Penitani v Police - [2014] NZHC 1622

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2014-476-008 [2014] NZHC 1622

BETWEEN
DANIEL PENITANI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
10 July 2014

(By way of audio-visual link)

Appearances:

J B Lovely for Appellant
N Wilcocks for Respondent

Judgment:

11 July 2014

JUDGMENT OF MANDER J

[1] Mr Penitani appeals against a sentence of imprisonment of 1 year and

10 months imposed in respect of charges of burglary and indecent assault. The appellant submits that the sentence was manifestly excessive.

Factual background

[2] The appellant in the early hours of 28 February 2014 was in a heavily intoxicated state outside his victim’s home. He had on previous occasions followed the victim home and knew where she lived. The appellant had never spoken to the victim, and the victim was unaware that he had formed some type of attachment to her.

[3] The appellant entered the victim’s home without authority via an unlocked front door. He made his way to her bedroom, where he removed his shoes and jacket, leaving him naked from the waist up. He then got into the victim’s bed. She was sleeping and the room was in complete darkness. The appellant proceeded to
kiss her on the lips and put his tongue into her mouth. He attempted to roll his

PENITANI v NEW ZEALAND POLICE [2014] NZHC 1622 [11 July 2014]

victim over, and on each occasion touched her face with his other hand while kissing her.

[4] The victim, who lived with her parents and her partner, initially believed the person in her bed was her partner. When she realised this was not the case, and realised it was a stranger, she did not panic but convinced the appellant to let her go to the toilet. The appellant allowed her to do this. The victim then ran to her parents, across the hallway, and raised the alarm.

[5] The appellant initially concealed himself in a closet in the bedroom but was discovered a short time later and restrained until Police arrived.

[6] In explanation for what he had done, the appellant stated that he had developed a liking for the victim and had previously followed her home, discovering where she lived. He said he went into the house to see her.

[7] While the victim did not suffer any physical injuries, she was, unsurprisingly, extremely distressed and is now nervous when at home at night.

District Court decision

[8] The appellant pleaded guilty to the charges. At sentencing before Judge Maze, the appellant denied that there was any sexual motivation for the offending. This was understandably rejected by the learned District Court Judge. The Judge approached the sentencing exercise by noting that the two charges, burglary and indecent assault, aggravated the other; that the stalking of his victim was an additional aggravating factor, and that the impact on the victim was very significant.

[9] The appellant was afforded the usual 25% discount for his guilty plea but beyond that there were no…

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.

Continue reading Penitani v Police

Details

AGLC: Penitani v Police [2014] NZHC 1622
Case: [2014] NZHC 1622
Decision Date: 11 July 2014

CaseChat Overview and Summary

In Penitani v Police, the High Court of New Zealand considered an appeal against a sentence of 1 year and 10 months imposed on the appellant, Daniel Penitani, for charges of burglary and indecent assault. The appellant argued that the sentence was manifestly excessive. The District Court had rejected the appellant's denial of any sexual motivation for the offending and considered several aggravating factors, including the stalking of the victim, the significant impact on the victim, and the breach of his immigration permit. The appellant's guilty plea led to a 25% discount, but no other mitigating factors were present.

The appellant contended that the starting point of 2½ years imprisonment was excessive, suggesting a starting point of 6-7 months would have been appropriate, resulting in a sentence near the time already served. The appellant's age and impending deportation were also cited as reasons for a lower starting point. However, the Crown argued that the sentence was within the sentencing Judge's discretion, citing cases where similar conduct resulted in sentences of up to 3½ years imprisonment. The Court of Appeal's observations in R v Mua and R v Sipa supported the District Court's starting point, given the particularly aggravating nature of the home invasion and sexual assault.

The High Court found that the District Court's starting point of 2½ years was appropriate, noting that the present offending was arguably worse than in R v Sipa. The reliance on Senior v Police was deemed misplaced as it related to burglaries with theft, not sexual offending. The appellant's status as an overstayer and impending deportation were considered irrelevant to the sentence assessment. The High Court concluded that the District Court's sentence of 1 year and 10 months was within the appropriate range and dismissed the appeal.

Orders