear vision mirror were directed
towards a four year old girl.

16	Parahi v Police HC Hamilton CRI-2011-419-66, 28 November 2011.

[37]     The offending in this case is most similar to R v Beagle. It is more serious because of Mr Pauley’s more deliberate exposure to the victims. The end sentence in that case was obviously affected by the fact that Mr Beagle had no similar previous convictions.

[38]     I  agree  with  the  respondent’s  analysis  of  the  aggravating  factors  of  the offending.   The offending occurred in the presence of a four year old girl, it deliberately continued when he was challenged, and it had a material impact on the victim who was in close proximity.   Furthermore, there was clearly premeditation involved, Mr Pauley behaving in this way in a car park of a public park frequented by sports groups and families.

[39]     Taking the above factors into consideration, I consider that a starting point of around 14 months’ imprisonment is appropriate in this case.

Uplift for previous convictions

[40]     Mr  Pauley  has  previously  been  convicted  of  34  counts  of  indecent  act offences with an additional four convictions for exposure and offensive behaviour, dating back to 1978. In the last ten years he has served four sentences of imprisonment, one sentence of home detention and one sentence of supervision for this type of offending.  In my view an uplift of around four months’ imprisonment is sufficient to reflect Mr Pauley’s criminal history.

[41]     In addition, the offending occurred when Mr Pauley was subject to post- detention conditions for exactly the same behaviour.  A discrete uplift of two months is appropriate in this regard. This takes the sentence to 20 months’ imprisonment.

Personal mitigating factors

[42]     Mr Pauley has made some progress in the counselling he attended.  However, the counselling was a requirement of his sentence of home detention and Mr Pauley stopped attending as soon as the conditions came to an end.   Furthermore, he continued to deny the offending.  I am not satisfied in those circumstances that he is entitled to any discount in this regard.

Guilty plea discount

[43]     The defendant was charged on 13 December 2012. He did not plead guilty until 4 March 2014 and on the day of the defended hearing.   That was in circumstances where he had applied for an adjournment of the fixture and it was only when that application was refused that a sentence indication was requested.  In my assessment a discount for a guilty plea of five per cent is the maximum that he could reasonably expect in those circumstances.

Manifestly excessive?

[44]     The end sentence would then be one of 19 months’ imprisonment.   In that context  the  District  Court  sentence  of  20  months’  imprisonment  cannot  be considered manifestly excessive.   Even if the starting point were 12 months, the uplifts and minimal discount would have resulted in a sentence of 17 months.  That would still not make a sentence of 20 months’ imprisonment manifestly excessive.

Home detention

[45]     Mr Pauley originally appealed on the basis that the District Court Judge erred in his refusal to grant home detention.  That ground of appeal was abandoned as Mr Pauley could not provide a suitable address.  The day before the appeal hearing the appellant renewed his appeal on this ground.  The application was made on the basis that, whilst he did not have a suitable home, his employer was prepared to assist in finding a suitable home and offering Mr Pauley employment.  An affidavit from his employer to that effect was provided to the Court.   Furthermore, Ms Bragg emphasised the content of the most recent psychological report showing, in her submission, that Mr Pauley had made progress and now had some insight into the causes of the offending.  This was emphasised by an affidavit from Mr Pauley which also addressed stress factors which contributed to the offending.  If Mr Pauley were in employment and stable accommodation then, in Ms Bragg’s submission, he would be less likely to re-offend.

[46]     The District Court Judge did address whether Mr Pauley would be suitable for such a sentence, noting the very high risk of re-offending and the fact that the

current offending occurred when Mr Pauley was subject to post-detention conditions for exactly the same behaviour.   He concluded that a sentence other than imprisonment was not available and that prison was the least restrictive sentence available in all the circumstances.

[47]     I have no  doubt  that  that  conclusion  was  the  correct  one.    Mr Pauley’s conviction history is  of considerable concern.   He received a sentence of three months’ home detention for exactly this type of behaviour in May 2012.   While subject to post-detention conditions this offending occurred.   While he has made some  progress  with  counselling,  he  continues  to  deny  the  offending  and,  as mentioned earlier, he stopped the counselling immediately when the conditions came to an end.  In those circumstances a sentence of home detention would not meet the purposes and principles of sentencing.

[48]     For the reasons given the appeal is dismissed.

Thomas J