R v Rawiri

[2022] NZHC 102

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-063-598

[2022] NZHC 102

THE QUEEN

v

LEZA RAWIRI

Hearing:	3 February 2022
Counsel:	A Gordon for Crown M Ryan for defendant
Judgment:	3 February 2022

SENTENCING NOTES OF KATZ J

Solicitor:            Gordon Pilditch, Office of the Crown Solicitor, Rotorua Counsel:  M Ryan, Barrister, Auckland

R v RAWIRI [2022] NZHC 102 [3 February 2022]

Mihi

Haere, haere, haere atu rā, e Ferro

Haere ki Hawaiki nui, Hawaiki roa, Hawaiki pāmamao Ki te kainga tūturu mō tatou katoa, mō ngā tāngata

Kei te ngau tōnu te mamae i te ngākau o ngā tāngata kua mahue i tēnei taha o te arai. Nō reira, moe mai, moe mai, moe mai rā.

Ka huri ki a tātou, kua huihui mai i te ahiahi nei, tēna rā koutou katoa Ki te whānau pani, e mihi aroha ana ahau ki a koutou

Nō reira, tēna koutou, tēna koutou, tēna koutou katoa

To the deceased, Ferro Farewell

Travel on your final journey to great Hawaiki, long Hawaiki, and distant Hawaiki To the final resting place of us all

The pain of your departure gnaws at the heart of those that remain on this side of the veil

So farewell and rest peacefully

Turning to those gathered here this afternoon, greetings to you all To the whānau of the deceased, I greet you and acknowledge you I greet you once, twice, and three times.

Introduction

[1]                  Leza Rawiri, you appear for sentence today for your role in the events leading up to the tragic death of Ferro-James Tiopira Sio at the age of only five. Ferro was killed by his father, William Sio, in February 2020. Mr Sio has already pleaded guilty to murdering Ferro, together with other charges relating to his ill-treatment and abuse of his son. On 9 July 2021, Mr Sio was sentenced to life imprisonment with a minimum period of imprisonment of 17 years.1

[2]                  Although you did not directly kill Ferro, you played a role in the events that culminated in his death. You have pleaded guilty to two charges of ill-treatment of a child,2 and one charge of failure to protect a child.3

1      R v Sio [2021] NZHC 1709.

2      Crimes Act 1961, s 195. Maximum penalty of 10 years’ imprisonment.

3      Crimes Act 1961, s 195A. Maximum penalty of 10 years’ imprisonment.

[3]                  We are here today because Ferro is not. I acknowledge all of his loved ones who have come to Court today, and any of you who have been able to join us by AVL. I thank those of you who have read out your victim impact statements or who have had them read on your behalf. I acknowledge your courage, your loss, and your love of Ferro. Your words have painted a vivid picture of him, for those of us who never knew him. You have shared your memories of him as a happy, polite, cheeky, fun little boy who loved Christmas. As one whānau member said:

Ferro was a happy, joyful kid with the biggest smile. He loved playing with his cousins, Paw Patrol and trampolining. He loved his bike.

[4]                  Another whānau member described Ferro as “the most loving, easy, kicked back kid”. The pain of his loss is clearly felt very deeply by those who are here today, and no doubt others who are not able to be here. I will have more to say about the impact of his death on his loved ones later.

The offending

[5]Ms Rawiri, I will start by summarising your offending.

Ill-treatment of a child – 1 September 2018 to 24 January 2020

[6]                  The first charge you have pleaded guilty to is ill-treatment of a child, during the period 1 September 2018 to 24 January 2020. You have admitted to assaulting Ferro on a number of occasions. You were also charged as a party to Mr Sio’s offending. You must therefore share some responsibility for what Mr Sio did to Ferro in the 16 months or so prior to his death. By your guilty pleas you have acknowledged that at least some of what Mr Sio did to Ferro during that time occurred with your knowledge and implicit support.

[7]                  You and Mr Sio lived together at various locations in the Waikato and Bay of Plenty. Ferro lived with you both during much of this period, apart from when he was being cared for by friends of Mr Sio, some of whom we have heard from today.

