Penney v The Queen

[2004] NZCA 172

IN THE COURT OF APPEAL OF NEW ZEALAND

CA24/04

THE QUEEN

v

JUSTIN ROBERT LEE PENNEY

Hearing:22 July 2004

Coram:Anderson P
William Young J
Chambers J

Appearances:  C B Hirschfeld for Appellant

S P France for Crown

Judgment:4 August 2004 

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Threatening to kill

[1]       Justin Penney was charged with threatening to kill his former partner.  He pleaded not guilty.  His trial, before Judge Singh and a jury, took place on 18 and 19 September last year.  His defence was that the threat had not been seriously made.  The jury found him guilty. 

[2]       Judge Singh sentenced Mr Penney on 19 November last year to two and a half years’ imprisonment.  He imposed a minimum non-parole period of 20 months, the maximum permissible. 

[3]       Mr Penney has appealed against his conviction and sentence. 

Issues

[4]       The issue on the appeal against conviction is whether it was unfair to have charged Mr Penney in the circumstances, with the consequence that his conviction has led to a miscarriage of justice. 

[5]       On the sentence appeal, the issue is whether the sentence is manifestly excessive.  Mr Penney challenges both the length of the term of imprisonment and the length of the minimum non-parole period. 

[6]       We shall explore the issues in turn.

Unfairness of the prosecution

[7]       The essential submission of Mr Hirschfeld, for Mr Penney, is that, in the circumstances, “to have charged the appellant with threatening to kill [was] substantially lacking in fairness and was prejudicial to the appellant in the unique circumstances of this case”.  That is certainly a novel proposition.  Mr Hirschfeld cited only two cases, R v Edmonds (1991) 7 CRNZ 510 and R v Kearns (1993) 10 CRNZ 411.  Neither is authority, however, for the proposition that a conviction may be set aside on the ground that to have charged an accused at all was unfair. 

[8]       The unfairness, Mr Hirschfeld submitted, came about in the following way.  Mr Penney had previously been sentenced to supervision, a condition of which was that he receive psychological help.  It was on his eighth visit to a clinical psychologist employed by the Department of Corrections that he made the threat to kill his former partner.  The threat was communicated to the psychologist, who took it so seriously that he advised the police of the threat.  The psychologist was concerned, quite rightly, about the safety of Mr Penney’s former partner.  Mr Hirschfeld’s argument was that it was “unfair” to charge Mr Penney for something he said to the psychologist, when it was the court which had ordered him to seek psychological help from that psychologist.  Mr Hirschfeld submitted that, “but for” the court order, Mr Penney would never have met the psychologist and the circumstances therefore leading to the making of the threat would never have arisen.  That argument is completely lacking in merit.  The court-ordered supervision did not in any way compel, directly or indirectly, Mr Penney to make a threat to kill his former partner.  If Mr Hirschfeld’s argument were right, a prisoner could presumably assault with impunity a fellow prisoner or a warder on the basis that, “but for” being sentenced to prison, he would never have been in the company of other prisoners or the warder. 

[9]       Mr Hirschfeld’s next point was that the threat arose from questions asked by the psychologist and that this made the prosecution unfair.  That submission too lacks merit.  The psychologist gave evidence that Mr Penney told him that he could not stop thinking about his former partner.  The psychologist then enquired whether he had had any thoughts of harming her.  It was in response to that question that Mr Penney uttered the threats. Whether Mr Penney’s responses were just an indication that he might be a threat to his former partner rather than his words being uttered as threats was an issue of fact and indeed the principal ground of defence at trial.  The jury found the words were spoken as threats, unsurprisingly given the nature of them as indicated in the next paragraph. 

[10]     Mr Penney told the psychologist that he was dangerous to his former partner and that he would kill her if she became pregnant or had children to anyone else.  He said that he would find it easy to kill his former partner, “easier than killing a possum”.  He said that he would kill her “any time from soon to as long as 20 or 30 years away”.  He said that he would like her to feel pain as he had felt pain.  He said that he had a plan for killing her by cutting her jugular vein with a knife.  He said that he would kill or harm other members of her family in order to cause pain to her.  He said that he always followed through on what he said.  Those answers – those threats – were in no way forced on Mr Penney or induced by the question he was asked.  The psychologist and the police were rightly concerned about the threats.  And so too, obviously, was the jury, who rejected Mr Hirschfeld’s submissions that Mr Penney had not intended the words to be taken seriously.

