Sio v R [2022] NZCA 337 (27 July 2022)

Last Updated: 2 August 2022

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)

• [1] 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]
• [2] 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]

(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]

• [3] 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.
• [4] Mr Sio and his de facto partner began their relationship in 2017. It was volatile. The pair argued often. On occasions there was physical violence between them, becoming more frequent and more serious, with the couple often separating for short periods. Both were responsible for the violence.
• [5] From approximately the beginning of September 2018, Mr Sio lived with his partner and the deceased at various locations in the Waikato and Bay of Plenty area. The deceased attended Kōhanga Reo in Tauranga. His teachers observed bruising and pinch type marks to his ears, arms, back and shoulders. A Kōhanga teacher raised concerns with Mr Sio several times. Following these conversations, the teacher observed that the marks would disappear for a time but would subsequently reappear.
• [6] Mr Sio had unrealistic expectations as to how his son should behave. When behaviour fell short of those expectations, Mr Sio would physically assault his son, often for minor things, such as failing to eat all his dinner or to sit still. The assaults included being hit across the head, ears or mouth, kicked on the bottom or dragged out of the room by his arm. Mr Sio would shut his son in his bedroom, sometimes all day. He sometimes punished his son by putting him in the corner of the room, facing the wall, with his hands in the air for up to 30 minutes at a time. At other times, his son would have to sit in the corner of the room and not move for hours. If his son moved or complained, he would be physically assaulted and forced to remain there for an additional period.
• [7] On occasions, Mr Sio would take his son with him to work, and his son would sit in the car. Mr Sio often left his son with friends, sometimes for days at a time. They would not know where he had gone, what he was doing or when he would be coming back.
• [8] Mr Sio did not enrol his son into school when he turned five years old, so friends did so. Mr Sio neither took his son to school nor provided him with items he needed to engage in his schooling.
• [9] In January 2020, Mr Sio was staying with some friends in Rotorua. He was playing on a PlayStation console. The deceased asked Mr Sio when they would be leaving and said that he was cold. Mr Sio punched his son in the chest and stomach area, sending him flying backwards into a hallway.
• [10] The following day, Mr Sio arranged emergency housing in Rotorua for himself and his son. His partner mostly resided there too. The address had five separate bedrooms with communal facilities. The room rented by Mr Sio was small and cramped. Mr Sio and his partner typically kept their room door and curtains closed. The deceased rarely left the bedroom even though it was extremely hot at that time. He did not return to school. The other residents hardly saw the deceased. The residents did hear daily fighting and constant arguing between Mr Sio and his partner. They also heard yelling at the deceased, the deceased screaming in a frantic and distressed manner, and what sounded like the deceased being assaulted and crying. On one occasion they overheard Mr Sio and his partner both yelling at the deceased, “[s]hut up, what are you crying for? Want me to give you something to cry about?”
• [11] On the morning of 5 or 6 February 2020, the deceased was observed walking back to the room from the toilet. The deceased was hobbling, appearing to be favouring his left leg, and was walking on the toes of his left foot. Mr Sio was pushing him along from behind.
• [12] On 8 February 2020, Mr Sio was growing increasingly frustrated by his son’s behaviour. At around 7.00 am, Mr Sio’s son needed to go to the toilet and Mr Sio took him. He was limping and Mr Sio kept telling him to “move”. Once back in their room, Mr Sio made his son stand facing the wall of the bedroom with his hands held straight out in front of him. If he fell towards the wall from exhaustion, placing his hand on the wall, Mr Sio would hit or kick him. Mr Sio made his son stand in this position for a total of up to seven hours throughout the day and evening.
• [13] Between 10.00 and 11.00 am, Mr Sio and the deceased again walked to the bathroom. Mr Sio pushed him along while keeping his head down. By this time, the deceased had large dark bruising covering the left side of his face and bruises on his chin along his jawline. Mr Sio made his son have a shower, which caused the deceased to cry out in pain and distress. The crying became muffled as though something was placed over his mouth. The shower was cleaned including wiping blood from the wall. A subsequent examination of the shower showed signs of blood.
• [14] During the afternoon, Mr Sio kicked the deceased violently multiple times while the deceased could no longer stand up during “time out”. One kick was of such force that the deceased became short of breath and could no longer talk. His breathing became shallow. Mr Sio told police he attempted to perform CPR and the deceased began to breathe again. Mr Sio said he was tired and put his son to bed. He then fell asleep next to his partner. A few hours later, Mr Sio woke up to find his son was cold and did not appear to be breathing. He tried to perform CPR and locate a defibrillator.
• [15] Mr Sio and his partner took the deceased to Rotorua Hospital. Mr Sio told staff he thought his son was already deceased. Attempts to resuscitate him failed and he was pronounced dead. He had multiple bruises and scratches, and blood was visible around his mouth. Mr Sio told staff the deceased had bruises resulting from tripping over and said he “bites his own tongue”, making it bleed.
• [16] A post-mortem concluded the deceased died of multiple blunt force traumas from a sustained and severe beating.
• [17] Mr Sio told police he had slapped his son on his backside and hands, and explained he disciplined his son by making him stand facing the wall with his arms outstretched for long periods. He also said, “I did what happened to him. I did all of it. I know I shouldna done it, know it’s wrong. I can't control myself when I get to that bit”.

