R v Sialeipata
[2021] NZHC 1631
•1 July 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI 2019-088-002642
[2021] NZHC 1631
THE QUEEN v
OSANA SIALEIPATA
Hearing: 1 July 2021 Appearances:
M B Smith for the Crown
W McKean and for the Defendant
J Le Grice, T Freeman and M Moki from the Department of Corrections attended by AVL
Judgment:
1 July 2021
ORAL JUDGMENT AND SENTENCING NOTES OF VAN BOHEMEN J
[on application to cancel sentence and substitute alternative sentence]
Solicitors/Counsel:
Crown Solicitor, Whangārei
Webb Ross McNab Kilpatrick Limited, Whangārei
R v SIALEIPATA [on application to cancel sentence and substitute alternative sentence] [2021] NZHC 1631 [1 July 2021]
Introduction
[1] Traci Freeman, a probation officer at the Department of Corrections, applies under s 80F of the Sentencing Act 2002 to cancel the sentence of home detention imposed on Osana Sialeipata and to substitute an alternative sentence. Ms Freeman proposes a sentence of intensive supervision.
[2] Ms Freeman has filed an affidavit in support of her application. In addition, James Le Grice, a Senior Probation Officer, has filed a memorandum setting out in some detail the background to and reasons for the application.
[3] Ms Sialeipata does not object to the application which has been made to take account of her changed circumstances. Her counsel, Mr McKean, has filed submissions setting out reasons why the sentence of home detention is no longer suitable and why a sentence of intensive supervision would be appropriate.
[4] Mr Smith, Crown solicitor, appeared at today’s hearing as a courtesy to the Court.
[5] Mr Le Grice, Ms Freeman and MaryAnn Moki, Assistant District Manager for the Department of Corrections, attended by audio visual link.
[6] Ms Freeman has also filed a report on two charges of breach of the conditions of Ms Sialeipata’s home detention which were filed in the District Court at Papakura and have been transferred to this Court. The alleged breaches arose out of the circumstances that have led to the application to cancel the sentence of home detention. The report recommends that Ms Sialeipata be directed to come up for sentencing if called upon within the next six months.
[7] For the reasons set out in the following sentencing notes, I cancelled Ms Sialeipata’s sentence of home detention and substituted a sentence of 22 months’ intensive supervision.
Sentencing Notes
[8] Ms Sialeipata, on 23 April 2021, I sentenced you to 10 months’ home detention1 following your conviction, after a judge-alone trial before me, on one charge of ill-treatment or neglect of a child2 and one charge of assault with a weapon.3
[9] Those convictions related to the ill-treatment of your five-month old child, Hezekiah Carpenter, who died on 22 August 2019. The post-mortem examination conducted after Hezekiah’s death showed that he had suffered significant injuries in the weeks before he died, although it was later established that he had not died as a result of those injuries.
[10] Fabrice Carpenter, Hezekiah’s father, admitted to the emergency services that he had struck the baby on the chest in the hours before Hezekiah died. Mr Carpenter was initially charged with assault on a child. He was later charged with murder. At that point, the medical opinion was that Hezekiah’s death was due to brain swelling caused by blunt force trauma associated with a skull fracture and bleeding under the skull of the brain.
[11] After you made a statement to the Police stating that you had hit Hezekiah on the head with a shower head on the night he died and you had been responsible for ill- treatment to Hezekiah that you had attributed to Mr Carpenter in a previous statement, you were charged with murder and the murder charge against Mr Carpenter was withdrawn. Mr Carpenter subsequently pleaded guilty to assault of a child by striking Hezekiah’s chest three times with a closed fist and was discharged without conviction.
[12] Some months later, a report from a specialist neuropathologist advised that it was the specialist’s opinion that the changes in Hezekiah’s brain had been caused by Hezekiah’s heart stopping after trauma, and that trauma to Hezekiah’s chest had caused his heart to go into an abnormal rhythm and then to stop. That is, trauma to Hezekiah’s chest and not a blow to the head had caused Hezekiah’s death.
1 R v Sialeipata [2021] NZHC 901 (Sentencing Notes).
2 Crimes Act, s 195.
3 Crimes Act 1961, s 202C.
[13] The murder charge against you was withdrawn and, based on your last statement to the Police, you were charged with the two offences of which I found you guilty, and four other offences of which I found you not guilty. Those other charges alleged physical ill-treatment of Hezekiah and administering alcohol and cannabis to Hezekiah.