[11]     Mr Hirschfeld accepted that the psychologist had acted in good faith and that his questioning was appropriate in diagnostic and therapeutic terms.  Mr Hirschfeld said he could not advance an “entrapment” theory.  Mr Hirschfeld also accepted that the psychologist had acted properly in informing the police of what Mr Penney had said, and that the police had acted in good faith in charging Mr Penney.  Given those concessions, all properly made, the argument now advanced on appeal is clearly hopeless.  If the psychologist and the police acted properly in all respects, how can it now be said that the bringing of the charge was unfair? 

[12]     We also note that Mr Hirschfeld made no application in the District Court to have the prosecution stayed.  Nor did he at any time apply to have evidence of what was said to the psychologist ruled inadmissible.  Mr Hirschfeld also accepted that there was no privilege in terms of s 33 of the Evidence Amendment (No.2) Act 1980.  Notwithstanding that lack of challenge in the trial court, we have considered Mr Hirschfeld’s argument on appeal, but we have found it unsustainable.

[13]     We reject the ground of appeal.  It has not been shown that it was unfair for the police to have charged Mr Penney. 

Sentence

[14]     As we have said, Judge Singh sentenced Mr Penney to two and a half years’ imprisonment, with a minimum non-parole period of 20 months.

[15]     Mr Hirschfeld submitted that the sentence was manifestly excessive.  He did not put before us any authority to support that proposition.  While in some circumstances an appeal against sentence can be mounted without reference to authorities, it is certainly the norm to provide the appellate court with case authorities to help the appellate court determine whether the sentence under review is out of line with sentences which have been imposed by other courts in broadly comparable or analogous situations. 

[16]     Judge Singh, in his sentencing notes, referred to a number of other decisions in coming to the conclusion he did.  They included R v Rolander [1989] 1 NZLR 366 (CA) and R v Meek [1981] 1 NZLR 499 (CA). Judge Singh explained that, had this been the first occasion on which Mr Penney had threatened to kill, the sentencing range would have been “between one to two years”. That certainly appears consistent with the authorities to which His Honour referred. But His Honour concluded that a sentence in that range would be plainly inadequate for Mr Penney. He noted that Mr Penney had breached protection orders on no fewer than 25 occasions. Mr Penney also had two previous convictions for threatening to kill this same victim. On the first occasion Mr Penney had been sentenced to supervision for 18 months. On the second occasion he had been sentenced to imprisonment for 18 months. Clearly those sentences had not worked to discourage Mr Penney. Those previous convictions relating to threats against the same victim were clearly “aggravating factors” in terms of s 9(1)(j) of the Sentencing Act 2002. Because of those factors, Judge Singh considered that the starting point (before considering mitigating circumstances) should be lifted to three years. We do not consider that reasoning can be faulted.

[17]     Judge Singh then turned to consider mitigating factors.  Although none was immediately apparent, His Honour allowed a six month discount for three reasons:

(a)He accepted that Mr Penney was being honest with his therapist at the time he made the threat and that he was seeking help. 

(b)When apprehended, Mr Penney had apparently asked the police to lock him up because he felt that was safest for him and the victim.  (That did not stop Mr Penney later applying and indeed reapplying for bail.  In addition, Mr Penney twice appealed to the High Court against the refusal of bail.  Both appeals were dismissed.)

(c)The victim had not been called upon to give viva voce evidence.

[18]     One could reasonably question whether those factors were all truly mitigatory.  But, if there was error, it was error in Mr Penney’s favour. 

[19]     The end result – two and a half years’ imprisonment – was not manifestly excessive.  The Crown had at sentencing submitted that the appropriate sentencing range was somewhere between three and five years.  Mr Hirschfeld had submitted the range should be 18 months to two years.  The judge, in fixing a sentence between the two ranges submitted, has not been shown to have erred.

[20]     We turn to consider the minimum non-parole period.  The band – 10 to 20 months – was limited.  The judge carefully considered s 86 of the Sentencing Act and referred to the exposition of that section in this court’s decision in R v Brown [2002] 3 NZLR 670. He concluded that a minimum non-parole period was required because the circumstances were “particularly serious”. In particular, the judge noted the context of the previous history of offending against the same victim, and in particular the 25 previous breaches of protection orders. He noted that this particular victim had not been able to live a normal life. This was a case for deterrence and denunciation.

[21]     It may be that this aspect of the sentence was stern, but it cannot be said to be manifestly excessive.  The imposition of a two-thirds minimum non-parole period was within appropriate judicial discretion in the circumstances.

Result

[22]     We dismiss the appeal against conviction and sentence. 

Solicitors:
Crown Law Office, Wellington