Peniamina v Police [2013] NZHC 855 (22 April 2013)

Last Updated: 6 May 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000040 [2013] NZHC 855

JOSHUA PRITCHARD PENIAMINA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 22 April 2013

Appearances: T Clee for the Appellant

F F Nizam for the Respondent

Judgment: 22 April 2013

_{ORAL JUDGMENT OF GILBERT J}

Counsel: T Clee, Auckland: [e-mail]

F F Nizam, Auckland: [e-mail]

PENIAMINA V POLICE HC AK CRI 2013-404-000040 [22 April 2013]

[1] Mr Peniamina appeals against the sentence of two years’

imprisonment imposed by Judge Hikaka in the Manukau District Court on

24 January 2013, following his guilty plea to a charge of assault with intent to injure. He argues that the Judge failed to apply a discount for his guilty plea and that the sentence was manifestly excessive.

[2] The sentence of two years’ imprisonment was the end sentence

imposed in respect of the following charges:

(a) Assault with intent to injure. This offence carries a maximum penalty of three years’ imprisonment. This appeal is brought in respect of the sentence imposed for this offence.

(b) Common assault. This offence carries a maximum penalty of

12 months’ imprisonment.

(c) Three charges of breach of bail, each of which carries a maximum

penalty of 12 months’ imprisonment.

(d) One charge of breaching post-detention conditions. This offence

carries a maximum penalty of six months’ imprisonment.

[3] The lead offence, assault with intent to injure, involved a brutal and unprovoked attack on a stranger on 26 April 2012. The appellant and four of his associates were in a park when the victim came to the same park with some beer. Mr Peniamina asked the victim for some beer but this was declined. As the victim went to walk away, Mr Peniamina punched him many times in the back of the head and body, knocking him to the ground. Mr Peniamina then stomped on the victim a number of times while he lay on the ground. When the victim stood up, Mr Peniamina punched him, knocking him to the ground again. Mr Peniamina then stomped on him again, causing him to black out. Mr Peniamina also kicked the victim who sustained lacerations to his right ear requiring four stitches, lacerations to

his forehead requiring five stitches and lacerations to his forearm, knees and lower legs. He also sustained significant bruising.

[4] The common assault offence took place on 9 July 2011, at a boarding house where the victim was living. The victim and some other residents were enjoying a social time together when they heard repeated banging, doors slamming and the sounds of a wall being hit. The victim called out for the noise to stop. Mr Peniamina, who was serving a sentence of home detention at the time, responded that it was none of the victim’s business. The victim objected to this following which Mr Peniamina punched him so hard that he fell to the ground. Mr Peniamina then straddled the victim and continued to punch him in the face and eye region. The victim required surgery to remove a clot from behind his eye and he was hospitalised for two days. He was so badly bruised and swollen as a result of the beating that he was virtually unrecognisable.

[5] The Judge adopted a starting point of two years’ imprisonment for the assault with intent to injure charge. He noted that aggravating features included the multiple attacks to the victim’s head by punching and stomping, the serious nature of the injuries caused and the fact that this offending occurred while Mr Peniamina was on bail.

[6] The Judge took into account that Mr Peniamina had previously been sentenced to Youth Court orders for 10 offences, including four involving violence. The Judge also took into account that Mr Peniamina had 11 previous convictions, including one of injuring with intent in February 2011 for which he was sentenced to nine months’ home detention, two convictions for breaching home detention and two convictions for breaching community work.

[7] In reaching an overall end sentence, the Judge also took into account that Mr Peniamina was serving a sentence of home detention at the time of the assault at the boarding house.

[8] The Judge did not specifically identify the extent of the adjustments, up and down, that he made to the adopted starting point for aggravating and mitigating

factors. However, he clearly did take these factors into account. It is implicit that these adjustments balanced one another in the Judge’s final assessment of the overall end sentence of two years’ imprisonment, having regard to the totality of the offending. This is demonstrated by the following passages from the Judge’s sentencing notes:

[10] I have taken into account all the submissions and mitigating features, which are effectively your age1 and, the most generous of what I consider to be an early guilty plea with respect to the April 2012 violence, that is, the second charge of violence I am dealing with today.

[11] The aggravating features are that the July 2011 assault was committed while you were on home detention. All the other offences were committed while you were on bail. Another aggravating feature is the extent of your violence and the fact that you chose to punch and, indeed as far as the second victim was concerned, stomp on his head.

...

[17] ... In summary the offending is very serious. I have noted the

mitigating and aggravating features...

[18] In my view, a starting point with respect to the April 2012 assault would be two years’ imprisonment. What credits do come your way by way of your age I take into account with respect to the totality of the sentence, and include into that what I have described as a most generous view of what I take as an early guilty plea with respect to the April 2012 charge.

[9] Although the Judge ought to have specified the adjustments he made when arriving at his end sentence, it is clear that he had regard to all relevant factors and, in particular, gave credit for the guilty plea. This ground of appeal must be dismissed.

[10] I consider that the alternative ground of appeal, namely that the sentence was manifestly excessive, must also be dismissed. The Judge was correct to characterise the offending as “very serious”. It involved multiple attackers inflicting unprovoked assaults on a complete stranger. The attack was sustained over a period of time with the victim being punched multiple times on the head and stomped on while he lay on the ground. The injuries sustained were serious. In my view, having regard to Mr Peniamina’s prior history of violence, the end sentence was within the

_{appropriate range and could not be considered manifestly excessive.}

1 Mr Peniamina was 21 at the time.

Result

_{[11] The appeal against sentence is dismissed.}

M A Gilbert J