Sentence indication

• [18] Mr Sio sought a sentence indication in respect of one charge of murder,^[5] three charges of ill treatment of a child,^[6] and one charge of assault on a child.^[7]
• [19] It was not contended on behalf of Mr Sio that a sentence of imprisonment for life would be manifestly unjust.^[8] Given his son’s age, Mr Sio agreed that s 104 of the Sentencing Act applied, meaning the Court was required to impose an MPI of at least 17 years unless satisfied it would be manifestly unjust to do so.
• [20] Gault J approached the task in accordance with accepted methodology.^[9] He concluded that the aggravating features of the offending and absence of any mitigating factor resulted in a starting point of around 18 to 18 and a half years’ imprisonment.
• [21] The Judge then considered whether the imposition of at least a 17-year MPI would be manifestly unjust. Mr Wood, for Mr Sio, had submitted that the content of Mr Sio’s psychological report, a pre-sentence report and a forthcoming report, produced for the purposes of s 27 of the Sentencing Act (cultural report), would be sufficient to justify the imposition of an MPI of less than 17 years, in combination with a guilty plea. He submitted an appropriate end sentence would see an MPI in the realm of 15 years. All the Judge could do, given the absence of various reports at the sentencing indication stage, was concede that it was possible that further discounts for personal circumstances might be available.
• [22] The Judge gave a sentence indication of 18 to 18 and a half years’ imprisonment. He confirmed that s 104 was engaged and that discounts may be available, making it possible that imposing an MPI of 17 years would be manifestly unjust.
• [23] Mr Sio accepted the sentence indication and pleaded guilty.

Sentencing

• [24] At sentencing, the main issue for Gault J to determine was the MPI period. He first considered what MPI he would have imposed were it not for the 17-year benchmark contained in s 104, before comparing that with the 17-year statutory MPI and considering whether the latter would be manifestly unjust.
• [25] The Judge considered the aggravating features of the offending were: the deceased’s vulnerability as a five year old child reliant on Mr Sio’s care; the gross breach of trust, given the deceased was Mr Sio’s son and in his primary care; the deceased’s defencelessness; the duration of the abuse over some 16 and a half months; the level of violence, brutality, cruelty and callousness in the final period, including throughout 8 February 2020; the deceased’s extensive injuries; Mr Sio’s initial failure to seek medical assistance and concealment; and the impact of the deceased’s death on his other family members.
• [26] The Judge concluded the appropriate starting point was 18 years and three months’ imprisonment. Given Mr Sio’s limited criminal history, no uplift to the starting point was warranted.
• [27] The Judge then turned to consider the various mitigating features.
• [28] Mr Wood, for Mr Sio, had acknowledged that a guilty plea alone was not sufficient to make the imposition of the 17-year MPI manifestly unjust but submitted it was a factor to be taken into account.^[10] The Judge accepted that the delay in the guilty plea was caused, at least in part, by Mr Sio’s changing counsel and the delay in instructing a consultant psychiatrist. The Judge considered a discount of at least 18 months and up to two years was appropriate.
• [29] The Judge then addressed the content of a report on Mr Sio from a consultant psychiatrist, Dr Shailesh Kumar, as well as a cultural report. He described the reports as detailed and helpful. We reflect the Judge’s summary of the reports in the following paragraphs.

