R v Siale

[2025] NZHC 235

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-085-002449

[2025] NZHC 235

THE KING

v

SIALE SIALE

Hearing:

20 February 2025

Counsel:

S C Carter for Crown

L A Scott and J H Porter for Defendant

Sentence:

20 February 2025

SENTENCING NOTES OF LA HOOD J

[1]    Mr Siale, you may remain seated until I ask you to stand. You appear for sentencing today having pleaded guilty to the manslaughter of Luke Smith.1

[2]    At the outset, I want to again acknowledge the presence of Luke Smith’s family in Court today, and the profound loss they have suffered (as I go through this I am going to refer to Mr Smith as Luke so as to avoid confusion with Mr Smith senior). Mr and Mrs Smith, when you moved to Wellington to provide Luke with a better and safer life, you could not have imagined you would be in this situation. Mr Smith, this morning you have bravely read out your, and Mrs Smith’s, joint victim impact statement with Mrs Smith standing beside you. I will come to it and the other victim impact statements in more detail later, but that statement lays bare the tragic loss of

1      Crimes Act 1961, ss 171, 160(2)(a) and 177; maximum penalty life imprisonment.

R v SIALE [2025] NZHC 235 [20 February 2025]

Luke and the pain that you now carry. No sentence that I can impose today will make up for that loss.

[3]    I also want to acknowledge the presence of Mr Siale’s family. This is a tragic situation for everyone involved. It demonstrates that we still have a long way to go to eradicate a culture of toxic masculinity in our society – a culture that regularly results in acts of senseless, drunken violence in the entertainment areas of our cities. There are sadly far too many examples of young men being killed by single punches in reaction to minor or imagined slights.

[4]As Kós J has said in another case:2

[36] Too many people seem to think that we live in a cartoon world where we can hit someone, or drop them to the ground, and they just get up, dust themselves off and carry on. But all too often they don’t get up, and never do again. The human skull is a remarkably fragile instrument. It is high time that that fact is more widely appreciated than it is.

[5]    Mr Siale, in sentencing you today, I must apply the Sentencing Act. The main purposes of sentencing you are to hold you accountable for the harm you have caused by your offending; to promote a sense of responsibility for, and acknowledgement of, that harm; to denounce and deter such conduct; and to assist you in your rehabilitation and reintegration.3 I must consider the gravity of your offending and your degree of culpability.4 Your sentence must be consistent with other reasonably similar cases,5 and I should impose the least restrictive sentence appropriate in the circumstances.6

[6]In coming to the appropriate sentence, I am going to address three matters:

(a)First, I will describe the facts of your offending. Sentencing is a public process, so I have to talk about the detail of your offending in this public forum.

2      R v King [2012] NZHC 3072.

3      Sentencing Act 2002, s 7.

4      Section 8(a).

5      Section 8(e).

6      Section 8(g).

(b)Second, I will set a starting point having regard to the mitigating and aggravating factors of the offending itself.

(c)Third, I will apply uplifts or reductions to that starting point based on your personal aggravating and mitigating factors.

The offending

[7]    At around 3.15 am on 6 October 2024, you were seated on a park bench outside the old Reading Cinema building on Courtenay Place. You and Luke had both been out drinking. Luke was aged 21, and you were aged 29 at the time. Luke and his friends were walking along Courtenay Place, and he stopped to talk to two women who were sitting on a park bench next to you.

[8]    As Luke walked past you, you grabbed at his shirt and asked him what he was looking at. Luke took exception to this. He stopped and the two of you had a minor verbal altercation for a short time before Luke’s friend grabbed him by the arm to get him to move along.7

[9]    As Luke was about to move away, you said to him, “Do you want to tell me what the fuck you said?” Luke replied, “I’m gonna make you look like a pussy.” You then punched Luke without warning. Your left fist connected with his jaw, rendering him unconscious. He fell directly backwards with his head impacting onto the road.

[10]   Following the punch you said to Luke’s friend, “Do you want some bro?” You pulled out your mobile phone and made a video recording. You verbally taunted and swore at Luke as he lay on the road unconscious and bleeding from a head wound, displaying your middle finger at him and kicking him once in the upper thigh. Luke’s friend told you not to do that, but you continued to taunt Luke.

