R v Pene

[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 starting point of four years.  She appeared to accept that comparable appellate authority cited by Mr Pilditch, the Crown Solicitor at Rotorua, would support a starting point of five to seven years’ imprisonment, but she thought that should be adjusted to four years by reference to two factors:

(a)the starting point in R v Gordon,[3] a case she regarded as comparable; and

(b)personal factors referred to in a report by Dr Darren Malone, a Rotorua psychiatrist retained by the defence.  On the basis of his report, Andrews J was “satisfied that [Ms Pene was] suffering from a depressive illness, stress and anxiety at the time of [her] offending”.[4] 

[3]     R v Gordon CA276/04, 16 December 2004.

[4] At [42].

[7]        Ms Epati submitted neither of these factors justified a reduction in the starting point to four years.  As to Gordon, she submitted it was an exceptional case with features absent from the present case.  We agree.  Ms Gordon killed her nine week old baby by shaking, causing fatal brain injuries.  At the time, Ms Gordon was suffering from severe post-natal depression.  She had been admitted to a psychiatric ward the week before the baby’s death.  Expert evidence before this Court was to the effect that Ms Gordon had “major depression with psychotic features”, which would “have substantially diminished her responsibility for her actions”.[5]  The case had been one where the Judge had not left infanticide to the jury, a decision this Court endorsed although finding “the issue ... very finely balanced”.[6]  One cannot help feeling infanticide’s maximum sentence of three years’ imprisonment[7] may have influenced the merciful sentence fixed by this Court.

[5] At [46].

[6] At [25].

[7]     Crimes Act 1961, s 178

[8]        We accept Ms Pene was also stressed in the period prior to Trent’s death, but she was not suffering from post-natal depression and she did not have Ms Gordon’s established psychiatric problems.  Also, Ms Gordon had merely shaken her baby on two occasions; while deplorable, that was much less serious than the assaults leading to Trent’s death and the other assaults over the previous two months. 

[9]        As to factor (b), Ms Epati urged caution in the weight to be given to Dr Malone’s report.  Dr Malone examined Ms Pene on 24 February this year, more than eight months after the killing.  His report was based on one interview, which lasted 90 minutes.  Ms Epati further noted that the relevant background history on which Dr Malone relied involved, in the main, Ms Pene’s self-reporting, although Ms Epati accepted that Dr Malone had had access to Ms Pene’s general practitioner’s notes.  Ms Epati also referred to the lack of any medical evidence as to depression at the time of the killing.  There was nothing in the report to suggest Dr Malone considered this was a case of diminished responsibility.  His overall opinion, Ms Epati submitted, was cautious; after setting out what Ms Pene had reported, he had concluded:

All of this has resulted in a significant depressive illness, which I suspect has played a role in her assault on baby Trent and subsequently his death.

[10]       While we accept Dr Malone’s report had its limitations, we have nonetheless found it helpful in assessing Ms Pene’s culpability.  Under modern sentencing practice, however, Dr Malone’s views were only marginally relevant to starting point; the report’s principal relevance was with respect to whether a discount from the starting point was appropriate by reason of “mitigating factors relating to the offender’s particular personal circumstances”.[8]  In fact, Andrews J relied on the same factors Dr Malone had mentioned by way of mitigation as well; she allowed a year’s discount on their account, to bring the sentence down to three years.[9]  Ms Epati strongly submitted the Judge had in effect double-counted the personal factors relating to Ms Pene’s pregnancy, health, and depression.  We accept the validity of that submission. 

[8]     R v Taueki [2005] 3 NZLR 372 (CA) at [26]-[28] and [42]-[45]. See also Dalley v R [2010] NZCA 290 at [24].

[9]     Pene at [48]-[49].

[11]       In our view, Mr Pilditch was right to submit at sentencing that the starting point should have been in the range of five to seven years’ imprisonment.  In saying that, we have particularly taken into account, without spelling out the details of, the following cases:

·R v Iorangi,[10] where we deduce the starting point approved by this Court must have been in the vicinity of six to seven years.[11]

·R v Graham,[12] where again by deduction the starting point must have been in the vicinity of seven years. 

·R v Greaves,[13] where again by deduction the starting point must have been about seven years. 

·R v Broadhurst,[14] where this Court upheld Winkelmann J’s starting point of eight and a half years.  That case was more serious than the present, but not by much. 

·R v Wright,[15] where this Court upheld the sentencing Judge’s starting point of ten years.  Again the offending in that case was considerably more serious than the offending in the present case.

[10]   R v Iorangi CA533/99, 30 March 2000.

[11]   Some of the earlier cases do not specify a starting point with the precision now usually to be found in sentencing notes and appellate authorities.  One can calculate an assumed starting point by making adjustments from end sentences for what were obviously personal mitigating factors.

[12]   R v Graham CA391/96, 27 February 1997. 

[13]   R v Greaves CA68/99, 13 May 1999.

[14]   R v Broadhurst [2008] NZCA 454.

[15]   R v Wright [2001] 3 NZLR 22 (CA).

