R v Penewi - [2019] NZHC 479

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-044-004671

[2019] NZHC 479

THE QUEEN

v

JAMES KUPE PENEWI

Hearing: 18 March 2019

Appearances:

B Northwood and E Smith for the Crown J Scott and J Grainger for the Defendant

Sentencing:

18 March 2019

SENTENCING NOTES OF WOOLFORD J

Solicitors/Counsel
Meredith Connell (Office of the Crown Solicitor), Auckland Public Defence Service, Auckland

R v PENEWI [2019] NZHC 479 [18 March 2019]

[1] James Kupe Penewi you appear for sentence today having pleaded guilty this morning to a charge of assault with intent to injure. It carries a maximum sentence of three years imprisonment.

[2] The charge arises out of an assault on a prisoner at Auckland Prison on Sunday, 12 November 2017. You were at that time a sentenced prisoner in maximum security. You were involved in an attack on the complainant with four other prisoners on a cell- block landing. The other four defendants were charged with wounding with intent to cause grievous bodily harm. Three have pleaded guilty. One has been sentenced and the other two await sentencing. The final defendant is currently on trial.

[3] I accept that it was the other defendants who carried out a severe assault on the complainant, including kicking and stabbing him multiple times. He sustained life threatening injuries. Your physical involvement in the incident consisted of one attempt to kick the complainant. It is, however, unclear whether the kick connected or not. I will sentence you on the basis that the kick did not connect with the complainant. However, you also covered a cell camera with your hand for about 20 seconds and with other defendants you taunted the corrections officers and squirted shampoo on the floor to obstruct their path to the complainant. You also made offensive hand gestures to the prisoners locked in the others cells on the landing who, like the complainant, were members of the Mongrel Mob.

[4] There is no tariff case which applies to this offence. Defence counsel submits that the starting point should be around six months imprisonment. Crown counsel did not disagree strongly. Your actions are not serious compared to other offending of this type. You played a relatively minor role in the attack.

[5] However, in my view, it was clearly an aggravating feature that you were one of five alleged offenders, but I do accept that you were not a party to the more serious actions of those who have pleaded guilty to wounding with intent to cause grievous bodily harm. I also accept that your gang affiliation is not an aggravating feature in the present circumstances.

[6] I therefore adopt a starting point of six months imprisonment. I turn now to the aggravating and mitigating factors personal to you. There is some suggestion that an uplift for previous convictions is warranted. In my view it is not warranted. Although you have a number of criminal convictions, you have only one for…

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 Penewi

Details

AGLC: R v Penewi [2019] NZHC 479
Case: [2019] NZHC 479
Decision Date: 18 March 2019

CaseChat Overview and Summary

The case of R v Penewi involves the sentencing of James Kupe Penewi, who pleaded guilty to a charge of assault with intent to injure. The incident occurred in Auckland Prison on November 12, 2017, where Penewi, along with four other prisoners, assaulted a fellow prisoner. While Penewi's physical involvement was limited to an attempted kick, he also covered a cell camera, taunted corrections officers, and obstructed their path. The Crown and the defence agreed on a starting point of six months imprisonment, considering Penewi's relatively minor role in the attack. The court accepted that Penewi's gang affiliation was not an aggravating factor but acknowledged his participation in the assault as an aggravating feature.

The legal issues before the court included determining an appropriate starting point for sentencing and applying various aggravating and mitigating factors. The court rejected an uplift for Penewi's criminal history, as most of his convictions were for property offences rather than violence. The court accepted that Penewi's offending was impulsive and committed in the company of more experienced offenders, granting a 10% discount for youth. Additionally, Penewi received a 25% discount for his early guilty plea, despite it being entered on the morning of his scheduled trial. The court determined that no further discount was warranted on totality principles.

In conclusion, the court sentenced Penewi to four months imprisonment, which would be cumulative with the sentence he was already serving. This decision reflects the court's consideration of Penewi's limited role in the assault, his youth, and his timely guilty plea. The court's reasoning is grounded in the specific circumstances of the offence and Penewi's personal background, leading to a sentence that balances the need for punishment with the principles of justice and rehabilitation.

Orders