R v Sialeipata - [2021] NZHC 1631

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sialeipata

Details

AGLC: R v Sialeipata [2021] NZHC 1631
Case: [2021] NZHC 1631
Decision Date: 1 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The Queen v Osana Sialeipata involved an application to cancel the defendant's sentence of home detention and substitute it with an alternative sentence of intensive supervision. The application was made by Traci Freeman, a probation officer, who cited the defendant's changed circumstances and her unsuitability for home detention. The defendant did not oppose the application. The legal issues centered on whether the grounds for cancellation under Section 80F of the Sentencing Act were met and if a sentence of intensive supervision was appropriate under Section 54B and 54C. The court considered the defendant's rehabilitation needs, her compliance history, and the suitability of the proposed sentence to reduce the risk of reoffending.

The court found that the home detention address was no longer available, and the defendant could not provide another suitable address. It also accepted that the defendant's circumstances had changed, making home detention no longer practicable. The court reasoned that a lengthy period of intensive supervision would adequately address the defendant's rehabilitative needs, reduce the risk of reoffending, and ensure compliance through more prescriptive reporting obligations and the possibility of random testing. The court imposed special conditions, including attending counselling, a parenting program, and a whānau integration hui, and prohibited alcohol and drug use. The court also noted the importance of the defendant's active engagement with the proposed programs and her need to make safe choices for herself and her children. The court cancelled the original sentence of home detention and imposed a sentence of 22 months' intensive supervision, with the standard and special conditions outlined in the Sentencing Act. The court also found the defendant guilty of breaching the conditions of her home detention and directed that she come up for sentencing within six months.

Orders