[12]       What is more, since these decisions, Parliament has changed the Sentencing Act to emphasise its concern about cases involving violence against, or neglect of, children under 14.  Section 9A was inserted into the Sentencing Act by s 4 of the Sentencing (Offences Against Children) Amendment Act 2008:

9ACases involving violence against, or neglect of, child under 14 years

(1)This section applies if the court is sentencing or otherwise dealing with an offender in a case involving violence against, or neglect of, a child under the age of 14 years.

(2)The court must take into account the following aggravating factors to the extent that they are applicable in the case:

(a)      The defencelessness of the victim:

(b)      In relation to any harm resulting from the offence, any serious or long-term physical or psychological effect on the victim:

(c)       The magnitude of the breach of any relationship of trust between the victim and the offender:

(d)      Threats by the offender to prevent the victim reporting the offending:

(e)      Deliberate concealment of the offending from authorities.

(3)The factors in subsection (2) are in addition to any factors the court might take into account under section 9.

(4)Nothing in this section implies that a factor referred to in subsection (2) must be given greater weight than any other factor that the court might take into account. 

[13]       That amendment was passed unanimously by the House of Representatives and reflects widespread public concern about violence against and neglect of children.  If anything, it signals tougher sentences might be required. 

[14]       The explanatory note to the Bill read as follows:[16]

The new section obliges the court to take into account the defencelessness of children, who cannot fight back or permanently escape the offender.  It requires the Court to consider the serious or long-term harm that can result from offending against children, and the breach of the special relationship of trust that children are entitled to enjoy with adults.  ...

This Bill represents the first phase of the Government’s policy response to violent offending against children.  The Government plans to address maximum penalties for offending against children in a second Bill to be introduced early next year. 

[16]   Sentencing (Offences Against Children) Amendment Bill 2008 (4-1) (Explanatory Note) at 2. 

[15]       Ms Epati accepted that, this being a Solicitor-General appeal, we should adopt the lowest point on the range, namely five years’ imprisonment.  We accept that submission. 

[16] Andrews J gave a discount of 12 months for the personal factors she identified and to which we have already referred. Ms Epati accepted that discount was appropriate. So do we. We do not detail all those personal factors here, since the discount for them is not in dispute. Suffice to say we do feel great sympathy for Ms Pene and the situation in which she found herself. It appears she was badly let down by her partner and by her partner’s family and her own. That is, however, a common feature of most of these tragic cases leading to children’s deaths. In lots of these cases of baby killings, including some of those cited at [11] above, the offenders have been under great stress at the time they killed the children in their care. Nearly always, these offenders feel remorse afterwards; but that is not the point. What society is trying to make clear, through legislative amendments by their Parliamentary representatives and by court decisions, is that there can and should be only limited discounts for those who end up killing innocent children, whatever the difficulty of the offenders’ personal situations. Obviously, the sentencing approach can be more lenient where recognised psychiatric or psychological disorders are clearly established as causative.

[17]       Andrews J then allowed a discount of a third for the guilty pleas.  That was generous in the circumstances, as, although admissions were made promptly, guilty pleas were not entered until 16 December last year.  Ms Epati was not minded to seek an adjustment on that discount.  We agree that, in the circumstances, we should adhere to that discount. 

[18]       After allowing for those discounts, we reach an end sentence of two years eight months’ imprisonment.  We accept the Crown’s submission that that was the lowest possible sentence applicable in the circumstances of this case.  It is not a short‑term sentence (as defined).  Accordingly, home detention was not available.  In these circumstances, it is not necessary for us to consider Ms Epati’s fallback submission. 

[19]       That is not the end of the story, however.  This Court has adopted a cautionary approach to substituting a sentence of imprisonment on appeal when a non-custodial sentence has previously been imposed.  The considerations are perhaps most clearly set out in this Court’s decision in R v Donaldson, where reference was made to the potential “element of inhumanity” in sentencing someone who has escaped imprisonment at first instance to imprisonment on appeal.[17]  In this case, however, we feel compelled to substitute a term of imprisonment, as in our respectful view no other sentence meets the purposes and principles of the Sentencing Act.  As well, Ms Pene has been aware from within a week of her sentencing that the Crown would be appealing and would be asking this Court to substitute a term of imprisonment.  As in Donaldson, the sentence that was imposed here represented, in our view, “a clear departure from the accepted sentencing pattern” that “must be corrected”.[18]

Result

[17]   R v Donaldson (1997) 14 CRNZ 537 at 550 (CA). 

[18]   At 550.

[20]       Normally, we would at this point have substituted a sentence of two years eight months’ imprisonment.  We note, however, that Ms Pene has now served almost four months’ home detention and has completed, so we were told, 51 hours’ community work.  Credit should be given for those parts of those sentences already completed. 

[21]       We therefore allow the Crown’s appeal.  We quash all the sentences imposed in the High Court.  On the charge of manslaughter, we sentence Ms Pene to two years three months’ imprisonment.  On the charge of assault, we sentence her to one month’s imprisonment.  The sentences are to be concurrent. 

Solicitors:

Crown Law Office, Wellington, for Respondent