Peeni v Police

[2025] NZHC 747

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000638

[2025] NZHC 747

BETWEEN

RICHARD JERMAINE PEENI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 March 2025
Counsel:	JIC Schlebusch for Appellant FI Ganchi for Respondent
Judgment:	2 April 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 2 April 2025 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. JIC Schlebusch, Puhoi.

PEENI v POLICE [2025] NZHC 747 [2 April 2025]

The appeal

[1]                 On 15 October 2024, Richard Peeni was sentenced to a term of three years’ imprisonment for a raft of offences, including burglary. Mr Peeni appeals. He argues the sentence is too severe, or as the law puts it, manifestly excessive.1

[2]                 The appeal must be allowed if there is an error in the sentence and a different one should be imposed.2

[3]                 Unfortunately, the record is incomplete. The sentencing Judge’s remarks are unavailable because of a recording error; the respondent has less information than it normally would (for reasons that remain unclear); and Mr Schlebusch has encountered difficulty in obtaining relevant material beyond the sentencing remarks. However, the lawyer who appeared for Mr Peeni at sentencing — not Mr Schlebusch — kept a record of the Judge’s core methodology — starting points, discounts, uplifts — so that at least is known.

Background

[4]                 The  offending   occurred   across   five   incidents   on   2   August   2023,   12 October 2023, 30 October 2023, 1 November 2023 and 5 May 2024.3 I adopt the summary helpfully provided by the respondent:4

First set of offending – 2 August 2023

2.3At 6:50 pm on 2 August 2023, Mr Peeni was observed driving a vehicle suspected to be stolen, and was stopped by police. When police requested a copy of his licence Mr Peeni fled, driving above the posted speed limit, overtaking vehicles using the median strip, and cutting vehicles off.

2.4Eventually he turned into a driveway and came to a stop. Police approached and attempted to place Mr Peeni under arrest. He actively resisted, pulling away from police and holding his arms in tightly to his torso. Once in handcuffs he continued to resist by thrashing his body around. Following this, a blood sample was taken from Mr Peeni.

1      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

2      Criminal Procedure Act 2011, s 250(2).

3      A minor discrepancy exists in relation to the date of the last incident: the criminal and traffic history records 5 May 2024, whereas the summary of facts records 6 May 2024. I have adopted the former.

4      Footnotes omitted.

Results    revealed   a    qualifying   prohibited   substance,   namely methamphetamine.

2.5For this offending Mr Peeni pleaded guilty to operating a motor vehicle recklessly, resisting police, and driving with a qualified drug in his blood as a third or subsequent offence.

Second set of offending – 12 October 2023

2.6On 12 October 2023, Mr Peeni was observed driving a vehicle with a smashed window. He was driving erratically and failed to stop when police activated flashing lights and the siren. The vehicle came to a stop, the defendant exited and ran from police. When located by police he resisted arrest, tucking his arms into his torso and clenching his fists, and eventually police deployed pepper spray. Mr Peeni continued to resist arrest, lying on his stomach and holding his arms against his chest.

2.7For this he pleaded guilty to resisting arrest.

Third set of offending – 30 October 2023

2.8On 30 October 2023 at [9.53 am], Mr Peeni and a co-offender forced entry into a property on West Lynn Road by breaking the door lock. This was an unoccupied residential property, as it was under renovation. Mr Peeni took a total of 20 items from the address, including a number of saws, trimmers and associated equipment. The total value of these items is unknown but appears to have been significant.

2.9For this offending he pleaded guilty to burglary.

Fourth set of offending – 1 November 2023

2.10On 1 November 2023, Mr Peeni approached an address in West Harbour and spoke to the 16 year old victim who lived there. Also present were the victim’s two younger siblings. Mr Peeni told the victim he needed help and asked to come in. She told him he was not permitted to enter and tried to close the door. Mr Peeni’s foot got trapped in the door, and he began to push aggressively against the door in an effort to gain entry to the property.

2.11The victim and one of her siblings continued to push back against the door and the struggle continued for about a minute until they managed to push the door closed. Mr Peeni put his head through an open window next to the door and continued to talk to the victim. She told him she was calling police and he left.

2.12Mr Peeni walked to a nearby carpark and unlawfully got into a vehicle to hide.

2.13For this he pleaded guilty to being unlawfully in a building and unlawfully getting into a motor vehicle.

Fifth set of offending – 5 May 2024

2.14On 5 May 2024, Mr Peeni unlawfully took a Tesla vehicle from a residential address in Titirangi.

