R v Pene

Case [2016] NZHC 2787 22 November 2016

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-088-003309 [2016] NZHC 2787

THE QUEEN

v

KIATA SONNY PENE

Hearing: 22 November 2016

Appearances:

Michael Smith and Richard Annandale for the Crown
Lucy Postlewaight for the Defendant

Judgment:

22 November 2016

SENTENCING NOTES OF MOORE J

R v PENE [2016] NZHC 2787 [22 November 2016]

Introduction

[1] Kiata Sonny Pene, you appear for sentence having been found guilty following a long trial by jury.

[2] You were convicted of one charge of manufacturing methamphetamine and one charge of participating in an organised criminal group. Manufacturing a class A controlled drug carries a maximum penalty of life imprisonment. Participating in an organised criminal group carries a maximum penalty of 10 years’ imprisonment.

[3] Mr Pene you may remain seated until I tell you to stand at the end of these sentencing remarks.

Background

[4] Although it may strike you as seemingly unnecessary and repetitive, particularly given that the facts are well known to you and you sat through the seven week trial from start to finish, I am required to set out the facts on which you are to be sentenced. This is because sentencing is an important public function which must be undertaken in open Court. Your offending was serious and was committed in this community. As such, the community is entitled to know not only what your sentence is but the basis on which I have reached it.

[5] Also, where in the course of these sentencing remarks I make findings in relation to aggravating factors I do so on the basis of the evidence I heard at your trial and to the criminal standard which applies to those findings. I now turn to the facts.

[6] In July 2014 the Organised and Financial Criminal Agency of New Zealand began a large scale covert investigation into the manufacture and distribution of methamphetamine in Northland and elsewhere in New Zealand. The operation was codenamed “Easter”. Its focus was an organised criminal group made up of patched members and associates of the Head Hunters motor cycle gang (“the Group”). Leading the enterprise was Brownie Joseph Harding. The evidence was that you first met Brownie Harding when you 16 or 17 years old. Initially you knew him just

as a local from this city but your association with him grew particularly when you both became patched members of the Head Hunters gang.

[7] The Group manufactured the drug at an isolated rural address (“the address”) on Taipuha Road at Waiotira, approximately 30 kms southwest of Whangarei. The property apparently belonged to Mr Harding’s daughter and son-in-law who were then living in Australia. The house was used solely as a clandestine laboratory for the manufacture of methamphetamine and it is plain that very substantial quantities of the drug, measured in kilograms, were produced over the three month period of surveillance. The drugs produced were then distributed across the Auckland and Northland regions.

[8] Different people in different combinations played different roles in the…

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 [2016] NZHC 2787
Case: [2016] NZHC 2787
Decision Date: 22 November 2016

CaseChat Overview and Summary

The defendant, Kiata Sonny Pene, was convicted of manufacturing methamphetamine and participating in an organised criminal group, and was sentenced by the High Court of New Zealand. The legal issues before the court were to determine the appropriate starting point for sentencing and to consider personal factors that might justify an adjustment to the starting point. The court considered the nature and extent of the offending, the role of the offender, and the quantity of the drug involved in setting the starting point. The court also considered the defendant's personal circumstances, including his background, criminal history, and potential for rehabilitation. The court ultimately sentenced the defendant to nine years' imprisonment for manufacturing methamphetamine and two years' imprisonment for participating in an organised criminal group, to be served concurrently. The court emphasized the importance of denunciation and deterrence in cases involving commercial drug dealing, but also acknowledged the defendant's potential for rehabilitation and his positive contributions to the community.

In reaching its decision, the court considered a number of cases involving similar offending, including R v Fatu, R v Sharn Keogh, and R v Tang. The court also considered the submissions of both the Crown and the defendant's counsel. The court found that the defendant's role in the offending was similar to that of Sharn Keogh, who was sentenced to 11 years' imprisonment. However, the court determined that a starting point of 10 years' imprisonment was appropriate in the defendant's case, given his limited participation in the offending. The court also considered the defendant's personal circumstances, including his background and criminal history, and determined that a 10% discount was appropriate. The court emphasized the importance of denunciation and deterrence in cases involving commercial drug dealing, but also acknowledged the defendant's potential for rehabilitation and his positive contributions to the community. The court sentenced the defendant to nine years' imprisonment for manufacturing methamphetamine and two years' imprisonment for participating in an organised criminal group, to be served concurrently. The court encouraged the defendant to reflect on his offending and to make positive changes in his life upon release.

Orders