[14] In the judgment setting out the reasons for my verdicts, I recorded that Hezekiah’s injuries must have been the result of the application of considerable force and that the injuries must have occurred while Hezekiah was in the care of his parents.4 Despite your statements to the Police, I did not consider it likely that you had caused the injuries. I was satisfied, however, that the evidence established that you knew Hezekiah had suffered significant injuries but you did not seek medical help or help from anyone else.5 I found that in failing to seek medical assistance and in not taking steps to remove Hezekiah from a situation where he might be subject to further injuries, you had failed to perform your legal duty to protect Hezekiah.6
[15] In my judgment, I also recorded that I accepted that cultural factors and your social isolation in Whangārei may have been factors that contributed to your offending.7
Home detention address and relevant conditions
[16] I sentenced you to serve your sentence of home detention at an address in Takanini where you had been bailed while awaiting trial and then your sentence. The other occupants of the address are members of your wider family.
[17]The conditions of your sentence included conditions requiring you:8
(a)To undertake an alcohol and drug assessment, and attend and complete any treatment or counselling directed by a Probation Officer;
4 R v Sialeipata [2021] NZHC 301 at [204] (Reasons for Verdict).
5 At [211].
6 At [214].
7 At [212].
8 R v Sialeipata, above n 1, at [92].
(b)Not to possess, use or consume alcohol or drugs other than those prescribed for you by a health professional;
(c)To attend and complete an appropriate parenting programme as directed by a Probation Officer;
(d)To attend assessments for any other programme, treatment or counselling as directed by a Probation Officer; and
(e)To disclose to a Probation Officer, at the earliest opportunity, any intimate relationship that resumes, commences or terminates.
[18] I recorded in my sentencing notes that the last condition was not intended to prevent you from resuming your relationship with Mr Carpenter if that was what you both wanted. Rather, it reflected advice from a psychologist who assessed you, and from the pre-sentence report writer, that resumption of that relationship could increase the risk of renewed behaviour that could endanger you and your children.9
Breaches of conditions of home detention
[19] You served one month of your sentence at the Takanini address without incident. However, in late May 2021, you informed Corrections that you wished to leave the Takanini address because of disagreements you were having with the occupants of that address. You wished to move to an address outside Whangārei. Mr Carpenter is resident at that address.
[20] Approval was given for you to make a return journey to Whangārei on 20 May 2021 to meet the landlord of the Whangarei address. However, you were unable to travel that day and advised Corrections that you would seek approval to travel at a later date.
[21] On 22 May 2021, you travelled to Whangārei without obtaining Corrections’ approval and stayed there until 24 May 2021, during which time Corrections were not
9 At [91].
able to contact you. It appears that you and the other occupants of the Takanini address had had a significant argument on 21 May 2021.
[22] You returned to the Takanini address on 24 May 2021, on which date the other occupants of the address informed Corrections that they had withdrawn their consent to you being at that address.
[23] On 25 May 2021, Corrections arranged for you to reside temporarily at the Whangarei address pending the results of an on-site technical feasibility test. It had been Corrections’ intention to apply to change your home detention address to the Whangarei address. However, they subsequently concluded that the address was not suitable for an electronically monitored sentence.
Corrections’ application and recommendations
[24] Ms Freeman applies for your sentence of home detention to be cancelled and recommends that that the Court impose, as an alternative sentence, a sentence of intensive supervision for a period of 24 months.
Reasons for application
[25] Corrections are satisfied that the Takanini address is no longer available to you and no address other than the Whangarei address has been proffered.
[26] Because of its location, the Whangarei address has been assessed as unsuitable for electronic monitoring. It offers an inconsistent Global Positioning System signal, which is not sufficiently reliable to monitor your whereabouts at all times. In addition, Corrections advise that field officers will not be sent to the address because of the inconsistent signal and health and safety concerns for their staff who may not have cell phone coverage when at, and travelling to and from, the address.
[27] Corrections note that electronic monitoring is not mandatory under a sentence of home detention. However, Corrections consider that, irrespective of the monitoring issue, the sentence of home detention is no longer practicable. If field officers will not visit the address, for example to respond to incidents of non-compliance or to conduct
equipment maintenance, your probation officer cannot effectively oversee the sentence conditions.
