Siliai v The King
[2023] NZHC 868
•21 April 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000023
[2023] NZHC 868
UNDER Subpart 4 of Part 6 of the Criminal Procedure Act 2011 IN THE MATTER OF
An appeal against sentence
BETWEEN
MARCELLIN SILIAI
Appellant
AND
THE KING
Respondent
Hearing: 18 April 2023 Appearances:
C J H Fraser for Appellant L J Sullivan for Respondent
Judgment:
21 April 2023
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 21 April 2023 at 9.00 am
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ………………………..
SILIAI v R [2023] NZHC 868 [21 April 2023]
Introduction
[1] The appellant, Mr Siliai, pleaded guilty in the Auckland District Court to one charge of dangerous driving causing death.1 He was sentenced by Judge E M Thomas to two years and four months’ imprisonment and disqualified from driving for 12 months.2 He appeals to this Court, contending that the end sentence was manifestly excessive.
[2] The offending relates to a tragic incident that occurred on Christmas Day in 2021, resulting in the death of Mr Siliai’s partner. She was the mother of six of his seven young children.
[3] Mr Fraser, on behalf of Mr Siliai, submits that an end sentence of two years or less is appropriate and that the sentence imposed should have been one of home detention.
[4]There are three main grounds of appeal:
(a)the starting point adopted was too high when viewed against other comparable cases;
(b)disputed facts; the District Court Judge placed weight on alleged facts that were irrelevant, did not form part of the summary of facts and were not accepted by Mr Siliai nor proved by the Crown; and
(c)the global discount adopted fails to appropriately recognise the multiple mitigating factors accepted by the Judge as being present.
[5]The Crown opposes the appeal.
Background facts
[6] Mr Siliai and the victim were in a domestic relationship at the time of the offending and shared six children together. On 25 December 2021, the victim was
1 Land Transport Act 1998, s 36AA(1)(b). Maximum penalty 10 years’ imprisonment or a fine not exceeding $20,000, and at least 12 months’ disqualification from driving.
2 R v Siliai [2023] NZDC 4080.
present at Mr Siliai’s address and was drinking with his extended family during the evening. Mr Siliai returned to his address at approximately 10 pm after visiting the child he shares with an ex-partner. Mr Siliai then went back to his car, intending to go and buy cigarettes before joining his family. Mr Siliai was under the impression that no one had seen him at this stage. However, the victim saw him and followed him to his car.
[7] As Mr Siliai began to accelerate, the victim ran in front of the vehicle to make him stop. Mr Siliai spoke to the victim through the driver’s window and a verbal argument ensued. She accused him of planning to return to his ex-partner’s house. He told her he was going to get cigarettes, but she did not believe him. She did not want him to leave the address. The victim put her hands on the front driver’s window, which was slightly down, and attempted to force it down. Mr Siliai drove the car forward in an attempt to remove the victim, but this did not work so he stopped shortly after.
[8] The altercation continued. The victim managed to force the window down and she reached for the keys in the ignition. Mr Siliai again drove the vehicle forward to try and get rid of the victim from the side of his vehicle. The victim was holding onto the window as the car accelerated forward. She let go. She fell in a manner that she landed underneath the vehicle and was subsequently run over by the rear driver’s side tyre. This caused fatal injuries to her and she died at the scene.
The sentence imposed
[9] Judge Thomas emphasised the loss suffered as a result of the victim’s death. He referred to this as “a massive amount of harm beyond the taking of Charlotte’s [the victim] life”.3 He noted that six children had lost their mother.
[10] Judge Thomas noted that Mr Siliai’s driving was irresponsible and dangerous. That was not in dispute. He held that this was not an instant, poor decision of driving. The Judge noted that Mr Siliai had already tried once to remove the victim from the side of the vehicle by accelerating forward. When that failed, he attempted a second time. The second attempt was what caused the fatal injury. In the Judge’s view
3 R v Siliai, above n 2, at [5].
Mr Siliai had “deliberately made the decision to do again something that had not worked the first time round”.4 He held that this lent a different aspect to the case compared to the others referred to by counsel. He concluded that this added a particular “flavour” to what Mr Siliai had done and the harm that it caused.
[11] The Judge imposed a starting point of three and a half years’ imprisonment. In reaching that conclusion he said he could “see why” the Crown said that the appropriate starting point could be as high as four years.5 He noted that he was required to impose the lowest possible starting point.
