SIO v R [2022] NZCA 337

SIO v R [2022] NZCA 337 [27 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA500/2021[2022] NZCA 337BETWEEN WILLIAM JAMES SIOAppellantAND THE QUEENRespondentHearing: 9 June 2022Court: Courtney, Thomas and Woolford JJCounsel: FCK Wood for AppellantA J Gordon for RespondentJudgment: 27 July 2022 at 9.30 amJUDGMENT OF THE COURTThe 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-oldson. 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 ismanifestly unjust.21 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 Jin Sio v R CA500/2021, 4 October 2021.[2] This appeal involves the application of s 104 of the Sentencing Act 2002. Thissection requires a court sentencing an offender to life imprisonment for murder toimpose an MPI of at least 17 years in specified circumstances, except if the court issatisfied 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 anyother way to attempt to subvert the course of justice; or(b) if the murder involved calculated or lengthy planning, includingmaking an arrangement under which money or anything of valuepasses (or is intended to pass) from one person to another; or(c) if the murder involved the unlawful entry into, or unlawful presencein, 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 insection 5(1) of the Terrorism Suppression Act 2002); or(f) if the deceased was a constable or a prison officer acting in the courseof 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 offending4[3] The deceased, Mr Sio's son, was born in 2014. Mr Sio and the deceased'smother separated prior to the deceased's turning one. He was initially cared for by hismother. In 2017, Mr Sio took full custody of him. The deceased was described as apolite, friendly child who had a great nature.3 Sentencing Act 2002, s 104(1).4 As recorded in the Judge's sentencing remarks taken from the summary of facts which Mr Siopleaded guilty to.[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 shortperiods. Both were responsible for the violence.[5] From approximately the beginning of September 2018, Mr Sio lived with hispartner 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 andpinch type marks to his ears, arms, back and shoulders. A Kōhanga teacher raisedconcerns with Mr Sio several times. Following these conversations, the teacherobserved 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. Whenbehaviour 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 assaultsincluded being hit across the head, ears or mouth, kicked on the bottom or dragged outof 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 thewall, with his hands in the air for up to 30 minutes at a time. At other times, his sonwould have to sit in the corner of the room and not move for hours. If his son movedor complained, he would be physically assaulted and forced to remain there for anadditional period.[7] On occasions, Mr Sio would take his son with him to work, and his son wouldsit 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 becoming back.[8] Mr Sio did not enrol his son into school when he turned five years old, sofriends did so. Mr Sio neither took his son to school nor provided him with items heneeded to engage in his schooling.[9] In January 2020, Mr Sio was staying with some friends in Rotorua. He wasplaying on a PlayStation console. The deceased asked Mr Sio when they would beleaving and said that he was cold. Mr Sio punched his son in the chest and stomacharea, sending him flying backwards into a hallway.[10] The following day, Mr Sio arranged emergency housing in Rotorua for himselfand his son. His partner mostly resided there too. The address had five separatebedrooms with communal facilities. The room rented by Mr Sio was small andcramped. 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. Theresidents 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 anddistressed 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 walkingback to the room from the toilet. The deceased was hobbling, appearing to befavouring his left leg, and was walking on the toes of his left foot. Mr Sio was pushinghim along from behind.[12] On 8 February 2020, Mr Sio was growing increasingly frustrated by his son'sbehaviour. At around 7.00 am, Mr Sio's son needed to go to the toilet and Mr Sio tookhim. He was limping and Mr Sio kept telling him to "move". Once back in theirroom, Mr Sio made his son stand facing the wall of the bedroom with his hands heldstraight out in front of him. If he fell towards the wall from exhaustion, placing hishand on the wall, Mr Sio would hit or kick him. Mr Sio made his son stand in thisposition 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 thebathroom. Mr Sio pushed him along while keeping his head down. By this time, thedeceased had large dark bruising covering the left side of his face and bruises on hischin along his jawline. Mr Sio made his son have a shower, which caused the deceasedto cry out in pain and distress. The crying became muffled as though something wasplaced 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 timeswhile the deceased could no longer stand up during "time out". One kick was of suchforce that the deceased became short of breath and could no longer talk. His breathingbecame shallow. Mr Sio told police he attempted to perform CPR and the deceasedbegan to breathe again. Mr Sio said he was tired and put his son to bed. He then fellasleep next to his partner. A few hours later, Mr Sio woke up to find his son was coldand 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 staffhe thought his son was already deceased. Attempts to resuscitate him failed and hewas pronounced dead. He had multiple bruises and scratches, and blood was visiblearound his mouth. Mr Sio told staff the deceased had bruises resulting from trippingover and said he "bites his own tongue", making it bleed.