[8]                  Your relationship with Mr Sio was volatile. You argued often. You were violent to one another. Indeed, your only previous conviction is for an assault on

Mr Sio. As the violence became more frequent and serious you often separated for short periods of time. Ferro was often present during your arguments and fights.

[9]                  When Ferro attended Kōhanga Reo in Tauranga, the staff saw that he had bruising and pinch marks on his ears, arms, back and shoulders. The marks were most common on a Monday. Ferro told a teacher that you were responsible. The teacher repeatedly raised this with Mr Sio, who denied that you were responsible. Every time the teacher spoke to Mr Sio about this the marks would disappear for a period, before reappearing.

[10]              Both you and Mr Sio frequently assaulted Ferro while he was in your care. Mr Sio had entirely unrealistic expectations as to how Ferro should behave. He resorted to violence when Ferro did not live up to his expectations. Mr Sio would hit Ferro across the back of his head, ears, or across his mouth. He wold kick his bottom and drag him around by his arms. You would also often hit Ferro, by slapping him on his body.

[11]              Mr Sio punished Ferro in various other ways. He shut Ferro in his bedroom, sometimes for an entire day. He forced Ferro to stand in the corner of the room, facing the wall, with his hands outstretched for up to 30 minutes at a time. Other times he made Ferro sit in the corner of the room without moving, sometimes for hours on end.

[12]              Your conviction for ill-treatment of a child during the period 1 September 2018 to 24 January 2020 relates to these events.

Ill-treatment of a child – 24 January 2020 to 7 February 2020

[13]              The second charge you have pleaded guilty to is ill-treatment of a child between 24 January 2020 and 7 February 2020. This is the two-week period leading up to Ferro’s death, when the three of you were living in emergency accommodation in Rotorua.

[14]              The emergency accommodation was divided into five separate bedrooms with a communal kitchen, bathroom and laundry. The room the three of you lived in was small, with limited space to move around. There was a set of single bunks and a single

mattress on the floor. You and Mr Sio usually kept the door closed and curtains drawn. You did not mix with the other residents, and they rarely saw Ferro. However, other residents heard frequent fighting and arguing between you and Mr Sio. The arguing would often go on for hours at a time and throughout the night. You and Mr Sio yelled at each other and also at Ferro. Other residents heard Ferro screaming in a frantic and distressed manner. They heard what sounded like Ferro being assaulted. They heard hitting sounds. They heard Ferro crying. On many, if not most, of these occasions both you and Mr Sio were in the room with Ferro. On one occasion Mr Sio was overheard yelling at Ferro, “shut up, what are you crying for? Want me to give you something to cry about?”

[15]              During this period Ferro often wore a hooded sweatshirt and long pants when he left the room, even though it was mid-summer. It was extremely hot at the time, but other residents noticed that Ferro rarely left the bedroom. The school term started about a week before Ferro died, but he had not returned to school.

[16]              While you were in emergency accommodation Mr Sio continued to “punish” Ferro in the same way he had previously. He would make him sit in the corner of the room for long periods, often for hours at a time. Ferro was also forced to stand for hours with his hands outstretched. If he dropped his hands he would be assaulted, and the so-called punishment would continue. Ferro would be punished for small things, such as touching items in the room, or not sitting quietly and watching television.

[17]              On 31 January 2020 at 2.45 am, Mr Sio was seen outside with Ferro. Mr Sio was heard yelling at you and accusing you of giving Ferro bruises on his leg.

[18]              During the morning of 5 or 6 February 2020, Mr Sio and Ferro were observed walking back to their room from the toilet. Ferro was hobbling and appeared to be favouring one leg. He was walking on the toes of his left foot. Mr Sio was pushing Ferro along from behind, towards the bedroom.

[19]Your second conviction for ill-treatment of a child relates to these events.

Failure to protect a child – 8 February 2020

[20]              Your  final, and most serious, conviction is for failure to protect a child on     8 February 2020, the day of Ferro’s death.

[21]              By 8 February 2020, Mr Sio was increasingly frustrated. He claimed that Ferro was behaving badly, but it seems likely that much of his frustration actually arose from his volatile relationship with you, and the circumstances he found himself in, including living in emergency accommodation. Mr Sio began a lengthy period of what he described as discipline, but is more accurately described as extreme child abuse.