[28] Corrections acknowledge the concerns expressed by the psychologist and the pre-sentence report writer, and by this Court, about the possibility of you living with Mr Carpenter. They say, however, that you have expressed an intention to continue the relationship with Mr Carpenter and note that the Court has not expressly forbidden you from doing so.
[29] Corrections advise that, apart from your unauthorised visit to Whangārei in May 2021 and the change of address brought about the circumstances described above, your compliance with the conditions of your sentence has been high. You have been completing counselling sessions with an approved clinician and are motivated to complete an alcohol and drug programme and to undertake a parenting programme.
Proposed conditions and support arrangements
[30] Corrections recommend that similar special conditions be imposed under the sentence of intensive supervision as were imposed under the sentence of home detention, including that you attend assessments for any other programme, treatment or counselling to address identified offending behaviour as directed by the supervising probation officer. They also propose the addition of a condition requiring you to attend a whānau integration hui.
[31] Corrections say these conditions are intended to offer specialist counselling and support to address your mental health issues and your previous trauma and persistent grief in a culturally appropriate context. Having regard to issues that were identified when you were detained at the Mason Clinic after your arrest, Corrections say that a psychologist can be assigned to provide one-to-one counselling for you. They also say that a Corrections cultural adviser can assist in convening a whānau hui that could include your family members at the Takanini address.
[32] Corrections also describe other support arrangements that could be made available to you under a sentence of intensive supervision in Northland. They also
note that you could be subject to random testing if a condition prohibiting alcohol and drug use is imposed.
[33] Corrections also note that your four year-old daughter, currently resides with Mr Carpenter’s family in Whangārei and that you are currently permitted fortnightly visits with your daughter under the supervision of Oranga Tamariki.
[34] If a sentence of intensive supervision is imposed, Corrections observe that the Court could judicially monitor you and receive three-monthly reports from a probation officer on your progress.
Relevant provisions of Sentencing Act
[35] Under s 80F of the Sentencing Act, a probation officer may apply for an order cancelling your sentence of home detention if the home detention residence is no longer available or is not suitable because of a change of circumstances.
[36] Under s 80F(4), the Court may, if satisfied that the grounds of application have been established, cancel the sentence and substitute any other sentence that could have been imposed at the time you were convicted of the offences for which the sentence was imposed.
[37] Under s 54B, the Court may sentence you to intensive supervision if you are convicted of an offence punishable by imprisonment. The section also provides that the sentence may be for such period between six months and two years as the Court thinks fit.
[38] Under s 54C, the Court may impose a sentence of intensive supervision only if satisfied that a sentence of intensive supervision would reduce the likelihood of further offending through your rehabilitation and reintegration and that the nature of your rehabilitative needs requires the imposition of conditions for a period longer than 12 months or that are not available through a sentence of supervision.
[39] Section 54F sets out the standard conditions that apply if you are sentenced to intensive supervision. As compared with the standard conditions that apply to a
sentence of supervision as set out in s 49, the standard conditions in s 54F impose more prescriptive reporting obligations on you and prohibit you from leaving New Zealand without the written consent of a probation officer.
[40] Under s 54I(1), the Court may impose special conditions if satisfied that there is a significant risk of further offending by you, and standard conditions alone would not adequately reduce that risk, and the imposition of special conditions would reduce the likelihood of further offending through your rehabilitation and reintegration.
[41] Under s 54I(2), the Court may impose a condition requiring you to comply with the requirements of judicial monitoring if satisfied that, because of your special circumstances, this is necessary to assist your compliance with the sentence.
[42] Section 54I(3) sets out the special conditions that may be imposed if the Court is satisfied of the matters set out in s 54I(1). These include conditions relating to your place of residence, conditions prohibiting you from using drugs or alcohol, a condition requiring you to comply with the requirements of judicial monitoring and any other conditions the Court thinks fit to reduce the likelihood of further offending.
[43] If I cancel your sentence and impose another sentence, I must also have regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act and any aggravating factors as set out in s 9.