[16] A post-mortem concluded the deceased died of multiple blunt force traumasfrom a sustained and severe beating.[17] Mr Sio told police he had slapped his son on his backside and hands, andexplained he disciplined his son by making him stand facing the wall with his armsoutstretched for long periods. He also said, "I did what happened to him. I did all ofit. I know I shouldna done it, know it's wrong. I can't control myself when I get tothat bit".Sentence indication[18] Mr Sio sought a sentence indication in respect of one charge of murder,5 threecharges of ill treatment of a child,6 and one charge of assault on a child.75 Crimes Act 1961, ss 160(2)(a), 167(b) and 172.6 Section 195(1) and (2)(a).7 Section 194(a).[19] It was not contended on behalf of Mr Sio that a sentence of imprisonment forlife would be manifestly unjust.8 Given his son's age, Mr Sio agreed that s 104 of theSentencing Act applied, meaning the Court was required to impose an MPI of at least17 years unless satisfied it would be manifestly unjust to do so.[20] Gault J approached the task in accordance with accepted methodology.9 Heconcluded that the aggravating features of the offending and absence of any mitigatingfactor 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 MPIwould be manifestly unjust. Mr Wood, for Mr Sio, had submitted that the content ofMr 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 besufficient to justify the imposition of an MPI of less than 17 years, in combinationwith a guilty plea. He submitted an appropriate end sentence would see an MPI in therealm of 15 years. All the Judge could do, given the absence of various reports at thesentencing indication stage, was concede that it was possible that further discounts forpersonal 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 beavailable, making it possible that imposing an MPI of 17 years would be manifestlyunjust.[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. Hefirst considered what MPI he would have imposed were it not for the 17-yearbenchmark contained in s 104, before comparing that with the 17-year statutory MPIand considering whether the latter would be manifestly unjust.8 Sentencing Act, s 102(1).9 Davis v R [2019] NZCA 40, [2019] 3 NZLR 43.[25] The Judge considered the aggravating features of the offending were: thedeceased's vulnerability as a five year old child reliant on Mr Sio's care; the grossbreach of trust, given the deceased was Mr Sio's son and in his primary care; thedeceased'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, includingthroughout 8 February 2020; the deceased's extensive injuries; Mr Sio's initial failureto seek medical assistance and concealment; and the impact of the deceased's deathon his other family members.[26] The Judge concluded the appropriate starting point was 18 years and threemonths' imprisonment. Given Mr Sio's limited criminal history, no uplift to thestarting 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 notsufficient to make the imposition of the 17-year MPI manifestly unjust but submittedit was a factor to be taken into account.10 The Judge accepted that the delay in theguilty plea was caused, at least in part, by Mr Sio's changing counsel and the delay ininstructing a consultant psychiatrist. The Judge considered a discount of at least18 months and up to two years was appropriate.[29] The Judge then addressed the content of a report on Mr Sio from a consultantpsychiatrist, Dr Shailesh Kumar, as well as a cultural report. He described the reportsas detailed and helpful. We reflect the Judge's summary of the reports in the followingparagraphs.The reports[30] Mr Sio is of Samoan and Pākehā heritage but does not feel any connection tohis Samoan family and culture. He was close to his mother but does not remember hisfather. Mr Sio was told his father was violent towards him and his mother when he10 R v Williams [2005] 2 NZLR 506 (CA) at [69]–[74].was young and was told they moved away because Mr Sio's father threw him againstthe 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 herpartners. 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 hewas regularly kicked in the buttocks by an uncle as a form of punishment, sayingphysical punishment was normalised. The pre-sentence report, however, did notindicate any physical abuse.[32] Mr Sio reported suffering socio-economic deprivation and instability duringhis 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 HousingNew Zealand properties. When Mr Sio was about 12 years old, they moved into stablerental accommodation. Mr Sio attended several primary schools and was stood downor expelled from most for misbehaviour. In year 10, he left school and started workas a bricklayer. Mr Sio described growing up around gangs and being affiliated withone 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 hehad access to it.[34] Mr Sio described feeling able to care for his son when he took full custody ofhim in 2017 because his mother was alive and able to support him. Mr Sio's motherdied about four years prior to sentencing. This was traumatic for Mr Sio, who begandrinking heavily and attempted suicide. He was evicted from his mother's house anda number of properties. He had a falling out with his half-sister. He felt ill-equippedto raise a child.