[22]              At about 7 am, Mr Sio took Ferro to the bathroom. Ferro was limping. He wore a hoodie covering his head and long black pants. Upon returning to the room, Mr Sio punished Ferro by making him stand facing the wall with his hands held straight out in front of him. If Ferro fell towards the wall from exhaustion, Mr Sio would kick or hit him. Ferro was forced to stand in that position for a total of approximately seven hours throughout his final day of life.

[23]              Between 10 and 11 am, Mr Sio again took Ferro to the bathroom. By this time Ferro had extensive bruising covering the left side of his face and the length of his jawline. Mr Sio made Ferro have a shower. This caused Ferro to cry out in pain and distress. Another resident of the address described the crying becoming muffled, as though something had been placed over Ferro’s mouth. A subsequent examination of the shower and the face cloth showed signs of blood.

[24]              At midday you left the address and went into town. You returned later in the afternoon. You say that you then slept through the remainder of the assaults on Ferro. Another resident of the address said, however, that they saw you in the laundry at around 6 pm that evening. Given that evidence, and the fact that the three of you were sharing a very small room together, your claim that you slept through the remainder of the assaults is simply not credible, as you have acknowledged by your guilty plea.

[25]              Throughout the afternoon and evening, Mr Sio continued to assault Ferro, violently kicking him multiple times. This occurred particularly when he could no longer stand up during “time out”. One kick was of such force that Ferro became short

of breath and could no longer talk. His breathing became shallow. Mr Sio laid Ferro on his back on the bed and began CPR. In response, Ferro began to breathe again. You were in the room at the time that this occurred.

[26]              Mr Sio told police that he then put Ferro to bed and fell asleep next to you. A few hours later, Mr Sio woke up and found Ferro was cold and not breathing. He did not call an ambulance nor immediately take Ferro to hospital. Instead, at around

10.30 pm, Mr Sio tried to find a defibrillator. He presumably hoped to be able to revive Ferro himself, so that no-one would find out what he had done. While he did this, you sat on the doorstep and had a cigarette.

[27]              Finally, at about 10.50 pm, you and Mr Sio took Ferro to Rotorua Hospital. You parked the car a distance away from the hospital emergency department and walked slowly into the hospital. You and Mr Sio paused a couple of times to speak in the entranceway of the hospital.

[28]              Ferro was almost certainly deceased by the time you took him to hospital. He was pronounced dead shortly after arrival.

[29]              A post-mortem took place on 10 February 2020. Ferro had visible bruises all over his body. The pathologist concluded that Ferro died of multiple blunt force traumas, likely from a sustained and severe beating. Ferro’s soft tissue injuries caused such extensive internal bleeding that the pathologist considered that these multiple injuries had a similar effect to a person “bleeding out”. Some of Ferro’s injuries were older injuries that could have occurred days prior to his death.

[30]              Ms Rawiri, by pleading guilty to the charge of failing to protect a child you have acknowledged that you knew at least some of what was happening to Ferro on  8 February 2020. You may have slept for part of the day, but you were clearly aware of the serious assaults that were taking place. By your guilty plea to the charge of failing to protect a child you have admitted that you knew that Ferro was at risk of either death or, at the very least, grievous bodily harm, as a result of the violent assaults being meted out to him by Mr Sio. You nevertheless failed to take reasonable steps to

protect him from the very obvious risk that Mr Sio would either kill him or cause him very serious injury.

What is the appropriate starting point?

[31]              The first step in a sentencing process is to set a starting point, with reference to the aggravating features of your offending. I will later adjust that starting point to take into account your personal circumstances.

[32]              Counsel have suggested that I take the lead (most serious) offence as that of failure to protect a child and then uplift the starting point for that offence to take account of your two additional convictions for ill-treatment of a child. That is certainly a possible approach, but in my view slightly artificial as your convictions relate to an ongoing course of very similar conduct over a 16-month period that culminated in Ferro’s fatal beating and death on 8 February. I therefore propose to set a global starting point for the totality of your offending. I note, however, that the same starting point would be achieved whatever specific approach is taken.

