R v Misifosa
[2025] NZHC 2527
•12 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-004-8998
[2025] NZHC 2527
THE KING v
CHANEL JUNIOR LEITU MISIFOSA
Hearing: 12 August 2025 Appearances:
HDL Steele for Crown
DHP Schellenberg for Defendant
Sentence:
12 August 2025
SENTENCING NOTES OF BECROFT J
Solicitors/Counsel:
Meredith Connell, Auckland
D Schelleberg, Barrister, Auckland
R v MISIFOSA [2025] NZHC 2527 [12 August 2025]
Charge
[1] Mr Chanel Junior Leitu Misifosa, you appear for sentence having pleaded guilty to one charge of recklessly discharging a firearm with intent to intimidate—to frighten or scare—one or more persons, namely members of the Head Hunters Motorcycle Gang.
[2] The charge is laid under the Crimes Act and the maximum penalty is five years’ imprisonment.1
Facts
[3] The charge arises from your participation in a pre-arranged gang fight between some members of the FITUS and Rebel gangs and their associates on one side, and members of the Head Hunters gang and their associates on the other.
[4]You were then a patched member of the Rebels.
[5] The event occurred on 5 August 2023, a Saturday. It occurred in a public park in broad daylight just after 2.30 pm in the afternoon.
[6] Prior to the fight, your side assembled at the Rebels gang pad in Otahuhu. From there, you travelled to Point England in a convoy of FITUS and Rebels vehicles. You stopped briefly at an address on Pilkington Road in Point England, before continuing to Taurimu Reserve.
[7] At the reserve, your group of about 40 people, including you, congregated on one side. The Head Hunters with about 20 people assembled on the other side. Then the majority of the Rebels and the FITUS group, including you, entered the reserve and moved forward to engage in a confrontation.
[8] A small number of your group remained on a nearby road to watch events unfold.
1 Crimes Act 1961, s 308A. Maximum penalty five years’ imprisonment.
[9] As your group ran forward, a member of the Head Hunters ran forward towards your group. He was carrying a pistol. He began shooting towards the group you were part of.
[10] In response, you ran back towards the remaining members of your group who had not entered the reserve and were standing on the road. You raised your hands in an apparent signal for them to enter the park.
[11] Three Rebels FITUS members then entered the park with firearms. They begin shooting at the Head Hunters with their own firearms.
[12] One was firing a military style semi-automatic rifle. The others were firing a shotgun and a pistol respectively. Tragically, at this point, Mr Charles Pongi was shot. He was a member of the Head Hunters group, but not involved in the fight proper. He was seriously injured. He was taken to Auckland Hospital where, tragically, he later died.
[13] I make clear, you are not charged directly or indirectly in relation to his death. But his death informs the context of your offending.
[14] At this point, the Head Hunters began to retreat. You had obtained a pistol. I am not sure from where. But you joined the firing party, still advancing on the retreating Head Hunters. You discharged at least one shot in the direction of the Head Hunters.
[15] I have been shown a still photograph taken from a video at the time that shows you with your arm extended forward, parallel to the ground, clearly firing in the direction of the retreating Head Hunters.
[16]Shortly afterwards, your group returned to their vehicles and left the scene.
Purposes and principles of sentencing.
[17] Mr Misifosa I have to stress that carrying and discharging firearms in a public place in broad daylight is completely unacceptable in New Zealand. It carries with it
a significant risk of loss of life, including totally innocent loss of life—passers-by who just happen, for instance, to get in the firing line.
[18] And you would know there is enormous and growing concern within our community about the easy access to, and apparently casual use of, firearms.
[19] I need to send a crystal-clear message that the reckless, public discharge of firearms, let alone in the context of a gang confrontation, has no place in New Zealand life, recognising however that the maximum penalty in this instance is five years’ imprisonment.
[20] The sentence I impose must hold you accountable. It must denounce your behaviour and it must send a clear deterrent message. It must appropriately protect the community.
