R v Sialeipata

[2021] NZHC 901

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 901

THE QUEEN

v

OSANA SIALEIPATA

Hearing:	9-12 and 15-17 and 26 February 2021
Appearances:	M B Smith and C Taylor for the Crown W McKean and N Dore for the Defendant
Sentencing:	23 April 2021
Reissued:	30 July 2021

SENTENCING NOTES OF VAN BOHEMEN J

This judgment was delivered by me on 23 April 2021 and re-delivered by me on 30 July 2021 in accordance with Criminal Procedure Rules 2012, r 1.6.

Solicitors/Counsel:

Crown Solicitor, Whangarei

Webb Ross McNab Kilpatrick Limited, Whangarei

R v SIALEIPATA [2021] NZHC 901 [23 April 2021]

Introduction

[1]    Osana Sialeipata, on 26 February 2021, after a seven-day Judge-alone trial before me, I found you guilty of:1

(a)One charge of assault with a weapon,2 namely that you hit your deceased infant son, Hezekiah, on the head with a shower head on 22 August 2019; and

(b)One charge of ill-treatment or neglect of a child,3 namely that between 13 June 2019 and 21 August 2019 you failed to perform your legal duty as Hezekiah’s parent to take reasonable steps to protect him from injury.

[2]    The maximum penalty for the assault with a weapon charge is five years’ imprisonment. The maximum penalty for the ill-treatment charge is 10 years’ imprisonment.

[3]    My task today is to sentence you. So that you and others in Court understand what is to happen this afternoon, I will explain the process I will follow.

(a)First, I will outline the circumstances of your offending and the circumstances of Hezekiah’s injuries and death because that is how your offending came to light;

(b)Secondly, I will explain the approach to setting the sentence and adopt the starting point for the sentence, having regard to any aggravating factors of the offending;

(c)Thirdly, I will address your personal circumstances relevant to the sentence and any mitigating factors to be taken into account; and

(d)Finally, I will impose the sentence I consider appropriate.

1      R v Sialeipata [2021] NZHC 301.

2      Crimes Act 1961, s 202C.

3      Crimes Act, s 195.

The circumstances of your offending

[4]    The unfortunate circumstances of Hezekiah’s injuries and death are set out in my Reasons for Verdict judgment.4 It is sufficient today to give a summary of events.

[5]    On the night of 22 August 2019, the emergency services were called to the home of you and your husband, F, and your two young children, H and Hezekiah, in Whangārei.

[6]    When the emergency services arrived, they found Hezekiah naked and apparently lifeless, despite the efforts of F and yourself to revive him. F told a Fire Service officer on the scene that he had struck the baby on the chest, or words to that effect.

[7]    The emergency service personnel were unable to resuscitate Hezekiah. F was later charged with assault on a child.

[8]    A post-mortem examination of Hezekiah’s body found multiple injuries to the body, including a skull fracture and a number of rib fractures, as well as significant bruising to Hezekiah’s head and to other parts of his body. The examining pathologist reached the initial opinion that Hezekiah’s death was due to brain swelling caused by blunt force trauma associated with the skull fracture and bleeding of the brain under the skull.

[9]F was then charged with murder.

[10]   You were interviewed three times by the Police. On the first two occasions, you were interviewed as a potential witness. In those interviews, you gave accounts of events on the night of Hezekiah’s death that were consistent with what F had told the Fire Service officer.

4      R v Sialeipata, above n 1.

[11]   In the second interview, you also described things that F had done to Hezekiah in the two months before he died when F had a routine or workout with Hezekiah to make him strong. These included:

(a)Grinding his fists into Hezekiah’s sides;

(b)Lying on top of Hezekiah and crushing him down;

(c)Throwing Hezekiah into the air so that his head hit the ceiling;

(d)Hitting Hezekiah in the head;

(e)Punching Hezekiah in the bottom with sufficient force to shunt him along the floor into objects; and

(f)Biting Hezekiah.

[12]   You also told the Police that F had, on occasion, exhaled cannabis smoke onto Hezekiah’s face and given him alcohol to drink.

[13]   On the third occasion, you were interviewed as a suspect after you had told the people you had been staying with after Hezekiah’s death that you had hit Hezekiah on the head with a shower head the night he had died, and that you had done to Hezekiah the things you had attributed to F. The people you had been staying with were F ’s mother and her husband, and F’s mother’s close friend and her husband.

