Teilauea v R

[2014] NZCA 391

IN THE COURT OF APPEAL OF NEW ZEALAND

CA171/2014
[2014] NZCA 391

BETWEEN	TEILAUEA TEILAUEA Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2014
Court:	Stevens, Lang and Clifford JJ
Counsel:	T Faleauto for Appellant K A L Bicknell for Respondent
Judgment:	14 August 2014 at 2.45 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

1. The appellant was found guilty following a jury trial of five counts of assault on a child, two counts of assault with a weapon, and one further count of assault with intent to injure.  He was sentenced by Judge Treston to two years and three months’ imprisonment.[1]  The appellant appeals against sentence on the grounds that it was based on an incorrect assessment of some significant facts or alternatively, the end sentence was manifestly excessive.

Background

[1]R v Teilauea DC Manukau CRI-2011-055-1425, 29 November 2013.

1. The appellant lived with his four stepchildren and their mother in late 2009 and early 2010.  He was charged with 16 counts of violent offending against those children when they were aged between four and 10.  He was convicted of eight of those charges, namely:

   (a)assaulting his 10 year old stepdaughter by throwing a steel cap boot at her and a further charge of assaulting her with a metal plate bar;

   (b)two charges of assaulting his eight year old stepson;  and one charge of assaulting him with a metal plate bar;

   (c)two representative charges of assaulting each of his four year old twin stepdaughters with a wooden spoon;  and

   (d)injuring one of those twins with intent to injure by knocking her head into the wall and pulling her hair.

2. Judge Treston summarised the offending at sentencing thus:[2]

   [2]       … during the relevant period the evidence effectively was that you regularly hit two of them on the hands and thighs with a wooden spoon.  On one occasion during the relevant period the evidence was that you struck all four of the children around Christmas time in the lounge of the Papakura address during the relevant period.  You were angry because one of the children you said was being clingy and you thought the children were planning to run away.  You began by hitting one of them on the hands and thighs with a wooden spoon until it broke, you then knocked that child’s head against the wall at least once and pulled her hair, and then the other children came into the lounge and you fetched a metal bar used to separate the door from the floor, this was obtained from the laundry area, you used that metal plate bar to hit two of the children on the hands and legs and one of them hard enough to draw blood, the evidence was.  You then also threw one of your work boots which was steel capped at one of the children, striking that child on the cheek, and during the relevant period two other charges, which were found established, you had thrown a cardboard box full of groceries hitting one of the children on the head, and you had kicked that same child in the thigh when you were wearing those steel capped boots.

Sentencing decision

[2]R v Teilauea, above n 1 (emphasis added).  The emphasised portions refer to the features the appellant says involved material errors.

1. The Judge correctly identified factors aggravating the offending as being the multiple incidents of violence, the fact there were four very young victims and that some of the offending was with weapons.[3]  The offending involved an abuse of trust through the appellant’s position as a parent in a household and the victims were vulnerable due to their age and the power the appellant exercised over them.  On this basis the Judge took a starting point of two years, three months’ imprisonment for the lead offences, being the counts of assault with a weapon.[4]

   [3]At [23].

   [4]The maximum term of imprisonment available for that offence is five years’ imprisonment.

2. The Judge found there were no mitigating factors in relation to the appellant personally.  He acknowledged a submission that in the Pacific culture of the appellant the person in loco parentis may be required to discipline children.[5]  The Judge also referred to the appellant’s willingness to undertake counselling.  That aside he did not detect any real remorse for what had happened, as the appellant considered himself entitled to do what he did to discipline the children.[6]  Accordingly no discounts from the starting points could be applied.  The Judge observed that any consideration of home detention was moot, as the final sentence was in excess of two years.[7]

The appeal

[5]At [3] and [19].

[6]At [24].

[7]At [28].

1. The appellant advances two key submissions: the sentence was based on an incorrect assessment of the facts; and the end sentence was manifestly excessive.  In the written synopsis Mr Faleauto also advanced a submission relating to issues of parole.[8]  However, as was explained at the hearing, parole is a matter for the Parole Board pursuant to the provisions of the Parole Act 2002.  It is not a relevant consideration at sentencing.[9]

Factual assessment

[8]Relying on the Parole Act 2002, s 84.

[9]Under either s 7 or s 8 of the Sentencing Act 2002.

1. The appellant alleges there were two material factual errors relied upon at sentencing which increased the apparent seriousness of his offending:

   (a)while the appellant threw a steel capped boot at one child, it hit her arm rather than landing on her cheek;

   (b)although the appellant struck one child with a wooden spoon, it did not break when being struck against the child.  Rather, it broke subsequently when it hit the ground.

2. We consider the Judge was best placed to assess the factual basis for sentencing having presided at the jury trial.  The statutory framework in s 24 of the Sentencing Act 2002 identifies the various streams from which facts relevant to sentencing are drawn.  This includes facts disclosed by evidence led at the trial.[10]

   [10]Sentencing Act, s 24(1)(a).

3. We have carefully reviewed the evidence concerning the two aspects about which the appellant complains.  We are satisfied there was evidence available to the Judge to support each of the findings made.  This challenge therefore fails.

Manifestly excessive sentence

1. The appellant also contends that the sentence imposed is more severe than it ought to have been, in light of the seriousness of the offending and the culpability of the offender.  The appellant submits the sentence should not have been more than two years’ imprisonment, thereby making him eligible for a sentence of home detention.  Particular emphasis is placed on the remorse of the appellant.  On the occasion of one of the violent incidents involving the children he is said to have sat down with his family and in a tearful reaction apologised for what he had done.

2. We consider that, viewed in the domestic context involving four young and vulnerable children, the appellant’s offending was serious.  The starting point taken by the Judge of two years and three months’ imprisonment could not be faulted.  Further, the Judge correctly assessed that there were no mitigating factors in respect of the offending.  The appellant’s previous involvement in a domestic violence programme was not a mitigating factor.  The probation report indicated a low level of motivation to comply with that programme and noted a continued lack of remorse.  The fact of attendance at such a course meant nothing if the appellant was not prepared to apply the lessons taught.  Saying sorry to his family following one incident of violence when later incidents of violence occurred took the matter no further.

3. The Judge’s consideration of remorse was very much a matter for the discretionary assessment by the sentencing Judge.  As the Supreme Court said in Hessell v R:[11]

   …  Sentencing Judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful.  But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse.  Where remorse is shown by the defendant in such a way, sentencing credit should properly be given …

   [11]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

4. At sentencing the Judge considered the submission on remorse.  He rejected it as lacking substance or merit.  He was right to do so.

5. For the above reasons we consider there was no basis upon which the sentence could be said to be manifestly excessive.

Result

1. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent