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 violence. You are largely a property offender. I therefore consider that no uplift is required to reflect your criminal history.

[7]        As to mitigating factors, I accept that you are now 22 years old and that you were just 21 years old at the time of the offending.

[8]        I refer to the Court of Appeal decision in Churchward v R.1 In my view, your offending was impulsive and committed in the company of much more experienced criminal offenders. I, therefore, will afford you a 10 per cent discount for your youth.

[9]        As to your guilty plea discount, you pleaded guilty this morning when your trial was scheduled to commence. However, the Crown made an offer to reduce the charge you originally faced just last Thursday and, after talking with your counsel, you advised the Crown promptly that you were willing to plead guilty to the lesser charge. As I understand it that has always been your position. Therefore, notwithstanding the plea on the morning of trial, I accord you a further 25 per cent discount for that plea of guilty.

[10]      There was also some suggestion that a discount should be awarded on totality principles. However, as I explained to counsel, I do not accept that the principle is an issue in the present case.

[11]      All in all, I therefore sentence you to four months imprisonment, which will be cumulative on the sentence that you are already serving.

1      Churchward v R [2011] NZCA 531 at [77].

[12]You may stand down.

Woolford J