[14]   You were arrested and charged with murder. The murder charge against F was withdrawn. F later pleaded guilty to assault of a child by striking Hezekiah’s chest three times with a closed fist. He was discharged without conviction and granted name suppression.

[15]   Some 10 months later, a report from a specialist neuropathologist advised 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. It is relevant to record that the pathologist who conducted the post-mortem said at your trial that Hezekiah’s heart had been damaged previously, probably as a result of a viral infection. That damage was known only after microscopic examination of Hezekiah’s heart tissue.

[16]   Following the neuropathologist’s report, six charges alleging ill-treatment of Hezekiah were filed against you. The murder charge was withdrawn.

[17]   You were tried before me in February this year. You elected to give evidence. You denied you had ever harmed Hezekiah and said the admissions made in your third interview were false and had been made because you felt pressure from the people you were staying with after Hezekiah’s death.

[18]   I found that, based on your own admission, you had hit Hezekiah on the head with the shower head. However, I was far from sure that you had intended to hurt Hezekiah and considered it more likely that you had tapped Hezekiah with the shower head in a rough but reproving way as he grizzled while you were showering him. I was satisfied that this blow had not caused serious injury to Hezekiah.

[19]   I found you not guilty of four other charges alleging actions by you that had caused Hezekiah harm. I found that the evidence did not establish that some of the alleged actions had occurred. I was also left in considerable doubt as to the reliability of the admissions you made in the third Police interview concerning the rough treatment administered to Hezekiah. I considered it was at least as likely that F had performed those actions as you had.

[20]   However, I found you guilty of failing to perform your legal duty as a parent to take reasonable steps to protect Hezekiah from injury. I held that there was no doubt that Hezekiah had been injured, as evidenced by the fractured skull, the broken ribs and the bruises identified in the medical evidence and that it was clear that those injuries had been inflicted while you and F had been responsible for Hezekiah’s care.

[21]   I accepted that some of the injuries, such as the bruising to Hezekiah’s face and head, may have been caused by events that a reasonable parent may not have foreseen

and that your failure to protect Hezekiah from those injuries was not a major departure from the standard of care to be expected of a reasonable person.

[22]   However, I also held that you must have been aware of the behaviours that led to the fractures to Hezekiah’s skull and to his ribs. You acknowledged hearing a crack or a snap on two occasions when F had squeezed Hezekiah and dug his fists into Hezekiah’s ribs. You were also aware that Hezekiah had been thrown in the air and had hit the ceiling and that he had been punched in the backside and propelled into the television cabinet. Yet, you had not sought medical assistance or taken steps to remove Hezekiah from a situation where he might be subject to further ill-treatment.

[23]   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 failed to perform your legal duty and that failure fell below the standard of care of a reasonable person who has a duty to protect her child from injury. I also found that the failure to perform your duty was intentional and not accidental and was likely to cause Hezekiah suffering, injury or adverse effects.

[24]   None of my findings related to Hezekiah’s death. The blow to Hezekiah’s head with the shower head did not cause the skull fracture and did not cause Hezekiah’s death. The injuries that relate to your conviction for failure to perform a legal duty occurred before the day on which Hezekiah died and you were charged on that basis.

[25]   You had nothing to do with the blows to Hezekiah’s chest on the night he died, and you and F sought assistance after those blows had been inflicted. Neither you or anyone else knew about Hezekiah’s damaged heart.

[26]   In my sentencing, therefore, I do not hold you responsible for Hezekiah’s death or for injuries that led to his death.

Victim impact statement

[27]   I have read the victim impact statement of B C, F’s mother. I understand and sympathise with her distress at the impact of Hezekiah’s death.

Approach to sentencing

Purposes and principles of sentencing

[28]   Ms Sialeipata, I must 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.5 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.6 I must also impose on you the least restrictive outcome that is appropriate in the circumstances.7

[29]   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.8 I must also take into account your personal, family and cultural background in imposing a sentence that has a rehabilitative purpose.9

[30]   Because I am sentencing you for neglect of a five month old child, I must also take into account applicable aggravating factors such as the defencelessness of Hezekiah and the magnitude of the breach of trust between you and Hezekiah.10

[31]   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.11

[32]   Neglect by failing in your duty as a parent is the more serious offence and I set the sentence by reference to that offence.

