R v Sisley
[2014] NZHC 396
•7 March 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-063-90 [2014] NZHC 396
THE QUEEN
v
PIRIPI TE RAME SISLEY
Hearing: 7 March 2014
Appearances: C Macklin for Crown
H Edward for Prisoner
Sentence: 7 March 2014
SENTENCING REMARKS OF LANG J
R v SISLEY [2014] NZHC 396 [7 March 2014]
[1] Mr Sisley, you appear for sentence today after having accepted a sentence indication provided by Wylie J on 26 February 2014.1 Following that sentence indication, you entered a plea of guilty to a charge of assaulting a child under s 194(a) of the Crimes Act 1961. The maximum penalty for that offence is two years imprisonment. You also pleaded guilty to a charge of wounding the same child with reckless disregard for the child’s safety. That is an offence against s 188(2) of the
Crimes Act 1961, and is subject to a maximum penalty of seven years imprisonment.
[2] Originally you faced another charge of intentionally applying force to the same child. The Crown offered no evidence on that charge when you entered your guilty pleas on the remaining two charges. In case it has not already been done, I now make an order under s 347 of the Crimes Act 1961 discharging you on that charge.
Background
[3] I do not propose to set out the facts underlying your offending again. They were canvassed fully by Wylie J in his sentence indication. In short, the assault charge arises out of an incident in which you twisted the ears of a nine month old child for whom you and your partner were caring for a period of three days in December 2012. During the same period, you also became involved in another violent incident in respect of the same child. This caused damage to the child’s brain.
Victim impact statements
[4] The only material that is now before me that was not before Wylie J takes the form of two victim impact statements. These were prepared by the person who is currently caring for the child, and by a paediatrician who has been involved in the child’s rehabilitation. The victim is now nearly two years of age. It appears that he has settled in well in his new home environment. He has also recovered to some
extent from the physical injuries he suffered as a result of your offending.
1 R v Sisley [2014] NZHC 300 (copy attached).
[5] The victim impact statements make it clear, however, that it is likely that your offending will have significant ongoing effects for your victim. He is already showing a weakness down the left side of his body, and at this stage it is unknown whether this is likely to be permanent. Whether or not the brain damage will have lasting effects is also a matter of conjecture. In reality, however, it is likely that your offending will have at least some impact on your victim for the remainder of his life.
The indication
[6] The Judge indicated that pleas of guilty would produce an end sentence of three years imprisonment. That would reflect your overall culpability in respect of both charges. That indication having been accepted, it now falls on me to pass the sentence the Judge indicated.
Sentence
[7] On the charge of wounding the child with reckless disregard for his safety, you are sentenced to three years imprisonment. On the charge of assaulting the child, you are sentenced to three months imprisonment. Those sentences are to be served concurrently, which means that you will serve an effective sentence of three years imprisonment.
[8] Stand down.
Lang J
Solicitors:
Crown Solicitor, Rotorua
Counsel: H Edward
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2013-063-000090 [2014] NZHC 300
THE QUEEN
v
PIRIPI TE RAME SISLEY
Hearing: 26 February 2014
Appearances: C Macklin for the Crown
H Edward for the Defendant
Judgment: 26 February 2014
SENTENCING INDICATION OF WYLIE J
[1] Mr Sisley is charged with three counts:
(a) First, it is charged that he assaulted a child by twisting his ears. That is an offence pursuant to s 194(a) of the Crimes Act 1961. The maximum penalty is two years’ imprisonment;
(b)Secondly, it is charged that he, having the care of the child, intentionally applied force to the child, in a manner that was likely to cause him injury. This is an offence pursuant to s 195 of the Crimes Act. It is subject to a maximum penalty of 10 years’ imprisonment;
(c) Thirdly, it is charged that he wounded the child with reckless disregard for the child’s safety. That is an offence pursuant to s 188(2) of the Crimes Act. It is subject to a maximum penalty of seven years’ imprisonment.
[2] Charges 2 and 3 are laid in the alternative. The Crown has advised that if Mr Sisley enters a plea of guilty to the charge of wounding with reckless disregard, it will not present any evidence in relation to the charge of wilful ill treatment. For the purposes of this sentencing indication, I treat the charge under s 188(2) – that of wounding with reckless disregard – as the lead charge.
[3] Mr Sisley, through his counsel Mr Edward, seeks a sentencing indication. Mr Edward has advised me that the sentencing indication can be given on the basis of a summary of facts prepared by the police. For present purposes, it is accepted.
[4] I have considered the summary of facts in accordance with s 61(3) of the Criminal Procedure Act 2011. I have also considered the indictment, the written submissions filed by both counsel for the Crown and the defendant, and the oral submissions that have been made to me this morning. I have considered Mr Sisley’s criminal record. There are no victim impact statements to date. None have yet been obtained by the Crown. I also have a number of the Crown’s briefs of evidence and photographs of the child. Mr Macklin, for the Crown, accepted that the information
available to me is sufficient for the purposes of giving this sentencing indication. I
agree with him in this regard.