[11]   Comments you made to the pre-sentence report writer suggested you disputed that you kicked Luke and did not offer him assistance after the offending. You have since made it clear in an affidavit that you filed that you accept that you kicked him.

7      My oral decision did not contain the word “verbal” in this sentence.

You say that in your discussion with the pre-sentence report writer you were in essence disputing the suggestion that the kick was forceful enough to have caused further injury. I have watched the video and agree that the kick does not appear to have been delivered with sufficient force to cause further injury – it appears to have been mainly intended as a further indignity to Luke as part of your taunting of him.

[12]   You also say in your affidavit that you went to grab Luke’s legs to lift him off the road when you realised he was not waking up but that his friend told you not to do that. I have this morning been provided with a witness statement that supports this. But the Crown says it is not clear this lifting of the legs really demonstrates an attempt to help, given you subsequently resisted arrest. You accept in your affidavit that you cannot suggest you actually helped following the incident. Even if the lifting of the legs was meant to be a gesture of assistance, it needs to be weighed against your behaviour on the video and your subsequent resistance of arrest.

[13]   You left while on-lookers and Luke’s friends performed CPR on him, contacted emergency services, and placed Luke in a recovery position. You returned to the scene and Luke’s friend pointed you out to police. Police then tried to arrest you and you resisted.

[14]   Luke was taken to Wellington Hospital and placed on life support. It was established there that he was unlikely to survive. On 7 October, he was taken off life support and later died. He had a bruise to the right side of his jaw from the blow, a skull fracture from the back of his skull to the base of his brain from the fall, swelling in the brain and a haemorrhage, causing his death.

Starting point

[15]   Turning to assess the appropriate starting point for your offending. There is no guideline decision for manslaughter offending because the circumstances of such

offending can differ so widely.8 The starting point for manslaughter has to be set by comparison with other cases of similar offending.9

[16]   This Court has identified the following three factors of particular relevance in “one punch” manslaughter cases: 10

(a)First, the amount of force that was intended to be inflicted, where it was aimed, and where it landed.

(b)Second, the conduct of the victim, in terms of whether there was any provocation and, if so, how serious it was and the distance in time from any provocation to the fatal blow.

(c)And third, what the defendant did after landing the punch and, most importantly, whether they stayed to offer assistance.

[17]   Turning to those factors. In this case, the punch was directly to the jaw and must have been a heavy blow, as Luke was rendered unconscious immediately. You were bigger than Luke and you had undertaken three weeks of boxing training and competed in a charity boxing match in December 2022, although I accept Ms Scott’s submission that caution needs to be taken about that factor.

[18]   There was no relevant provocation from Luke. You instigated the confrontation for no apparent reason and continued it despite his attempt to move away. When Luke unsurprisingly responded to your provocation, the punch was an entirely unnecessary and disproportionate response.

[19]   After the punch, you began filming Luke and continued to taunt him while he lay unconscious and bleeding on the ground. Although the force of the kick indicates

8      Murray v R [2013] NZCA 177 at [20].

9 At [20]. It has also held that starting points can be set by reference to R v Taueki, where the manslaughter involved serious violence: R v Tai [2010] NZCA 598 at [11]–[12]; and R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372. This offending is not a case of serious violence, so I consider Taueki is not applicable. The Court of Appeal has explicitly distinguished cases of serious violence, where Taueki would apply, to cases of “one-punch manslaughter” offending: R v Tai at [16]. See also R v Larson [2011] NZHC 764 at [13]–[14].

10 R v Nepia [2019] NZHC 1932 at [21]; and R v Unasa [2020] NZHC 3139 at [21].

little intention to inflict further injury, a kick while in that position was still a further act of violence and, as I have said, an indignity that formed part of your taunting. The behaviour captured on the video is an indication of the heightened state of aggression that you must have been in when you landed the fatal blow. In addition, your reaction shows no surprise at all at the result of your punch, which indicates you must have foreseen the risk of unconsciousness from the force of the blow. I agree with the Crown that what is captured on the video is a significant aggravating feature of your offending.