The reports

• [30] Mr Sio is of Samoan and Pākehā heritage but does not feel any connection to his Samoan family and culture. He was close to his mother but does not remember his father. Mr Sio was told his father was violent towards him and his mother when he was young and was told they moved away because Mr Sio’s father threw him against the ground when he was a baby. Mr Sio’s father died when he was a teenager.
• [31] Mr Sio and his half-sister were raised by their mother and a series of her partners. While he has four more half siblings, he has had minimal contact with them. Mr Sio reported being verbally abused by some of his mother’s partners and says he was regularly kicked in the buttocks by an uncle as a form of punishment, saying physical punishment was normalised. The pre-sentence report, however, did not indicate any physical abuse.
• [32] Mr Sio reported suffering socio-economic deprivation and instability during his childhood. His mother was in receipt of a solo parent benefit and struggled, moving the family regularly, at times staying with friends, in a caravan and in Housing New Zealand properties. When Mr Sio was about 12 years old, they moved into stable rental accommodation. Mr Sio attended several primary schools and was stood down or expelled from most for misbehaviour. In year 10, he left school and started work as a bricklayer. Mr Sio described growing up around gangs and being affiliated with one but not formally joining any.
• [33] Mr Sio began smoking cannabis at about 13 or 14 and soon became addicted, stealing to pay for drugs. He started using methamphetamine at around age 15. He smoked cannabis daily and used about a point a day of methamphetamine when he had access to it.
• [34] Mr Sio described feeling able to care for his son when he took full custody of him in 2017 because his mother was alive and able to support him. Mr Sio’s mother died about four years prior to sentencing. This was traumatic for Mr Sio, who began drinking heavily and attempted suicide. He was evicted from his mother’s house and a number of properties. He had a falling out with his half-sister. He felt ill-equipped to raise a child.
• [35] Mr Sio acknowledged he had a problem controlling his anger, saying he held it in, and it then exploded. Dr Kumar said Mr Sio presented with a tragic but complex background to which his experience of childhood adversity, conduct disorder, extensive alcohol and drug use, lack of pro-social role modelling and opportunity to learn positive parenting skills had contributed. Dr Kumar considered that Mr Sio met the criteria of anti-social personality disorder and cannabis and methamphetamine use disorder. Those diagnoses are not considered mental illnesses.
• [36] In Dr Kumar’s opinion, intoxication and withdrawal from psychoactive drugs would have contributed to Mr Sio’s lowered tolerance and violent outbursts directed against his son. Dr Kumar considered that Mr Sio’s history of conduct disorder, poor coping, anger outbursts and antisocial personality structure would have predisposed Mr Sio to being violent as an adult. Those factors had a profound effect on his personality and capacity to function as a father. Mr Sio’s escalating drug use, ongoing stresses and poor coping skills would have precipitated the extensive and repeated assaults on the deceased. Mr Sio’s ability to control his emotions and capacity to deal with stress would have been impaired because of the cumulative effects of stress and the effect of drugs. In Dr Kumar’s opinion, Mr Sio’s ability to understand the nature and quality of his actions was at least partially impaired because of anger, frustration and the effects of drugs.
• [37] By the time of sentencing, Mr Sio was 25 years old. He had been remanded in custody and had stopped using drugs and had begun exercising and eating better. Mr Sio completed six courses in prison, focusing on self-control, managing anger and building relationships. He described himself as eager to engage in further courses, particularly in relation to anger-management and drug addiction, saying his goal was to try and better himself and turn his life around. The Judge acknowledged those efforts and commended Mr Sio for them.

Judge’s assessment

• [38] The Judge noted that Mr Sio’s lack of family support meant that his background circumstances were largely self-reported. The Judge did, however, accept Mr Sio had suffered socio-economic and cultural deprivation, and instability. He concluded there was insufficient causal connection between Mr Sio’s self-reported physical abuse when he was a child and the level of violence he perpetrated against his son. The Judge accepted Dr Kumar’s diagnosis of anti-social personality disorder and cannabis and methamphetamine use disorder but noted that the Court must not take into account by way of mitigation the fact that, at the time of the offending, an offender was affected by the voluntary use of alcohol or drugs.^[11]
• [39] The Judge acknowledged that circumstances personal to an offender’s background may still bear on the setting of an appropriate sentence and that their potential mitigating effect is not limited to particular types of offending. He said that discretion was more constrained given the legislative policy mandating the statutory MPI.
• [40] The Judge concluded an additional discount of up to one year was appropriate.
• [41] The Judge noted that the psychiatric and pre-sentence reports indicated a lack of insight into the offending or genuine remorse. The pre-sentence report writer had recorded that Mr Sio verbalised feelings of remorse but also noted there were instances when Mr Sio blamed his son and attempted to justify his use of violence. The pre‑sentence report writer concluded there was some insight into the offending. The Judge acknowledged Mr Sio’s letter to the Court, apologising, expressing regret and shame, and taking full responsibility for his actions.
• [42] From the starting point of 18 years and three months’ imprisonment, the Judge deducted up to a maximum of two years for the guilty plea and one year for personal circumstances. He concluded, but for s 104, the MPI would be at least 15 years and three months imprisonment.
• [43] The Judge then turned to consider the effect of s 104 and whether a 17-year MPI would be manifestly unjust.
• [44] The Judge referred to this Court’s previous observations that the statutory minimum of 17 years would not be departed from lightly and that an offender’s personal circumstances would justify departure from the legislative policy only in exceptional cases.^[12] He referred to the then-recent decision of this Court upholding a 17-year MPI in circumstances where at least 15 years would have been imposed under normal sentencing principles, that being the case of Clarke v R.^[13] He then said:

