R v Romana
[2025] NZHC 1401
•30 May 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-027-0664
[2025] NZHC 1401
THE KING v
AIWA ROMANA
Hearing: 30 May 2025 Appearances:
R B Annandale for Crown
C S Cull KC for Mr Romana
Date of sentence:
30 May 2025
SENTENCING NOTES OF JAGOSE J
Counsel/Solicitors:
C S Cull KC, Kerikeri
MWIS Lawyers, Whangārei
R v ROMANA [2025] NZHC 1401 [30 May 2025]
[1] Mr Romana, you come before me today for sentencing on your guilty plea to the charge of manslaughter of your seven-month-old son, Aiwa Ngapera-Romana,1 by omitting without legal excuse to take reasonable steps to protect him from injury when driving your truck.2 That accommodates both your failure as driver to ensure your son was properly secured in a properly fitted child restraint appropriate for his age and size and your failure to drive appropriately for the road conditions.3 Again,4 I offer the Court’s condolence to your son’s survivors.
[2] You pleaded guilty immediately on my 10 April 2025 indication “a court would be likely to sentence you to imprisonment for a period of no more than two years and seven months”.5 That 31-month indication included a 25 per cent deduction for your guilty plea from my starting point of 42 months’ imprisonment.6
[3] My sentence indication, a copy of which will be annexed to the written version of what I am saying now in sentencing you, explains the basis for that starting point. I’m not going to repeat that explanation now, except to say I concluded then:7
I view your … offending … seriously, because it involves your deliberate risk-taking in terms of the road user rules … and with your criminal history. And I consider your deliberate risk-taking a substantial breach of the trust between parents and children, when infants especially must be able to rely on adults for their care, protection and welfare.
I assessed your actions fell between sentencing ranges for more serious offending established in relation to vehicular accidents causing deaths of unrestrained infants in their vehicles,8 and less serious offending in which the child’s death was due to parental inadvertence in failing to protect a child from injury,9 and that resulted in my
1 Crimes Act 1961, s 173: maximum penalty, 14 years’ imprisonment.
2 Section 152.
3 Land Transport (Road User) Rules 2004, rr 7.6 and 7.3(1)(a).
4 R v Romana [2025] NZHC 866 at [6].
5 At [25].
6 At [20] and [23].
7 At [19].
8 At [18], referring to R v Grace [2020] NZHC 3145; R v Fulcher-Poole [2018] NZDC 21841; and
R v Makoare [2020] NZHC 2289.
9 At [19], referring to R v Tukiwaho [2012] NZHC 1193; E (CA689/10) v R [2011] NZCA 13, (2011)
25 CRNZ 411; and Parangi v R [2019] NZCA 229.
starting point.10 Unless there is new information materially affecting the basis for my indication, which there is not, I am bound by it in sentencing you now.11
[4] Again,12 I have read and heard all the Crown and your counsel, Catherine Cull KC, have had to say. I have given that careful consideration. I am not going to recite any of it, because sentencing remains an intense exercise of my own judgement. I am not bound by the lawyers’ views; I have to come to my own decision.
[5] Mr Romana, I will not be sentencing you to imprisonment. Rather, I consider your personal mitigating circumstances justify a further 17 per cent discount, ordinarily meaning a short-term sentence of 24 months’ imprisonment. Standing back—ultimately to consider if “the sentence is a just one in all the circumstances”, having regard to “the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”13—I am further satisfied imprisonment is not required to meet sentencing’s purposes in your case and I may instead impose a sentence of home detention.14 That is what I am going to do, together with a period of disqualification from holding a driver licence.
[6] I still need to explain how I get there and I need you to listen carefully to my explanation because it addresses my expectations for at least the next year of your life.
[7] From my 42-month starting point, I am to “impose the least restrictive outcome that is appropriate in the circumstances”,15 taking into account any applicable aggravating and mitigating factors including your age, your guilty plea, any remorse shown by you, your particular circumstances and background and the outcome of any restorative justice process.16
[8] I have substantially more information in those respects now than I had at the time I gave my indication, including a probation officer’s pre-sentence report, your
10 At [20].
11 Criminal Procedure Act 2011, s 116.
12 R v Romana, above n 4, at [2].
13 Moses v R [2020] NZCA 296 at [49].
14 Sentencing Act 2002, ss 15A and 16(2).
15 Section 8(g).
16 Section 8(h)–(j).
partner’s formal victim impact statement and a report from a restorative justice conference facilitated between you and your whānau, the other victims of your offending. Those latter documents assist me in understanding their views about your offending.17 I recognise your partner does not want her statement read in open Court and, out of deference to her sense of privacy, I don’t recite it here. But it is an articulate and moving explanation of the impact of your offending on your immediate family. It reinforces what you must recognise also is a terrible loss for all of you, and it identifies your comprehensive remorse for your actions and your rehabilitation in beginning to assist your whānau to recover.