[5] As required by the Criminal Procedure Act, I have conducted the hearing in open court, and I am giving this sentencing indication orally. There are members of the media present. I reiterate the advice I gave to them in open court. It is an offence to publish any information about a request for a sentencing indication and any indication that is given.
Alleged Facts
[6] I do not propose to deal with the alleged facts at great length. The following will suffice:
(a) The child, who I refer to as “Baby A”, was, at the time of the alleged offending, a nine month-old boy. He is the nephew of the defendant’s partner.
(b)On Christmas Day, a number of family members visited the house occupied by the defendant and his partner. Baby A suffers from severe eczema, but apart from this, he seemed to be his normal self. He was not suffering from any injuries.
(c) Baby A’s mother left him, together with her three other children, with his aunt and the defendant for a few days over the Christmas period. Prior to leaving the house, she put Baby A in his cot. Nothing was out of the ordinary. Baby A’s mother did not notice any bruising on his body.
(d)The defendant and his partner were alone with Baby A and his siblings for some three days, through until 28 December 2012. A few visitors came to the house over that period. None of the visitors saw Baby A during these visits.
(e) During this period, it is alleged that the defendant used both his hands to twist Baby A’s ears, to the point that it caused bruising to Baby A’s outer and inner ears.
(f) It is alleged that at about 8.30 am on Friday, 28 December 2012, the defendant went into the main bedroom. He was alone in the bedroom with Baby A for a period. Baby A let out a loud scream or cry. The noise was so persistent and loud that neighbours commented on it. Baby A’s cries were followed by a male voice making a loud noise, like roaring or crying. Baby A continued to cry. One neighbour described the male voice as mocking the baby. After the loud noises, laughter from a male was heard.
(g) During the course of the morning of 28 December 2012, Baby A’s
condition deteriorated.
(h)It is alleged that, at some stage, while the defendant was alone in the bedroom with Baby A, he carried out a violent physical assault on the child. It is said that this involved Baby A’s head being subjected to sufficient force to cause subdural bleeding and retinal haemorrhages. Such injuries can only be caused by the application of significant force, such as violent shaking and/or striking the infant’s head against a hard surface. The force required exceeds that which can be applied in the course of play with a nine month old, or force from low-level or household falls. The Crown will allege that accidental causes are insufficient to explain the injuries suffered by Baby A.
(i)At around 5.30 pm on 28 December 2012, the defendant took Baby A to his partner. He told her that Baby A was not breathing and he was having seizures. The partner observed that the baby appeared severely ill. Medical assistance was then sought.
[7] As at the date that the summary of facts was prepared, Baby A’s injuries were
still being assessed. The injuries were noted as follows:
(a) Bilateral retinal haemorrhage (bleeding behind the eyes); (b) Subdural haemorrhage;
(c) Bruising to the head, back, both ears, left cheek, chin and buttocks; (d) An injury to the inside of the mouth.
As I have noted, the Crown will allege that the extent and pattern of these injuries is consistent with severe non-accidental force being applied.
[8] At today’s hearing, Mr Macklin made available to me a summary of a recent telephone conversation between a police officer and a Ms Atkins, who is a paediatric occupational therapist. She has been dealing with Baby A. She reports that he continues to make good developmental progress. However, his foster mother has concern that he is weak on one side. Ms Atkins agrees that Baby A is showing a slight weakness and that he has unusual patterns of movement on his left side. While she is not qualified to make an appropriate diagnosis, it is her opinion that the worst case scenario will be that Baby A is developing a left hemiplegia. I am told by counsel that that means a disability, whether partial or total.
[9] The defendant made a statement to the police. He stated that, during the course of the morning of Friday, 28 December 2012, he threw Baby A into the air a number of times while he was walking around the house. He said that, at one stage, he went into the bedroom with Baby A’s three siblings, and that he played a bouncing game on the bed with the two older children. He said that one child landed on Baby A, colliding with his head. He said that on another occasion, he bounced on the bed, and landed on Baby A, and that that caused Baby A to catapult off the bed and land on the floor.
[10] Evidence which the police propose to call in the event that the matter proceeds to trial will suggest that it is extremely unlikely that the injuries suffered by Baby A resulted from any proposed accidental mechanism such as that described by
the defendant. The police witness will say that the injuries must have been the result of a more extensive assault upon Baby A.