[12] Given that Mr Siliai had pleaded guilty at an early stage, he was given the maximum reduction for a guilty plea of 25 per cent.
[13] His Honour gave a further discount of a little over 8 per cent for Mr Siliai’s remorse, his previous good character, the absence of relevant previous convictions, and the matters set out in his cultural report. The Judge considered that the reduction for these personal factors was necessarily limited by how Mr Siliai had approached his relationship with the victim.6 It is this finding that is the subject of the ‘disputed fact’ ground of appeal.
[14] His Honour ultimately reduced the starting point by “a third for all factors”, including the early guilty plea. This resulted in an end sentence of two years and four months’ imprisonment.
Legal principles
[15] Mr Siliai has an appeal as of right under s 244 of the Criminal Procedure Act 2011 (CPA).
[16] Section 250 of the CPA sets out how a court is to determine a sentence appeal. An appeal must be allowed if the court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.
4 At [7].
5 At [8].
6 At [11].
[17] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:7
… the standard of appellate review in sentence appeals ... requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.
[18] In Tutakangahau v R, the Court of Appeal said that the concept of "manifestly excessive" continues to apply to appeals against sentence.8 The Court held that the appellate court's focus is on the sentence imposed rather than the process by which it was reached.9 A Judge on appeal should not intervene where the sentence imposed was within the range that could be properly justified by accepted sentencing principles.10
Analysis and decision
[19] There are two critical issues for determination: whether the starting point adopted by the Judge was too high and whether he failed to provide an adequate discount for the multiple mitigating factors. The disputed fact issue regarding Mr Siliai’s relationship with the victim is a matter I address in relation to the issue of the appropriate discount for mitigating factors. I agree with the submission of the Crown that these were untested statements going to Mr Siliai’s character that the Judge was entitled to consider.
Issue (a) – The starting point
[20] There is no guideline judgment for sentencing on the offence of dangerous driving causing death. The Court of Appeal held in Gacitua v R, that sentencing in such cases is highly fact-dependent:11
7 Palmer v R [2016] NZCA 541 at [17].
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
9 At [36].
10 At [36] citing Tutakangahau v R [2014] NZHC 556 at [10].
11 Gacitua v R [2013] NZCA 234 at [22].
Sentencing in cases in which death has been caused by dangerous or reckless driving or driving when under the influence of alcohol or drugs is highly fact specific. This Court has said on numerous occasions that so much depends on the particular circumstances of the offending.
[21] In the same judgment, the Court of Appeal found some assistance in the judgment of the Court of Appeal of England and Wales in R v Cooksley.12 That decision identified 16 aggravating factors and six mitigating factors relevant to sentencing, encompassing a variety of conduct. However, the Court of Appeal noted that it would not necessarily endorse the suggested sentencing bands in Cooksley.13
[22] The sentencing Judge did not expressly refer to these, or any other cases. However, it is apparent that he considered them. The submissions of counsel included the same cases. I have now had reference to these.
[23] Mr Fraser contends that Judge Thomas erred in adopting a starting point which was too high when viewed against comparable cases. He contends that this was caused, at least in part, by the District Court Judge’s view that there was some persistence in Mr Siliai’s offending which distinguished it from other cases referred to. That was because it involved two (brief) instances of driving. Mr Fraser submits that there are no aggravating features in this case.
[24] There is some merit to those submissions. However, I find that the starting point adopted by Judge Thomas, namely three and a half years’ imprisonment, was within the available range for this type of offending. The Judge expressly acknowledged that this was not deliberate offending and that in attempting for the “second time” to try to get rid of the victim from the side of the vehicle, Mr Siliai may not have thought about the consequences. In my view, he was entitled to conclude that a second attempt did add a certain flavour to what was done and the harm that it caused. The Judge was also entitled to conclude that a “massive amount” of harm was done in this case beyond the taking of the victim’s life. The Judge did not explicitly identify the matter as a particular aggravating factor; he properly treated it as relevant to the factual matrix and it was important to acknowledge this.
