Peeni v Police

[2020] NZHC 1827

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000190

[2020] NZHC 1827

BETWEEN

NATHAN PEENI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

27 July 2020

Counsel:

JW Mackey for Appellant

RK Tasman-Jones for Respondent

Judgment:

28 July 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 28 July 2020 at 12 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. JW Mackey, Auckland.

PEENI v POLICE [2020] NZHC 1827 [28 July 2020]

The appeal

[1]    Nathan Peeni received a 23-month prison sentence. Mr Peeni contends he should have received a sentence of home detention.

Background

[2]    Mr Peeni and the victim have been in a relationship for 11  years.  Between   1 and 30 September 2019, Mr Peeni repeatedly contravened a protection order in relation to the victim. He took her phone (to restrict her contact with others); threatened to burn her belongings and put an axe through her aquarium; and told the victim if she disobeyed him he would contact Oranga Tamariki and accuse her of abusing the children.1

[3]    On 17 October  2019,  Mr Peeni  drove  at  101  kilometres  per  hour  in  a  50 kilometre per hour zone. He was already suspended from driving, and refused to provide a blood specimen. Mr Peeni appeared to have been drinking.

[4]    At 1 am on 1 December 2019, Mr Peeni confronted the victim at her home (she was in a car). Mr Peeni dragged her from the car and down the driveway. The victim struggled. Mr Peeni put his hands over her mouth; she found it difficult to breathe. Mr Peeni said “you’re gonna get it now,  you’re gonna get your head ripped off”.   Mr Peeni then damaged her car.

[5]Mr Peeni pleaded guilty to:

(a)one charge of impeding breathing;2

(b)one charge of assault on a family member;3

(c)two charges of contravening a protection order;4

1      Mr Mackey says Mr Peeni disputed manipulating the victim vis-à-vis Oranga Tamariki. The Judge’s sentencing remarks say nothing about a dispute or s 24 of the Sentencing Act 2002; the provision directed at disputed fact hearings. Nothing turns on this.

2      Crimes Act 1961, s 189A(a), carrying a maximum term of seven years’ imprisonment.

3      Crimes Act, s 194A(1), carrying a maximum term of two years’ imprisonment

4      Family Violence Act 2018, s 112(1)(a), carrying a maximum term of three years’ imprisonment

(d)one charge of wilful damage;5

(e)one charge of refusing an officer’s request for a blood specimen;6

(f)one charge for driving while suspended or revoked third or subsequent;7

(g)one charge of driving at a dangerous speed;8 and

(h)one charge of breaching community work.9

[6]    Mr Peeni’s pre-sentence report recommended home detention, with imprisonment as a more serious alternative. The report described Mr Peeni as high risk of harm to others, and his risk of re-offending “being in the high-medium range”. The report described Mr Peeni’s compliance with community-based sentences as “poor”.

[7]    Mr Peeni has a history of abusing methamphetamine, cannabis, and alcohol. Mr Peeni has an extensive criminal history. More about this shortly.

The case for home detention

[8]    On behalf of Mr Peeni, Mr Mackey contends the Judge erred by not imposing home detention; the Judge wrongly focussed on the need to denounce the offending. Mr Mackey observes this sentence was recommended in the pre-sentence report.   Mr Mackey describes Mr Peeni as “relatively young”—Mr Peeni is 29. Mr Mackey notes Mr Peeni has been given home detention before. He argues this sentence will “enable [Mr Peeni] to start courses to address his issues”. Mr Mackey says Mr Peeni “is doing it hard in prison” and would benefit from home detention.

5      Summary Offences Act 1981, s 11(1)(a), carrying a maximum term of three months’ imprisonment or a maximum fine of $2,000.

6      Land Transport Act 1998, s 60(1)(a), carrying a maximum term of three months’ imprisonment or a maximum fine of $4,500.

7      Land Transport Act, ss 32(1)(c) and 32(4), carrying a maximum term of two years’ imprisonment or a maximum fine of $6,000.

8      Land Transport Act, s 35(1)(b), carrying a maximum term of three months’ imprisonment or a maximum fine of $4,500.

9      Sentencing Act 2002, s 71(1)(a), carrying a maximum term of three months’ imprisonment or a maximum fine of $1,000.

[9]    Mr Mackey gave me a letter from Mr Peeni, in which he says he is “very remorseful” for the offending.

Principle

[10]   A sentence appeal may be allowed only if the appeal Court concludes there has been an error in the sentence and a different one should be imposed.10

[11]   Whether home detention is appropriate is an evaluative exercise.11 The sentencing Judge must exercise judgement whether home detention is an adequate response to the seriousness of the offending.12 There is no presumption in favour of home detention, but the Judge must impose the least restrictive outcome that is appropriate.13 In some cases, this will mean a term of imprisonment.

Analysis

[12]   Mr Mackey’s contentions helpfully make the case for home detention. However, several factors favour imprisonment.

[13]   First,  the  offending  was  serious,  especially  that  in  the  early  hours  of    1 December 2019. Mr Peeni again breached the protection order in relation to the victim. She struggled to breathe when he put his hands over her mouth. The assault was cowardly; the damaging of her car, gratuitous. Denunciation was called for.

[14]   Second, Mr Peeni has an extensive criminal history beginning when he was a teenager. It includes convictions for breaching the same protection order, wilful damage, resisting Police, disorderly behaviour and driving with excess breath alcohol. Much more serious histories can readily be found, but Mr Peeni’s offending shows no signs of abating. Risk of re-offending is high to medium.

10     Criminal Procedure Act 2011, s 250.

11     See Twomey v R [2018] NZCA 206 at [12].

12     James v R [2010] 24 NZTC 24, 271 at [17].

13     Ibid.

[15]   Third, the violence offences are more serious than anything in Mr Peeni’s history. Or, as Ms Tasman-Jones for the Crown  observes, the offending constitutes “a sharp escalation in seriousness”.

[16]   Fourth, Mr Peeni’s recent history tells  against  home  detention.  In  2018, Mr Peeni twice breached community work. In 2017, he twice drove while suspended. In 2013, Mr Peeni twice breached conditions of home detention. These convictions address Mr Mackey’s submission Mr Peeni has received home detention before.

[17]   It was open to the Judge to emphasise these factors, hence reject home detention in favour of imprisonment. Put another way, no error arises from the evaluative exercise.

Result

[18]The appeal is dismissed.

……………………………..

Downs J