[33]Viewing your offending in totality, the key aggravating features are as follows:

(a)The vulnerability of the victim. Ferro was five years’ old at the time of his death. He was entirely defenceless against Mr Sio’s attacks.4

(b)The significant breach of trust. You were in a relationship with Ferro’s father and were in a parental role in relation to Ferro.5 While he lived with you, you were his mother figure. He relied on both you and Mr Sio to care for him.

(c)The duration of the offending. Ferro was abused for over 16 months. The abuse ended only when Ferro was killed.

4      Sentencing Act 2002, s 9A(2)(a) provides that the defencelessness of the victim is a mandatory consideration in cases involving violence against, or neglect of, a child under the age of 14 years.

5      Sentencing Act 2002, s 9A(2)(c) further provides that the Court must take into account the magnitude of the breach of any relationship of trust between the victim and the offender.

(d)The degree of callousness. Your lack of humanity and indifference to the suffering of a vulnerable five-year-old child, who was already gravely injured by the time of his final and fatal beating, is difficult   to comprehend. The evidence indicates that Ferro had been visibly limping and had a large dark area of bruising covering the left side of his face and chin early on 8 February. Nevertheless, the assaults on him continued throughout that day. You were in the bedroom for much of the time that they were occurring. You were also present when Ferro stopped breathing and Mr Sio attempted to perform CPR on him.

(e)The victim impact. The main victim, of course, was Ferro, who lost his life. There is no more serious impact on a victim than that. In addition, Ferro’s whānau members and all those who loved him are also victims. We have heard from a number of them today. Ferro’s mother spoke movingly of how she cannot comprehend how you, a mother yourself, could turn a blind eye to the suffering being inflicted on someone else’s child. Whānau members have spoken of their devastation at seeing the bruises and injuries that had been inflicted on Ferro, which were so bad that he needed a closed casket. They have spoken of their love for Ferro and how willing they would have been to take him in, day or night, “in a heartbeat”. They spoke of their deep pain and loss, a loss that will remain with them always. As one whānau member put it:

Ferro could have been anything, he had his whole life ahead of him. Those opportunities have been wiped. We will never know what he could have become.

[34]              Taking all of the aggravating features I have outlined into account, the Crown submits that an appropriate starting point on the charge of failure to protect a child would be seven years’ imprisonment, and that should then be uplifted by a year to  18 months to reflect your other two convictions. Your lawyer has submitted that an appropriate starting point would be in the range of perhaps four to five years’ imprisonment with a one-year uplift for your other two convictions.

[35]              Counsel have referred to various cases that they say are similar to yours.6 A number of those cases, however, did not arise in circumstances where the victim died. Further, a number of them did not include a charge of failure to protect a child or vulnerable person, which is the lead or most serious charge here. Of the non-fatal cases M v R7 is perhaps the most similar to yours. However, that case did not result in the death of the twin infants. Nevertheless, a starting point of six years was adopted, reflecting the serious nature of the “failure to protect” charge.

[36]                The cases that do involve a child or vulnerable adult dying as a result of abuse or neglect are R v Otuszewski8 and Taylor v R.9

[37]              In R v Otuszewski,10 the defendant pleaded guilty to a charge of neglect of a four-year-old child who died of significant head and abdominal injuries.11 It was unclear who caused the injuries. Mr Otuszewski was in a relationship with the deceased’s mother for approximately five months. The couple lived together, and  Mr Otuszewski was involved in caring for the children in the household, including the deceased. He was looking after the children alone on the day the deceased died. The deceased was clearly unwell, had visible injuries and would have been experiencing significant pain – indicating that the deceased needed medical attention. However, the deceased died before medical attention was sought. The sentence starting point adopted in that case on a charge of neglect was six years’ imprisonment.

[38]              In Taylor v R,12 a 76-year-old woman died as a result of serious and prolonged neglect over a period of months. Luana and Brian Taylor were found guilty of failing to protect a vulnerable adult.13 Luana and Brian Taylor were the flatmates of the deceased and her daughter, Cindy Taylor. Cindy Taylor was directly responsible for her mother’s care. However, the deceased’s suffering, deteriorating condition and risk

6      Including Prince v R [2019] NZHC 1402; S v Police [2019] NZHC 2784; M(CA522/2016) v R [2017] NZCA 274; M(CA559/2015) v R [2016] NZCA 53; Frantzetis v R [2015] NZCA 710; and Adams v Police [2014] NZHC 42.