12 R v Cooksley [2003] EWCA Crim 996; [2003] 3 All ER 40 at [15].
13 Gacitua v R, above n Error! Bookmark not defined., at [29].
[25] Counsel referred to four decisions of this Court in which starting points of between three and four years’ imprisonment were adopted: R v Tanawhea,14 Takimoana v Police,15 R v Stephens16 and R v Tawa.17 Both Tawa and Stephens were manslaughter cases. In each of these four cases, the offender engaged in a brief burst of irresponsible driving while the victim was on the roof or bonnet of the vehicle, or in close proximity to the vehicle, such that the offender should have recognised their driving placed the victim in grave danger.
[26] In Tanawhea, Duffy J adopted a starting point of three years’ imprisonment. Her Honour was influenced by the (male) victim’s aggression towards the (female) offender and the offender’s fears for her safety. Duffy J described the offender as the “vulnerable party” in the circumstances.18
[27] In Takimoana v Police, a starting point of three years and six months’ imprisonment was adopted. In that case the offender drove away after the victim, his partner, had climbed onto the roof of the vehicle to prevent him from leaving. The offender did not realise the victim was still on the roof, or that she had fallen from the car and sustained fatal head injuries. His culpability lay in driving away without checking whether the victim was still on the roof of the car.19
[28] I agree with the submission of Mr Fraser that real care needs to be taken in referring to manslaughter cases. The maximum penalty for conviction of manslaughter is significantly higher than the Land Transport Act charge here. Furthermore, manslaughter requires that the driving must have constituted a “major departure” from the standard of care expected of a reasonable person in that position.20
[29] In both Stephens and Tawa,21 the Court adopted a starting point of four years imprisonment. Both cases are more serious than the present case.
14 R v Tanawhea [2022] NZHC 180.
15 Takimoana v Police [2021] NZHC 1028.
16 R v Stephens [2017] NZHC 727.
17 R v Tawa [2020] NZHC 95.
18 R v Tanawhea, above n 14, at [31].
19 Takimoana v Police, above n 12, at [6] and [36].
20 Crimes Act 1961, s 150A. See R v Tawa, above n 17, at [9]. By contrast, dangerous driving simply requires a departure from the standard expected of a competent and experienced driver: Johnson v Police [2022] NZHC 266 at [14].
21 R v Stephens, above n 16; R v Tawa, above n 17.
[30] Having regard to these four cases, I conclude that the starting point adopted by Judge Thomas was within the available range. There was no error in the starting point of three years six months’ imprisonment that he adopted.
Issue (b) – Discount for mitigating factors
[31] It is not in dispute that Mr Siliai was entitled to a 25 per cent reduction for his early guilty plea. The critical issue to address is whether in concluding that there should overall be a 33.33 per cent reduction for all mitigating factors (8.33 per cent on top of the 25 per cent for a guilty plea), the Judge was in error.
[32] Mr Fraser submits that the total discount of 8.33 per cent for the other mitigating factors (i.e. beyond the guilty plea) was grossly inadequate. He contends that this discount failed to appropriately recognise the multiple mitigating factors accepted by the Judge as being present here. This includes genuine remorse, steps to make amends, the price paid by Mr Siliai from the loss of his partner, his previous good record and factors identified in the s 27 cultural report.
[33] It is regrettable that Judge Thomas did not specify the discount given for each personal mitigating factor that he took into account. That is the preferable approach, as Wylie J observed in Pou v Police.22 That is the approach taken in the relevant authorities, including the leading case of Moses v R.23
[34] At the second step of the sentencing exercise, the court is required to tailor the adjusted starting point to the offender, incorporating his or her personal aggravating and mitigating circumstances. These circumstances are generally considered individually, where the listing of the discounts individually makes it clear to the parties and the appellate court what factors have led to a discount and what allowance has been made for each factor.24 I accept, however, that a failure to do this is not fatal on appeal. It is the end sentence reached which is relevant rather than the process adopted.
22 Pou v Police [2021] NZHC 1068 at [21].
23 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
24 Pou v Police, above n 22, at [21].
[35] I agree with the submission of Mr Fraser that there are multiple and significant mitigating factors in this case. I reject the Crown’s submission that any error in the approach of the learned District Court Judge in terms of discounts is offset by his adoption of a lower starting point. I find that the overall reduction of 33.33 per cent, being 8.33 per cent above the 25 per cent guilty plea discount, was inadequate and led to an end sentence of imprisonment which was manifestly excessive.
[36] This is undoubtedly a very tragic case; Mr Siliai acknowledges as much. His six young children have lost their mother, a loss properly recognised by the Judge as one of immeasurable consequence.
