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The Queen v Peneha [2007] NZCA 191 (15 May 2007)

Last Updated: 22 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA307/06
[2007] NZCA 191

THE QUEEN

v

LEAH WAI PENEHA

Hearing: 18 April 2007

Court: William Young P, Potter and Fogarty JJ

Counsel: S Jefferson for Appellant
P K Feltham for the Crown

Judgment: 15 May 2007 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

[1] The appellant was sentenced to six and a half years imprisonment, having pleaded guilty to two charges of manslaughter, two of dangerous driving causing injury, and one of driving while disqualified. The Judge also imposed a minimum non-parole period of four years, and disqualified her from driving for eight years.
[2] This appeal concerns solely the length of the minimum period of imprisonment. No issue was taken with the imposition of the minimum period in principle but rather with its length. It is submitted that its length is manifestly excessive. Rather, it is submitted that a minimum period of imprisonment close to half the sentence would adequately address both the purposes of s 86(2) of the Sentencing Act 2002 and rehabilitative considerations pursuant to ss 7(1)(h) and 8(g).
[3] At 6 pm on the evening of 5 September 2005 the appellant was driving a motor vehicle north on State Highway 2, north of Silverstream. She was disqualified from driving at the time. She was then aged 19. She had consumed methamphetamine. She drove into the south-bound traffic lane for approximately 300 metres at a speed of up to 100 kilometres per hour. She was not overtaking. Another young woman was driving south on River Road and had no prospect of avoiding the ensuing collision. She was killed. A rear passenger in the appellant’s car, a young boy aged 13, was also killed. Two other passengers in her car were seriously injured.
[4] This was not a case where the driver of the car, under the influence of drugs, had lost control and swerved into ongoing traffic. On the contrary, here the appellant drove deliberately in a dangerous fashion on the wrong side of the road for a significant distance in a 100 kilometre zone.
[5] Section 86 of the Sentencing Act provides:

86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.

...
(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of--

(a) two-thirds of the full term of the sentence; or
(b) 10 years.

(5) For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.

[6] Although the Judge did not explicitly identify and discuss all the factors that he relied upon in arriving at the minimum period of imprisonment of four years, there was no criticism of his sentencing remarks in that respect.
[7] As this Court noted in R v Brown [2002] 3 NZLR 670 (CA) the sentencing principles set out in ss 7 to 9 of the Sentencing Act also require consideration. See also R v Taueki [2002] 3 NZLR 372 [47]-[58] (CA).
[8] The Judge as well as identifying the aggravating features summarised above, did give significant credit to the appellant for the mitigating feature, the only one he saw, which was her entry of guilty pleas. He also took account of remorse. He noted some aggravating personal factors of previous serious driving offences, including driving while disqualified, blood alcohol related convictions and the fact that the appellant was awaiting sentence on alcohol related charges. On the subject of the imposition of the minimum period the Judge reasoned:

[19] The Crown has asked for the imposition of a minimum period of imprisonment before you are eligible to apply for parole. In terms of s 86 of the Sentencing Act 2002 this may arise if the Court is satisfied that the circumstances of the offence is sufficiently serious to justify it and that those circumstances take the offence out of the ordinary range of offending of the particular kind. I am satisfied that the devastating consequence of your actions to two persons and their families, the need to denounce your actions and to deter others, as well as to hold you accountable, require it. Further, society is entitled to be outraged at your behaviour, all of which needs to be reflected in the imposition of a minimum non-parole period rather than the eligibility after one-third that Parliament fixes. By law I cannot impose a minimum non-parole period in excess of two-thirds of your sentence. I fix the minimum non-parole period at four years. That is, you will not be eligible to even apply for parole until after four years.

[9] The reference to circumstances taking the offending out of the ordinary range is a reference to s 86 as first enacted. However, we think that aspect of the remarks is immaterial. Rather, the quoted paragraph demonstrates the Judge gave emphasis to purposes (a) and (b).
[10] Counsel for the appellant emphasised the youth of the appellant and the opportunity for rehabilitation which he submitted would be frustrated by the inability of the appellant to apply for parole until after four years. However, he was not able to point to any comparable cases in support of his argument that the sentence imposed was manifestly excessive.
[11] This Court in Taueki said in paragraph [57]:

[57] In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon. ...

[12] We have not been persuaded that the sentence is wrong. Section 86 is difficult to apply but we see nothing in the analysis of the Judge which warrants disturbing his judgment upon appeal.
[13] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	The appellant was sentenced to six and a half years imprisonment, having pleaded guilty to two charges of manslaughter, two of dangerous driving causing injury, and one of driving while disqualified. The Judge also imposed a minimum non-parole period of four years, and disqualified her from driving for eight years.
[2]	This appeal concerns solely the length of the minimum period of imprisonment. No issue was taken with the imposition of the minimum period in principle but rather with its length. It is submitted that its length is manifestly excessive. Rather, it is submitted that a minimum period of imprisonment close to half the sentence would adequately address both the purposes of s 86(2) of the Sentencing Act 2002 and rehabilitative considerations pursuant to ss 7(1)(h) and 8(g).
[3]	At 6 pm on the evening of 5 September 2005 the appellant was driving a motor vehicle north on State Highway 2, north of Silverstream. She was disqualified from driving at the time. She was then aged 19. She had consumed methamphetamine. She drove into the south-bound traffic lane for approximately 300 metres at a speed of up to 100 kilometres per hour. She was not overtaking. Another young woman was driving south on River Road and had no prospect of avoiding the ensuing collision. She was killed. A rear passenger in the appellant’s car, a young boy aged 13, was also killed. Two other passengers in her car were seriously injured.
[4]	This was not a case where the driver of the car, under the influence of drugs, had lost control and swerved into ongoing traffic. On the contrary, here the appellant drove deliberately in a dangerous fashion on the wrong side of the road for a significant distance in a 100 kilometre zone.
[5]	Section 86 of the Sentencing Act provides:

[6]	Although the Judge did not explicitly identify and discuss all the factors that he relied upon in arriving at the minimum period of imprisonment of four years, there was no criticism of his sentencing remarks in that respect.
[7]	As this Court noted in R v Brown [2002] 3 NZLR 670 (CA) the sentencing principles set out in ss 7 to 9 of the Sentencing Act also require consideration. See also R v Taueki [2002] 3 NZLR 372 [47]-[58] (CA).
[8]	The Judge as well as identifying the aggravating features summarised above, did give significant credit to the appellant for the mitigating feature, the only one he saw, which was her entry of guilty pleas. He also took account of remorse. He noted some aggravating personal factors of previous serious driving offences, including driving while disqualified, blood alcohol related convictions and the fact that the appellant was awaiting sentence on alcohol related charges. On the subject of the imposition of the minimum period the Judge reasoned:

[9]	The reference to circumstances taking the offending out of the ordinary range is a reference to s 86 as first enacted. However, we think that aspect of the remarks is immaterial. Rather, the quoted paragraph demonstrates the Judge gave emphasis to purposes (a) and (b).
[10]	Counsel for the appellant emphasised the youth of the appellant and the opportunity for rehabilitation which he submitted would be frustrated by the inability of the appellant to apply for parole until after four years. However, he was not able to point to any comparable cases in support of his argument that the sentence imposed was manifestly excessive.
[11]	This Court in Taueki said in paragraph [57]:

[12]	We have not been persuaded that the sentence is wrong. Section 86 is difficult to apply but we see nothing in the analysis of the Judge which warrants disturbing his judgment upon appeal.
[13]	The appeal is dismissed.