Penney v Police - [2016] NZHC 816

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-64 [2016] NZHC 816

BETWEEN
BRIAN PENNEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 April 2016

Counsel:

J Grainger for Appellant
C Cross & Ms Scott for Respondent

Judgment:

27 April 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on 27 April 2016 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
Meredith Connell, Auckland

PENNEY v NEW ZEALAND POLICE [2016] NZHC 816 [27 April 2016]

[1] Mr Penney pleaded guilty to four charges under the Land Transport Act 1998 that arise from his driving a motor vehicle on 23 December 2015, as well as one further charge of breaching prison release conditions. He appeared before Judge Ronayne in the Auckland District Court on 16 February 2016, where he was sentenced to 27 months imprisonment and 18 months disqualification from driving.

[2] Mr Penney appeals against the length of the term of imprisonment imposed; he does not seek a community based sentence. Nor has he appealed against the disqualification from driving.

Factual background

[3] The primary offending occurred at approximately 5am on 23 December 2015. Mr Penney was driving a vehicle through a residential area in Orakei when Police activated their flashing red and blue lights and sirens behind him. Mr Penney did not stop. He drove off at speeds of up to 115km/h through narrow, winding suburban roads where the posted speed limit was 50km/h.

[4] While travelling at speed, Mr Penney failed to navigate a tight right hand bend. He lost control of his vehicle, mounting the footpath and crashing over a metal safety barrier. His vehicle crashed down a cliff and into the rear of a residential property.

[5] At the time of his arrest, Mr Penney exhibited signs of recent alcohol consumption. Upon analysis, an evidential breath test sample was found to contain
663 micrograms of alcohol per litre of breath.

[6] In a separate incident, following his release form an earlier term of imprisonment Mr Penney failed to report to his probation officer when directed to do so. The first instance of failing to report occurred only three days after Mr Penney was inducted into his release conditions.

District Court decision

[7] Mr Penney pleaded guilty at his first appearance to the following charges:

Offence Section / Act Maximum penalty

Driving whilst

disqualified, third and subsequent

Land Transport Act

1998, ss 32 (1)(a) and
32(4)
2 years imprisonment

Failing to stop, third and

subsequent

Land Transport Act

1998, ss 114(2) and
52(4)

3 months

imprisonment

Driving with excess breath

alcohol

Land Transport Act

1998, s 56(1)

3 months

imprisonment

Reckless driving
Land Transport Act

1998, ss 7(1) and 35(2)

3 months

imprisonment

Breach of release

conditions

Sentencing Act 2002,

s 92(1)
1 year imprisonment

[8] He received a total sentence of two years, three months imprisonment.

Personal circumstances

Prior convictions

[9] Mr Penney has a total of 99 previous convictions, although 30 of those convictions…

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 Penney v Police

Details

AGLC: Penney v Police [2016] NZHC 816
Case: [2016] NZHC 816
Decision Date: 27 April 2016

CaseChat Overview and Summary

The case of Penney v Police, heard in the High Court of New Zealand, involved Mr. Penney, who had a history of driving offenses and breached his prison release conditions. He was sentenced to 27 months imprisonment and 18 months disqualification from driving by the Auckland District Court. The appeal by Mr. Penney was against the length of his imprisonment term, not seeking a community-based sentence but challenging the severity of the imprisonment term. The court was required to determine whether the sentence imposed by the District Court was manifestly excessive under the Criminal Procedure Act 2011.

The court reviewed the sentencing principles and considered the appropriate approach to determine the starting point for the disqualified driving offence, comparing the Drinkwater/Maxwell approach with the Peterson/Keenan approach. The court favoured the latter approach, consistent with the Taueki approach and the Sentencing Act 2002, to maintain transparency and consistency in sentencing. The court also considered the need to avoid double-counting previous convictions when imposing an uplift for prior offending. After examining comparable cases and mitigating factors such as the early guilty plea, the court concluded that the sentence imposed by the District Court was manifestly excessive. The appeal against the sentence was allowed, and the sentence was reduced to 18 months' imprisonment for the disqualified driving offence and 2 months' imprisonment for the other driving offences, to be served concurrently, plus 2 months' imprisonment for breaching release conditions, to be served cumulatively. Special conditions on release were also imposed to assist in Mr. Penney's rehabilitation.

Orders