R v Sami

[2017] NZHC 3159

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2015-009-420 [2017] NZHC 3159

REGINA

v

SHAYAL UPASHNA SAMI

Hearing:	15 December 2017
Appearances:	M N Zarifeh for the Crown J H M Eaton QC and H Coutts for the Defendant
Date:	15 December 2017

SENTENCING NOTES OF DUNNINGHAM J

[1]      Ms Sami you are here for sentence today because you have been found guilty by a jury of the manslaughter of Aaliyah Chand and you have been convicted of that offence.

[2]      This offence carries a sentence of life imprisonment, but as you have heard today, the sentence that is imposed in any particular case depends very much on its facts.  That is why I have to go through the facts carefully to consider what sentence is appropriate in this case.

Background

[3]      The victim in this case, Aaliyah Chand had just turned one when the events that led to you being charged with her death occurred.  Her parents, Dev Chand and

R v Sami [2017] NZHC 3159 [15 December 2017]

Anjani Lata, had decided to move from Wellington to Christchurch where Mr Chand had gained employment as a bus driver.  Because of the family circumstances, there was to be a transition period of three to four months where Ms Lata remained in Wellington with her two older children, while Mr Chand moved to Christchurch with their daughter.

[4]      You were 18 at the time and had recently married one of Mr Chand’s work colleagues, Nilesh Ram. The two of you had moved to Christchurch where you were living alone in a one bedroom flat.  As you were pregnant with your first child and not  working,  it  was  suggested  that  you  look  after  Aaliyah  at  your  flat  while Mr Chand worked, until Aalyiah’s mother and step-siblings moved down in early

2014.

[5]      Both Mr Chand and Ms Lata took the time to meet you.   They satisfied themselves that you were a suitable carer for their child and, certainly in the period from November to Christmas 2014, the arrangement seemed to work well.  Over the Christmas period, Aaliyah’s family was able to get together and they celebrated Aaliyah’s first birthday together on 29 December 2014.  During this period, Aaliyah was taken to a doctor in Wellington because of a dry skin irritation on her head.  It is clear from that check-up on 2 January 2015 that Aaliyah was otherwise in good health and uninjured at this time.

[6]      Mr Chand  and Aaliyah  returned  to  Christchurch  on  3  January 2015  and Aaliyah returned to your care on 4 January.  It was on Tuesday, 6 January 2015, that Aaliyah sustained the injuries which led to her death.

[7]      The injuries that Aaliyah sustained included two fractures to the skull, two unrelated subdural haematomas (which indicated more than one impact to the head), extensive retinal haemorrhaging to both eyes and extensive bruising to the face, some of which was consistent with pressure from fingers, as if the face had been tightly grasped on either side.  There was also bruising to the ears and chin, none of which was explained by a possible fall.

[8]      We do not know exactly what prompted you to injure Aaliyah or how exactly her injuries were caused.   We do know that Aaliyah was a little unsettled, having been with her family for a period of time over the Christmas break, and she was reported by you to be off her food.   Whether it was that factor that led you to be frustrated with Aaliyah and lose your temper we will never know.   However, it is clear that the jury found you caused her death and that the death was not the result of an accidental fall.  The cause of death was at least one blunt force trauma to the back of the head.  The considerable degree of force required to cause that injury, and the fact it was accompanied by extensive facial bruising (which I consider the jury accepted was inflicted before she reached the hospital), was what I consider led to the conclusion that your account of how Aaliyah suffered her fatal injury was not truthful.

[9]      Now for completeness, I do not consider that it was sufficiently proved that the two minor lacerations on her face were caused by the assault that was inflicted.

[10]     While we do not know at exactly what stage you sought help after inflicting the fatal injury, I acknowledge that you say you sought help immediately.  Certainly, I consider that as soon as you realised how serious the injuries were, you did seek help promptly.

[11]     The only explanation for your offending is inferential.  As the Crown said, you were working long hours, caring for Aaliyah and had little support on a day to day basis.  You were new to New Zealand, having only moved here a few months earlier from Fiji and you had no family or friends in the city, save for Mrs Singh. While it appears your marriage was a happy one, and Mr Ram continues to support you, I consider it must have been a significant adjustment for you to move from Fiji, where you had lived as part of a large supportive and extended family, to your new situation in Christchurch.