5      Sentencing Act 2002, ss 7(1)(a), (b), (e), (f) and (h).

6      Sections 8(a), (b) and (e).

7      Section 8(g).

8      Section 8(h).

9      Section 8(i).

10     Section 9A.

11     Section 8(d).

Setting the starting point

[33]The first step is to establish a starting point.

Submissions of counsel

[34]   As Mr Smith for the Crown and your counsel, Mr McKean, have said, there is no tariff decision or guideline judgment for neglect of a child and each case must be considered on its own facts.

[35]   Mr Smith submits that a starting point of five to six years’ imprisonment is appropriate, based on four alleged aggravating features, and starting points adopted in other decisions concerning neglect of vulnerable elderly people or young children.

[36]Mr Smith says the aggravating features are:

(a)Serious injuries and cruelty;

(b)Attack to the head;

(c)Vulnerability of the victim and significant breach of trust; and

(d)The extent of the harm to Hezekiah.

[37]   Mr McKean submits that the Crown’s starting point is too high and that a starting point of two years’ imprisonment would be appropriate. Mr McKean accepts that the vulnerability of the victim and the significant breach of trust are aggravating features. He accepts that other aggravating features alleged by Mr Smith are relevant only in part, based on my findings. Mr McKean submits that most of the cases to which Mr Smith refers deal with much more serious offending and are not relevant to your situation.

Discussion

[38]    The fractures to the skull and the ribs were serious injuries and would have caused Hezekiah considerable pain at the time they were inflicted. However, as

Mr McKean says, I have not found you responsible for those injuries or for an attack to Hezekiah’s head. For that reason, they cannot be taken into account as aggravating factors. The same applies to the harm to Hezekiah, for which I have not held you to be directly responsible.

[39]   I consider the only relevant aggravating factors are Hezekiah’s vulnerability and the significant breach of trust that occurred when you did not protect your infant son from harm.

[40]   I agree with Mr McKean that most of the decisions to which Mr Smith refers deal with much more serious offending.12 They concerned neglect and abuse of a much greater scale and intensity than that suffered by Hezekiah for the injuries that occurred before he died. In some of those decisions, the victims died as a result of the injuries suffered. I consider the decisions to be of little assistance in setting a starting point in your case, Ms Sialeipata.

[41]   I also consider that your case is not at the level of seriousness of that in        R v Haddock,13 a decision to which Mr McKean refers. In that decision, Heath J adopted a starting point of three years for a mother who did not intervene when her partner engaged in offending against a young child which the Judge considered to be “close to the worst of its type”.14 In addition, Haddock pre-dated amendments made to s 195 of the Crimes Act 1961 in 2012 which doubled the maximum penalty from five to 10 years for an offence under that section. I have little doubt that a higher starting point would apply if the facts of that decision were to be repeated.

[42]   One decision referred to by Mr Smith is relevant to your circumstances. It is known only as M v R.15 I referred to that decision in my Reasons for Verdict judgment.16 I will explain now why I consider it relevant to your sentencing.

12 Taylor v R [2017] NZCA 574; R v Cresswell [2019] NZHC 1896; R v Lingman [2020] NZHC  3312; R v Filimoehala CA367/99, 16 December 1999; R v Harris HC Wellington CRI-2004-078- 1816, 26 August 2005; and R v Kuka [2009] NZCA 572.

13 R v Haddock HC Rotorua CRI-2005-077-461, 6 December 2007.

14 At [40].
15 M(CA559/2015) v R [2016] NZCA 53.

16 R v Sialeipata, above n 1, at [197].

[43]   In that decision, the parents of two very young boys pleaded guilty to two charges of neglect of a child after their two sons were found to have suffered serious injuries including, in one case, a skull fracture with associated brain injury and a broken collar bone, and, in both cases, extensive fractures to arms and legs, rib fractures and bruising to arms and legs.

[44]   The Court of Appeal considered that the starting of six years’ imprisonment adopted by the trial Judge was not manifestly excessive. The Court noted that the case involved two young babies, which differentiated it from cases involving a single victim.17 The Court agreed with the trial judge that it must have been obvious from the nature of the injuries that their children’s pain and suffering would not have gone unnoticed.18 The Court considered the aggravating factors of the offending to include the defencelessness of the two children, the serious long term physical and psychological effects to the children and the magnitude of the breach of trust.

[45]   The Court of Appeal took into account the amendments made in 2012 to s 195 of the Crimes Act, following a review of pt 8 of the Act by the Law Commission.19 The Court noted in particular that, following that review, Parliament had doubled the maximum penalty for an offence under s 195 from five years to 10 years. The Court considered that it was:20

… abundantly clear that the recent amendments to s 195 reflected Parliament’s concern to protect children from child neglect and non-accidental death.