[37] Mr Siliai is 29 years old. He is the father to seven young children, who are also under the age of 10. He is clearly a supportive and active father. Following the incident, the victim’s family have had primary care of the children, but Mr Siliai and his family have had and continue to have regular contact.
[38] Mr Siliai has two previous convictions of a historic nature. They are for minor offending when he was 17 years old. At the time of the incident, he was in full-time employment with Coca Cola at their distribution centre in Mount Wellington. His manager, aware of the current offending, provided a reference letter for sentencing.
[39] There is substantial merit to the submission of Mr Fraser that a compassionate and rehabilitative sentence should be imposed.
[40]I now address each of the mitigating factors.
Remorse and attempts to make amends — ss 9(2)(f) and 19 of the Sentencing Act 2002
[41] I accept that Mr Siliai has been deeply remorseful from the outset. He immediately stopped to render assistance to the victim after she fell under the vehicle. He was forthcoming with the Police about what had taken place, voluntarily giving two recorded interviews. He has accepted full responsibility for the death of the mother of six of his children. Her loss has had a significant impact upon him as well. The cultural report writer noted that at every interview Mr Siliai had been emotional
and expressed sincere remorse. That report also records the deep impact the incident has had on Mr Siliai personally.
[42] At the sentence hearing Mr Siliai provided an apology to the victim’s family. In this, he accepted full responsibility for his actions and the loss they have suffered as a result. He had hoped to convey this directly to the victim’s family through the restorative justice process, but this ultimately did not proceed.25 As the cultural report notes, Mr Siliai’s family had also performed an ifoga for the victim’s family, a traditional Samoan apology offered under extreme circumstances.
[43] In the circumstances, I find that a discount for remorse of 10 per cent is justified. The element of remorse here is significant.26
Previous good character – s 9(2)(g) of the Sentencing Act 2002
[44] The rationale for providing credit for prior character is to recognise that a fall from grace can be punishment in itself, and to recognise the greater potential for rehabilitation.27
[45] In the District Court, Mr Siliai provided two character references. His manager at Coca Cola expressed the view that Mr Siliai was professional, honest, loyal and a good worker. His family friend, who works as a Oranga Tamariki social worker, noted that Mr Siliai is a respectful and hardworking individual who tries his best for his children. I have of course already referred to the two minor previous convictions of Mr Siliai.
[46] I accept that credit for good character is “very much a matter of impression”.28 I find that in this case Mr Siliai should be given a five per cent discount for previous good character. In this case, Mr Siliai has been shunned publicly, ostracised from social groups and had his family’s name tarnished by what has occurred.29 However,
25 It is understood that the victim’s family ultimately decided not to participate.
26 I have had regard to R v Grace [2020] NZHC 3145 at [20] and Salt v R [2022] NZCA 611 at [43] in reaching this conclusion.
27 R v Findlay [2007] NZCA 553 at [91]; Davidson v R [2011] NZCA 356 at [16].
28 Parkin v R [2018] NZCA 404 at [16], citing Manawaiti v R [2013] NZCA 88 at [18].
29 Cultural report at [51].
despite that, he has demonstrated himself to be a dedicated worker and obviously has good prospects of rehabilitation.
[47] In concluding that a five per cent discount should be given, it is relevant to have regard to the nature of Mr Siliai’s relationship with the victim. In principle, Judge Thomas was correct to identify that factor as relevant to any discount assessment. I reject Mr Fraser’s submission that this issue is a disputed fact that required notice to be given under s 24(2) of the Sentencing Act 2002. I agree that these were untested statements going to Mr Siliai’s character, similar to the untested matters in the cultural report and in the references from Mr Siliai’s friend and employer. Sentencing judges must make an assessment of these matters.30
[48] Mr Siliai candidly and responsibly acknowledged issues with his relationship and the cultural report refers to it as toxic. That report also records Mr Siliai’s acknowledgement that his relationship with the victim was “not immune to issues such as alcoholism, aggression and infidelity”. There was information before the Court to support the conclusion Judge Thomas made.
Contributing factors in the s 27 cultural report
[49] Mr Fraser submits that the cultural report identifies factors contributing to the offending in this case. They include Mr Siliai’s inability to resolve the issues of alcohol, infidelity and conflict management in his relationship with the victim, as well as a lack of effective communication skills. It is contended these factors provide context for his decision-making at the time of the offending.
