R v Oti

[2021] NZHC 1800

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT IN PREVIOUS PROCEEDINGS (REFER PARAS [132]-[134]) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-002316

[2021] NZHC 1800

THE QUEEN

v

TAINUI ANDREW OTI

Hearing:

16 July 2021

Counsel:

C A Robertson and S R Norrie for the Crown

D Niven and J W Clearwater (observing by AVL) for the Defendant

Sentence:

16 July 2021

SENTENCING NOTES OF MUIR J

(Redacted version)

Counsel:

D S Niven, Barrister, Auckland

Solicitors:

Kayes Fletcher Walker, Manukau Clearwater & Associates, North Shore

R v OTI [2021] NZHC 1800 [16 July 2021]

TABLE OF CONTENTS

Introduction  [1]

Factual basis for sentencing  [8]

Mr Oti’s background  [43]

Victim impact statements  [45]

Crown submissions  [47]

Defence submissions  [57]

Sentencing framework  [61]

First stage: s 104 of the Sentencing Act  [67]

Second stage: a notional minimum period of imprisonment  [77] Starting point  [79]

Uplifts for personal circumstances  [96]
Discounts for personal circumstances  [97]

Conclusion on MPI (apart from s 86E and s 104)  [117] Third stage: manifest injustice under s 104

Would an end sentence of life imprisonment without parole be manifestly unjust?

[125]
Circumstances of the offending  [130]
Circumstances of Mr Oti  [131]

Circumstances of first strike offending  [132]

Public protection  [135]
Comparison with the case law  [137]
Conclusion on s 86E  [138]

Result  [139]

Introduction

[1]                 Tainui Andrew Oti you appear for sentence on a charge of murder following a guilty verdict in your jury trial which concluded on 7 May 2021.

[2]                 The case triggers s 86E of the Sentencing Act 2002 (“the Act”) because the murder is your second strike offence under the “Three Strikes” regime, introduced in the Sentencing and Parole Amendment Act 2010.

[3]                 In terms of s 86E(2), you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.

[4]                 If this Court does find it manifestly unjust to impose life imprisonment without parole, s 86E(4)(b) requires it to impose a sentence with a minimum non-parole period of at least 10 years in accordance with s 103 of the Act but taking into account also   s 104 of the Act which prescribes a minimum parole period of 17 years for murders of the most serious kind, including those involving a high level of brutality, cruelty, depravity or callousness.1

[5]                 In the event s 104 is engaged, the identified minimum non-parole period applies unless it would be “manifestly unjust to do so”.

[6]In this case the Crown says:

(a)it would be manifestly unjust to impose a life sentence without parole;

(b)s 104 is engaged because the murder was committed with a high level of brutality; and

(c)it would not be manifestly unjust to impose an MPI of 17 years.

1      Sentencing Act 2002, s 104(1)(e).

[7]The defence says:

(a)s 104 is not engaged because the murder was not at the requisite level of brutality;