[21] That said, Mr Misifosa, the sentence must also appropriately acknowledge your own personal circumstances. And it should provide an opportunity for rehabilitation— for turning your back on your previous lifestyle—starting again and allowing you to make a genuine contribution.
Starting point
[22]I turn to the starting point for your offending.
[23] There are four aggravating features of your offending—that is factors that make it worse:
(a)First, it was part of a premeditated, planned and pre-arranged gang confrontation involving up to 60 gang members and associates. Gang warfare is a significant blight on our society which cannot be tolerated.
(b)Second, the carriage of firearms was also planned by at least some of your number. As the Crown acknowledges, it is not clear whether you were initially aware that firearms would be brought. There is no evidence of that. And I cannot guess.
(c)Third, while the use of a firearm is part of the charge, you have never held a firearms license and you deliberately used the pistol to fire at least one shot towards retreating men.
(d)Fourth, the offending occurred at a public park, in broad daylight, creating a significant risk of harm to members of the public, including children, who could be expected to be out and about during a weekend. Those risks could include a ricocheting bullet or simply inadvertently moving into the firing line. The Crown makes clear that the park is surrounded by residential properties. So, you were putting lives at risk.
[24]I do not see any mitigating features in your offending.
[25] The maximum sentence is five years’ imprisonment. In fact, this offence and penalty was introduced into the statute books on 5 April 2023, only months before your offending. That is all set out and I will not repeat it, in a case referred to by the Crown.2
[26] In the light of those aggravating features, the Crown suggests that a starting point of three-and-a-half years is appropriate. Your lawyer argues that three years is a more reasonable starting point.
[27] There are no tariff or guideline judgments for this offence. The Crown has referred me to two helpful cases3 and your own lawyer to another.4
[28] In the first case, a shotgun was fired at a parked car outside Wellington Hospital at about 5.00 pm. The shell missed the driver by about a metre. The shooter was about five metres away. It was a reprisal attack between two gangs. A starting point of two to three years for the discharge of the firearm, uplifted to four years for possession of the firearm was, it seems, reduced to a three-year-seven-month starting point.
2 Pullan-Whakarau v Police [2024] NZHC 3134.
3 Above n 2; Jolley v R [2018] NZCA 484.
4 Stirling v Police HC Nelson CRI-2011-442-37, 8 December 2011.
[29] In the second case, the defendant was part of a Black Power group that travelled to a Mongrel Mob house to intimidate the occupants. When an altercation took place, the defendant used an associate’s shotgun to fire a shell in the direction of the house. There were people inside. The defendant did not bring the gun. He was not involved in the planning and organising of the attack. A starting point of three-and-a-half years was confirmed on appeal.5
[30] In the third case, relied upon your lawyer, and again involving a seven-year maximum—a slightly different charge, a starting point of two years nine months’ imprisonment was upheld on appeal. Following a road rage incident the appellant presented a loaded .22 calibre air rifle at the approaching party and fired, striking the victim on the arm. Here, the danger is much greater given that the weapon you used was a pistol, not an air rifle. And in your case, it involved gang warfare.
[31] Having considered all the cases that have been presented to me, I am of the view that the appropriate starting point for your offending is three-and-a-half years’ imprisonment. In fact, I think that is the minimum starting point possible given the seriousness of the offending.
Reductions to the starting point
[32] I now need to consider the statutory personal factors that justify a reduction in the starting point. I might say they are sometimes unhelpfully referred to as “discounts” which suggests some form of justice discount warehouse where people get good deals. In fact, the law requires that I must consider a number of factors in providing a balanced sentencing outcome. The Sentencing Act 2002 sets them all out.
[33] I note that you have already spent nearly six months remanded in custody for this charge and that will be taken into account on the prison sentence I impose on you.
5 R v Jolley [2018] NZHC 93 at [60]. I note that Mr Dashwood was charged with discharge of firearm with disregard for the safety of others, an offence which carries a maximum penalty of 7 years’ imprisonment.