[44] These sections require that I impose a sentence that holds you accountable for the harm you have caused to Hezekiah and to the community, that promotes in you a sense of responsibility for that harm, that denounces your conduct, that deters you and others from future similar offending and that assists in your rehabilitation.10 I must also take into account the gravity of your offending, including the degree of your culpability or responsibility for what occurred, the seriousness of the type of the offence in comparison with other types of offending, and the general desirability of consistency with appropriate sentencing levels.11 I must also impose on you the least restrictive outcome that is appropriate in the circumstances.12
10 Sentencing Act 2002, ss 7(1)(a), (b), (e), (f) and (h).
11 Sections 8(a), (b) and (e).
12 Section 8(g).
[45] I must take into account any personal circumstances that would mean that a sentence that would otherwise be appropriate would be disproportionately severe in this particular instance.13 I must also take into account your personal, family and cultural background in imposing a sentence that has a rehabilitative purpose.14
[46] Because I am sentencing you for neglect of a five month old child, I must also take into account the defencelessness of Hezekiah and the magnitude of the breach of trust between you and Hezekiah.15
[47] However, as I said when I sentenced you in April, I do not consider that your offending is near to the most serious of cases for which the penalty is prescribed. For that reason, I am not required to impose a penalty that is near to the maximum prescribed for your offending.16
Discussion
[48] Ms Sialeipata, I am satisfied that the grounds in Ms Freeman’s application have been made out and that I should cancel your sentence of home detention. I accept that the address in Takanini is no longer available to you. I also accept that, because of your personal circumstances, you cannot offer another suitable address. As far as I am aware, you have no other family in New Zealand. I am also aware that you made few, if any, personal friends in New Zealand since your arrival from Australia in 2015 and then moved to Whangārei.
[49] As to what sentence I should impose in substitution for the sentence I cancel, I must have regard to the considerations I took into account when sentencing you on 23 April 2021, just over two months ago.
[50] I will not repeat now the process by which I arrived at your initial sentence of 10 months’ home detention. However, I restate the principle considerations I took into account and, where appropriate, note where additional matters fall to be considered.
13 Section 8(h).
14 Section 8(i).
15 Section 9A.
16 Section 8(d).
[51] In summary, I set a starting point of three years’ imprisonment, based on the nature of the offending and the aggravating factors of Hezekiah’s vulnerability and the significant breach of trust that occurred when you did not protect him from harm.
[52] I made a deduction of 25 per cent to take into account your personal circumstances, in particular your acceptance of responsibility for what happened to Hezekiah, even though I was satisfied that you were not the one who caused his injuries, the lack of support and resources available to you, your isolation in Whangārei, your cultural circumstances and the loss of your child. I made a further deduction of 10 per cent because I was satisfied you were genuinely remorseful.
[53] This produced a notional end sentence of 23 months which made you eligible for a sentence of home detention, which I set at 10 months.
[54] In setting that sentence, I did not follow the advice of the pre-sentence report writer who had recommended a sentence of intensive supervision. I considered that, given the gravity of the offending, a community sentence would not adequately hold you accountable, denounce your conduct and deter you and others from similar offending.
[55] However, nor did I take into account the fact that you had already spent eight and a half months in custody on remand before your trial. Had I been aware of that matter, I would have taken it into account, bearing in mind that s 82 of the Sentencing Act does not preclude consideration of pre-sentence detention when imposing a sentence of home detention.
[56] Given the time you had already spent in custody, I would have been more inclined to a sentence of intensive supervision. While I could have reduced the time on home detention to reflect the time served, I consider that a shorter period of home detention would not have adequately addressed your rehabilitation and reintegration needs. I am also satisfied that the time already spent in custody appropriately takes into account the need for accountability, denunciation and deterrence.
[57] For these reasons, I am satisfied that a sentence of intensive supervision is appropriate, quite apart from the circumstances that have led to Ms Freeman’s application. Since you have already spent two months on home detention and the new sentence starts from today, I am going to make the sentence period 22 months.
[58] I am also satisfied that a lengthy sentence of intensive supervision will reduce the likelihood of further offending through your rehabilitation and reintegration, and that the nature of your rehabilitative needs requires the imposition of conditions that are not available through a sentence of supervision. In particular, I consider that a period of intensive monitoring, as provided for in s 54F of the Sentencing Act is appropriate, particularly in view of your wish to resume your relationship with Mr Carpenter. I also consider that a condition requiring you not to take drugs and alcohol is appropriate, given the association of alcohol and cannabis with the ill- treatment suffered by Hezekiah.
