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Penniket v R

Penniket v R

Case [2016] NZCA 154 29 April 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/2015
[2016] NZCA 154

BETWEEN	TIMOTHY ANDREW PENNIKET Appellant
AND	THE QUEEN Respondent

Hearing:	7 April 2016
Court:	Stevens, Asher and Williams JJ
Counsel:	J C Gwilliam for Appellant M J Lillico for Respondent
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]
[2]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
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:

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 Penniket v R

Details

AGLC: Penniket v R [2016] NZCA 154
Case: [2016] NZCA 154
Decision Date: 29 April 2016 at 10.00 am

CaseChat Overview and Summary

Timothy Andrew Penniket appealed against his conviction and sentence following his trial in the Tauranga District Court, where he was convicted of three charges of burglary, two charges of theft, and one charge of preventing the course of justice. The appeal against conviction focused on the charge of preventing the course of justice, with Penniket arguing that his trial counsel provided incorrect advice, leading to a miscarriage of justice. The Court found that the trial counsel had provided accurate and thorough advice, and that Penniket's decision to plead guilty was informed and voluntary. The appeal against sentence argued that the starting points for the burglary and preventing the course of justice charges were too high, and that insufficient credit was given for Penniket's guilty plea and rehabilitation efforts. The Court found that the starting points were within the appropriate range, and that the overall sentence, including discounts for the guilty plea and concurrent sentencing, was fair and appropriate. The appeals against conviction and sentence were dismissed.

Orders