Appropriate Starting Point
[11] Sentencing in respect of offences under s 188(2) is guided by the recent decision of the Court of Appeal in Nuku v R.2 In that case, the Court was dealing with an appeal against sentence for wounding with intent to injure. That is the more serious of the two offences contained in s 188(2). The Court set out three bands into which such offending can fall. The Court indicated that, in fixing the appropriate band to determine the starting point for sentencing, consideration should be given to relevant aggravating features as identified in its decision in R v Taueki.3 The bands identified by the Court of Appeal in Nuku are as follows:
(a) Band 1 – where there are few aggravating features, the level of violence is relatively low, and the sentencing Judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge. In such cases, a sentence of less than imprisonment can be appropriate;
(b) Band 2 – a starting point of up to three years’ imprisonment, where
three or less of the aggravating features listed in Taueki are present;
(c) Band 3 – a starting point of two years up to the maximum term permitted by statute, where three or more of the aggravating features set out in Taueki are present, and the combination of those features is particularly serious. The presence of a high level of, or prolonged violence, is an aggravating factor of such gravity that it will generally require a starting point within band 3, even if there are few other aggravating features.
[12] The Court did indicate that the suggested bands, and the starting points, need to be applied flexibly.
2 Nuku v R [2013] 2 NZLR 39.
3 R v Taueki [2005] 3 NZLR 372.
[13] Nuku was dealing with an appeal against sentence for wounding with intent to injure. As I have noted, that offence is contained in s 188(2). It is not, however, identical with wounding with reckless disregard. The mens rea for each offence is different. Nevertheless, I consider that Nuku is of considerable assistance.
[14] In my view, the offending here alleged has a number of aggravating features. First, there is the vulnerability of Baby A. Baby A was only nine months’ old. Secondly, there is the seriousness of the injuries. Baby A has suffered significant harm, which required urgent hospitalisation, including an airborne transfer to Starship Hospital in Auckland for intensive care. Thirdly, the injuries were to the head of Baby A. Fourthly, the alleged offending is not isolated. While the lead charge suggests a violent and impulsive outburst, the earlier twisting of the ears the subject of count 1, indicates a pattern of inappropriate violence against Baby A. I do not consider that the alleged offending can be characterised as simply a one-off incident. It seems to me that it is more likely to be the culmination of escalating violence. Moreover, the laughter heard by a witness indicates a degree of callousness.
[15] I have considered the various cases referred to by the Crown in its submissions. All assist in determining the appropriate starting point. In my view, the alleged offending falls towards the top of Band 2, or the bottom of Band 3 identified in Nuku. In my view, the appropriate starting point is one of three years and three months’ imprisonment. I would not uplift this starting point to allow for the alleged ear twisting. I would accept Mr Edward’s submissions that, in effect, this was all part and parcel of the one event.
[16] There are no mitigating features of the alleged offending of which I am aware. The defendant and his partner did have the care of a number of children under five years at the time of the alleged offending. That may well have created a high pressure environment, but this factor does not excuse the alleged offending. Parents and caregivers routinely face stressful situations with children. It is never acceptable at any level to lash out against children.
[17] There is one factor personal to the defendant which potentially aggravates the offending. The defendant has a lengthy criminal record, including convictions for violence-related offending. The first of these convictions – male assaults female, was in November 2008, and the next two convictions were in October 2011 – assault with a blunt instrument. However, none of these convictions resulted in terms of imprisonment, and none were against children. In my view, the prior offending was different in type, and it is not appropriate to uplift the starting point because of this factor.
[18] Mr Edward noted that the defendant has been in custody on remand for some
11 months. He argued that that is a relevant factor to be taken into account. I disagree. I note the provisions of s 82 of the Sentencing Act 2002. It is clear in its terms.
[19] I am not aware of any other mitigating factors.
[20] In the event that a guilty plea is entered, the defendant will be entitled to a relatively minor discount. However, the trial is due to commence on 3 March 2014, and I am advised by the Crown that almost all trial preparation is now complete. This is not a situation where the trial process risks re-victimising the complainant. Mr Edward has explained why this request for a sentencing indication was delayed. In brief, he was checking certain views expressed by the Crown expert, Dr Campanella. Notwithstanding this explanation, the request has been made very late in the day. I would nevertheless be prepared to allow a discount of three months
– that would equate to approximately 7.5 percent of the sentence I would otherwise be minded to impose.
[21] In my view, the term of imprisonment which is appropriate for this alleged offending is three years’ imprisonment. Special conditions are likely to be required in addition to the standard release conditions normally imposed. I would have in mind a condition requiring Mr Sisley to undergo treatment and rehabilitation courses in relation to parenting skills and anger management. This would ultimately be for the Parole Board.
[22] There is one additional matter which Mr Sisley needs to be aware of. Notwithstanding the equivocal language contained in s 86A of the Sentencing Act, in my judgment, a three strikes warning is required in this case. I refer to, and agree with, the judgment of Allan J in Police v Maipiarai in this regard.4 I am advised by counsel that Mr Sisley has not previously received a warning under the three strikes legislation. There is nothing in his criminal history to suggest that such a warning
has been given.
[23] As I have noted, this trial is scheduled to start on Monday, 3 March 2014 at
10.00 am. In terms of s 64 of the Criminal Procedure Act, this sentencing indication is to remain open until 12.00 pm on Thursday, 27 February 2014.
Wylie J
4 Police v Maipiara (2012) 25 CRNZ 662 (HC).