R v Pene

Case [2021] NZHC 3327 7 December 2021

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-027-510

[2021] NZHC 3327

THE QUEEN

v

FREEMAN-JACK TIRITI TANGAROA MOANA-NUI PENE

Counsel: M B Smith for Crown C S Cull for Defendant

Sentenced:

7 December 2021

Charges:

Manslaughter; Male assaults female

Plea:

Guilty

SENTENCING NOTES OF BREWER J

Solicitors/Counsel:
Marsden Woods Inskip Smith (Whangarei) for Crown Catherine Cull (Kaikohe) for Defendant

R v PENE [2021] NZHC 3327 [7 December 2021]

Introduction

[1] Mr Pene, I now have to talk to you about your sentence. I cannot do that in two lines. I have to take some time to explain what I am doing and why.

[2] You have pleaded guilty to one charge of manslaughter1 and one charge of male assaults female.2 The maximum penalty for manslaughter is life imprisonment; the maximum penalty for male assaults female is two years’ imprisonment. I have to decide what your sentence should be.

The facts

[3]On 6 June 2020, you went to a friend’s birthday party. You were 18 years old.

[4] Another person at the party was a girl, De’jah. Your victim, Krillin, was De’jah’s older brother. He did not go to the birthday party but he arrived around midnight to pick up De’jah.

[5] You either brought a knife to the party or found a knife at the party and took possession of it. According to the summary of facts, during the night you showed somebody else who was at the party a knife you had in your belt bag.

[6] De’jah went outside and spoke with Krillin when he arrived to pick her up. He was still in the vehicle. De’jah then ran back inside to get her belongings and in her hurry she knocked over a can of drink. You were also outside at that time and you became upset because De’jah knocked over the can of drink and you said to her:

Don’t trash the house. It’s not yours you stupid bitch.

[7] De’jah asked you, “what you going to do about it?”, and you replied, “I will fuck you up”. De’jah told you to, “go on then”.

1 Crimes Act 1961, s 171.
2 Crimes Act 1961, s 194(b).

[8] By this time, you were standing on the front doorstep and De’jah was just inside the front doorstep. She tried to kick out at you but you grabbed her foot and dragged her down the front step onto the concrete porch. You then left her.

[9] De’jah picked herself up off the ground; she was moaning and crying (but did not have any injuries) and she went and told Krillin what had happened.

[10] Krillin walked over to where you and some friends were standing talking outside. There was an altercation which began on the driveway of the property but moved so that you and Krillin ended up at the rear of the house.

[11] You still had the knife in your belt bag. It has never been recovered…

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 R v Pene

Details

AGLC: R v Pene [2021] NZHC 3327
Case: [2021] NZHC 3327
Decision Date: 7 December 2021

CaseChat Overview and Summary

The case of R v Pene involved Freeman-Jack Tiriti Tangaroa Moana-Nui Pene, who was convicted of manslaughter and male assaults female. The court was tasked with determining an appropriate sentence for Pene, who had pleaded guilty to both charges. The key legal issue was to establish a starting point for Pene's sentence, considering both the aggravating and mitigating factors of the case. The court also needed to decide whether a minimum period of imprisonment was necessary, and whether to continue with the interim name suppression for Pene.

In determining the starting point for Pene's sentence, the court considered various factors, including the fact that Pene had carried a knife to the party and used it to stab Krillin, who was unarmed. The court also acknowledged Pene's youth at the time of the offence, his mental health issues, and his guilty pleas. The court decided on a starting point of seven years' imprisonment, reduced by 40% to account for the mitigating factors, resulting in a sentence of four years and two months' imprisonment. The court further decided to impose a 50% minimum period of imprisonment, acknowledging that this would have limited effect on Pene's potential for further violent offending unless he received long-term care.

In regards to the charge of male assaults female, the court decided to impose a sentence of three months' imprisonment, to be served concurrently with the sentence for manslaughter. The court also lifted the interim name suppression for Pene, considering the small community of Kaikohe and the likelihood that most people would already be aware of Pene's charges.

Final orders:
1. Pene is sentenced to four years and two months' imprisonment for the charge of manslaughter, with a minimum period of imprisonment of two years and one month.
2. Pene is sentenced to three months' imprisonment for the charge of male assaults female, to be served concurrently with the sentence for manslaughter.
3. Interim name suppression for Pene is lifted.

Orders