[46] ... I do not consider that a sentence of at least 15 years and three months’ imprisonment, which would be imposed under normal sentencing principles in this case, is so markedly different from the 17 year statutory MPI that it would be manifestly unjust to impose the statutory MPI. Nor do the circumstances warranting some personal discount otherwise make this a sufficiently exceptional case to result in the statutory MPI being manifestly unjust.

• [45] Mr Sio was sentenced to life imprisonment with an MPI of 17 years on the charge of murder, four years’ imprisonment to be served concurrently on the charges of ill-treatment of a child and one year to be served concurrently on the charge of assault on a child.

The appeal

• [46] Mr Sio appeals the MPI of 17 years on the grounds that the Judge erred in three ways:

(a) he did not give due consideration or reasons as to why an MPI sentence of 17 years would not be manifestly unjust when, but for s 104, the MPI would have been 15 years and three months’ imprisonment;

(b) he erroneously concluded that that 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

(c) he placed too much reliance on the decision of Clarke v R.

• [47] Mr Wood did not take any issue with the Judge’s approach to sentencing which followed the requisite three-step process:

(a) what notional MPI would apply under s 103 of the Sentencing Act;

(b) whether a s 104 category applies;

(c) if the notional MPI would be less than 17 years, the Judge must address manifest injustice.^[14]

• [48] Although the appeal has been advanced on three grounds as set out above, the real issue was whether the Judge erred in his conclusion that an MPI of 17 years would not be manifestly unjust. In oral submissions, Mr Wood argued that the Judge had erred in his approach in principle when addressing the first step of the analysis and this had then impacted his consideration of manifest injustice. We propose to approach the appeal by addressing the three-step process, including reference to Mr Wood’s arguments.

What notional MPI would apply under s 103?

• [49] If a court sentences an offender convicted of murder to imprisonment for life, it must order that the offender serve an MPI and:^[15]

(2) The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

• [50] In Mr Wood’s submission, the Judge took the wrong approach when addressing the notional MPI under s 103. Mr Wood referred to the Judge’s comment that the Court’s discretion to reduce an appropriate sentence on account of personal mitigating factors is more constrained when sentencing for murder because of the need to give effect to s 104.
• [51] The Judge said:^[16]

[42] ... However, where a defendant is being sentenced for murder, particularly one with the aggravating features of this offending, the discretion available to the Court to reduce an otherwise appropriate sentence on account of such considerations will be more constrained. This is because the MPI must accurately reflect the seriousness of the offending and the need to give effect to the legislative policy mandated by the statutory MPI that is to be imposed for such murders. An offender’s background of deprivation may carry less weight in the context of such a sentencing exercise.

• [52] We accept that the first step of the analysis should not be constrained by s 104 considerations to the extent that the need to give effect to the legislative policy mandated by the statutory MPI is a matter to be considered when undertaking the manifest injustice analysis. But the Judge was obviously correct in saying that the MPI must accurately reflect the seriousness of the offending. The relevance of s 104 at this stage is in its identification of the most egregious of aggravating factors.
• [53] Mr Wood said there was no real challenge to the starting point, although contended it was too high. We disagree. The Judge correctly analysed the aggravating factors, as detailed at [25] above. Two of those factors feature in s 104 – the vulnerability of the deceased and the level of cruelty and callousness involved in the murder.

Personal mitigating factors

• [54] Mr Wood took issue with the Judge’s treatment of mitigating factors. In his submission, the 12-month discount was insufficient. He pointed out that the Judge accepted Mr Sio had been raised in an environment where physical violence was normalised and he had suffered socio-economic deprivation. But, said Mr Wood, the Judge then failed to recognise the extent of the causal link between Mr Sio’s background and the offending.
• [55] In Carr v R, this Court noted that:^[17]

[60] ... where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender's upbringing such matters ought to be taken into account in sentencing. ...