[9] I continue not to be able to identify any additional aggravating factor in your personal circumstances. In reaching my starting point, I already had taken into account your moderately extensive criminal history, including your relevant convictions for careless driving and family violence.18 As I said,19 it would be a mistake for me now to apply an uplift on account of that prior offending for your personal deterrence or risk of reoffending.20
[10] As to that latter risk, I note the probation officer’s pre-sentence report assesses your historic and current driving-related offending suggests you present medium risk of reoffending with high risk of causing harm to others. I agree. Largely for that reason, your remand on bail included the special condition you not drive any motor vehicle.
[11] In sentencing you now for manslaughter, because you used a motor vehicle to commit that offending, I additionally may order you disqualified from holding or obtaining a driver licence for any period I think fit.21 In determining that period, I am to balance its impact on you with the public interest in keeping dangerous drivers “off the road for as long as reasonably possible”.22
17 Victims’ Rights Act 2002, s 17AB.
18 R v Romana, above n 4, at [17].
19 At [21].
20 Blackmore v R [2014] NZCA 109 at [12] and Beckham v R [2012] NZCA 290 at [84] (referring to R v Casey [1931] NZLR 594 (CA) at 597 and R v Ward [1976] 1 NZLR 588 (CA) at 591), both endorsed by Enoka v R [2018] NZCA 185 at [28].
21 Sentencing Act, ss 124 and 125(2).
22 Hitchens v R CA380/03, 25 March 2004 at [10]. See also Tai v R [2010] NZCA 552 at [6], citing R v Grey (1992) 8 CRNZ 523 (CA) at 527; and Taiapa v R [2019] NZCA 524 at [28]–[29], endorsing Mathias v Police [2016] NZHC 959 at [37]–[39], and [31].
[12] I recognise your intended family home—for you, your partner and your three surviving young children, close to your marae’s urupā where your son’s body lies—is relatively isolated, meaning your access to private transport then may have more importance and your loss of a driver licence may militate against your rehabilitation and reintegration.
[13] I consider a three-year period of disqualification would address those competing interests. I do not doubt such disqualification will be an additional punishment for you; every time you consider its inconvenience, you must remember it is imposed partly because you caused your first son’s death. If nonetheless you drive, at least during the period of your home detention, you risk cancellation of your present sentence and resentencing, perhaps for the remaining term of imprisonment.23
[14] The pre-sentence report also elaborates on your unsettled upbringing, leading to you only having a primary school education and limited reading and writing skills. You nonetheless obtained a full driver licence, and with industrial endorsements during your last supervision sentence. The report writer plaintively noted you included your deceased son among the description of your family members. In distinction from your unsettled background, you have been diligent in providing for your immediate family’s and wider whānau’s accommodation at their hapū’s marae, as well as in building your own family home and that for your siblings on their whenua.
[15] The restorative justice conference report notes your quiet and determined family-oriented nature, making material contribution to your young family’s graceful maturity. That report writer identifies your and your partner’s “profound sense of sadness” at, and acceptance of responsibility for, the circumstances of your son’s death. Given your joint role as parents, both present during the fatal journey, that is both inevitable and commendable.
[16] Your (and your partner’s) efforts to hold your family together in the wake of your offending are clear and obvious. I note in particular your partner’s identification of your contribution to your interdependent healing and the heightened role you must
23 Sentencing Act, s 80F.
now play as father to three young children, the older two shocked by the death and loss of their younger and first brother.
[17] You were 26 years old at the time of the offending, turning 28 tomorrow, so have relative youth on your side in having capability and finding motivation to rehabilitate your criminal history.24 In sentencing you, I must consider “any remorse shown” by you.25 Here, that ‘showing’ is very real, including by your focus on your family’s welfare and your constructive participation in the restorative justice conference. Given the private nature of the tragedy your offending caused, there may be little more you could have done to show your remorse. “Where established, remorse tends to attract a discrete discount of between five and 15 per cent”;26 I will allow a 12 per cent discount under this head.
[18] I also “must take into account the offender’s personal, family, whanau, community, and cultural background”.27 That ‘uncontroversially’ includes impact of imprisonment on an offender’s children, depending on circumstances including “the type of the offending and the circumstances of the child or children”.28 The Supreme Court held “[w]hat is required is a consideration of all of the relevant circumstances which must include the child’s interests”.29 But it is not a consideration limited to the impact of imprisonment; for example:30
Without elevation to the “paramount consideration” envisaged in proceedings engaging the Care of Children Act 2004, or even as “a primary consideration” under the United Nations Convention on the Rights of the Child, when appropriately engaged in consideration of bail conditions, the welfare and best interests of the child may be a material consideration.