[46]The Court went on to say:21

We agree with the Judge that Parliament has signalled in the clearest possible manner that the courts are expected to respond to offending of this type by imposing penalties that reflect the seriousness of the offending.

[47]   The Court accepted that it was open to the trial judge to set a global starting point for the two charges of neglect but also said the trial judge could have adopted a starting point of four years for one charge and added an uplift of two years for the

17 At [34].

18     Ibid.

19     Law Commission Review of Part 8 of the Crimes Act 1961: Crimes Against the Person (NZLC R111, 2009).

20 At [31].

21 At [32].

other.22 That is, the Court of Appeal said that an appropriate starting point for a single charge of neglect involving serious injury to a very young child would have been four years’ imprisonment.

[48]   I do not consider that the injuries suffered by Hezekiah were as serious as those inflicted on the first child in M v R. The child there was more vulnerable than Hezekiah, having been born prematurely and suffered the injuries in the first two and a half months of his life. The skull fracture had associated brain injury, which was not present in Hezekiah’s case. The rib fractures were more numerous and had caused swelling and fluid build-up which, again, was not present in Hezekiah. The bruising was also much more extensive and could only have been caused by actions of adults. I have accepted that some of the bruising to Hezekiah could have been caused during his use of the walker or falling out of the toy “wheelchair” when pushed by H, as had been claimed in evidence.

[49]   Importantly, while the Court of Appeal in M v R agreed that it must have been obvious from the nature of the injuries that the children’s pain and suffering would not have gone unnoticed,23 the pathologist who conducted the post mortem examination of Hezekiah stated that at the time of death, Hezekiah was a healthy child. In other words, despite the injuries to Hezekiah’s skull and chest, he was a healthy child who would not have manifested the physical distress held to have been apparent in the case of the children in M v R.

[50]   I have had regard to those differences and also to Hezekiah’s undoubted vulnerability and to the magnitude of the breach of trust inherent in a parent taking no action after being aware of rough treatment that caused serious injuries to a five month old child. I have also had regard to the clear legislative intention that courts should impose penalties that reflect the seriousness of the offending. I have decided that a starting point of three years’ imprisonment is appropriate. I do not consider any uplift is required to take account of your conviction for assault, given that I am satisfied that you did not intend to hurt Hezekiah.

22 At [36].

23 At [34].

Your personal circumstances

[51]   In considering your personal circumstances, I have the benefit of hearing the evidence at your trial. I also have a pre-sentence report, plus supplement prepared by the Department of Corrections, a report prepared by Dr Krishna Pillai pursuant to     s 38(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and a cultural report prepared by Tuala Muliagatele Maria-Grace Corrin, who sets out the circumstances of your early life in Samoa and then Australia.

[52]   Mr McKean has handed up a letter from your twin sister, as well as a letter from your cousin, and a letter in Samoan from your mother, which you kindly read out translated for the Court. I also have your own letter in which you say you accept that you failed your son and failed in your duty to protect him from injury and that you accept full responsibility. You also express your remorseful acceptance of what you term a “sinful act … which is not acceptable in any way.”

[53]   You and your twin sister were the youngest children born into a large family, with traditional Samoan parents. You lived your early life in a village in Samoa. Your mother’s letter explains some of the health challenges you faced in your early years and again a little later in life. She says you were a quiet and compliant child. You grew up speaking Samoan and were educated in Samoan. You were raised as a Christian and maintain your Christian faith.

[54]   According to the cultural report, there was some tension within the wider family group and some disruption caused by your father insisting on the family changing religious affiliations a number of times. However, I do not see any of that to be of direct relevance. Your twin sister says you and she were close and that, while your family was poor, you and she were happy and wanted for nothing. That is consistent with what you told Dr Pillai.

[55]   At the age of 14, you and your twin sister were sent to Brisbane to live with your father’s sister. You found that hard because you considered that you and your twin sister were treated more like servants than family members. After two more years of schooling, you were required to go out and work.

[56]   Your second job after leaving school was at the meat factory where you met F. He was your first serious relationship. You married him in 2009 after a relatively short time, following pressure from your family. You and F were both 20 at the time.