• [56] This Court said that where there is “a credible account of matters which might be considered to have impaired choice and diminished moral culpability” which establishes a causative contribution to offending, of the kind envisaged in Zhang v R,^[18] “it must have an effect on the sentencing outcome.”^[19] While the gravity of the offending “might temper the extent of any discount” awarded to recognise systemic deprivation, that is a “different proposition from saying there should be no allowance”.^[20]
• [57] We are not satisfied that the background circumstances canvassed in the psychiatric and cultural reports amounts to a credible account of matters which might be considered to have impaired Mr Sio’s choice and diminished his moral culpability so as to establish a causative contribution to the offending. We agree with the Judge’s analysis and his conclusion that there was an insufficient causal connection between Mr Sio’s background and the level of violence against his son.
• [58] Mr Sio’s background circumstances rely on his own descriptions. As the Judge acknowledged, his lack of family meant they could not be corroborated. However, even on Mr Sio’s own description it is clear that, although there were some challenges, his upbringing did not involve the level of socio-economic deprivation and violence which sadly is all too frequently seen in the courts.
• [59] To the pre-sentence report writer, Mr Sio described living in different “housing corp” properties but did not describe this as disruptive, saying his mother “did the best she could on her own”. He recalls his mother being a hard worker and said she was sufficiently financially stable and that he did not want for anything. It is clear that Mr Sio had a close relationship with his mother, who worked hard to do the best for her children.
• [60] Mr Sio had reported being told that he suffered a head injury when his father threw him on the ground as a baby. As the pre-sentence report writer pointed out, however, Mr Sio’s treatment of his son involved a prolonged and sustained period of violence and neglect. It was not a case of Mr Sio’s son dying as a result of Mr Sio being violent in a fit of rage.
• [61] We treat with some caution some of the comments in the psychiatric and s 27 cultural reports. The psychiatrist recorded the following:

Reflecting on his background and the alleged index offending, Mr Sio said he did not know how to look after a child, he had never been brought up around children and had never looked after a child before. His sister had helped him initially when he was “figuring out things”. He knew that “a kick could hurt” a child from his own experiences; he would “get heaps of kicks up the arse when I was a kid” from his uncle for being naughty and not listening to his mother. Physical punishment in the form of being kicked was therefore an acceptable way of disciplining a child to Mr Sio, which he had applied on his own son often. On the day of the index alleged offending he said he was labouring under the combined effects of cumulative stress and intoxication when he snapped and did not appreciate the impact his assaults would have on his son.

• [62] These remarks were in the context of Mr Sio’s somewhat self-justifying description of events prior to his son’s death. He minimised what had in fact occurred in saying he had tried to discipline his son by making him stand in the corner with his arms raised for five minutes and, when his son did not settle, he “kicked him in the bum” a couple of times, which resulted in him “being traumad (sic)” and subsequently dying. Mr Sio maintained he did not kick his son that hard. That description is significantly at odds with the summary of facts to which Mr Sio pleaded guilty. The precis of the post-mortem report included in the summary of facts described Mr Sio’s son as dying from multiple blunt force traumas from a sustained and severe beating. The pathologist’s opinion, contained in the Crown summary of facts, was that the beating:

... resulted in extensive soft tissue injuries (abrasions and bruises) to the head, limbs and torso. Included in this was a deep injury to the muscle of the right buttock and back of the thigh [where] the muscle has been torn. The soft tissue injuries caused extensive bleeding into the soft tissues. This bleeding was so significant the pathologist described it as a form of “internal bleeding”, and that the cumulative effect of that would have been similar to “bleeding out” and at least would have contributed to his death and can alone cause death. This injury was so great that the deceased would have been in significant pain and would have had trouble walking on his injured right side.

In terms of the injuries to the deceased’s head the pathologist noted that there had been multiple blunt force impacts to the head, one of which caused an acute subdural haematoma.

Injuries also included:

• Multiple scalp and facial bruises;
• Multiple facial and neck abrasions;
• An old, healed laceration to the frenulum;
• A punctured lung;
• Severe bruising to his right thigh and buttock area, where the muscles had sustained substantial internal bleeding and come away from the bone;
• Multiple bruises and abrasions to his chest, upper and lower limbs.

Some of the injuries were consistent with older injuries and could have occurred days prior to his death.