7      M (CA559/2015) v R [2016] NZCA 53.

8      R v Otuszewski [2019] NZHC 1895.

9      Taylor v R [2017] NZCA 574.

10     R v Otuszewski [2019] NZHC 1895.

11     Crimes Act 1961, s 195.

12     Taylor v R [2017] NZCA 574.

13     Crimes Act 1961, s 195A.

of death would have been obvious to Luana and Brian Taylor, given that they lived in the same house. Nevertheless, they turned a blind eye, failed to intervene, and failed to seek medical assistance. The starting point in that case was also six years’ imprisonment.

[39]              I see your culpability as greater than the offenders in both of those cases for several reasons. Although Ferro may well have been neglected, as the deceased was in the Taylor case, he was also the victim of extreme physical abuse. Your offending extends beyond simply failing to obtain medical help or turning a blind eye to obvious neglect being perpetrated by another member of your household. Rather, you were present when Ferro was being brutally assaulted over the course of the afternoon and evening of his final day. However, you did nothing to intervene nor did you seek help. Further, in the months leading up to Ferro’s death you assaulted him yourself and were a party to the frequent and ongoing assaults on him by Mr Sio.

[40]              Comparing your case to the Otuszewski case, Mr Otuszewski was sentenced for his neglect of the victim over a fairly limited period. Your offending, however, spanned a 16 month period. Because I am adopting a global starting point for all three charges, that starting point must reflect not only what happened on the day of Ferro’s death, but also your ill-treatment of him, either in your own right or as a party to    Mr Sio’s actions, for the 16 months leading up to that day.

[41]                   Ms Rawiri, as I have acknowledged, you did not kill Ferro. You have not been charged with either murder or manslaughter. This Court has previously acknowledged that where death follows from the indirect consequences of an offender’s actions (as opposed to being a direct cause) a defendant has significantly less culpability or blameworthiness.14 The most serious charge you face is for failing to help Ferro when he needed it, rather than for causing his fatal injuries yourself.

[42]              However, although the charge you face may not be as serious as murder or manslaughter, by enacting the offence of failing to protect a child or vulnerable adult in 2012 Parliament signalled in the clearest possible manner that the courts are expected to respond to offending of this type by imposing penalties that reflect the

14     R v Otuszewski [2019] NZHC 1895 at [18] as cited in Taylor v R [2017] NZCA 574 at [18].

seriousness of the offending and the importance of protecting children and vulnerable adults.15 Further, the most serious category of this “failure to help” type of offending is obviously where, as occurred here, the child or vulnerable person dies.16

[43]              Your offending is therefore serious offending. You may not have inflicted the fatal blows on Ferro, but you did nothing to protect him or to seek help for him, even when he was badly injured and barely conscious. We will never know whether Ferro would have still been here today if you had sought help when it was clearly needed.

[44]              Having regard to all of these factors it is my view that an appropriate starting point for your sentence is seven years and six months’ imprisonment.

Adjustments to the starting point for personal mitigating factors

[45]              I now turn to consider what adjustments should be made to that starting point to reflect your personal circumstances.

Guilty plea

[46]              You are entitled to a discount for your guilty plea as, amongst other things, you have spared the witnesses and Ferro’s whānau the trauma of a trial.

[47]                You  pleaded guilty on 15 April 2021, not long before your trial was due     to commence on 14 June 2021.   I acknowledge that the delay in pleading guilty   was likely impacted by discussions between your counsel and the Crown about possible amendments to the charges, and your request for a sentence indication (which this Court declined to give). Ultimately, however, you did not plead guilty at the earliest possible opportunity and are not therefore entitled to a discount at the maximum level, or close to it. I will, however, apply a discount of 15 per cent to acknowledge your guilty plea.

15     M(CA559/2015) v R [2016] NZCA 53 at [31] – [32].

16     R v Otuszewski [2019] NZHC 1895.

Personal circumstances

[48]              When sentencing an offender, the Court is required to take into account their personal circumstances, including their personal, family, whānau, community, and cultural background.17 The Courts recognise that if an offender has been raised in a community surrounded by alcohol abuse and/or violence this may mitigate their sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.18

[49]              Your counsel has provided the Court with a cultural report detailing some of your personal circumstances. The pre-sentence report also includes some relevant material.

