THE QUEEN v STEVEN MICHAEL TE AMO [2001] NZCA 64 (29 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca435/00

THE QUEEN

V

STEVEN MICHAEL TE AMO

Coram:	Keith J Blanchard J McGrath J
Judgment (On the papers):	29 March 2001

judgment of the COURT DELIVERED BY KEITH J

[1] The appellant was found guilty of three offences by a jury in the District Court at Hamilton on 15 September 2000.The appellant was sentenced to a total of two years imprisonment and now appeals against his sentence.Legal aid for this appeal was declined by the Registrar of the Court of Appeal after consultation in accordance the Legal Services Act 1991 which was still in force.The appeal has been determined on the basis of the grounds of appeal detailed in the notice of appeal and in the appellant's written submissions.

The facts

[2] Repeated violence characterised the appellant's relationship with his partner, and their daughter.In the evening of 25 June 2000 the first complainant returned home after assisting with preparations for a fundraising event.After she had entered the house, the appellant pulled her to the ground and threatened to kill her if she ever left the house again.In relation to this incident the appellant was convicted of the offences of threatening to kill under s306(1)(a) of the Crimes Act 1961 and contravening a protection order under s49(1)(a) of the Domestic Violence Act 1995.Sentences of six months imprisonment in respect of the threat to kill and the breach of the protection order were imposed (the latter concurrent).

[3] The jury acquitted the appellant on a charge of assault with a weapon on his partner, that charge arising out of the same events.

[4] On the morning of 29 June 2000 the appellant was dressing the child, then aged four and a half years, in preparation for school.The child's mother deposed that she heard the appellant scream at their daughter and rushed into the lounge to see the appellant propel the child some distance across the room. She arrested her daughter's fall.The exact distance involved is unclear.In relation to these events the appellant was convicted of the offence of assault on a child under the age of 14 years under s194(a) of the Crimes Act and sentenced to 18 months imprisonment. The Judge directed that the sentences of six months for threatening to kill and 18 months imprisonment be served consecutively.

Grounds of appeal

[5] The appellant submitted that his sentence of two years imprisonment was manifestly excessive. He submitted that the Judge erred in not applying the totality principle and in imposing a sentence of 18 months imprisonment in respect of the assault on his daughter.

Cumulative Sentence

[6] The appellant submitted that the threat to kill and the assault on the child were aspects of a single course of conduct occurring over a short period of time.This, he submitted, meant that a cumulative sentence was inappropriate.We disagree.The assault on his daughter occurred approximately three and a half days after the threat to kill his partner. There was nothing to connect the two acts other than the appellant's general predisposition towards violence against his partner and child.

[7] No assistance is provided by the cases cited by the appellant.In McGinty v Ministry of Transport (1990) 6 CRNZ 534 concurrent sentences were imposed for offences of which Mr McGinty was convicted in relation to the same motor vehicle accident.A single cause of conduct on the one evening against one victim was also involved in R v Pui [1978] 2 NZLR 193.

[8] Furthermore, to hold that violent acts occurring at different times to different members of a family are part of the same course of conduct and therefore attract concurrent sentences would almost be to licence repeated domestic assaults.

Appropriateness of the sentence for the assault

[9] It was the appellant's submission that even if cumulative sentences were appropriate, the sentence in respect of the assault on his daughter was manifestly excessive.The maximum sentence, he points out, is two years. Again, we have not been persuaded to interfere.

[10] The sentencing Judge recognised the appellant's minimisation of what he had done and his history of domestic violence as aggravating factors.The existence of some signs of remorse and an offer of compensation were mitigating factors.The Judge observed that the offending was not the most serious conceivable under s194(a), but he noted the need for deterrence, the fact that the appellant is 30 and thus no longer in a position easily to reform his behaviour and the serious injury which the child could have sustained had her fall not been arrested by her mother.

[11] Essentially for the reasons given by the Judge we are satisfied that the sentence was appropriate and within the range available.The fact that the child suffered no serious injury was the result of fortunate circumstance and not of an attempt by the appellant to minimise any injury which might have been caused.Further, we must emphasise that society will not tolerate violence within the home.

Result

[12] The appeal is dismissed.