[50] The cultural report notes that within Samoan migrant families, the cultural taboos surrounding relationships, love and sex mean that young people raised in such households are left to learn how to manage relationship issues alone. Their ability to communicate in a healthy and effective manner can be impacted by the need to suppress emotions and experiences.
30 See for example R v Yim [2017] NZHC 702 at [19], where the offender had written a letter of apology but the pre-sentence report writer did not consider he was remorseful at all. Venning J was not satisfied the offender’s remorse was genuine and gave no discount for this factor.
[51] In Berkland v R,31 the Supreme Court noted that s 27 cultural reports fall within the framework of the Sentencing Act 2002 and the requirement for individualised justice. In Su’e v R,32 Hinton J noted that the relevance of s 27 reports are not limited to cases involving systemic cultural deprivation.
[52] I agree with Mr Fraser’s submission that some allowance should be made for cultural factors in this case. Judge Thomas acknowledged that there were factors in the cultural report that may have contributed to the offending, but he questioned how far or to what extent they might have contributed. I generally agree with that assessment. In this case, I find that a discrete allowance of five per cent should be allowed for cultural factors.
Conclusion – totality of mitigating factors
[53] I find that Judge Thomas was in error in his ultimate conclusion of a 33 per cent discount for all mitigating factors. In my view, in addition to the 25 per cent for the guilty plea, there should be discounts of 10 per cent for remorse, five per cent for previous good character and five per cent for cultural factors. That gives a total discount from the starting point of 45 per cent.33
End sentence
[54] It follows from my analysis above that the end sentence of imprisonment of two years and four months was manifestly excessive. In applying a 45 per cent discount to the starting point of three-and-a-half years’ imprisonment, the appropriate end sentence is a term of imprisonment of 23 months (rounded down from 23.1 months).
[55] The end sentence of 23 months’ imprisonment permits a substitution of the sentence of imprisonment with one of home detention.34
31 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
32 Su’e v R [2019] NZHC 2501.
33 In accordance with the approach approved in Moses v R, above n 23, all personal discounts are to be added together and subtracted from the starting point.
34 Sentencing Act 2002, s 15A.
[56] I am satisfied that this is a case where a sentence of home detention will properly satisfy the sentencing principles of deterrence and denunciation, as well as holding Mr Siliai accountable for his offending.35 It will recognise the seriousness of the offending and the extent of Mr Siliai’s culpability. It is also the least restrictive sentence available in the circumstances.36
[57] In R v Tawa, an end sentence of two years imprisonment was commuted to 12 months home detention.37 In Takimoana v Police, an end sentence of one year nine months’ imprisonment was commuted to a sentence of nine months home detention.38
[58] I note that Mr Siliai has already spent three months in custody.39 In fixing the term of home detention, an allowance obviously needs to be made for that factor.
[59] I find in this case that a sentence of home detention of 12 months should be substituted. From that I deduct six months for the three months already served in prison.40 That leaves an end sentence of home detention of six months.
Result
[60] The appeal against sentence is allowed. The sentence of two years four months’ imprisonment is quashed and a sentence of six months home detention is imposed with the following conditions:
(a)On release from prison, to travel directly to New Lynn Community Corrections office and await further instructions;
(b)To reside within the monitoring boundaries of the approved address and not to move address without the prior written approval of a Probation Officer for the duration of the sentence;
35 Section 7.
36 Section 8(g).
37 R v Tawa, above n 17.
38 Takimoana v Police, above n 15.
39 He was sentenced by Judge Thomas to imprisonment on 20 January 2023.
40 See Stainton v R [2023] NZHC 787 at [38]; Philpott v R [2021] NZHC 3219 at [39(c)].
(c)Not to purchase, possess or consume alcohol and/or illicit drugs or possess equipment used for the consumption of illicit drugs for the duration of the sentence of home detention;
(d)To report to a Probation Officer as directed;
(e)To attend and complete such counselling/programmes/treatment to address identified offending behaviour as may be directed by the Probation Officer and to the satisfaction of the Probation Officer and programme provider;
(f)To comply with such further special conditions as set out in the Department of Corrections memorandum of 12 April 2023 at [10].
[61] The order disqualifying Mr Siliai from driving for a period of 12 months stands.
Andrew J
0
21
1