PEENI v POLICE [2020] NZHC 1827

PEENI v POLICE [2020] NZHC 1827 [28 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000190[2020] NZHC 1827BETWEEN NATHAN PEENIAppellantAND NEW ZEALAND POLICERespondentHearing: 27 July 2020Counsel: JW Mackey for AppellantRK Tasman-Jones for RespondentJudgment: 28 July 2020JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 28 July 2020 at 12 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.JW Mackey, Auckland.The appeal[1] Nathan Peeni received a 23-month prison sentence. Mr Peeni contends heshould have received a sentence of home detention.Background[2] Mr Peeni and the victim have been in a relationship for 11 years. Between1 and 30 September 2019, Mr Peeni repeatedly contravened a protection order inrelation to the victim. He took her phone (to restrict her contact with others);threatened to burn her belongings and put an axe through her aquarium; and told thevictim if she disobeyed him he would contact Oranga Tamariki and accuse her ofabusing the children.1[3] On 17 October 2019, Mr Peeni drove at 101 kilometres per hour in a50 kilometre per hour zone. He was already suspended from driving, and refused toprovide a blood specimen. Mr Peeni appeared to have been drinking.[4] At 1 am on 1 December 2019, Mr Peeni confronted the victim at her home (shewas in a car). Mr Peeni dragged her from the car and down the driveway. The victimstruggled. Mr Peeni put his hands over her mouth; she found it difficult to breathe.Mr Peeni said "you're gonna get it now, you're gonna get your head ripped off".Mr Peeni then damaged her car.[5] Mr Peeni pleaded guilty to:(a) one charge of impeding breathing;2(b) one charge of assault on a family member;3(c) two charges of contravening a protection order;41 Mr Mackey says Mr Peeni disputed manipulating the victim vis-à-vis Oranga Tamariki. TheJudge's sentencing remarks say nothing about a dispute or s 24 of the Sentencing Act 2002; theprovision directed at disputed fact hearings. Nothing turns on this.2 Crimes Act 1961, s 189A(a), carrying a maximum term of seven years' imprisonment.3 Crimes Act, s 194A(1), carrying a maximum term of two years' imprisonment4 Family Violence Act 2018, s 112(1)(a), carrying a maximum term of three years' imprisonment(d) one charge of wilful damage;5(e) one charge of refusing an officer's request for a blood specimen;6(f) one charge for driving while suspended or revoked third or subsequent;7(g) one charge of driving at a dangerous speed;8 and(h) one charge of breaching community work.9[6] Mr Peeni's pre-sentence report recommended home detention, withimprisonment as a more serious alternative. The report described Mr Peeni as highrisk of harm to others, and his risk of re-offending "being in the high-medium range".The report described Mr Peeni's compliance with community-based sentences as"poor".[7] Mr Peeni has a history of abusing methamphetamine, cannabis, and alcohol.Mr Peeni has an extensive criminal history. More about this shortly.The case for home detention[8] On behalf of Mr Peeni, Mr Mackey contends the Judge erred by not imposinghome detention; the Judge wrongly focussed on the need to denounce the offending.Mr Mackey observes this sentence was recommended in the pre-sentence report.Mr Mackey describes Mr Peeni as "relatively young"—Mr Peeni is 29. Mr Mackeynotes Mr Peeni has been given home detention before. He argues this sentence will"enable [Mr Peeni] to start courses to address his issues". Mr Mackey says Mr Peeni"is doing it hard in prison" and would benefit from home detention.5 Summary Offences Act 1981, s 11(1)(a), carrying a maximum term of three months' imprisonmentor a maximum fine of $2,000.6 Land Transport Act 1998, s 60(1)(a), carrying a maximum term of three months' imprisonment ora maximum fine of $4,500.7 Land Transport Act, ss 32(1)(c) and 32(4), carrying a maximum term of two years' imprisonmentor a maximum fine of $6,000.8 Land Transport Act, s 35(1)(b), carrying a maximum term of three months' imprisonment or amaximum fine of $4,500.9 Sentencing Act 2002, s 71(1)(a), carrying a maximum term of three months' imprisonment or amaximum fine of $1,000.[9] Mr Mackey gave me a letter from Mr Peeni, in which he says he is "veryremorseful" for the offending.Principle[10] A sentence appeal may be allowed only if the appeal Court concludes there hasbeen an error in the sentence and a different one should be imposed.10[11] Whether home detention is appropriate is an evaluative exercise.11 Thesentencing Judge must exercise judgement whether home detention is an adequateresponse to the seriousness of the offending.12 There is no presumption in favour ofhome detention, but the Judge must impose the least restrictive outcome that isappropriate.13 In some cases, this will mean a term of imprisonment.Analysis[12] Mr Mackey's contentions helpfully make the case for home detention.However, several factors favour imprisonment.[13] First, the offending was serious, especially that in the early hours of1 December 2019. Mr Peeni again breached the protection order in relation to thevictim. She struggled to breathe when he put his hands over her mouth. The assaultwas cowardly; the damaging of her car, gratuitous. Denunciation was called for.[14] Second, Mr Peeni has an extensive criminal history beginning when he was ateenager. It includes convictions for breaching the same protection order, wilfuldamage, resisting Police, disorderly behaviour and driving with excess breath alcohol.Much more serious histories can readily be found, but Mr Peeni's offending shows nosigns of abating. Risk of re-offending is high to medium.10 Criminal Procedure Act 2011, s 250.11 See Twomey v R [2018] NZCA 206 at [12].12 James v R [2010] 24 NZTC 24, 271 at [17].13 Ibid.[15] Third, the violence offences are more serious than anything in Mr Peeni'shistory. Or, as Ms Tasman-Jones for the Crown observes, the offending constitutes"a sharp escalation in seriousness".[16] Fourth, Mr Peeni's recent history tells against home detention. In 2018,Mr Peeni twice breached community work. In 2017, he twice drove while suspended.In 2013, Mr Peeni twice breached conditions of home detention. These convictionsaddress Mr Mackey's submission Mr Peeni has received home detention before.[17] It was open to the Judge to emphasise these factors, hence reject homedetention in favour of imprisonment. Put another way, no error arises from theevaluative exercise.Result[18] The appeal is dismissed...Downs J