[35] Mr Sio acknowledged he had a problem controlling his anger, saying he heldit in, and it then exploded. Dr Kumar said Mr Sio presented with a tragic but complexbackground to which his experience of childhood adversity, conduct disorder,extensive alcohol and drug use, lack of pro-social role modelling and opportunity tolearn positive parenting skills had contributed. Dr Kumar considered that Mr Sio metthe criteria of anti-social personality disorder and cannabis and methamphetamine usedisorder. Those diagnoses are not considered mental illnesses.[36] In Dr Kumar's opinion, intoxication and withdrawal from psychoactive drugswould have contributed to Mr Sio's lowered tolerance and violent outbursts directedagainst his son. Dr Kumar considered that Mr Sio's history of conduct disorder, poorcoping, anger outbursts and antisocial personality structure would have predisposedMr Sio to being violent as an adult. Those factors had a profound effect on hispersonality and capacity to function as a father. Mr Sio's escalating drug use, ongoingstresses and poor coping skills would have precipitated the extensive and repeatedassaults on the deceased. Mr Sio's ability to control his emotions and capacity to dealwith stress would have been impaired because of the cumulative effects of stress andthe effect of drugs. In Dr Kumar's opinion, Mr Sio's ability to understand the natureand quality of his actions was at least partially impaired because of anger, frustrationand the effects of drugs.[37] By the time of sentencing, Mr Sio was 25 years old. He had been remanded incustody 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 andbuilding relationships. He described himself as eager to engage in further courses,particularly in relation to anger-management and drug addiction, saying his goal wasto try and better himself and turn his life around. The Judge acknowledged thoseefforts and commended Mr Sio for them.Judge's assessment[38] The Judge noted that Mr Sio's lack of family support meant that hisbackground circumstances were largely self-reported. The Judge did, however, acceptMr Sio had suffered socio-economic and cultural deprivation, and instability. Heconcluded there was insufficient causal connection between Mr Sio's self-reportedphysical abuse when he was a child and the level of violence he perpetrated againsthis son. The Judge accepted Dr Kumar's diagnosis of anti-social personality disorderand cannabis and methamphetamine use disorder but noted that the Court must nottake into account by way of mitigation the fact that, at the time of the offending, anoffender was affected by the voluntary use of alcohol or drugs.11[39] The Judge acknowledged that circumstances personal to an offender'sbackground may still bear on the setting of an appropriate sentence and that theirpotential mitigating effect is not limited to particular types of offending. He said thatdiscretion was more constrained given the legislative policy mandating thestatutory 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 lackof insight into the offending or genuine remorse. The pre-sentence report writer hadrecorded that Mr Sio verbalised feelings of remorse but also noted there were instanceswhen Mr Sio blamed his son and attempted to justify his use of violence. Thepre-sentence report writer concluded there was some insight into the offending. TheJudge acknowledged Mr Sio's letter to the Court, apologising, expressing regret andshame, and taking full responsibility for his actions.[42] From the starting point of 18 years and three months' imprisonment, the Judgededucted up to a maximum of two years for the guilty plea and one year for personalcircumstances. He concluded, but for s 104, the MPI would be at least 15 years andthree months imprisonment.[43] The Judge then turned to consider the effect of s 104 and whether a 17-yearMPI would be manifestly unjust.[44] The Judge referred to this Court's previous observations that the statutoryminimum of 17 years would not be departed from lightly and that an offender'spersonal circumstances would justify departure from the legislative policy only inexceptional cases.12 He referred to the then-recent decision of this Court upholding a11 Sentencing Act, s 9(3).12 R v Williams, above n 10, at [66].17-year MPI in circumstances where at least 15 years would have been imposed undernormal 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 threemonths' imprisonment, which would be imposed under normal sentencingprinciples in this case, is so markedly different from the 17 year statutory MPIthat it would be manifestly unjust to impose the statutory MPI. Nor do thecircumstances warranting some personal discount otherwise make this asufficiently exceptional case to result in the statutory MPI being manifestlyunjust.[45] Mr Sio was sentenced to life imprisonment with an MPI of 17 years on thecharge of murder, four years' imprisonment to be served concurrently on the chargesof ill-treatment of a child and one year to be served concurrently on the charge ofassault on a child.The appeal[46] Mr Sio appeals the MPI of 17 years on the grounds that the Judge erred in threeways:(a) he did not give due consideration or reasons as to why an MPI sentenceof 17 years would not be manifestly unjust when, but for s 104, the MPIwould have been 15 years and three months' imprisonment;(b) he erroneously concluded that that the gap between a 17-year MPI andthe otherwise appropriate MPI of 15 years and three months was notsignificant enough to justify a departure from the presumptive 17-yearMPI; 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 whichfollowed the requisite three-step process:(a) what notional MPI would apply under s 103 of the Sentencing Act;13 Clarke v R [2021] NZCA 151 at [40]–[41].