2.15He then drove to two further addresses and entered the yards without permission. At one he took a hoody off the washing line, and at another he entered the occupant’s vehicle and drove it five meters down the road before being stopped by a member of the public. He was located by police soon after and the vehicle recovered.

2.16For this he pleaded guilty to two charges of unlawfully taking a vehicle, two charges of unlawfully being in an enclosed yard, and theft (under

$500).

[5]                 The lawyer who represented Mr Peeni at sentencing recorded that the Judge adopted a global starting point of 40 months’ imprisonment; deducted 20 percent for Mr Peeni’s guilty pleas and five percent for personal circumstances; and then added 15 percent for Mr Peeni’s criminal history and the fact many of the offences were committed on bail, resulting in a sentence of three years’ imprisonment.5

A précis of the case on appeal for Mr Peeni

[6]                 Mr Schlebusch argued the global starting point was a little too high; he said it should have been not more than 36 months. Mr Schlebusch also argued the discount for personal circumstances was inadequate and the uplift excessive.

Analysis

[7]                 Mr Peeni’s West Lynn Road burglary falls within the broad category identified by the Court of Appeal in Arahanga v R that would typically attract a starting point between 18 months and two years and six months’ imprisonment.6 But that is to paint with a broad brush, hence the discussion that follows.

[8]                 In Nelson v Police, the defendant  was  sentenced  on  15  offences  over  three months, the lead being burglary.7 Mr Nelson entered an unlocked car and drove

5      The two-step sentencing methodology in Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 requires second-stage uplifts and discounts to be fixed by reference to the starting point (see [46]-[47]). The sentence imposed can be expressed as 40 months × (1.15-0.20-0.05) = 36 months.

6      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

7      Nelson v Police [2019] NZHC 2434.

it to another address. There, he was found by Police with cannabis and  a  pipe. Three weeks later, Mr Nelson entered a primary school, ripped the door off a playhouse, and spent the night there. When found by Police, he had cannabis. Mr Nelson then stole two credits cards and used them to purchase goods worth approximately $200. He entered a yard without permission and stole a bottle of liquor from a store. Mr Nelson also burgled a home by forcing open a window.

[9]                 On appeal, the starting point for the burglary was reduced to 14 months’ imprisonment as it was not clear Mr Nelson went inside the home, whether there were occupants present, or whether he stole anything. The 12-month uplift for the balance of the offending was not disturbed.

[10]             In Tilby v Police, the defendant was sentenced for burglary; attempted unlawful taking of a vehicle (x 2); unlawfully taking a vehicle; driving with excess breath alcohol (being a third or subsequent offence); driving while disqualified; and possession of cannabis.8 Mr Tilby climbed a fence into a construction yard, entered an outbuilding through an open window, and stole a glue gun worth $120. Later that night he broke into two cars but was unable to start either. A week later, Mr Tilby stole a car. He was stopped by Police and found to have cannabis. He had been driving with excess breath alcohol.

[11]             A 16-month starting point was adopted for the burglary, uplifted by two months for the car offending that same night. The balance of the offending attracted an additional 18 months. The global starting point of 36 months’ imprisonment was adjusted to 33 months for totality. This methodology was upheld on appeal.

[12]             In Peita v Police, the defendant was sentenced for nine offences, including two burglaries.9 The first concerned Mr Peita entering the garage (of a home) and taking property worth $5,309. A month later, Mr Peita broke into a home and stole property worth $22,357. A starting point of 18 months’ imprisonment was adopted for the second burglary and an uplift of nine months for the first, which was described as

8      Tilby v Police [2022] NZHC 3343.

9      Peita v Police [2020] NZHC 2098.

“merciful” in the District Court.10 This methodology was upheld on appeal, as was the global starting point of 33 months’ imprisonment.

[13]             Mr Peeni’s burglary is much more serious than the burglaries in Nelson and Tilby. It is also more serious than the burglaries in Peita given the presence of a co-offender, risk of encountering an occupant, and the likely value of the equipment taken. Self-evidently, it is not as serious as the two Peita burglaries together. All this suggests the  burglary  should  have  attracted  a  starting  point  of  approximately  24 months’ imprisonment.