[50]              You are of Ngāti Hauā descent and were raised close to your marae in Waharoa. You grew up in a home where alcohol abuse was normalised, although drug abuse does not appear to have been a feature. On a more positive note, your childhood does not appear to have been marred by significant violence or physical or other abuse, as is commonly seen in offenders before this Court.

[51]              You told the cultural report writer that your relationship with Mr Sio involved regular alcohol and drug use, that over time his behaviour became increasingly difficult, manipulative, and unreasonable, and that intimate partner violence became a fixed pattern, which in turn drove you to further drug use as a distraction and way to cope. (As I have noted previously, however, the violence does not appear to have been entirely one way. You are apparently older than Mr Sio and you have also been convicted of assaulting him on one occasion).

[52]              Your counsel submits that there is a linkage between your background and your offending, for which a discount should be awarded. In my view the linkage is not

17 Sentencing Act 2002, s 8(i).

18 Poi v R [2020] NZCA 312 at [26] citing Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [40].

See also R v Millwood [2012] NSWCCA 2 at [69] where the Court commented that “I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a “normal” or “advantaged” upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

particularly strong. I therefore consider that a discount of approximately five per cent is appropriate.

Rehabilitative prospects and remorse

[53]              Your counsel submits that you should be awarded a discount for your remorse and rehabilitative prospects. The pre-sentence report writer describes you as being remorseful for your offending. You admitted responsibility, although stating that at the time you were subject to Mr Sio’s controlling and manipulative behaviour. Your counsel has also provided me with a letter from you expressing your remorse.

[54]              You told the cultural report writer that even if you did try to intervene there was no way of stopping Mr Sio from abusing Ferro, and that each time you did try to assist this would lead to ongoing arguments. Mr Sio would physically attack you and therefore you would turn a blind eye. You say that on the day Ferro died you were under the influence of drugs and that this impaired your ability to help Ferro. I give that explanation little weight, however, considering that you also failed to take any significant steps to help or protect Ferro in the 16 months prior to that. Further, on the afternoon of the fatal assaults you were clearly well enough to leave the emergency accommodation unit and go into town for a period.

[55]              Ms Rawiri, the comments you have made to both the pre-sentence report writer and the author of the cultural report indicate to me that while you have accepted at least some responsibility for your own role in Ferro’s suffering and ultimate death, you are still attempting to minimise your responsibility and you lack full insight. Directly confronting Mr Sio was not your only option. As we have heard today, there were other adults in Ferro’s life who loved him, who were involved in his life, and who would have willingly provided support if asked. You could have confided in any one of them what was happening. Ferro’s abuse was not a one-off incident. It was ongoing throughout your relationship with Mr Sio. You had plenty of opportunity to alert others to what was happening. You chose, however, to prioritise maintaining your relationship with Mr Sio, and protecting him from the possible consequences of his behaviour being discovered, over protecting Ferro.

[56]              On a more positive note, you say that you wish to reconcile with, and regain the trust of your own whānau. You are reported as being committed to changing your lifestyle and are willing to complete programmes that will help you do so. You have been undertaking counselling in prison. Your criminal record is very limited. You only have one prior conviction. You are assessed as being at low risk of reoffending.

[57]              Overall, I consider that a further discount of five per cent is appropriate to recognise these factors.

Conclusion on discounts

[58]              Applying the 15 per cent discount for your guilty plea, the five per cent discount for your personal circumstances, and the five per cent discount for your remorse and rehabilitative prospects to the starting point of seven years and six months’ imprisonment results in an end sentence of five years and seven months’ imprisonment.

Sentence

[59]              Ms Rawiri, please stand. On the charge of failure to protect a child you are sentenced to five years and seven months’ imprisonment.19 On the two charges of ill-treatment of a child you are sentenced to three years’ imprisonment. The three sentences will all run concurrently, which means that your overall sentence is one of five years and seven months’ imprisonment.

[60]You may stand down.

Katz J

19      This figure is rounded down.