• [63] The fact Mr Sio may have been kicked in the buttocks as a child does not bear any correlation to his behaviour towards his son. The level of violence was at an entirely different and fatal level. We also do not accept that it can be properly categorised as excessive discipline. It was gratuitous violence. Not only do the deceased’s injuries demonstrate that, but so too do the other charges of ill-treatment of a child and assault of a child. The charge of assault on a child involved Mr Sio punching his son hard to the chest and stomach area, sending him flying backwards and out into the hallway.
• [64] Similarly, the cultural report, while offering some valuable insight into Mr Sio’s background, perhaps painted a more extreme picture of Mr Sio’s background than even his own reports can justify. For example, it summarised Mr Sio’s reports by recording he experienced “a high level of economic deprivation during his childhood”. As already discussed, that overstates the position by quite some margin. And, like the psychiatrist from whose report the cultural report writer quoted, the cultural report writer assessed the level of violence in the household as more extreme than Mr Sio’s own reports would suggest.
• [65] The sad reality is that Mr Sio was totally ill‑equipped to have sole custody of his son. Although he had a partner, who was also charged in connection with the death of Mr Sio’s son, they were engaged in a physically violent relationship. She was also violent to the deceased and did not protect him from Mr Sio’s assaults. Friends and associates of Mr Sio were obviously concerned about Mr Sio’s treatment of his son. Unfortunately, it does not appear that anyone reported their concerns to the authorities.
• [66] We therefore agree with the Judge that there was insufficient causal connection between Mr Sio’s somewhat challenged background and the offending. In the circumstances, a discount of one year to reflect his personal circumstances was sufficient. That appropriately recognised the matters referred to in the psychiatric, s 27 and pre-sentence reports, while moderating some of the conclusions to accord with the evidence.

Guilty plea

• [67] Mr Wood did not criticise the discount of two years (approximately 11 per cent) in respect of Mr Sio’s guilty plea, saying it was justified in the circumstances, even though the plea was entered around one month prior to trial. Ms Gordon for the Crown suggested that the two-year discount was “decidedly generous” in circumstances where the plea was entered so close to trial and where, in his interview with the police, Mr Sio had accepted seriously assaulting a child in his care.
• [68] In summary, we take no issue with the Judge’s conclusion that the notional MPI, absent s 104 considerations, would be 15 years and three months’ imprisonment.
• [69] The real issue about the guilty plea discount, and indeed that in respect of personal circumstances, was whether, in combination, they meant an MPI of 17 years was manifestly unjust.

Does a s 104 category apply?

• [70] There was, as we have already noted, no dispute that s 104 was engaged by reason of the vulnerability of Mr Sio’s five-year-old son.
• [71] We consider that s 104(1)(e) was also engaged, that is the murder was committed with a high level of cruelty and callousness, if not brutality. The Judge had found it unnecessary to decide whether s 104(1)(e) also applied, given Mr Sio accepted s 104(1)(g) was engaged, but he noted the similar aggravating features which he had assessed as present when setting the starting point. He referred to the extent or level of the violence, brutality, cruelty and callousness in the months preceding the death of Mr Sio’s son, the excessive injuries caused and failure to seek medical assistance. That said, he agreed that the earlier abuse was not at the level of violence akin to that in the final period. But when assessing offending in light of s 104, it is the circumstances of the murder that are the relevant considerations. We have already detailed the post‑mortem findings. We do not consider there can be any real dispute — the level of brutality, cruelty and callousness which Mr Sio displayed towards his five‑year-old son on the final day of his life clearly falls within the level of conduct contemplated by s 104(1)(e).
• [72] While the Judge did not consider it necessary to engage with s 104(1)(e), it is relevant to an assessment of whether the MPI of 17 years is manifestly unjust.

Is the MPI of 17 years manifestly unjust?

