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…

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 The Queen

Details

AGLC: Penney v The Queen [2004] NZCA 172
Case: [2004] NZCA 172
Decision Date: 4 August 2004

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Justin Robert Lee Penney was convicted of threatening to kill his former partner and subsequently sentenced to imprisonment. Penney appealed both his conviction and sentence, arguing that the charge was unfair and that the sentence was excessive. The court considered whether it was unfair to charge Penney with the offence given that he made the threat during a session with a court-ordered psychologist. The court dismissed this argument, holding that the court-ordered supervision did not compel Penney to make the threat, and that the psychologist's questioning was appropriate. The court also rejected the argument that the sentence was manifestly excessive, finding that the judge had appropriately considered aggravating and mitigating factors, and that the sentence fell within the appropriate range.

The court found that the psychologist and police had acted properly in charging Penney, and that the argument that the charge was unfair was unsustainable. The court held that the psychologist's questioning was appropriate and that the police had acted in good faith in charging Penney. The court also noted that Penney's lawyer had not challenged the admissibility of the evidence in the trial court, but had considered the argument on appeal. The court rejected the argument that the charge was unfair.

The court found that the sentence was not manifestly excessive, and that the judge had appropriately considered aggravating and mitigating factors. The judge had considered the previous history of offending against the same victim, and in particular the 25 previous breaches of protection orders. The judge had also considered mitigating factors, such as Penney's honesty with his therapist and his request to be locked up. The court held that the judge had appropriately exercised his discretion in imposing a minimum non-parole period, and that the sentence was not manifestly excessive. The court dismissed the appeal against conviction and sentence.

Orders