[20]   I must also take into account the devastating impact of your offending on Luke’s family. As we heard when Mr Smith read out the joint victim impact statement this morning, the depth of their grief is significant – unimaginable. They describe how the loss of their only child has caused them unimaginable pain. They say that Luke was a kind, humble, and deeply religious young man with an infectious spirit. They have been robbed of the chance to watch their son grow into the man he was destined to be and to have grandchildren. Also read out this morning have been victim impact statements from Luke’s uncles, writing on behalf of his family in South Africa, and from Luke’s family priest. He is described as embodying kindness, respect and a quiet strength that drew others to him. It is clear that the loss of Luke will be felt deeply by many.

[21]   The Crown submits that a starting point of around six years’ imprisonment is appropriate. Ms Scott, on your behalf, submits that a starting point of four years’ imprisonment is appropriate.

[22]   Counsel have referred me to a number of cases, which I do not propose to traverse in detail. Cases involving “single-punch” manslaughter generally have starting points ranging from three to six years imprisonment.11 It is not easy to find a cohesive pattern in these cases. The Crown relies on cases where starting points in the range of five to six years have been imposed;12 while Ms Scott relies on cases where

11 R v Tai, above n 9; Palmer v R [2016] NZCA 541; R v Kokiri [2019] NZHC 501; R v Haokpa [2020] NZHC 2763; R v Whaanga [2020] NZHC 1318; R v Larson [2020] NZHC 237; R v Unasa, above n 10; R v Uhatafe [2023] NZHC 248; R v Tarawa [2018] NZHC 3205; and Kahi v R [2024] NZCA 590.

12     Murray v R, above n 8; Kahi v R, above n 11; and Palmer v R, above n 11.

the starting point was four years or less.13 It appears to me that the Court of Appeal has generally taken a sterner approach in single-punch manslaughter cases than the High Court,14 and it is the Court of Appeal that provides authoritative guidance to this Court.

[23]   I consider the aggravating factors of the offending of particular relevance to be: instigating and continuing the confrontation without any provocation despite Luke’s attempt to move away; the heavy force of the blow directly to Luke’s jaw, which was sufficient to render him immediately unconscious; the callous and aggressive treatment of him while lying unconscious and bleeding on the ground, which indicates your mindset at the time and that you must have at least appreciated the risk of rendering Luke unconsciousness from the force of your punch.15 Having regard to these features, and the previous cases, I consider that a starting point of four and half years’ imprisonment is appropriate.

Personal circumstances

[24]   I now turn to consider whether I should increase or reduce your sentence to account for personal factors.

[25]   First of all, I note there is nothing in your personal circumstances that requires an increase to your sentence.

[26]   You are now 30 years of age and were 29 at the time of your offending. Unlike many of the cases I have been referred to, a reduction for your youth is not available.

[27]   I will give you the full 25 per cent reduction for your early guilty plea. I commend you for entering that at the first reasonable opportunity. I commend you also for the significant steps you have taken in your rehabilitation since the offending, and I will come to that shortly.

13     R v Larson, above n 11; R v Unasa, above n 11; R v Uhatafe, above n 11; R v Tarawa, above n 11; and R v Nepia, above n 10.

14     Above n 13.

15     R v Whaanga, above n 11, at [41]–[42].

[28]   Ms Scott submits that you should receive a reduction for your previous good character. I have been provided with a number of references that speak very highly of you (and again I will come back to them later). You have been a caregiver of your aging and disabled grandmother throughout your life. Your lack of previous convictions can also be evidence of previous good character and potentially worthy of a reduction.16

[29]   Although not an aggravating factor, there are aspects of your background that are relevant to any reduction for good character. You received a discharge without conviction for careless driving and driving with excess breath alcohol in September 2023, and have had charges disposed of in the Youth Court, including three charges of common assault in June  2011  and  another  charge  of  common  assault  in February 2012.17 You have had formal police warnings for fighting in a public place in 2012 and 2015, obstructing police in 2015, disorderly behaviour in 2021, and alcohol infringement notices in 2016, 2018 and 2019. Although minor in isolation, these matters relate to the alcohol and violence issues that led to this offending. Despite that, however, I am prepared to accept that there should be some very limited recognition of your previous good character in an overall reduction for personal mitigating features.

[30]   Ms Scott further submits that you should receive a reduction for remorse. The Crown accepts that a reduction is warranted, as do I.