• [73] In Mr Wood’s submission, the combination of Mr Sio’s guilty plea and personal circumstances means an MPI less than 17 years was appropriate. Mr Wood acknowledged that the legislative policy of s 104 had to be considered but, in his submission, public policy considerations were also imperatives to be taken into account at this stage of the MPI assessment. He referred to the public benefit of guilty pleas and said Mr Sio could have taken the case to trial on the basis that manslaughter would have been the appropriate verdict. He suggested that Mr Sio will lose any benefit of having pleaded guilty if the MPI is 17 years.
• [74] Ms Gordon responded by pointing out that Mr Sio has received a credit for his guilty plea because the starting point was a sentence of 18 years and three month’s imprisonment. Absent the guilty plea, the MPI would have been greater than 17 years. We agree with the general premise of her submissions, although must concede that, with the one-year discount for personal mitigating circumstances, Mr Sio would have received an MPI of around 17 years in any event.
• [75] The short point, however, is that Mr Sio did receive a credit for his guilty plea and that, having done so, was able to argue that a 17-year MPI was manifestly unjust. In addition, Mr Sio’s guilty plea has longer term benefits when his parole falls to be considered and when his attendance at various rehabilitative programmes undertaken in preparation for a parole application is considered.
• [76] Although there was some criticism of the relatively brief way in which the Judge addressed this question of manifest injustice in his sentencing decision, he appended the sentencing indication to his sentencing notes. That addressed his approach to the question in a little more detail.
• [77] In his sentence indication, the Judge referred to several cases where the presumptive MPI of 17 years for the murder of a young child had been found manifestly unjust, notwithstanding the operation of s 104(1)(g). The Judge discussed those contexts, noting that it was the particular circumstances involved which meant an MPI of 17 years was not imposed. He recognised he was unable to take the matter any further at the stage of the sentence indication because he did not have sufficient information about Mr Sio’s personal circumstances. This information was available to him at sentencing and was thoroughly considered by him. That resulted in his conclusion that, in the case of Mr Sio, the circumstances relevant to analysing whether a personal circumstances discount might be justified were not so exceptional as to warrant a departure from the statutory MPI.
• [78] The Judge had reminded himself of the approach to the question of manifest injustice as set out by this Court in R v Williams.^[21] The Judge must decide as a matter of overall impression whether the case before them falls outside the scope of the legislative policy. The conclusion it falls outside the scope can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder.
• [79] Importantly, in Williams, this Court said that an offender’s personal circumstances will justify departure from the legislative policy only in exceptional cases. This approach is demonstrated by the case of Williams itself. In Williams, a Solicitor-General’s appeal against an MPI of 15 years’ imprisonment imposed on Mr Williams was allowed and an MPI of 17 years substituted. The Solicitor-General’s appeal against the MPI of 15 years’ imprisonment imposed on Adrian Olson was dismissed. This Court engaged in an extensive discussion on the meaning of “manifestly unjust” in the context of the s 104 statutory presumption. It recognised that the discretion of the sentencing judge had been retained by Parliament to ensure that the section did not cause manifest injustice.^[22] This Court said:

[66] However, the specified minimum period may not be departed from lightly, as the Court is bound to give effect to the legislative policy of ensuring a 17 year minimum for the most serious murder cases. The reasons must withstand scrutiny. Marginal differences in personal circumstances or degrees of participation by co-offenders would not normally qualify. In Parrish at [21] this Court indicated that the presence of mitigating factors under s 9(2) which related to the personal circumstances of an offender would rarely displace the presumption. Powerful mitigating circumstances bearing on the offence are more likely to do so.

[67] We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.

[68] Beyond that, what level of disparity amounts to manifest injustice remains a matter of sound sentencing judgement that is not capable of precise determination. It may be helpful, however, to indicate that when the qualifying factor has only peripheral significance in the case the statutory minimum term may be manifestly unjust. Otherwise, where the culpability attaching to the offence is relatively low having regard to the range of cases caught by s 104, the circumstances of the offender may make the sentence manifestly unjust.

• [80] Mr Williams had caused the death of his step-daughter, then aged six years. The Court referred to the victim’s vulnerability and the brutality of the attack which caused her death. The Court had regard to the legislative policy that murders having such features must in general be met with an MPI of at least 17 years and was satisfied that, in the circumstances, a substantially higher sentence might have been justified.^[23] The Court gave some weight to personal mitigating factors, including Mr Williams’ profound remorse and the fact he had pleaded guilty. The latter in particular, in the circumstances of that case, was seen to justify a reduction to at least 17 years. The Court concluded, however, that, having regard to the serious nature of the offending as reinforced by s 104 and the significant discount that would be reflected in a 17-year minimum term, a 17-year MPI would not be manifestly unjust. As a matter of overall impression, the Court concluded that the degree of Mr Williams’ culpability was such that an MPI of at least 17 years was required to denounce the seriousness of his offending.
• [81] Mr Olson was in a different category. There were significant aggravating factors of his offending which involved a prolonged assault on the deceased in that case with a blunt weapon or weapons, and the deceased was in a vulnerable position as a friend of Mr Olson who had allowed him rent free accommodation. Mr Olson had unexpectedly attacked him and the victim was unable to defend himself against the sudden onslaught.^[24] The sentencing Judge saw this as engaging s 104 because of the vulnerability of the victim. The Judge also considered there to be a high level of brutality and callousness involved. This Court agreed that the case fell within s 104(e) but considered the brutality and callousness was at the lower end of the band of culpability and disagreed that the victim was particularly vulnerable in the way required by s 104(g). The Court decided that the aggravating features were not such as to require a term of much more than 17 years before considering mitigating factors, saying the case fell within s 104 “by a narrow margin”.^[25]
• [82] The combination of an early guilty plea, which involved full cooperation with the police, and the impact of a very lengthy MPI on a 62-year-old in combination meant that, but for s 104, the appropriate MPI would have been “significantly less” than 17 years, around 15 years. This Court said:

[93] ... Even having regard to the policy of s 104, the lesser culpability of the appellant coupled with his age and guilty plea clearly bring the sentence below 17 years and as a matter of overall impression it would be manifestly unjust to sentence Mr Olson to a minimum term of more than 15 years imprisonment. ...