(b) whether a s 104 category applies;(c) if the notional MPI would be less than 17 years, the Judge must addressmanifest injustice.14[48] Although the appeal has been advanced on three grounds as set out above, thereal issue was whether the Judge erred in his conclusion that an MPI of 17 years wouldnot be manifestly unjust. In oral submissions, Mr Wood argued that the Judge haderred in his approach in principle when addressing the first step of the analysis andthis had then impacted his consideration of manifest injustice. We propose to approachthe appeal by addressing the three-step process, including reference to Mr Wood'sarguments.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 than10 years, and must be the minimum term of imprisonment that thecourt considers necessary to satisfy all or any of the followingpurposes:(a) holding the offender accountable for the harm done to thevictim 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 thesame or a similar offence:(d) protecting the community from the offender.[50] In Mr Wood's submission, the Judge took the wrong approach when addressingthe notional MPI under s 103. Mr Wood referred to the Judge's comment that theCourt's discretion to reduce an appropriate sentence on account of personal mitigating14 Davis v R, above n 9, at [25].15 Sentencing Act, s 103(2). There are slightly different provisions in the Sentencing Act for anoffender being sentenced for a murder which is a stage-2 or stage-3 offence (s 86E) and if thecourt is satisfied that imprisonment without parole is appropriate (s 103(2A)).factors is more constrained when sentencing for murder because of the need to giveeffect 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 discretionavailable to the Court to reduce an otherwise appropriate sentence on accountof such considerations will be more constrained. This is because the MPI mustaccurately reflect the seriousness of the offending and the need to give effectto the legislative policy mandated by the statutory MPI that is to be imposedfor such murders. An offender's background of deprivation may carry lessweight in the context of such a sentencing exercise.[52] We accept that the first step of the analysis should not be constrained by s 104considerations to the extent that the need to give effect to the legislative policymandated by the statutory MPI is a matter to be considered when undertaking themanifest injustice analysis. But the Judge was obviously correct in saying that theMPI must accurately reflect the seriousness of the offending. The relevance of s 104at 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, althoughcontended it was too high. We disagree. The Judge correctly analysed the aggravatingfactors, as detailed at [25] above. Two of those factors feature in s 104 – thevulnerability of the deceased and the level of cruelty and callousness involved in themurder.Personal mitigating factors[54] Mr Wood took issue with the Judge's treatment of mitigating factors. In hissubmission, the 12-month discount was insufficient. He pointed out that the Judgeaccepted Mr Sio had been raised in an environment where physical violence wasnormalised and he had suffered socio-economic deprivation. But, said Mr Wood, theJudge then failed to recognise the extent of the causal link between Mr Sio'sbackground and the offending.16 R v Sio, above n 1.[55] In Carr v R, this Court noted that:17[60] where a cultural report provided under s 27 of the Sentencing Actcontains a credible account of social and cultural dislocation, poverty, alcoholand drug abuse including by whānau members, unemployment, educationalunderachievement and violence as features of the offender's upbringing suchmatters ought to be taken into account in sentencing. [56] This Court said that where there is "a credible account of matters which mightbe considered to have impaired choice and diminished moral culpability" whichestablishes 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 theoffending "might temper the extent of any discount" awarded to recognise systemicdeprivation, that is a "different proposition from saying there should be noallowance".20[57] We are not satisfied that the background circumstances canvassed in thepsychiatric and cultural reports amounts to a credible account of matters which mightbe considered to have impaired Mr Sio's choice and diminished his moral culpabilityso as to establish a causative contribution to the offending. We agree with the Judge'sanalysis and his conclusion that there was an insufficient causal connection betweenMr Sio's background and the level of violence against his son.[58] Mr Sio's background circumstances rely on his own descriptions. As the Judgeacknowledged, 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 violencewhich sadly is all too frequently seen in the courts.[59] To the pre-sentence report writer, Mr Sio described living in different "housingcorp" properties but did not describe this as disruptive, saying his mother "did the bestshe could on her own". He recalls his mother being a hard worker and said she wassufficiently financially stable and that he did not want for anything. It is clear that17 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].Mr Sio had a close relationship with his mother, who worked hard to do the best forher children.