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…
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.
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Details
AGLC
R v Pene [2010] NZCA 387
Case
[2010] NZCA 387
Decision Date
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.