R v Pene

Case [2010] NZCA 387


IN THE COURT OF APPEAL OF NEW ZEALAND

CA265/2010
[2010] NZCA 387

BETWEENTHE QUEEN


Appellant

ANDSASHA VYANI PENE


Respondent

Hearing:12 August 2010

Court:Chambers, Rodney Hansen and Heath JJ

Counsel:T Epati for Appellant


W Lawson and K Badcock for Respondent

Judgment:20 August 2010 at 11 am

JUDGMENT OF THE COURT

A            Leave to appeal is granted and the appeal is allowed.

B            All sentences imposed in the High Court are quashed. 

C            In substitution for those sentences, the respondent is sentenced to:

(a)On the charge of manslaughter, two years three months’ imprisonment; and

(b)      On the charge of assault, one month’s imprisonment;

- both sentences to be concurrent. 

D            The respondent must report to the Kaitaia police station by no later than noon on 21 August 2010 to commence her sentence of imprisonment. 

REASONS OF THE COURT

(Given by Chambers J)

Tragic death of a 13 month old

[1]        Trent Matthews died on 5 June 2009.  He was only 13 months old.  He died because Sasha Pene, his foster mother, had, during the night, hit him hard on the head three or four times and angrily shaken him because he was crying.  These assaults caused spinal cord concussion, which in turn compromised Trent’s respiratory function.  Trent’s breathing difficulties caused brain damage, ultimately leading to his death.

[2]        Ms Pene was charged with the manslaughter of Trent.  A post-mortem found Trent had been injured on earlier occasions as well; there were abrasions and bruising on various parts of his body.  There was evidence of an historical fracture of his right upper arm bone.  Ms Pene admitted she had hit Trent on earlier occasions.  In the end, she pleaded guilty not only to his manslaughter but also to a representative charge of assaults between 9 April and 5 June 2009.

[3]        Andrews J sentenced Ms Pene to one year’s home detention and 100 hours’ community work.[1]  The Solicitor-General immediately advised his intention to seek leave to appeal, on the basis that the sentence was manifestly inadequate.  Only imprisonment could meet the purposes and principles of the Sentencing Act 2002.

Issues on the appeal

[1]     R v Pene HC Rotorua CRI-2009-063-4200, 22 April 2010 [Pene].

[4]        Ms Epati, for the Solicitor-General, submitted that the principal issue on the appeal was the starting point Andrews J had adopted: four years’ imprisonment.  Based on appellate cases in comparable circumstances, Ms Epati submitted that the starting point could not have been less than five to seven years’ imprisonment.  Had the Judge started from a figure in that range, she could not have legitimately reached an end sentence within the range where home detention became an alternative option, namely two years’ imprisonment or less.[2] 

[2]     Sentencing Act, s 15A.

[5]        If she failed on that submission, Ms Epati maintained, as a fallback position, that home detention was still not an appropriate sentence.  The Judge should still have gone for a sentence of short term imprisonment.

Was the starting point too low?

[6]        Andrews J adopted a…

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R v Pene [2010] NZCA 387
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[2010] NZCA 387
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CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the Crown appealed against the sentence imposed by Andrews J on Sasha Vyani Pene, who had pleaded guilty to manslaughter and a representative charge of assaults against a 13-month-old child, Trent Matthews, who died as a result of injuries inflicted by Pene. The appeal was allowed and all sentences imposed in the High Court were quashed. In their place, Pene was sentenced to two years three months’ imprisonment for manslaughter and one month’s imprisonment for assault, to be served concurrently. Pene was to report to the Kaitaia police station by no later than noon on 21 August 2010 to commence her sentence of imprisonment. The Court was satisfied that the starting point for sentencing should have been in the range of five to seven years’ imprisonment, rather than four years as determined by Andrews J. The Court emphasised the need to reflect the seriousness of violence against children, which was highlighted by recent legislative amendments. After taking into account mitigating factors, including Pene’s guilty pleas, the Court substituted a sentence of imprisonment, as it was of the view that no other sentence met the purposes and principles of the Sentencing Act. Pene had already served almost four months’ home detention and had completed 51 hours’ community work, so credit was given for those parts of those sentences already completed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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