[60] Mr Sio had reported being told that he suffered a head injury when his fatherthrew 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 ofviolence and neglect. It was not a case of Mr Sio's son dying as a result of Mr Siobeing violent in a fit of rage.[61] We treat with some caution some of the comments in the psychiatric and s 27cultural reports. The psychiatrist recorded the following:Reflecting on his background and the alleged index offending, Mr Sio said hedid not know how to look after a child, he had never been brought up aroundchildren and had never looked after a child before. His sister had helped himinitially 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 arsewhen I was a kid" from his uncle for being naughty and not listening to hismother. Physical punishment in the form of being kicked was therefore anacceptable way of disciplining a child to Mr Sio, which he had applied on hisown son often. On the day of the index alleged offending he said he waslabouring under the combined effects of cumulative stress and intoxicationwhen he snapped and did not appreciate the impact his assaults would have onhis son.[62] These remarks were in the context of Mr Sio's somewhat self-justifyingdescription of events prior to his son's death. He minimised what had in fact occurredin saying he had tried to discipline his son by making him stand in the corner with hisarms raised for five minutes and, when his son did not settle, he "kicked him in thebum" a couple of times, which resulted in him "being traumad (sic)" and subsequentlydying. Mr Sio maintained he did not kick his son that hard. That description issignificantly 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 describedMr Sio's son as dying from multiple blunt force traumas from a sustained and severebeating. The pathologist's opinion, contained in the Crown summary of facts, was thatthe 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 rightbuttock and back of the thigh [where] the muscle has been torn. The soft tissueinjuries caused extensive bleeding into the soft tissues. This bleeding was sosignificant the pathologist described it as a form of "internal bleeding", andthat 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 painand would have had trouble walking on his injured right side.In terms of the injuries to the deceased's head the pathologist noted that therehad been multiple blunt force impacts to the head, one of which caused anacute 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 hadsustained 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 haveoccurred days prior to his death.[63] The fact Mr Sio may have been kicked in the buttocks as a child does not bearany correlation to his behaviour towards his son. The level of violence was at anentirely different and fatal level. We also do not accept that it can be properlycategorised as excessive discipline. It was gratuitous violence. Not only do thedeceased's injuries demonstrate that, but so too do the other charges of ill-treatment ofa child and assault of a child. The charge of assault on a child involved Mr Siopunching his son hard to the chest and stomach area, sending him flying backwardsand out into the hallway.[64] Similarly, the cultural report, while offering some valuable insight intoMr Sio's background, perhaps painted a more extreme picture of Mr Sio's backgroundthan even his own reports can justify. For example, it summarised Mr Sio's reports byrecording he experienced "a high level of economic deprivation during his childhood".As already discussed, that overstates the position by quite some margin. And, like thepsychiatrist from whose report the cultural report writer quoted, the cultural reportwriter assessed the level of violence in the household as more extreme than Mr Sio'sown reports would suggest.[65] The sad reality is that Mr Sio was totally ill-equipped to have sole custody ofhis son. Although he had a partner, who was also charged in connection with the deathof Mr Sio's son, they were engaged in a physically violent relationship. She was alsoviolent to the deceased and did not protect him from Mr Sio's assaults. Friends andassociates 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 connectionbetween Mr Sio's somewhat challenged background and the offending. In thecircumstances, a discount of one year to reflect his personal circumstances wassufficient. That appropriately recognised the matters referred to in the psychiatric,s 27 and pre-sentence reports, while moderating some of the conclusions to accordwith 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, eventhough the plea was entered around one month prior to trial. Ms Gordon for the Crownsuggested that the two-year discount was "decidedly generous" in circumstanceswhere 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 notionalMPI, 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 ofpersonal circumstances, was whether, in combination, they meant an MPI of 17 yearswas manifestly unjust.Does a s 104 category apply?