[19] In my assessment, your children’s welfare and best interests clearly better are promoted by your availability to them in the community. I consider a sentence of
24 Section 9(2)(a).
25 Section 9(2)(g).
26 Kohu v R [2023] NZCA 343 at [40], referring to Poi v R [2015] NZCA 300, Rowles v R [2016] NZCA 208, A v R [2018] NZHC 543 and C v R [2022] NZHC 1807.
27 Sentencing Act, s 8(i).
28 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50], citing Campbell v R [2020] NZCA 356 at [41].
29 At [56].
30 Farrell v R [2023] NZCA 514 at [13] (footnotes omitted), citing Cossill v Police HC Auckland CRI-2004-404-396, 19 October 2004 at [9], adopted in Nguyen v Police [2014] NZHC 85 at [19]–
[20](adopted in S P v R [2015] NZHC 258 at [42]).
imprisonment, as otherwise may be appropriate in addressing motor manslaughter,31 would in your particular instance be disproportionately severe.32 I therefore also will allow a five per cent discount on account of your children’s welfare and best interests in not having you sentenced to a term of imprisonment.
[20] Together, those give a further 17 per cent discount: in total, a 42 per cent discount from my 42-month starting point, reducing it (rounded down) to 24 months’ imprisonment. As I said,33 I am satisfied imprisonment is not required to meet sentencing’s purposes in your case and I may instead impose a sentence of home detention. Because, were you sentenced to 24 months’ imprisonment, you would be released after serving half that short-term sentence,34 I will sentence you to 12 months’ home detention.
[21] I am satisfied your mother’s home and its occupants have been assessed as suitable for a sentence of home detention, and you understand the conditions that will apply during your detention and agree to comply with them.35 Those are the standard conditions of home detention.36
[22] I also may impose special conditions to mitigate the risk of your further offending,37 which the pre-sentence report writer assessed was significant as of medium risk.38 Although he proposed a special condition prohibiting your possession, consumption or use of alcohol or drugs, none contributed to your offending or is demonstrated “would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender”,39 and I therefore see no requirement for its imposition.
31 R v Whiu [2007] NZCA 591 at [20], citing R v Grey (1992) 8 CRNZ 523 (CA) at 525, and [19], citing R v Leuta [2002] 1 NZLR 215 at [43]–[66]; Gacitua v R [2013] NZCA 234 at [25], citing R v Cooksley [2003] 3 All ER 40 (Crim App) at [15].
32 Sentencing Act, s 8(h).
33 At [5] above.
34 Parole Act 2002, s 86(1).
35 Sentencing Act, s 80A(2)(a).
36 Section 80C(2).
37 Section 80(D)(2) and (4).
38 At [10] above.
39 Sentencing Act, s 80D(2)(c).
[23] The report writer also proposed a special condition you be assessed for, and attend and complete, any recommended Corrections counselling, treatment or programme. But the standard conditions include your obligation to “take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer”, which should suffice. I am not prepared to order you participate in a presently unknown programme, without knowing of any reason you may have not to do so. Otherwise I expect you would not need my order for your participation.
[24] Last, while the report writer also sensibly proposed a special condition you attend and complete an appropriate defensive driving programme, that may not be feasible given you are to be disqualified from driving for the period of and beyond your term of home detention. So I will not impose that special condition either. But I impose your disqualification from holding or obtaining a driver licence also as a special condition to reduce the likelihood of your further offending.40
[25] Mr Romana, please stand. On your guilty plea to the charge of manslaughter of your seven-month-old son, Aiwa Ngapera-Romana, I sentence you to 12 months’ home detention at [Redacted], subject to standard conditions and the special condition of licence disqualification. The address will be redacted in the publicly available record of your sentence. I order you disqualified from holding or obtaining a driver licence for three years. You may sit down.
—Jagose J
40 Section 80D(4)(e).
NOTE: PUBLICATION OF THE JUDGMENT OR OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY S 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KOTI MAT UA O AOTEAROA WHANGAREI-TERENGA-PAR OA ROHE
CRI-2024-027-0664 [2025] NZHC 866
THE KING
AIWA ROMANA
Hearing: 10 April 2025
Appearances: R B Annandale and D M Soich for Crown
C S Cull KC for Mr Romana Date ofjudgment: 10 April 2025
SENTENCE INDICATION OF JAGOSE J
Counsel!Solicitors.
