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Siliai v The King

Siliai v The King

Case [2023] NZHC 868 21 April 2023

Appeal

Sentencing

Remorse

Previous Good Character

Cultural Factors

Specific Performance

Criminal Law

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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…

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 Siliai v The King

Details

AGLC: Siliai v The King [2023] NZHC 868
Case: [2023] NZHC 868
Decision Date: 21 April 2023

CaseChat Overview and Summary

The appeal in Siliai v The King concerns a challenge by Mr Siliai against his sentence for dangerous driving causing death. The case was heard in the Auckland Registry of the High Court of New Zealand by Justice Andrew, who was tasked with determining whether the sentence imposed by the Auckland District Court was manifestly excessive. Mr Siliai had pleaded guilty to one charge of dangerous driving causing death, resulting in the tragic death of his partner who was the mother of six of his seven children. The District Court Judge, Judge Thomas, sentenced Mr Siliai to two years and four months’ imprisonment and disqualified him from driving for 12 months. The appeal grounds argued that the starting point for the sentence was too high, that disputed facts were considered which were neither accepted by Mr Siliai nor proved by the Crown, and that the global discount failed to adequately recognise the mitigating factors.

Justice Andrew examined the starting point of the sentence, noting that there is no guideline judgment for sentencing on the offence of dangerous driving causing death. The Court of Appeal in Gacitua v R held that sentencing in such cases is highly fact-dependent. Justice Andrew found that the starting point of three and a half years’ imprisonment was within the available range for this type of offending, as the Judge had properly considered the specific circumstances, including the persistence in Mr Siliai’s offending.

Regarding the discount for mitigating factors, Justice Andrew found that the total discount of 33.33 per cent, which included a 25 per cent reduction for the guilty plea, was inadequate. He identified that a more appropriate discount should have been 45 per cent, considering factors such as genuine remorse, previous good character, and cultural factors. This resulted in a more appropriate end sentence of 23 months’ imprisonment, which could be substituted with a sentence of home detention. After deducting the three months already served in custody, Justice Andrew imposed a sentence of six months home detention with specific conditions.

In conclusion, Justice Andrew allowed the appeal against sentence, quashing the original sentence of imprisonment and imposing a sentence of six months home detention. The disqualification from driving for 12 months was upheld.

Orders