R v Amanono

[2005] NZCA 31

IN THE COURT OF APPEAL OF NEW ZEALAND

CA416/04

THE QUEEN

v

TIMOTEO AMANONO

Hearing:24 February 2005

Court:Anderson P, Randerson and Williams JJ

Counsel:J M Jelas for Crown

L B Cordwell for Respondent

Judgment:7 March 2005 

JUDGMENT OF THE COURT

A        THE APPEAL IS DISMISSED

____________________________________________________________________

REASONS

(Given by Williams J)

Issue

[1]       On 16 July 2004 the respondent, Mr Amanono, pleaded guilty in the District Court to one count of injuring one of his then step-daughters with intent to injure her.

[2]       On 23 September 2004 Judge Kiernan sentenced him to 350 hours of community work.

[3]       The Solicitor-General seeks leave to appeal against that sentence on the ground that it was manifestly inadequate and wrong in principle.

Facts

[4]       Mr Amanono met and married the complainant’s mother in 1994.  She had five other children.   The charge against him was that between 6 September 1996 and 31 December 1997 when the complainant was between 13-15, Mr Amanono became angry with her because of an incident at school, began to shout at her and then punched her about six times on the left side of her face whilst shouting abuse at her.  As a result of the assault the complainant’s left eye became swollen and bloodshot to the point where she had to use her fingers to pry her eye open.  She required medical treatment.

[5]       The incident had sufficient impact on the complainant for people at her school to have remembered it clearly even though it happened over 7 years ago.

[6]       When interviewed by the Police, Mr Amanono said he did no more than slap the complainant with an open hand.  However, to the probation officer, he gave a much more detailed explanation which minimized his part.  It included his being called to the complainant’s school on two successive days because of her disruption and bad behaviour, leading him to lose time at work and wages.  He referred to arguments he had with the complainant’s mother, and denied that what he said to the complainant during the assault was anything more than remonstrating with her over her school behaviour.

[7]       Despite that much more elaborate explanation, Mr Cordwell accepted both in the District Court and on appeal that Mr Amanono’s case must be dealt with on the summary of facts prepared by the Police and summarised above.

[8]       It is also pertinent to note that Mr Amanono’s relationship with the complainant’s mother continued, we were told, for about two further years before it ended, following allegations of sexual abuse made against him.  He was acquitted by a jury on all charges arising out of those allegations in a trial which took place about a week after he pleaded guilty to the count of injuring with intent to injure.

Remarks on sentencing

[9]       After summarising the facts, Judge Kiernan noted Mr Amanono’s previous convictions and summarised the victim impact statement and Mr Amanono’s personal circumstances derived from the pre-sentence report.   She also noted his comments to the probation officer – repeated by Mr Cordwell both in the District Court and before us – that Mr Amanono remained regretful at what had occurred and felt “very bad about it”.  Mr Amanono, however, accepted that no matter how tired or frustrated he was at the time he should never have assaulted the complainant.  He said he had never done such a thing before or since.

[10]     The Judge, noting the lack of any tariff for the charge Mr Amanono faced, held (at [13]) in reliance on authority that “a stern message … must be sent from the Court to those who offend against people in their care and, particularly, children”.  The Judge then reviewed counsel’s submissions noting, as she did, Mr Amanono’s service with the territorials and the fact that he had been in a later stable relationship for three years acting as stepfather to his partner’s four children.  They have a child of their own.

[11]     The Judge identified the aggravating features of the offence as the violence and physical and emotional damage by a stepfather to a vulnerable victim plus his previous convictions.  A discount was allowed for the plea and Mr Amanono’s admission to the Police.  She then concluded (at [25]-[26]) :

[25]     … Nothing can excuse your attack on this young girl.  You were her stepfather.  You were in a position of trust.  You lost your temper.  You hurt her and the effect on her has been lasting.  I am told the effect on you has also been lasting.  I hope you will never raise a hand to a child again.

[26]     In all the circumstances, though, I have come to the view that I can impose a community based sentence today.  What I have determined is appropriate for you in these circumstances is a substantial term of community work.  Accordingly, you are sentenced to 350 hours of community work.

Submissions

[12]     For the Solicitor-General, Ms Jelas acknowledged that no tariff exists for this offence but submitted that, nonetheless, imprisonment usually follows conviction and should have occurred here.  Violent offending on children usually leads to custodial sentences.  The Judge was in error in the sentence she imposed.  Having regard to the number of blows to the head, the age of the complainant and the effect on her, Ms Jelas submitted the sentence was manifestly inadequate.

[13]     Mr Cordwell, while acknowledging that imprisonment was commonly the result of conviction for this offence, nonetheless supported the sentence.  He pointed to the respondent taking responsibility, first for the complainant’s family, and now for that of his partner.  He suggested the assault was a “flashpoint” reaction to considerable frustration and something which had been genuinely regretted in the period since.  He submitted there was no suggestion of any familial violence other than on this single occasion.

Discussion

[14]     As the authorities show, imprisonment is the usual result following conviction on a charge of injuring with intent to injure.  Violence in our community is, of course, to be deprecated.  Violence within the family – particularly to children – even more so.

[15]     But there is room for leniency in appropriate circumstances.  And here, the Judge though not elaborating on the reasons for selecting what must be seen as a merciful sentence, appears clearly to have taken into account that Mr Amanono had been convicted of a single assault committed seven years before he came before the Court for sentencing and that, in the whole of that period and throughout two family relationships, Mr Amanono had no further convictions for violence.

[16]     Uncommon as the result in this case was, we are not persuaded that the sentence imposed was wrong in principle nor, having regard to the high standard which must be demonstrated in appeals by the Solicitor-General, that it was manifestly inadequate.

[17]     The Solicitor-General’s application for leave to appeal is accordingly dismissed.  Mr Amanono is directed to report to the Henderson Community Work Centre on 19 March 2005 at the usual time and thereafter as directed by the officer-in-charge in order to complete the sentence imposed on him in the District Court.

Solicitors:
Crown Solicitors, Auckland