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 other mitigating factors.

[10]     Judge Maze adopted a starting point of 2½ years imprisonment which she reduced by 8 months to arrive at a sentence of 1 year and 10 months imprisonment. The  appellant  who  was  in  breach  of  his  immigration  permit  and  subject  to

deportation was not considered suitable for home detention.  No complaint is made in that regard on the appeal.

Appellant’s submission

[11]     Mr Lovely on behalf of the appellant submitted that the starting point taken by Judge Maze was excessive and this resulted in a manifestly excessive sentence being imposed.   The burglary charge being the more serious offence was the lead charge, and by reference to Senior v Police,1 he submitted that the appellant falls into the  category  of  a  first-time  burglar  who  ought  not  receive  a  sentence  of imprisonment.    In  relation  to  the  indecent  assault,  it  was  submitted  that  the appellant’s actions were relatively minor and the victim was an adult.

[12]     Mr Lovely submitted the appropriate sentence would have been one that equated with time served.   He submitted that a starting point of 6-7 months imprisonment would have been appropriate and that with mitigating factors and a reduction for the early guilty plea this would  have resulted in an end  sentence somewhere near equivalent to the time the appellant has already spent in custody. This would also give effect to the principle of imposing the least restrictive outcome

appropriate in all the circumstances.2

[13]     Once  the  appellant  had  served  his  sentence,  Mr  Lovely  noted  that  the appellant would be deported and returned to his country of origin.  He submitted that would give effect to any concerns regarding the safety of the public and should have resulted in a lower starting point.   Mr Lovely further submitted that inadequate regard had been given to the appellant’s age; he was 19 at the time.

Respondent’s submissions

[14]     Ms Wilcocks on behalf of the crown submitted that the sentence imposed was within the sentencing Judge’s discretion.   The learned District Court Judge had correctly identified the aggravating features and in particular that the victim had been

assaulted in her own bed in her home by a complete stranger.

1      Senior v Police (2000) 18 CRNZ 340.

2      Sentencing Act 2002, s 8(g).

[15]     Helpfully, the Crown made reference to a number of cases which, while not necessarily directly comparable with the circumstances of the present offending, did provide assistance.  Those cases involved sexual assaults after unlawful entry into the victim’s home.3     Starting points  of up  to 3½  years imprisonment had  been upheld.  In her submission these decisions confirmed that the Judge’s starting point of 2½ years imprisonment was available to her.

Decision

[16]     In R v Mua the Court of Appeal observed:

Entry into dwellings at night and assaults, particularly indecent assaults, upon occupants must draw stern sentences to reflect society’s attitude to such conduct which affects the sense of security of the whole community.

[17]     This concern was again articulated by the Court of Appeal in R v Sipa,4 when it noted that a stern sentence was required in such cases and that home invasion was an especially aggravating feature.  That case has parallels with the present offending. It involved  an intoxicated defendant entering a house in the early hours of the morning who proceeded to touch the calf of a woman asleep in her bed.  That was the extent of the indecent assault which clearly was very much at the low end of the scale of offending of this type.  The offender was a Samoan man with no previous convictions and on a visitor’s permit in New Zealand.  A final sentence of 3 years imprisonment for burglary and indecent assault was reduced on appeal to one of 2 years and 3 months.  The appellant in that case had been found guilty at trial and no credit could be afforded for guilty pleas.

[18]     It follows from the guidance provided by R v Sipa that Judge Maze’s starting point of 2½ years was appropriate in the circumstances. Arguably, the circumstances of the present offending were worse, involving as they did the appellant removing

parts of his clothing, getting into the victim’s bed and kissing her.

3      Milne v Police [2012] NZHC 320; R v Sipa CA405/01, 14 March 2002; R v Cooper CA32/05, 27

May 2005; R v Mua CA190/94, 3 November 1994.

4      R v Sipa, above CA405/01, 14 March 2002.

[19]     Mr Lovely’s reliance on Senior v Police5 on the basis the appellant was a first time  burglar  who  ought  not  to  have  received  a  sentence  of  imprisonment  is misplaced.  Senior v Police is a case concerned with burglaries accompanied by theft and  does  not  relate  to  offending  of  this  type,  whereby  the  unlawful  entry  is committed for the purposes of sexual offending.

[20]     The appellant’s status as an overstayer and the fact that he will be subject to a deportation order is in my view, in the present circumstances, an irrelevant consideration to the assessment of an appropriate sentence.

[21]     Judge  Maze  did  not  expressly  refer  in  her  sentencing  remarks  to  the appellant’s relative youth, however she did take into account the lack of any relevant previous convictions and that the offending appeared to be out of character.  Unpaid fines of $930 were remitted.

[22]     Having  reviewed  the  authorities  provided  by the  Crown  and  taking  into account all that has been said on behalf of the appellant by Mr Lovely, I have not been brought to the point where I can conclude that the ultimate sentence of 1 year and 10 months was outside the range available to the learned District Court Judge in the exercise of her discretion.  Specifically, I am satisfied that no error arises in the sentence imposed and the appeal is accordingly dismissed.

Solicitors:

RSM Law, Timaru

Crown Solicitor, Timaru

5      Senior, above n 1