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,…

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 901
Case: [2021] NZHC 901
Decision Date: 23 April 2021

CaseChat Overview and Summary

Osana Sialeipata was convicted by Judge Van Bohemen of assault with a weapon and ill-treatment or neglect of a child, arising from the death of her five-month-old son, Hezekiah, in February 2019. The Judge found Sialeipata guilty of hitting Hezekiah on the head with a shower head but was not convinced she intended to hurt him. However, the Judge found Sialeipata guilty of failing to protect Hezekiah from injuries caused by her husband. Sialeipata was sentenced to 10 months' home detention for the offence of neglect and one month's home detention for the offence of assault. These sentences are to be served concurrently. Sialeipata was also ordered to undertake an alcohol and drug assessment and attend and complete any treatment or counselling directed by a Probation Officer. She was also ordered to attend and complete an appropriate parenting programme as directed by a Probation Officer.

The Judge found that the relevant aggravating factors were Hezekiah's vulnerability and the significant breach of trust that occurred when Sialeipata did not protect her infant son from harm. The Judge set a starting point of three years' imprisonment, considering the only relevant aggravating factors were Hezekiah's vulnerability and the significant breach of trust that occurred when Sialeipata did not protect her infant son from harm.

In considering Sialeipata's personal circumstances, the Judge took into account her previous good character, cultural factors, and her genuine and deep remorse. The Judge considered a discount of 35 per cent to be appropriate, resulting in an end sentence of 23 months. The Judge considered a sentence of home detention to be appropriate, reflecting the seriousness of the offence, the gravity of Sialeipata's offending, including her culpability and responsibility for what occurred.

Orders