Penetana v Police [2012] NZHC 3184 (28 November 2012)

Last Updated: 17 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-354 [2012] NZHC 3184

BETWEEN MANSELL TEHIRITANGI PENETANA Appellant

AND THE POLICE Respondent

Hearing: 20 November 2012

Appearances: M J Kidd for appellant

J Pridgeon for respondent

Judgment: 28 November 2012

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of pm on Wednesday 28 November 2012

Solicitors/counsel

Dr M J Kidd, Henderson [e-mail] :

Crown Solicitor Auckland [e-mail]

PENETANA V POLICE HC AK CRI 2012-404-354 [28 November 2012]

[1] On 1 October 2012, Judge Gittos, sitting in the Auckland District Court, sentenced Mr Penetana to nine months imprisonment on one charge of burglary, together with three months imprisonment on one charge of driving under the influence of drink, to be served cumulatively.[1] The total sentence was therefore 12 months imprisonment. Mr Penetana was also disqualified from holding or obtaining a driver’s licence for two years. He now appeals against his sentence.

[2] On the same day, Judge Gittos sentenced the appellant for unlawfully possessing a firearm, possessing/procuring methamphetamine, possessing/procuring a cannabis plant, possessing a needle/syringe, possessing utensils, and two counts of shoplifting. For each of those offences, the Judge sentenced the appellant to three months imprisonment to be served concurrently with the sentences imposed on the burglary and driving under the influence charges. There is no appeal against those concurrent sentences.

[3] The notice of appeal specified a number of grounds of appeal, but most have fallen away. Those no longer pursued include an argument about parity, a complaint about cumulative sentences and an argument about a failure to give an overt discount of 25% for an early guilty plea. The case for the appellant on appeal is simply that the appellant ought now to be sentenced to home detention instead of imprisonment, and that on appeal, the case for home detention is so much the stronger, because Mr Penetana has already served about two months of his sentence of imprisonment.

The District Court decision

[4] Unfortunately, there is no record of Judge Gittos’s sentencing remarks. The technology seems to have failed. I am obliged however to the Judge for a memorandum in which he sets out his recollection of the basis upon which the sentencing outcome was reached. He says that, given the appellant’s previous convictions for burglary and the probation officer’s prognostications for the future, a

_{sentence of home detention would not adequately have met the requirement for}

denunciation and deterrence. Further, he noted that the drink driving offending posed a separate risk for the community which required recognition by way of a cumulative sentence.

[5] Mr Kidd, who represented the appellant in the District Court, confirms that the Judge’s advice accords with his own recollection of what occurred when sentence was imposed.

Proper approach on appeal

[6] The correct approach where home detention is in issue at appellate level was discussed by the Court of Appeal in James v R.[2] There, the Court said:

[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending. (footnotes omitted)

[7] In essence, the sentencing Judge exercises a fettered discretion. An appellate Court must accordingly focus upon the identification of error, if any, in the Court below. Among the matters to be taken into account will be the need to have regard to ss 7 and 8 of the Sentencing Act 2002, which are relevant to a decision as to whether or not to commute a sentence of imprisonment to one of home detention.[3]

Submissions for the appellant

[8] Mr Kidd accepts that it was open to the Judge to impose a sentence of imprisonment upon the appellant on the charge of driving under the influence of

_{alcohol. This was the appellant’s fourth such offence. There are also two quite}

separate convictions, five years apart, for careless driving causing death or injury, and a number of convictions for driving whilst disqualified. The appellant is simply a menace on the road.

[9] Mr Kidd submits however that Mr Penetana has, in effect, served that part of the sentence which relates to the drink driving conviction (taking into account the relevant parole provisions), and that it is now open to this Court to substitute a sentence of home detention for the sentence of nine months imprisonment imposed on the burglary charge.

Discussion

[10] Having conceded the availability of a sentence of imprisonment for the driving offence, Mr Kidd is in difficulty with his submission that home detention ought to have been imposed for the burglary. That is because s 19(1) of the Sentencing Act precludes the combination of sentences of imprisonment and home detention. Further, the concurrent sentences of imprisonment imposed on the same day for other offending, not the subject of an appeal, create an additional insurmountable obstacle for the appellant.

[11] Section 121(3) of the Summary Proceedings Act 1957 empowers the Court to deal with an offender in the same manner as the District Court could have dealt with him. The learned District Court Judge could not have imposed both a sentence of imprisonment and a sentence of home detention. There is therefore no lawful basis upon which this Court could do so.

[12] In order to succeed on appeal, Mr Kidd had to submit that a sentence of home detention ought to have been imposed, to the exclusion of imprisonment, on all of the charges for which the appellant appeared for sentence on 1 October. That argument could not succeed, as Mr Kidd accepts. The scale of the offending for which the appellant was sentenced on that day was too great. Moreover, at the age of 24, he has already acquired a truly dismal record of offences which covers five pages of transcript. In addition to the driving offences to which I have already referred, there are several instances of burglary and shoplifting.

[13] Mr Kidd says that the appellant has a partner and a four year old son, and that he is committed to becoming a provider for his family. It seems that there may be at least some work available for him when he is released from prison, but that employment looks as if it may be sporadic. There are in any event difficulties in combining a sentence of home detention with employment which involves travel and work at more than one site, as is apparently on offer here.

[14] As Ms Pridgeon submits, the burglary to which the appellant has pleaded guilty was particularly unpleasant. It involved the theft from a secluded private dwelling of a great deal of valuable property, together with irreplaceable family heirlooms and items of sentimental value which have not been recovered. Only a small proportion of what was stolen was found at Mr Penetana’s house.

[15] In my view, even if there was no jurisdictional bar to the combination of sentences of imprisonment and home detention, this would not have been a proper case for the selection of home detention over imprisonment. In my opinion, Judge Gittos was perfectly correct to conclude that a custodial sentence was called for.

Result

[16] For the foregoing reasons, the appeal against sentence is dismissed.

C J Allan J

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[1] R v Penetana CRI-2012-090-5860, 1 October 2012.
[2] _{James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.}
[3] Manikpersardh v R [2011] NZCA 452 at [12] and [14].