Peniamina v Police - [2013] NZHC 855

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: tc@tudorclee.net
F F Nizam, Auckland: farzana.nizam@meredithconnell.co.nz

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 855
Decision Date: 22 April 2013

CaseChat Overview and Summary

In the case of Peniamina v Police, the appellant, Mr Peniamina, appealed against the two-year imprisonment sentence 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. Mr Peniamina argued that the Judge failed to apply a discount for his guilty plea and that the sentence was manifestly excessive. The appeal was heard by Gilbert J on 22 April 2013, with counsel T Clee representing the appellant and F F Nizam representing the respondent.

The legal issues that the court was required to decide were whether the Judge failed to apply a discount for the guilty plea and whether the sentence was manifestly excessive. The court had to consider the circumstances of the assault, which involved multiple attackers inflicting unprovoked assaults on a complete stranger, and the serious injuries sustained by the victim. The court also had to consider Mr Peniamina's prior history of violence and his multiple previous convictions.

The court found that the Judge had regarded all relevant factors in arriving at the end sentence and had given credit for the guilty plea. The court also found that the sentence was within the appropriate range and could not be considered manifestly excessive. The court dismissed both grounds of appeal and upheld the sentence imposed by the Manukau District Court.

In conclusion, the appeal against sentence was dismissed. The court found that the sentence imposed by the Manukau District Court was appropriate and within the range of sentences that could be imposed for the offence of assault with intent to injure. The court also found that the Judge had given credit for the guilty plea and had regarded all relevant factors in arriving at the end sentence.

Orders