[57]   After you and F had lived together for six years in Australia, F was deported to New Zealand in 2015 after being convicted of drug offending. You were not involved in the offending for which F was convicted, but Dr Pillai records that F introduced you to substance use and that there were some tensions within the marriage at that time.

[58]   You came to New Zealand with F. You and he stayed initially in Auckland, where your daughter, H, was born in 2017. Three weeks later, you all moved to Whangārei to be close to F ’s family. Hezekiah was born two years later, in March 2019.

[59]   You have not worked since the children were born. You were their full time caregiver and, apart from their company, saw few others when F was away working or at a course. You had no personal friends in Whangārei. The only family you had was F ’s family. In these respects, you were dependent on F for adult company, as the pre-sentence report states.

Pre-sentence report

[60]   The pre-sentence report says that you presented as thoughtful and careful but appeared to struggle to express your thoughts and feelings and have felt unable to speak up if you believed people were not interested in your views. You also presented as quite naïve, socially under-developed for your age, and seemed to have lived an insular life, with limited social integration.

[61]   You told the report writer that you took full responsibility for failing in the role of a mother by not speaking up when you saw F playing rough with Hezekiah. You also said you struggle with guilt in not being there to protect your child. The update to the report records that you consistently expressed your regret and remorse that you did not have the courage to challenge F ’s ill-treatment of Hezekiah.

[62]   However, the report also states that you would like to resume your relationship with F. You also spoke highly of F, said you did not believe he mean to hurt Hezekiah and that he was a loving father.

[63]   The report writer recommends a sentence of intensive supervision supplemented with community work. Among the recommended conditions are that you be required to attend and complete an appropriate parenting course.

[64]The report writer does not recommend imprisonment.

Mental health assessment

[65]   After you had been arrested, you spent some time in the Mason Clinic after some behavioural concerns and reports of low mood, guilty feelings, poor concentration and agitation. You were given antidepressant and anti-psychotic medication which you continued to take at reducing levels after your discharge from the Mason Clinic after three months.

[66]   At the time of discharge, you were reported to have a normal mood and no psychotic symptoms. Dr Pillai formed the opinion that it is unlikely that you had a serious mental illness at the time of the offending or subsequent to the offending. In Dr Pillai’s opinion, there is no evidence to suggest that your behaviour at the time of the offending was affected by mental illness other than the stresses of your specific circumstances.

[67]   Dr Pillai considers that there are no current problems with your stability, violence ideation, mental health or treatment or supervision response. However, he considers that you lack insight into your poor parenting abilities and the suitability of continuing a relationship with F.

[68]   Dr Pillai considers that there is low likelihood of future violence outside of future similar contexts where you may be raising small children in an isolated and unsupported environment. Dr Pillai also considers that, before you are again responsible for small children, you should be provided with help to deal your social isolation, lack of parenting skills, poor uptake of support, and active substance use.

Cultural report

[69]   The Cultural Report describes how your father assumed the right to make decisions for the family, including for you and your twin sister. It also describes episodes of tensions in the family in your early life in Samoa. Some of the episodes would have been difficult for you. While I do not see those as being of particular relevance, I accept that you were expected and accustomed to deferring to male figures in positions of authority.

[70]   The Cultural Report also describes challenges you faced in Australia before you met F. It appears that your aunt took advantage of you and twin sister, and neither your father or the Church were willing to intervene.

Mitigating factors

[71]   Mr Smith submits that there are no mitigating factors. He says the Cultural Report does not indicates that cultural factors were causative of the offending.

[72]   Mr McKean says there are three mitigating factors: your remorse, cultural factors and your previous good character.

[73]   I now address those matters. However, I consider cultural factors as part of your character because being Samoan is part of what you are.

Previous good character, including cultural factors and loss of your child

[74]   You have no previous convictions and have cooperated and complied with your bail conditions. You have accepted responsibility for your breach of duty as a parent and now recognise that you should have done more to protect Hezekiah. Those factors all count in your favour.

[75]   In addition, I am satisfied that you were not the one who caused the injuries to Hezekiah. I saw from your evidence at trial and from the video interviews that you are a loving mother and you care deeply for your children and had a loving and happy

relationship with them, as was confirmed by the Plunket nurse who called in June 2019.24

[76]   Your major failure was not seeking outside assistance when Hezekiah had been hurt, but instead relying on your own resources to take care of him. Sadly, in your case, those resources were few. You did not have good role models when you were in your teens in Australia. You and your sister were isolated and alone from the age of

14. Even when you went to the church for help, you were told to be patient and wait. Getting help from outside the family was not part of your experience. Nor were responsible parenting skills.

