R v Li - [2021] NZHC 3354

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-092-015287

[2021] NZHC 3354

THE QUEEN

v

MALIA UNALOTOKIPEA LI

Hearing: 8 December 2021

Appearances:

J Rhodes and F J Faull for the Crown M Ryan and N Tupou for the Defendant

Sentencing:

8 December 2021

Reissued:

7 February 2023

SENTENCING NOTES OF WYLIE J

[Redacted]

Solicitors/counsel:
Kayes Fletcher Walker, Auckland M Ryan, Auckland

R v LI [2021] NZHC 3354 [8 December 2021]

Introduction

[1] Ms Li, this is a sad case. You appear for sentence today having been found guilty of manslaughter following a jury trial which ran from 24 May to 1 July 2021. You failed to provide your husband, Lanitola ‘Epenisa, with the necessaries of life, thereby causing his death. This was an offence pursuant to ss 150A, 151, 160(2)(b) and 171 of the Crimes Act 1961. It is punishable by a maximum penalty of life imprisonment.

[2] Regrettably, your sentencing has had to be adjourned twice, both times at the request of your counsel. They were unable to obtain relevant reports because of the Covid-19 restrictions which have been in place since mid-August of this year.

Relevant facts

[3]You and your husband had been married for some years. [REDACTED]

[4] Prior to your husband’s death, you were employed as a health care assistant for a period of almost three years. In this role, you received basic health care training – including on how to look after the elderly and infirm.

[5] In September 2014, your husband suffered a stroke and he was admitted to hospital. He was discharged in late 2014. At the time he was able to walk independently with the aid of an ankle splint and a crutch. He was continent and able to manage his own toileting. Shortly after his discharge, he suffered a second stroke and was readmitted to hospital. He was discharged for a second time in February 2015. He was then capable of feeding himself with adaptive cutlery but he required assistance with showering and dressing.

[6] Before your husband was discharged from hospital for the second time, he was referred to Taikura Trust so that his needs could be assessed and care arrangements put in place. You were advised that a Healthcare NZ support worker could be made available to assist your husband with things such as toileting, showering, cleaning and rehabilitation. A support worker from Healthcare NZ visited initially, but your

husband was reluctant to accept assistance from a stranger and you told the healthcare authorities that he did not want somebody who he did not know caring for him.

[7] Initially, you all lived at a community owned house in Vine Street in Mangere. A number of people visited the house to see you and your husband. They often found that your husband was the only person at home, that on occasion he was hungry and that he looked unwell and untidy. Some said there were smells – one…

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.

Continue reading R v Li

Details

AGLC: R v Li [2021] NZHC 3354
Case: [2021] NZHC 3354
Decision Date: 8 December 2021

CaseChat Overview and Summary

In the case of R v Li, the High Court of New Zealand sentenced Malia Unalotokipea Li for manslaughter following a jury trial. Li was found guilty of failing to provide her husband, Lanitola 'Epenisa, with the necessaries of life, resulting in his death. The court considered various factors, including Li's limited insight into her actions, her expressions of remorse, and the circumstances surrounding her husband's death. The court took into account mitigating factors such as cultural aspects, poverty, overcrowding, and Li's own ill health. Ultimately, the court sentenced Li to five years and seven months' imprisonment for manslaughter, without imposing a minimum period of imprisonment.

The legal issues before the court included determining the appropriate starting point for sentencing, considering both aggravating and mitigating factors, and assessing the level of culpability and remorse demonstrated by Li. The court compared the circumstances of this case to those in R v Taylor, finding that while Li's culpability and offending were serious, they were not as severe as in the Taylor case. The court also examined the impact of cultural factors, poverty, and Li's health issues on her ability to care for her husband. After considering all relevant factors, the court imposed a starting point sentence of eight years' imprisonment, reduced by 30% due to mitigating factors, resulting in a final sentence of five years and seven months' imprisonment.

Orders