[34] You have also spent about 445 days or approximately one year and two months on electronically-monitored bail (EM bail). That is something I will consider also.
Guilty plea
[35] The first matter is your guilty plea. You were initially charged on 15 November 2023. Your trial was scheduled for 25 August 2025. You pleaded guilty to this charge on 2 July 2025 following resolution discussions with the Crown.
[36] Your lawyer argues for a 15 per cent reduction in your sentence for your guilty plea which the Crown accepts. I must say it is at the highest end of what is permissible, given the timing of your plea.
Remorse
[37] Your lawyer seeks a further 20 per cent reduction to reflect your remorse and personal circumstances. I will consider those factors separately.
[38] First, in respect of remorse, the writers of your Drug and Alcohol Report note you seem to be sorry for the loss of life that occurred that night. That report also says that you walked away from the Rebels after your offending. That is easy to say Mr Misifosa—hard to do. I have got no actual evidence before me that you have done it. But you tell me that you are free now from any segregation restrictions in prison and you can associate with anybody which rather suggests that you are not considered to be a gang member by Corrections.
[39] I have your letter. It is short and to the point. I do note that you say you take full responsibility for any harm that could have been caused, or harm done, and that you accept that your behaviour was reckless. And you seem keen to undergo support.
[40] I think the 15 per cent reduction for your guilty plea reflects your remorse and reflects that you have taken steps. You pleaded guilty a month before trial. I think remorse is covered within that guilty plea in this case. I am not sure that you are entitled to anything separate because of it at this stage. Your letter is helpful, but typical of what many defendants write to the Court.
Personal/background factors
[41] You are a 28-year-old Samoan man. You have no previous convictions in New Zealand. No offences relating to bail. As you accept, your involvement was totally unnecessary, and you will have to pay a serious price.
[42] You do however have a conviction in Australia, and you have spent time in prison in that country, it is said nine months in Brisbane. That followed an assault on a police officer. So, it cannot be said that you have lived a blameless life.
[43] The recommendation of your pre-sentence report, which is realistic in my view, is imprisonment.
[44] However, the pre-sentence report and the Drug and Alcohol Reports set out some of the background factors that may have contributed to you getting involved in the gang and getting involved in this criminal offending. The law provides that I can reduce your sentence if those factors have contributed causatively to your offending.6 I have to ask whether they explain in some rational way why you came to offend.
[45] Mr Misifosa there are some matters that you want kept private. I will honour that. But it is clear you have had a difficult upbringing. You were one of many children. Your father was a user of alcohol, and he was more than stern—he was violent towards you. You suffered other abuse at the hands of other family members— that I will not go into. But certainly your description of feeling isolated and unloved, and describing yourself as an angry child, seem accurate and understandable and flowed through into your teenage years.
[46] You were also exposed to drugs at around the age of 13. You then began getting mixed up with minor criminal offending. Your parents split up and you were then sent to live with your aunty in Newcastle, Australia.
6 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16(c)].
[47] You began to have significant success playing rugby league and were playing semi-professionally at the time. I understand you were on the verge of an NRL contract. What a different life your path might have taken had that eventuated. You said yourself that the “play hard, party hard” culture led you into uncontrolled consumption of alcohol and significant cocaine use. And your life spiralled downwards.
[48] When you were about 18 or 19, your father passed away and shortly after that the aunt who was looking after you, died as well. It was after that you assaulted a police officer which ended your promising league career. After prison, you returned to New Zealand where you joined the Rebels.
[49] I am told that on the day of your offending you had consumed between 50-80 standard drinks as well as several grams of cocaine. I must say that 50-80 drinks is a vast amount of alcohol—barely credible, but I don’t know over what period of time you say it took place. In any case, you will know, that alcohol consumption is not an excuse or a mitigating factor.
[50] Your substance addictions are identified in the Drug and Alcohol Report as major causes of your offending. There is also a preliminary diagnosis of Post-Traumatic Stress Syndrome (PTSD) as a result of your childhood trauma.