[77]   When you came to New Zealand and moved to Whangārei, you were even more isolated. For much of the time, you were alone with two young children. Your contact with other adults was limited to F, F ’s family and F ’s friends. It is hardly surprising that you were reluctant to find fault with what F was doing with Hezekiah or to seek outside assistance that would have focused attention on what F was doing. That would have endangered your relationship with your only constant support person.

[78]   On top of that, I accept, as Mr McKean submits, that you were raised in a culture where elders and males are respected, and their authority not questioned.

[79]   None of these considerations excuses your failure to seek help but they help to explain what happened or did not happen.

[80]   I also take into account that you have suffered the loss of your baby boy. For that reason, and for previous good character and cultural factors, I consider a discount of 25 per cent is appropriate.

Remorse

[81]As the Court of Appeal said in Moses v R:25

… remorse is a personal mitigating factor that may justify a discount separately from any guilty plea discount. Remorse is a question of fact and

24     R v Sialeipata, above n 1, at [152].

25     Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [24]. (footnote omitted)

judgement. The defendant bears the onus of showing that it is genuine, meaning that it qualifies as remorse and he or she actually experiences it.

[82]   I accept your remorse, as expressed in your letter and to the pre-sentence report writer and to Dr Pillai, is genuine. I also accept that you have had no opportunity to demonstrate tangible evidence of your remorse by way of restorative justice. However, I consider that the fact that you admitted not only to hitting Hezekiah on the head with the shower head, when you believed that the cause of death was a blow to the head, but also sought to take responsibility for the other actions that had caused the real injuries to your son, was your own way of demonstrating remorse. For these reasons, I accept that you are genuinely and deeply remorseful and consider a discount of 10 per cent to be appropriate.

[83]This results in a total discount of 35 per cent.

Sentence

[84]A discount of 35 per cent or 13 months leaves an end sentence of 23 months.

[85]   A sentence of 23 months is a “short-term sentence”.26 As a consequence, you are eligible for a sentence of home detention.27

[86]   I consider a sentence of home detention will appropriately reflect the seriousness of the offence, the gravity of your offending, including your culpability and responsibility for what occurred. I do not consider that a sentence of community detention, as Mr McKean advocated, would appropriately reflect those factors, having regard to the hierarchy of sentences in the Sentencing Act 2002.28

[87]   The pre-sentence report writer has confirmed that your current address in South Auckland, where you were on electronically monitored bail for a period, is a suitable address for home detention. The adult occupants, your relations, have provided written consent to your serving an electronically monitored sentence at that address.

26     Parole Act 2002, s 4.

27     Sentencing Act, s 15A(1)(b).

28     Sentencing Act, s 10A.

They have confirmed that they understand the conditions and restrictions of such a sentence.

[88]   The report writer has recommended special conditions which, for the most part, I consider to be appropriate, in particular the recommendation that you attend and complete a parenting programme. Given Dr Pillai’s assessment, however, I do not consider it necessary for you to attend a further psychological assessment.

[89]Ms Sialeipata, please stand.

[90]   For the offence of ill-treatment or neglect of a child under s 195 of the Crimes Act, I sentence you to 10 months’ home detention. For the offence of assault with a weapon under s 202C of the Crimes Act, I sentence you to one month’s home detention. These sentences are to be served concurrently.

[91]   The sentence address is your current electronically monitored bail address in South Auckland.

[92]   In addition to the standard conditions in s 80C(2) of the Sentencing Act, I impose the following special conditions under s 80D of the Sentencing Act. You are:

(a)To undertake an alcohol and drug assessment, and attend and complete any treatment or counselling directed by a Probation Officer;

(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.

[93]   Ms Sialeipata, this last condition is not intended to prevent you from resuming your relationship with F if that is what you both want to do. Rather it reflects the advice from Dr Pillai and the pre-sentence report writer that that could increase the risk of renewed behaviour that could endanger you and your children. People need to know, so such risks can be managed, if appropriate.

[94]Ms Sialeipata, please stand down.

G J van Bohemen J

Postscript

[95]   Because it was not possible for Ms Sialeipata to return to the home detention address in South Auckland that day, I ordered that the sentence start date be Saturday, 24 April 2021 and that Ms Sialeipata remain on bail under her current conditions until then.