[1] Mr Pengelly, you have pleaded guilty to attempted murder1 and two charges of threatening to kill.2 I understand that yesterday in the District Court you pleaded guilty also to being party to dishonestly using a document,3 breach of release conditions4 and theft.5 You are being sentenced today on all six charges.

Circumstances of the offending

[2] I will describe, briefly, your offending, in the chronological order in which it occurred.

1      Crimes Act 1961, s 173.
2      Crimes Act 1961, s 306(1).
3      Crimes Act 1961, ss 228(b) and 66.
4      Sentencing Act 2002, s 96(1).
5      Crimes Act 1961, s 219.

R v PENGELLY HC NEL CRI 2012-042-2726 [19 March 2013]

Breach of release conditions

[3] You were released from Rimutaka Prison on 22 February 2012. One of your release conditions was to report to your Probation Officer once a fortnight. On
14 June 2012 you breached that by failing to report without reasonable excuse and subsequent attempts to contact you were unsuccessful.

Dishonestly using a document and theft

[4] In early September 2012 you visited the Auckland home of an 88 year old woman. Her son had been in prison with you. You had met her when she had visited her son. On visiting her you rifled through her handbag and recorded her credit card details. Between 5 and 7 September 2012, you and your girlfriend used those credit card details to pay for $3,223 worth of computer products, mobile telephone equipment and a rental car. You also did $2,296 worth of damage to that rental car. That too was charged to the credit card.

[5] Later again in September 2012, you visited your elderly victim again on the pretext of having a coffee and a chat with her. This time you stole her wallet which contained various cards and $35 cash. In all, worth about $200.

Threatening to kill

[6] In early October 2012 you hitchhiked around the South Island for a couple of weeks. On 2 and 3 October 2012 you sent an ex-girlfriend, over 80 threatening text messages. Those texts contained explicit threats to shoot her and anyone in her house with a shotgun, threats to kill her sister and threats to kill her community health nurse.

[7] On 7 October 2012 you sent you ex-girlfriend another series of threatening text messages after she declined your request that she buy you a mobile telephone top-up voucher. You threatened to stab her with a sword while she was sleeping and to send someone to hurt her.

[8] The victim, not knowing your whereabouts and fearing for her and her son’s

life, went into hiding until you were located on 14 October 2012.

Attempted murder

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 Pengelly

Details

AGLC: R v Pengelly [2013] NZHC 527
Case: [2013] NZHC 527
Decision Date: 19 March 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Pengelly involved Steven Keith Pengelly, who was sentenced on six charges, including attempted murder, threatening to kill, dishonestly using a document, theft, and breach of release conditions. The court was tasked with determining the appropriate sentence for the defendant, taking into account the nature of the crimes, the defendant's personal circumstances, and the purposes and principles of sentencing as outlined in the Sentencing Act 2002.

The court considered the aggravating factors of the crimes, such as extreme violence, premeditation, serious injury, use of weapons, and attacking the victim's head, as well as the defendant's history of violence, drug and alcohol issues, and severe difficulty regulating emotions. The court also took into account the defendant's lack of remorse and his failure to comply with court-imposed release conditions. The court imposed a starting point of nine and a half years' imprisonment for the lead charge of attempted murder and concurrent sentences for the secondary charges. The total sentence was uplifted to eleven and a half years' imprisonment, and after applying a 25% discount for the defendant's early guilty plea, the final sentence was eight years and eight months' imprisonment, with a minimum period of imprisonment of four years and four months.

The court emphasised the importance of treatment for the defendant's condition and expressed frustration at the lack of tools available to ensure that he receives the necessary treatment while in prison. The court also issued a three strikes warning to the defendant, stating that if he commits any serious violent, including sexual, offence (other than murder) after this warning, he will serve that sentence without parole or early release. If he commits murder, he will be sentenced to life imprisonment and may serve that sentence without the possibility of parole.

Orders