Pre-sentence report

[12]     The pre-sentence report I have repeats some of that background.  It concludes that given your youth and your lack of emotional maturity, you may not have had the ability to cope with the fulltime care of a baby, particularly given your lack of key

supports, your limited English language, and your lack of access to services in the community.

[13]     The report notes, of course, that you have no previous history of offending and that the offending you have been convicted of denotes a sudden and immediate escalation in criminal behaviour.  It says that you do not comprehend that you are responsible for the acts that you have been found guilty of nor do you appear to be able to comprehend the full extent of your present circumstances and what a prison sentence would entail.  It does say, however, that you are clearly devastated by the events on the day of the offending.

Victim impact statements

[14]     We have heard today the victim impact statements of Aaliyah’s parents and her first cousin.   Their reaction is exactly what you would expect when you experience the loss of a beautiful healthy one year old child and when that loss is as the result of a deliberate act by someone you trusted.  However, that does not make it any easier to hear them talk about the pain of living through that experience, and the great sense of loss they still feel for their beautiful daughter, and family member.

[15]     I want to pause at this point in the sentencing to say that Mr Chand and Ms Lata, you emerged from the evidence as dedicated and conscientious parents who did all the right things by your daughter.  I can not think of anything else that you could have done to avoid this tragedy and I hope you take some comfort from the fact that is publicly acknowledged today.

Sentencing principles

[16]     In sentencing you today, I have had to have particular regard to the need to hold you accountable for the harm  you have done to Aaliyah and to the wider community by your offending.  I need to promote in you a sense of responsibility for, and acknowledgement of that harm.  I also need to denounce the conduct in which you were involved to deter others from committing the same or similar offences.

[17]     I have also considered  the seriousness of this  type of offending and the desirability of achieving consistency with the sentences imposed on similar offenders committing similar offences.  When looking at whether other cases are comparable, I have to consider whether they have the same aggravating features as this case.  In addition, because this case involves violence against a child under 14 years, I must take into account the aggravating features that are set out in s 9A of the Sentencing Act.   In this case, the particular ones of relevance are the defencelessness of the victim, the breach of the relationship of trust you were placed in, and the fact that death resulted.

[18]     I turn now to what the starting point for a sentence of imprisonment should be.

Starting point

[19]     The lawyers have said that there is no guideline judgment.  There is a case called R v Leuta, where it was recognised that violence inflicted upon a child is worse than that directed at another adult.1   A child is vulnerable and defenceless and the defendant is often put in a position of power and responsibility.2

[20]     There is a helpful statement in Woodcock v R, about this sort of offending.  In that case the Court of Appeal said:3

It is understandable that all the sentences are not necessarily reconcilable given the factual difference of each case.  However, the more serious have attracted a starting point of ten years and above and most incorporate the aggravating feature of prior offending which establishes a pattern of abuse.

The absence of that feature, allowing the fatal blow to be properly characterised as an isolated event evidencing a momentary and uncharacteristic loss of control, may operate to mitigate the starting point depending on the circumstances.

[21]     Now the Crown points to this and other cases which involve manslaughter of a pre-school  child,  and  they suggest  that  starting points  of eight  and  10  years’ imprisonment have generally been adopted.4

1      R v Leuta [2002] 1 NZLR 215 (CA).

2      At [76]-[77].

3 At [41].

[22]     The Crown also says that, cross checking that against the case called R v Taueki, there is in this case serious injury, an attack to the head, a particularly vulnerable victim and a gross breach of trust.5    Those aggravating features would make a starting point of approximately 10 years’ imprisonment appropriate.

[23]     However, your lawyer submits that the cases relied on by the Crown are more serious  cases.    They usually  involve  the  aggravating  feature  of  prior  offending establishing a pattern of abuse.  Your lawyer says this is a case which is properly categorised as one involving an isolated event and a momentary and uncharacteristic loss of control.  He refers me to a range of cases where starting points of three to six years have been adopted.6

[24]     Your  lawyer  also  suggests  that  cases  of  one  punch  manslaughter  are analogous and he referred me to two cases where starting points of three and a half to four years’ imprisonment were adopted.7   However, I do not consider those cases are of assistance.  They ignore the fact that this is a case where s 9A applies and there  is  the  added  feature  of  the  extreme  vulnerability  of  the  victim  and  the significant breach of trust that arises when a caregiver assaults a child entrusted to their care.

