| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA216/2015 [2016] NZCA 154 |
| BETWEEN | TIMOTHY ANDREW PENNIKET |
| AND | THE QUEEN |
| Hearing: | 7 April 2016 |
Court: | Stevens, Asher and Williams JJ |
Counsel: | J C Gwilliam for Appellant |
Judgment: | 29 April 2016 at 10.00 am |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
Following a jury trial in the Tauranga District Court, Mr Penniket was convicted of three charges of burglary and two charges of theft. He was acquitted on a fourth charge of burglary. On the morning the trial commenced, Mr Penniket had pleaded guilty to a seventh charge of wilfully attempting to prevent the course of justice.
Mr Penniket was sentenced by Judge Wolff to an overall term of five years’ imprisonment.[1] He appeals both conviction and sentence. His conviction appeal centres on the conviction for preventing the course of justice.
[1]R v Penniket [2015] NZDC 4672.
Mr Penniket is alleged to have burgled three holiday homes, two in the Rotorua area and one on the Thames coast in February and early March 2012. The Police carried out various searches and discovered stolen property in Mr Penniket’s house. On 25 March 2012, Mr Penniket flew out of New Zealand destined for Brisbane. He returned on 14 September 2012 and was arrested and charged.
Appeal against conviction
Approach to appeal against conviction after a guilty plea
Mr Penniket initially pleaded not guilty to all charges. His counsel was Mr Barnett. The first submission on appeal is that Mr Barnett’s advice and conduct in relation to Mr Penniket’s guilty plea to the attempting to pervert the course of justice charge led to a miscarriage of justice. Incorrect legal advice is said to have led to the change of plea. Mr Gwilliam for Mr Penniket puts this on the basis of counsel error of a type discussed in Sungsuwan v R.[2]
There is no dispute as to the applicable law. The approach to conviction appeals where there have been pleas of guilty was set out in R v Le Page where this Court said:[3]
… it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.
[3]R v Le Page [2005] 2 NZLR 845 (CA) at [16].
There are at least three broad categories where, notwithstanding a guilty plea, there can be a miscarriage of justice.[4] These are:
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