[70] There was, as we have already noted, no dispute that s 104 was engaged byreason 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 wascommitted with a high level of cruelty and callousness, if not brutality. The Judge hadfound it unnecessary to decide whether s 104(1)(e) also applied, given Mr Sio accepteds 104(1)(g) was engaged, but he noted the similar aggravating features which he hadassessed as present when setting the starting point. He referred to the extent or levelof the violence, brutality, cruelty and callousness in the months preceding the death ofMr 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 thatin the final period. But when assessing offending in light of s 104, it is thecircumstances of the murder that are the relevant considerations. We have alreadydetailed 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 hisfive-year-old son on the final day of his life clearly falls within the level of conductcontemplated by s 104(1)(e).[72] While the Judge did not consider it necessary to engage with s 104(1)(e), it isrelevant 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 personalcircumstances means an MPI less than 17 years was appropriate. Mr Woodacknowledged that the legislative policy of s 104 had to be considered but, in hissubmission, public policy considerations were also imperatives to be taken intoaccount at this stage of the MPI assessment. He referred to the public benefit of guiltypleas and said Mr Sio could have taken the case to trial on the basis that manslaughterwould have been the appropriate verdict. He suggested that Mr Sio will lose anybenefit 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 hisguilty plea because the starting point was a sentence of 18 years and three month'simprisonment. 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 havereceived 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 pleaand 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 beconsidered and when his attendance at various rehabilitative programmes undertakenin preparation for a parole application is considered.[76] Although there was some criticism of the relatively brief way in which theJudge addressed this question of manifest injustice in his sentencing decision, heappended the sentencing indication to his sentencing notes. That addressed hisapproach to the question in a little more detail.[77] In his sentence indication, the Judge referred to several cases where thepresumptive MPI of 17 years for the murder of a young child had been foundmanifestly unjust, notwithstanding the operation of s 104(1)(g). The Judge discussedthose contexts, noting that it was the particular circumstances involved which meantan MPI of 17 years was not imposed. He recognised he was unable to take the matterany further at the stage of the sentence indication because he did not have sufficientinformation about Mr Sio's personal circumstances. This information was availableto him at sentencing and was thoroughly considered by him. That resulted in hisconclusion that, in the case of Mr Sio, the circumstances relevant to analysing whethera personal circumstances discount might be justified were not so exceptional as towarrant a departure from the statutory MPI.[78] The Judge had reminded himself of the approach to the question of manifestinjustice as set out by this Court in R v Williams.21 The Judge must decide as a matterof overall impression whether the case before them falls outside the scope of thelegislative policy. The conclusion it falls outside the scope can be reached only if thecircumstances of the offence and the offender are such that the case does not fall withinthe band of culpability of a qualifying murder.21 R v Williams, above n 10, at [67].[79] Importantly, in Williams, this Court said that an offender's personalcircumstances will justify departure from the legislative policy only in exceptionalcases. This approach is demonstrated by the case of Williams itself. In Williams, aSolicitor-General's appeal against an MPI of 15 years' imprisonment imposed onMr Williams was allowed and an MPI of 17 years substituted. The Solicitor-General'sappeal against the MPI of 15 years' imprisonment imposed on Adrian Olson wasdismissed. This Court engaged in an extensive discussion on the meaning of"manifestly unjust" in the context of the s 104 statutory presumption. It recognisedthat the discretion of the sentencing judge had been retained by Parliament to ensurethat the section did not cause manifest injustice.22 This Court said:[66] However, the specified minimum period may not be departed fromlightly, as the Court is bound to give effect to the legislative policy of ensuringa 17 year minimum for the most serious murder cases. The reasons mustwithstand scrutiny. Marginal differences in personal circumstances or degreesof 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) whichrelated to the personal circumstances of an offender would rarely displace thepresumption. Powerful mitigating circumstances bearing on the offence aremore likely to do so.[67] We conclude that a minimum term of 17 years will be manifestlyunjust where the Judge decides as a matter of overall impression that the casefalls outside the scope of the legislative policy that murders with specifiedfeatures are sufficiently serious to justify at least that term. That conclusioncan be reached only if the circumstances of the offence and the offender aresuch that the case does not fall within the band of culpability of a qualifyingmurder. 