Sio v R - [2022] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA500/2021
[2022] NZCA 337

BETWEEN	WILLIAM JAMES SIO Appellant
AND	THE QUEEN Respondent

Hearing:	9 June 2022
Court:	Courtney, Thomas and Woolford JJ
Counsel:	FCK Wood for Appellant A J Gordon for Respondent
Judgment:	27 July 2022 at 9.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

William Sio pleaded guilty to the murder and ill-treatment of his five-year-old son. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.[1] Mr Sio appeals the sentence on the grounds that the MPI is manifestly unjust.[2]
[1]R vSio [2021] NZHC 1709.
[2]The notice of appeal was filed four days out of time. An extension of time was granted by Collins J in Sio v R CA500/2021, 4 October 2021.
This appeal involves the application of s 104 of the Sentencing Act 2002. This section requires a court sentencing an offender to life imprisonment for murder to impose an MPI of at least 17 years in specified circumstances, except if the court is satisfied it would be manifestly unjust to do so. Those circumstances are:[3]
[3]Sentencing Act 2002, s 104(1).
(a) if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or
(b)if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or
(c)if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or
(d)if the murder was committed in the course of another serious offence; or
(e)if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
(ea)if the murder was committed as part of a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002); or
(f)if the deceased was a constable or a prison officer acting in the course of his or her duty; or
(g)if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or
(h)if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or
(i)in any other exceptional circumstances.

Facts of the offending[4]

[4]As recorded in the Judge’s sentencing remarks taken from the summary of facts which Mr Sio pleaded guilty to.

The deceased, Mr Sio’s son, was born in 2014. Mr Sio and the deceased’s mother separated prior to the deceased’s turning one. He was initially cared for by his mother. In 2017, Mr Sio took full custody of him. The deceased was described as a polite, friendly child who had a great nature.
Mr Sio and his de facto partner began their relationship…

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 Sio v R

Details

AGLC: Sio v R [2022] NZCA 337
Case: [2022] NZCA 337
Decision Date: 27 July 2022 at 9.30 am

CaseChat Overview and Summary

William James Sio pleaded guilty to the murder and ill-treatment of his five-year-old son and was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years. Sio appeals the sentence on the grounds that the MPI is manifestly unjust. The appeal involves the application of section 104 of the Sentencing Act 2002, which requires a court to impose an MPI of at least 17 years in specified circumstances, except if the court is satisfied it would be manifestly unjust to do so. The Court of Appeal considers the appeal on three grounds: whether the Judge erred in concluding that an MPI sentence of 17 years would not be manifestly unjust; whether the gap between a 17-year MPI and the otherwise appropriate MPI of 15 years and three months was not significant enough to justify a departure from the presumptive 17-year MPI; and whether the Judge placed too much reliance on the decision of Clarke v R. The Court of Appeal finds no error in the Judge's conclusion that an MPI of 17 years was not manifestly unjust and dismisses the appeal against sentence.

Orders