• [83] We see Mr Sio’s position as markedly different. Mr Sio’s culpability clearly and easily engaged two limbs of s 104. Those factors cannot be described as being of peripheral significance only. He was entitled to a discount for personal circumstances and his guilty plea but, having regard to the policy of s 104 and his culpability, and as a matter of overall impression, an MPI of 17 years was not manifestly unjust in the circumstances.
• [84] Mr Wood was also critical of the Judge’s reliance on Clarke v R, where this Court recently upheld a 17-year MPI in circumstances where at least 15 years would otherwise have been imposed. Mr Clarke was found guilty of murder and aggravated robbery following a trial and was sentenced to life imprisonment with an MPI of 17 years. It was argued on appeal that Mr Clarke’s exposure to violence and drug use during his youth, in combination with other mitigating factors, would make it manifestly unjust to impose an MPI of 17 years instead of the 15 years which the Judge had reached at the first stage of the analysis. The sentencing Judge had relied on R v Williams and its observations that only in exceptional cases will an offender’s personal circumstances justify departure from the legislative policy.^[26]
• [85] Similarly to our observations in the present case, this Court in Clarke found that the s 27 cultural report did not disclose the levels of deprivation and cultural alienation experienced by many other defendants. It confirmed that the observation in Williams about the impact of personal circumstances had not been modified by Zhang v R, the guideline judgment on sentencing for methamphetamine offending.^[27] This Court said Zhang had little relevance to a charge of murder where both the sentence and the MPI is prescribed by the Sentencing Act except in the case of manifest injustice.^[28] The Court did not consider that a 15-year MPI was so markedly different from the statutory MPI for murder that it would be unjust to impose a 17-year MPI.
• [86] We see no error in the Judge making reference to the Clarke decision and do not accept that Clarke is effectively mandating an overly mechanical approach. We agree that the correct interpretation of Clarke is that the gap between a 15-year MPI and the presumptive 17-year MPI was not significant enough to give rise to manifest injustice in Mr Clarke’s case. We do not see it as establishing the proposition that a notional MPI of 15 years would not be sufficient to justify a departure from the statutory MPI of 17 years. Nor do we accept that the Judge treated Clarke as establishing that proposition.
• [87] We are satisfied that the case falls squarely within the scope of the legislative policy that murders with the features of this case are sufficiently serious to justify an MPI of 17 years. There is nothing in the circumstances of the offence or Mr Sio which means that the case does not fall within the band of culpability of a qualifying murder.

Result

• [88] The appeal against sentence is dismissed.

Solicitors:
Tompkins Wake, Rotorua for Appellant
Crown Solicitor, Rotorua for Respondent

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^[1] R v Sio [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.

^[3] Sentencing Act 2002, s 104(1).

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

^[5] Crimes Act 1961, ss 160(2)(a), 167(b) and 172.

^[6] Section 195(1) and (2)(a).

^[7] Section 194(a).

^[8] Sentencing Act, s 102(1).

^[9] Davis v R [2019] NZCA 40, [2019] 3 NZLR 43.

^[10] R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [69]–[74].

^[11] Sentencing Act, s 9(3).

^[12] R v Williams, above n 10, at [66].

^[13] Clarke v R [2021] NZCA 151 at [40]–[41].

^[14] Davis v R, above n 9, at [25].

^[15] Sentencing Act, s 103(2). There are slightly different provisions in the Sentencing Act for an offender being sentenced for a murder which is a stage-2 or stage-3 offence (s 86E) and if the court is satisfied that imprisonment without parole is appropriate (s 103(2A)).

^[16] R v Sio, above n 1.

^[17] Carr v R [2020] NZCA 357.

^[18] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[19] Carr v R at [65].

^[20] At [65].

^[21] R v Williams, above n 10, at [67].

^[22] R v Williams, above n 10, at [64].

^[23] At [76].

^[24] At [87].

^[25] At [90].

^[26] R v Williams, above n 10, at [34].

^[27] Zhang v R, above n 18.

^[28] Clarke v R, above n 13, at [39].