[59] This brings me to the issue of the resumption of your relationship with Mr Carpenter. I understand why you wish to resume that relationship. I also recognise that that may be in the best interests of your daughter who, as far as I am aware, has not suffered ill-treatment of the kind suffered by Hezekiah. At the same time, I do have concerns about your safety and the safety of your daughter and any other children you may have, if you and Mr Carpenter resume a life together.
[60] While Mr Carpenter was not on trial, I stated in the reasons for my decision finding you guilty of the neglect of Hezekiah that Hezekiah’s injuries were inflicted while you and Mr Carpenter were both responsible for Hezekiah’s care.17 If you are to heal, to rehabilitate and reintegrate and to avoid further offending, you will need to ensure that you make wise and safe choices for yourself and your children, whatever Mr Carpenter chooses to do. I also express publicly my expectation that Mr Carpenter’s family and supporters recognise that what happened to Hezekiah is not your responsibility alone.
[61] I note from Mr Le Grice’s memorandum that Mr Carpenter has indicated a willingness to engage with Corrections and has undertaken to participate in the
17 R v Sialeipata, above n 4, at [202].
formulation of a safety plan with you, a probation officer and Oranga Tamariki. I thank Mr Carpenter for that indication.
[62] Ms Sialeipata, I am satisfied that a lengthy period of intensive supervision will offer you the best prospect of getting your life back together. I am also satisfied, however, that for you to achieve this, you will need to comply fully with the conditions I am about to impose and engage actively with the programmes that Corrections intend to put in place for you. Your active engagement is particularly important because you have gone back to a relatively isolated address in Whangārei, which is similar to the situation in which your previous offending occurred. I urge you to make a determined effort to become part of the wider community and to reduce any sense of isolation or dependency on Mr Carpenter.
[63] With one exception, I am going to impose the conditions recommended by Corrections. I am also going to impose a condition that you not take drugs or drink alcohol while subject to the sentence because I consider that will increase the prospects of your rehabilitation. I express my hope and expectation that Mr Carpenter will support you in complying with this condition. You need to be aware that you may be directed by a probation officer to undergo testing to ensure compliance with this condition and that you must comply with those directions. It may be that there can be a relaxation of the alcohol prohibition after some months if the probation officer is satisfied you are making good progress and are safe.
[64] However, I am not going to repeat the condition that you notify a probation officer of any intimate relationship that resumes given that you have made clear to Corrections your intention to the resume your relationship with Mr Carpenter.
[65] I am also not going to impose a condition requiring you to undergo judicial monitoring. Given your location and the regular interaction you will be having with probation officers, I consider that Corrections are better placed than I am to ensure compliance with your sentence.
Cancellation of sentence and substitute sentence
[66]Ms Sialeipata, please stand.
[67] I cancel the sentence of 10 months’ home detention that I imposed on you on 23 April 2021 for the offence of ill-treatment or neglect of a child under s 195 of the Crimes Act.
[68] I note that you have already served the sentence of one month’s home detention, I imposed on you for the offence of assault with a weapon under s 202C of the Crimes Act.
[69] In substitution for the sentence I imposed on you for the offence of ill-treatment or neglect of a child, I sentence you to 22 months’ intensive supervision.
[70]The sentence address is the proposed Whangārei address.
[71] In addition to the standard conditions in s 54F of the Sentencing Act, I impose the following special conditions under s 54I of the Sentencing Act. You are:
(a)To attend and complete counselling with an EMERGE Aotearoa clinician as directed by and to the satisfaction of the supervising probation officer;
(b)To attend and complete a parenting programme as directed by and to the satisfaction of the supervising probation officer;
(c)To attend an assessment with a Department of Corrections psychologist, and to complete any treatment or counselling as recommended;
(d)Not to possess, use or consume alcohol or drugs other than those prescribed for you by a health professional;
(e)To attend and complete alcohol and drug counselling or programme as directed by and to the satisfaction of a probation officer;
(f)To attend a whānau reintegration programme hui as requested by a probation officer; and
(g)To attend assessments for any other programme, treatment or counselling to address identified offending behaviour, as directed by and to the satisfaction of the supervising probation officer.
[72] On the charges for breach of the conditions of your home detention, I enter convictions and direct that you come up for sentencing if called upon within the next six months.
[73]Ms Sialeipata, please stand down.
G J van Bohemen J
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