C S Cull KC, Kerikeri MWIS Lawyers, Whangarei
R v ROMANA [2025] NZHC 866 [10 April 2025]
[1] Mr Romana, you are charged with the manslaughter of your seven-month-old son, Aiwa Ngapera-Romana.' You are presumed innocent unless pleading or proven guilty of that charge.'
[2] You are seeking my sentence indicationtoday.3 That means I will tell you what sentence you are likely to receive if you plead guilty to the charge.‘ I have, as you’ve heard, read and heard all that the Crown and your counsel, Catherine Cull KC, have to say. I have given that careful consideration. I’m not going to recite any of it, because sentencing is an intense exercise of my own judgement. I am not bound by the lawyers’ views; I have to come to my own decision.
[3] I have a summary of facts, agreed for the purpose of my indication, as well as your criminal history. So I have all the information I must have to give this indication, and I am satisfied the information available to me now is sufficient for the purpose of indicating your sentence. 5 I turn now to your alleged offending.
Alleged offending
[4] In very potted summary, for the purpose of my indication only, on 2 January 2024, you were driving your family and a friend home from a camping trip across the Hokianga Harbour in a Mitsubishi Triton pickup truck. Your son’s mother was in the front passenger seat; behind you was the friend and your son in a child’s car seat on the other side of the car behind his mother. The car seat was not secured to the vehicle and your son was not secured in the car seat.
[5] After coming off the ferry and stopping in Rawene for some chores, together with your passengers, you drove on to Waima Valley Road, which is unsealed. You lost control of the truck on a corner, when the truck ‘Tishtailed” for about 140 metres. The truck left the right-hand side of the road, spun 180° and rolled onto its driver’s side. The impact threw your son in his seat across the vehicle, causing him fatal head injuries.
Crimes Act 1961, s 173: maximum penalty, 14 years’ imprisonment. New Zealand Bill of Rights Act 1990, s 25(c).
Criminal Procedure Act 2011, pt 3, sub-p 4.
4 Section 60. Section 61.
[6]I offer the Court’s condolence to your son’s survivors.
Approach
[7] My indication—of the likely sentence you would receive, if pleading guilty to the charge of manslaughter—is to help you decide if to plead guilty. I follow the same approach as in a proper sentencing, which involves two steps. 6
[8] First, I indicate what starting point offending of this type would attract. That involves identifying what are called the aggravating and mitigating features of the offending itself. Second, I may adjust that starting point up or down to take into account what presently I can discern of your personal circumstances, including what discount you would receive if you were to plead guilty. That gives the sentence indication.
[9] It is that end point that matters, Mr Romana. Don’t get it confused with my starting point. And recognise it may further be adjusted at any further sentencing, if you were to plead guilty.
[10] The usual purposes and principles of sentencing are relevant.’ Those here include denouncing your conduct, holding you accountable for the harm you are alleged to have done, getting you to accept responsibility for it and deterring you and others from causing such harm in the future. Also relevant is your own rehabilitation and reintegration into society.
[11] So, the sentence must be proportionate to your offending’s seriousness, consistent with others for similar offending and the least restrictive outcome appropriate in all the circumstances. I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your alleged offending, including your culpability (or responsibility) for it.
Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
Sentencing Act 2002, ss 7-8.
[12]These purposes and principles of sentencing have no ranking,' except here:’
The dominant sentencing principle is to denounce and deter . . . physical abuse of a baby by a parent or caregiver in a position of trust and responsibility.
[13] So, in sentencing for violence against, or neglect of, a child, I must take into account as aggravating factors (if applicable) the child’s defencelessness; the serious nature of the harm caused; the magnitude of the breach of trust between victim and offender; threats to prevent the victim reporting; and deliberate concealment of the offending.' 0 As I say, to the extent applicable here.
[14] My ultimate consideration is if the sentence is “a just one in all the circumstances”, having regard to ‘the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”.''
Starting point
[15] I begin with setting a starting point for your alleged offending. Here, the allegation is you caused your son’s death by omitting without legal excuse to take reasonable steps to protect him from injury when driving your truck." That
accommodates both your failure as driver to ensure your son was properly secured in a properly fitted child restraint appropriate for his age and size and your failure to
drive appropriately for the road conditions.' 3
[16] Manslaughter sentencing is highly dependent on these actual facts. There are therefore no guideline decisions. Manslaughter sentencing is difficult because the very serious harm to the deceased caused by omission necessarily is an unintended consequence of the defendant’s actions." I am reminded to locate the subject offending and the defendant’s culpability for it by reference to its particular aggravating and any mitigating factors.' 5
At [4], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [37].