[51] I am quite prepared to take all those factors into account. In my view, it justifies not the 15 per cent reduction argued for by your lawyer, but 10 per cent, as suggested by the Crown.
[52] I say that because your background explains why you might have drifted into the gang culture in New Zealand. But, you know, it does not explain why you chose to go and get a pistol that was loaded. And it does not explain why you fired it at retreating men in a public reserve. You made that decision; not your background. You have to bear personal responsibility for that choice.
[53] That said, the 10 per cent reduction takes into account why it is you at least were involved in the gang on that day. And I accept that.
Impact of prison on your children
[54] Your lawyer also seeks a five per cent reduction in your sentence for the impact that imprisonment will have on your children. You have two children. Your son is two-years-old. Your daughter is around a month old. And, sadly, you are yet even to meet her. She was born while you were in custody.
[55] The law is very clear that the welfare and rights of innocent children cannot be ignored.7 If the United Nations Convention on the Rights of the Child is to be given any consideration in New Zealand,8 then it is this sort of case, in these circumstances, that must be factored into decision making. And increasingly there are cases where the interests of children are explicitly taken into account.9
[56] Mr Misifosa, your children desperately need you. Are you hearing me? They don’t need a dad sitting in the dock in the Auckland High Court going to prison. Do you want your son to be ending up sitting where you are? Because that is what will happen unless you break that cycle. And the place for you as a father, is to be with your son on Saturdays at a park playing league, not armed with a pistol. I cannot put it any more bluntly than that. But you need to be with him. And if you mean business about changing your life, that is where it starts.
[57] I am prepared to recognise this aspect and to make a reduction of five per cent, not opposed by the Crown, to take into account the effects not on you of your imprisonment, but the effects on your children.
7 There is growing research and concern in New Zealand about the consequences for children of imprisoned parents. For instance, a charitable trust active in this field in New Zealand is Pillars Ka Pou Whakahou [Pillars]. Pillars estimates there 17,000 children in New Zealand with a parent in prison. Research by Pillars suggests that children who have had a parent in prison are 9.5 times more likely to be imprisoned themselves. It is said that “[c]hildren of people in prison are in a situation they did not choose, yet they face a sentence of their own. They are frequently invisible victims of crime and may become socially and economically isolated. It is not their crime, but it is still their sentence.” There is also work recently carried out by the former Chief High Court Judge, Thomas J, that details the impact of parental incarceration on children: see Susan Thomas, Fiona Guy Kidd and Stacy Shortall “Impact of Parental Incarceration on Children” (New Zealand Law Society webinar, October 2023).
8 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) at art 3.
9 Consideration of the children of parent(s) being sentenced to imprisonment is something of an evolving area of the law: see Philip v R [2022] NZSC 149, [2022] 1 NZLR 571; Milne v R [2023] NZCA 491; Smith v Ministry of Social Development [2024] NZHC 696; and Clover v R [2024] NZHC 919Ah Tong v R [2024] NZCA 144; and Bagley v R [2024] NZCA 646.
Time spent on EM bail
[58] So that, in total, with the 15 per cent for the guilty plea, the 10 per cent for your personal circumstances, five per cent for your children, equals 30 per cent from the three-and-a-half years or 42 months starting point. That is 29 months’ imprisonment.
[59] The law is clear that I have to give you a reduction for time spent on EM bail. Here, it was pretty tough the EM bail. The 24/7 curfew. It was reduced, but only after a year. That said, you were not a star pupil in terms of EM bail. You breached the conditions. And you are in custody now for other charges. So, I am not prepared to give you a half reduction. But I will give you a reduction of five months, which I think is the most that is available in the circumstances. That leaves a sentence of two years’ imprisonment which you will need to serve.
[60]You can stand.
[61] On the single charge of reckless discharge of a firearm with intent to intimidate, you are sentenced to two years’ imprisonment. There is no question of home detention; and I would never have granted it in any case. The offending is too serious.
[62]You may stand down.
Becroft J
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