Sami v R - [2019] NZCA 340

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA735/2017
[2019] NZCA 340

BETWEEN	SHAYAL UPASHNA SAMI Appellant
AND	THE QUEEN Respondent

Hearing:	4 April 2019
Court:	Williams, Simon France and Toogood JJ
Counsel:	J H M Eaton QC and H C Coutts for Appellant K S Grau and K L Kensington for Respondent
Judgment:	29 July 2019 at 2.00 pm

JUDGMENT OF THE COURT

AThe application to adduce further evidence on the appeal is declined.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is allowed. The sentence of five years’ imprisonment is quashed and in its place we impose a sentence of four years and six months’ imprisonment.

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REASONS OF THE COURT

(Given by Simon France J)

The appellant, Ms Sami, was charged with the murder of a one-year-old child in her care. She was convicted of manslaughter and sentenced to five years’ imprisonment.[1] Ms Sami appeals both conviction and sentence.

Facts

[1]R v Sami [2017] NZHC 3159. The trial commenced 30 October 2017. Sentencing was on 15 December 2017.

Ms Sami was at the time an 18-year-old Fijian Indian who had recently come to New Zealand with her husband. At the time of the incident, Ms Sami was five months pregnant.[2] Ms Sami had obtained work caring for the young child while the child’s father worked. The caregiving was seven to 10 hours a day, five to six days a week. Ms Sami had previously cared for her two young nephews in Fiji.
[2]We note that the evidence varies as to whether Ms Sami was four or five months pregnant. Nothing turns on this matter.
On 6 January 2015, while in Ms Sami’s care, the child suffered head injuries that were to prove fatal. Ms Sami said she had left the child sleeping on the couch while she was in the kitchen preparing dinner. She heard a thud and went into the lounge to find the child on the floor, plainly unwell. Ms Sami carried the child outside where she was seen in a distressed state by a neighbour who drove them to the hospital. It seems Ms Sami tried mouth to mouth resuscitation in the car on the way. At the hospital CPR was given to the child and an oxygen mask placed on the child’s face.
The child had two separate skull fractures, retinal haemorrhaging, and what was described as symmetrical bruising to each side of her face. There was also bruising to her ears, under her chin, and on her forehead.
The Crown case is captured by the opening words of Crown counsel’s closing address:
[The child] died from a violent assault by the defendant on the 6^th of January 2015. The defendant grasped her by the face causing multiple bruises to her cheeks, to her forehead and to her ears. The defendant slammed [the child’s] head into a hard surface causing the fatal injuries that were later reported. The defendant, the…

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 Sami v R

Details

AGLC: Sami v R [2019] NZCA 340
Case: [2019] NZCA 340
Decision Date: 29 July 2019 at 2.00 pm

CaseChat Overview and Summary

The appellant, Ms Sami, appeals against both her conviction and sentence for manslaughter following the death of a one-year-old child in her care. The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The primary challenge to the conviction was the lack of "essential balance" in the summing-up, particularly the use of statistics and the reliance on common sense and life experience. The Court found that the summing-up was not unbalanced and adequately presented both sides of the case. The appeal against sentence was based on the starting point of seven years' imprisonment being too high and insufficient credit being given for mitigating factors. The Court agreed that further credit was appropriate and reduced the sentence by six months, imposing a sentence of four years and six months' imprisonment.

Orders