[25]     That said, I accept that your situation is in the category of cases referred to by your lawyer and an appropriate starting point is in the vicinity of five to seven years imprisonment as was suggested in the case of R v Pene.  In your case, I accept that the offending was out of character and it involved a momentary loss of control and no serious injury was intended.   I also accept that the offending was borne out of your  naivety,  your  personal  vulnerability  and  inexperience.    However,  I cannot ignore the fact that this was a serious assault which involved first the infliction of

bruise injuries to the face and then two impacts to the head, the main one of which

4      R v Huata [2017] NZHC 704, R v Lock HC Rotorua CRI-2009-069-620, 30 September 2010, Ikamanu  v  R  [2013] NZCA 510, R  v  Kereopa  [2016]  NZHC  1664  and  R  v  Broadhurst [2008] NZCA 454.

5      R v Taueki [2005] 3 NZLR 372.

6      R v Mitchell [2017] NZHC 1391; R v Kinraid [2017] NZHC 233; R v Wichman [2016] NZHC

1663, R v Pene [2010] NZCA 387; R v Iorangi CA533 and 534/99, 30 March 2000.

7      Palmer v R [2016] NZCA 541 and R v Rakete [2013] NZHC 1230.

was fatal.  Taking that into account, I consider that a starting point of seven years’

imprisonment is appropriate.

Mitigating features relating to the offender

[26]     Your lawyer considers that your previous good character and your youth are mitigating factors.  I accept that you have absolutely no history of offending this way and there is evidence before this Court that you are generally a person of good character who has  looked  after children  in  different  settings  with  absolutely no problem.

[27]     I also accept that at the time of this offending, you were only 18 years old, you  were  five months  pregnant  and  in  an  isolated and  foreign  environment.    I consider these factors significantly mitigate your culpability and I must be conscious of them when sentencing you.

[28]     The Crown accepts that these factors warrant a deduction from the starting point. They also accept that a discount is available for your youth.8

[29]     Your lawyer also points to the fact that s 8(h) of the Sentencing Act requires me to take into account any particular circumstances that would mean that a sentence that would otherwise be appropriate would, in your circumstances, be disproportionately severe.  In your case, your lawyer says that being imprisoned in a foreign country, as a young person, where English is your second language and where you were separated from your very young child and husband is such a factor. Furthermore, you will inevitably be deported immediately upon your release from prison.

[30]     I do not accept that separation from your child and husband is anything more than something which is a natural consequence of your offending.   However, I do accept that being imprisoned in a foreign country where English is your second

language will pose some hardship for you.

8      Churchwood v R [2011] NZCA 531.

[31]     Finally, your lawyer points to the fact that where a defendant’s liberty has been affected by bail for a significant period before the verdict, it may be appropriate to further discount the sentence to reflect this.  In your case, you have been on bail for nearly three years and in this time you have been unable to visit your family in Fiji or be left alone with your child, and Mr Eaton suggests a further discount should be afforded for this.

[32]     In my view, the primary mitigating factors are your youth and previous good character.   I would reduce the sentence by one and a half years to reflect this.   I would also reduce the sentence by six months to reflect the three years you have spent on bail.  In my view, that brings the sentence down to a level where I do not need to make a further reduction in consideration of s 8(h).

[33]     The Crown did not seek an MPI, nor am I persuaded it is necessary by reference to the various matters identified in s 86(2).

[34]     Ms Sami would you please stand.

[35]     In respect of your conviction for manslaughter Ms Sami you are sentenced to a term of imprisonment of five years.

Three strikes warning

[36]     Given  your  conviction  for  manslaughter,  you  are  now  subject  to  the three strikes law.  I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these ‘serious violent offences’.

1.If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

2.If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would

be manifestly unjust to do so.  In that event the Judge must sentence you to a minimum term of imprisonment.

[37]     Would you please stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch

J H M Eaton QC, Barrister, Christchurch