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 clearlydemonstrable factors that withstand objective scrutiny. Judges must guardagainst 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 injusticeremains a matter of sound sentencing judgement that is not capable of precisedetermination. It may be helpful, however, to indicate that when thequalifying factor has only peripheral significance in the case the statutoryminimum term may be manifestly unjust. Otherwise, where the culpabilityattaching to the offence is relatively low having regard to the range of casescaught by s 104, the circumstances of the offender may make the sentencemanifestly 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 which22 R v Williams, above n 10, at [64].caused her death. The Court had regard to the legislative policy that murders havingsuch features must in general be met with an MPI of at least 17 years and was satisfiedthat, in the circumstances, a substantially higher sentence might have been justified.23The 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 thecircumstances of that case, was seen to justify a reduction to at least 17 years. TheCourt concluded, however, that, having regard to the serious nature of the offendingas reinforced by s 104 and the significant discount that would be reflected in a 17-yearminimum term, a 17-year MPI would not be manifestly unjust. As a matter of overallimpression, the Court concluded that the degree of Mr Williams' culpability was suchthat an MPI of at least 17 years was required to denounce the seriousness of hisoffending.[81] Mr Olson was in a different category. There were significant aggravatingfactors of his offending which involved a prolonged assault on the deceased in thatcase with a blunt weapon or weapons, and the deceased was in a vulnerable positionas a friend of Mr Olson who had allowed him rent free accommodation. Mr Olsonhad unexpectedly attacked him and the victim was unable to defend himself againstthe sudden onslaught.24 The sentencing Judge saw this as engaging s 104 because ofthe vulnerability of the victim. The Judge also considered there to be a high level ofbrutality 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 ofculpability and disagreed that the victim was particularly vulnerable in the wayrequired by s 104(g). The Court decided that the aggravating features were not suchas 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 withthe police, and the impact of a very lengthy MPI on a 62-year-old in combinationmeant that, but for s 104, the appropriate MPI would have been "significantly less"than 17 years, around 15 years. This Court said:23 At [76].24 At [87].25 At [90].[93] Even having regard to the policy of s 104, the lesser culpability ofthe appellant coupled with his age and guilty plea clearly bring the sentencebelow 17 years and as a matter of overall impression it would be manifestlyunjust to sentence Mr Olson to a minimum term of more than 15 yearsimprisonment. [83] We see Mr Sio's position as markedly different. Mr Sio's culpability clearlyand easily engaged two limbs of s 104. Those factors cannot be described as being ofperipheral significance only. He was entitled to a discount for personal circumstancesand his guilty plea but, having regard to the policy of s 104 and his culpability, and asa matter of overall impression, an MPI of 17 years was not manifestly unjust in thecircumstances.[84] Mr Wood was also critical of the Judge's reliance on Clarke v R, where thisCourt recently upheld a 17-year MPI in circumstances where at least 15 years wouldotherwise have been imposed. Mr Clarke was found guilty of murder and aggravatedrobbery following a trial and was sentenced to life imprisonment with an MPI of17 years. It was argued on appeal that Mr Clarke's exposure to violence and drug useduring his youth, in combination with other mitigating factors, would make itmanifestly unjust to impose an MPI of 17 years instead of the 15 years which the Judgehad reached at the first stage of the analysis. The sentencing Judge had relied onR v Williams and its observations that only in exceptional cases will an offender'spersonal circumstances justify departure from the legislative policy.26[85] Similarly to our observations in the present case, this Court in Clarke foundthat the s 27 cultural report did not disclose the levels of deprivation and culturalalienation experienced by many other defendants. It confirmed that the observation inWilliams about the impact of personal circumstances had not been modified by Zhangv R, the guideline judgment on sentencing for methamphetamine offending.27 ThisCourt said Zhang had little relevance to a charge of murder where both the sentenceand the MPI is prescribed by the Sentencing Act except in the case of manifestinjustice.28 The Court did not consider that a 15-year MPI was so markedly differentfrom the statutory MPI for murder that it would be unjust to impose a 17-year MPI.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].[86] We see no error in the Judge making reference to the Clarke decision and donot 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-yearMPI and the presumptive 17-year MPI was not significant enough to give rise tomanifest injustice in Mr Clarke's case. We do not see it as establishing the propositionthat a notional MPI of 15 years would not be sufficient to justify a departure from thestatutory MPI of 17 years. Nor do we accept that the Judge treated Clarke asestablishing that proposition.[87] We are satisfied that the case falls squarely within the scope of the legislativepolicy that murders with the features of this case are sufficiently serious to justify anMPI of 17 years. There is nothing in the circumstances of the offence or Mr Sio whichmeans 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 AppellantCrown Solicitor, Rotorua for Respondent