[14]             In Wood v Police,11 this Court observed a single unlawful taking charge may result in a starting point of at least 18 months’ imprisonment if there is “a significant aggravating feature or features”.12 Starting points in the region of 12 months’ imprisonment apply to less serious instances.13 Mr Peeni’s taking of the Tesla would attract that lesser starting point. Mr Peeni’s offending on 1 November 2023 is concerning, and the victim presumably terrified. Thereafter, Mr Peeni broke into a car and hid. These offences and the others in the outstanding sets warranted an uplift of between 18 and 20 months’ imprisonment, subject to a modest adjustment for totality.

[15]             As will be apparent, the figures at [13]–[14] are not commensurate with the contention the global starting point should have been 36 months’ imprisonment, not 40 months’ imprisonment.

[16]             The contention in relation to the uplift is not sustainable given Mr Peeni’s extensive criminal record; that all but the first set of his offending was committed on bail; and the observations of the Court of Appeal in Harris v R:14

Ms Aickin contends the 12 per cent uplift was excessive, or as she put it, “hefty”. Ms Aickin acknowledges Ms Harris has an extensive criminal history but argues her offending was tapering off, albeit with one or more exceptions.

Section 9(1)(j) of the Sentencing Act 2002 requires a court to take into account the number, seriousness, date, relevance, and nature of an offender’s previous

10     Peita v Police, above n 9, at [9].

11     Wood v Police [2018] NZHC 1629.

12 At [24].

13     See for example, Mucalo-Connolly v Police [2021] NZHC 3476.

14     Harris v R [2024] NZCA 554 at [25]–[30] (footnotes omitted).

convictions. Consequently, an offender’s criminal history may constitute an aggravating feature, but care must be taken to ensure an uplift for this feature does not re-punish the defendant given the earlier offending will have already attracted a penalty.

The uplift constituted 12 per cent of the starting point, hence 6.7 months’ imprisonment. In Taitapanui v R, the Judge uplifted a 15-year starting point by one year for previous offending. This Court upheld the 6.7 per cent uplift on the basis denunciation and community protection were important sentencing objectives. In the recent decision of Farrell v R, the sentencing Judge uplifted a 33-month starting point by nine months for previous offending. This Court upheld the 27 per cent uplift, albeit noting it lay “toward

… the limit of what was permissible”.

We have considered Ms Harris’ criminal history. We are unable to discern a material reduction in the frequency of her offending, nor any diminution of the seriousness of her offending.

Given all of this, we consider the uplift was (well) within range, a conclusion underscored by the rationales of denunciation and community protection considering Ms Harris’ criminal history.

For completeness, we note some of Ms Harris’ offending was committed while she was on bail, including the burglary of her cousin’s home. We mention this because it is an aggravating factor under s 9(1)(c) of the Sentencing Act. The Judge considered that the 12 per cent uplift for prior offending incorporated any uplift for this factor. This approach was generous to Ms Harris, because these uplifts recognise different policy objectives. Uplifts for offending on bail recognise “disregard for Court processes”. Uplifts for previous convictions reflect the risk of reoffending, the need for harsher deterrence for reoffenders, and as an indicator of character or culpability.

[17]             The position in relation to discount for personal circumstances is more nuanced. A cultural report dated 28 April 2022 appears to have been given to the Judge (the report was prepared in relation to earlier offending). The report is unhappy reading. Mr Peeni has an unfortunate background, which includes deprivation, physical and sexual abuse, exposure to family violence, and use of drugs and alcohol from a young age. It is not difficult to conclude that background contributed causatively  to  the  offending.   But  as  against  this,  a  pre-sentence  report  dated  3 July 2024 says:

Mr Peeni is assessed as being at high risk of reoffending and also high risk of harm to others given his offending history and current charges. He has offended on multiple occasions every year since he first appeared before the Court. Although he verbally stated his motivation to change his lifestyle the genuineness of this remains in question especially as he has had numerous opportunities throughout his criminal career provided to him through community based sentences yet his pattern of offending remains unchanged.

[18]             These observations hold true even if they concern earlier offending, a point that remains unclear, because the instant offending would comprise more of the same. Relatedly,  the  letter  of  apology  and  prison-related   certificates   identified   by Mr Schlebusch pre-date Mr Peeni’s unlawful taking of the Tesla on 5 May 2024. All of which is to say the case for a discount based on personal circumstances, which would otherwise be strong, was compromised by recidivism and therefore not likely to have exceeded five percent. That is consistent with the figure attributed to the Judge.

[19]             It follows no error has been identified on the part of the District Court. The global starting point was available. So too the discount for personal circumstances and the uplift for aggravating factors.

Result

[20]The appeal is dismissed.

……………………………..

Downs J