[31]   You expressed remorse to the pre-sentence report writer. You said you felt for Luke’s parents and appreciated that Luke was their only son, and that you feeling sorry, was not good enough. You offered to engage in a restorative justice process but that was not able to take place. The alcohol and drug report writers say you clearly deeply regret your actions and did not want to make excuses, and your counsellor who you have been seeing, says that you are very remorseful. You have written an apology letter to Luke and his family, and have offered to make an emotional harm reparation of $10,000 to Luke’s family. The Smith family initially rejected that offer but have since said they will accept such a payment to help set up a youth foundation in Luke’s

16     R v Hockley [2009] NZCA 74 at [30].

17     Parker v Police [2022] NZHC 2124 at [59]; and Waikato-Tuhega v R [2021] NZCA 503 at [33].

name. The payment of reparation is a demonstration of your genuine remorse. I accept that credit for this remorse should form part of an overall reduction for personal mitigating features.

[32]   Your background also warrants a reduction. Your alcohol and drug report details that background. It notes that your father was an alcoholic and violent at times. You were exposed to violence in the home, and it became normalised for you. You were diagnosed with ADHD aged 11, but your siblings encouraged you to stop taking the medication you were prescribed that appeared to be helping you because they thought it was changing your personality. You were expelled from several schools during your secondary education for being disruptive.

[33]   Significantly, your father drowned while diving in 2022. You were very close to your father, and you were part of a group that found his body and pulled him from the sea. You reported that you have recurring nightmares and disturbed sleep as a result of that traumatic experience. The report refers to indications that you are suffering from post-traumatic stress disorder. Although no report has been provided from a psychologist or psychiatrist to support such a diagnosis, I accept that you have suffered from trauma related symptoms following the death of your father. The report notes this led to your drinking more often and more heavily, which caused a breakdown in your relationship with your then partner and the mother of your child. Your partner and child eventually left New Zealand shortly before the offending occurred.

[34]   I accept that this background has causatively contributed to your offending, and that a reduction in your sentence is warranted on that basis.18

[35]   I also accept that recognition is required for your rehabilitation potential. The pre-sentence report records that you have received great support from your family and friends and that is evident in court today. You worked full time for nine years prior to this offending. You have not consumed alcohol since the offending, including when your family were drinking over the Christmas period. You have attended AA meetings, and are currently seeing an alcohol and drug counsellor to assist in your sobriety. You

18     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

have committed to never drinking alcohol again. You have also been attending general counselling to address anger-management, emotional dysregulation, communication skills and self-esteem. You have been active in the community, completing over 180 hours of volunteer work. As I have already noted, I accept that you have exhibited genuine remorse. I have received letters from your family, your employer, counsellors and staff at the church where you did your volunteer work. They all attest to the burden and sadness you carry, as a result of your actions and the knowledge of how that has impacted upon Luke’s family. They also attest to your commitment to bettering yourself and improving the lives of others.

[36]   All of these factors point to a great potential for full rehabilitation in  you,  Mr Siale. I encourage you to continue with these efforts to enable you to live a full and productive life once you have completed your sentence. You clearly have impressive family and community support to help you achieve that outcome.

[37]   Lastly, Ms Scott submits a reduction is warranted to recognise the effect of your sentence on your five-year-old son. I must take the welfare of your child into account as part of your personal circumstances.19 This is particularly so when the child’s age and stage of life makes the parent’s presence an important protective factor.20 As I have noted, your son lives in Australia with your former partner, although she says you FaceTime him regularly. I accept some recognition of this factor is required in an overall credit for personal mitigating factors.

[38]   As many aspects of these personal mitigating factors overlap, I consider the reduction should be assessed on an overall basis. For your previous good character, remorse, background, rehabilitative potential, and the impact of your sentence on your son, I consider an overall reduction of 25 per cent is appropriate.

[39]   Applying that reduction along with the 25 per cent credit for your guilty plea to the starting point of four and half years’ imprisonment, results in an end sentence of two years and three months’ imprisonment. As that sentence exceeds two years’ imprisonment, I cannot consider imposing a sentence of home detention.

19     Sentencing Act, s 8(i); Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50]–[52].

20     Campbell v R [2020] NZCA 356 at [41]–[43].

End sentence

[40]   Mr Saile please stand. On the charge of manslaughter, I sentence you to two years and three months’ imprisonment.

[41]I also make an order of emotional harm reparation in the sum of $10,000.

[42]You may stand down.

La Hood J

Solicitors:
Crown Solicitor, Wellington