Woodcock v R [2010] NZCA 489 at [42]. At [48], the Court of Appeal refers to its judgment in
R v Leuta [2002] 1 NZLR 215 at [80]. The whole of Leuta’5 paragraphs [77]—[81] bear emphasis.
io Sentencing Act, s 9A.
11 Moses v R, above n 6, at [49].
12 Crimes Act, s 152.
13 Land Transport (Road User) Rules 2004, rr 7.6 and 7.3(1)(a).
14 Gacitua v R [2013] NZCA 234 at [24], citing fi v Cooksle y [2003] 3 All ER 40 (Crim App) at [1].
15 Hayden v R [2020] NZCA 369 at [47]—[49]; fi v Cosse y [2019] NZCA 104 at [43]; and Pollard v
[17] I take into account you have a moderately extensive criminal history, including a number of convictions for relevant offending. It is “largely orthodox” to ascertain the gravity of your alleged offending here from the fact of those previous convictions,' 6 which relevantly include a 2021 careless driving charge of which you were convicted and discharged in 2023 and 2021 family violence charges of which you were convicted and sentenced to supervision, also in 2023.
[18] I have had regard for a number of cases of driving causing death. In three," four, five and seven-year starting points respectively were established in relation to vehicular accidents causing deaths of unrestrained infants in their vehicles. In all, the driver was impaired by drugs and*or alcohol. You were not. Their driving also otherwise was materially worse than yours.
[19] The lawyers have pointed to other cases in which the child’s death was due to parental inadvertence in failing to protect a child from injury," giving rise to three-year starting points or thereabouts. I view your alleged offending more seriously, because it involves your deliberate risk-taking in terms of the road user rules to which I have referred and with your criminal history. And I consider your deliberate risk-taking a substantial breach of the trust between parents and children, when infants especially must be able to rely on adults for their care, protection and welfare.
[20] Other cases to which I have had regard do not advance assessment of a starting point, as diverting too far from the relevant facts here. I therefore take a starting point of three years and six months’ imprisonment.
Adjustment for personal factors
[21] Now I’m going to turn to consider your personal circumstances. Your son’s defencelessness and death, in serious breach of the relationship of trust that must exist between parents and children, necessarily have been taken into account in reaching
fi [2018] NZCA 244 at [25].
16 Mitchell v R [2022] NZSC 89 at [6].
17 R v Grace [2020] NZHC 3145; fi v Fulcher-Poole [2018] NZDC 21841; fi v Makoare [2020] NZHC 2289.
18 R v Tuln waho [2012] NZHC 1193; E (CA689!10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 ;
Parangi v R [2019] NZCA 229. I have disregarded cases giving rise to discharge, as determined on different criteria.
my starting point." It would be an error now, to uplift that starting point to account for them.
[22] Except for your prospective guilty plea, I am not prepared to assess other aggravating or mitigating factors personal to you without at least the usual Corrections’ pre-sentence report,'0 which I would direct be prepared if you were to plead guilty. Any further uplift or discount is for the sentencing judge to determine, including if imprisonment is an appropriate sentence in all the circumstances.
[23] So far as a guilty plea discount is concerned, I consider your plea on this sentencing indication sought immediately following disclosure here is your “first reasonable opportunity” for such, warranting recognition accordingly," and better than if made later." I would apply the full 25 per cent deduction, bringing the end sentence to two years and seven months’ imprisonment.
[24] Further adjustment for any personal aggravating or mitigating factors remains to be applied at sentencing. If then resulting in a short-term sentence of imprisonment,
of “24 months or less”,'3 conversion to a sentence of home detention is in prospect.
Sentence indication
[25] So, formally my sentence indication now, Mr Romana—if you plead guilty to the manslaughter charge you face, on the information presently before me—I assess a court would be likely to sentence you to imprisonment for a period of no more than two years and seven months. That is my indication to you. If you want to accept it, you must do so by 5pm on Thursday, 17 April 2025: that is, next Thursday.
19 E (CA689!10) v R, above n 18, at [53] and [67].
20 Sentencing Act, s 26.
21 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]; and Moses v R, above n 6, at [23].
22 McDonald v R [2021] NZCA 531 at [37].
23 Sentencing Act, s 4(1) (definition of “short-term sentence”, referring to s 4(1) of the Parole Act 2002).
[26] Finally, I need to make it clear it is an offence to publish any information about this request for a sentence indication, or the indication I have given, before Mr Romana is sentenced or the charge is dismissed."
—Jagose J
' 4 Criminal Procedure Act, s 63(1).
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