R v Oti
[2021] NZHC 1800
•16 July 2021
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;
(b)a starting point of between 11 and 15 years would be appropriate depending on this Court’s assessment of the facts; and
(c)from that starting point discounts of one to two years (with a possible further discount for remorse) should be entertained.
Factual basis for sentencing
[8] I am now going to address the factual basis on which I sentence you. At this point I will not address you personally but will refer to you as Mr Oti in the notes.
[9] Mr Oti killed his cousin Joseph Tumai in the early hours of the morning on 28 February 2020.
[10] The Crown ran alternative cases under s 167(a) (intentional killing) and s 167(b) (reckless killing) of the Crimes Act 1961.
[11] The jury found him guilty of murder. This sentencing proceeds on the basis that the verdict was reached by reference to s 167(b). Having heard Mr Oti in the witness box and having regard to all of the other evidence in this case I do not consider he intended to kill his cousin, albeit he and anyone else who assessed the severity of his assault on Mr Tumai would have realised death was likely. That of course is a conclusion open to me as it is not inconsistent with the jury verdict.
[12] The Crown and defence submissions on sentence involve very different analyses of the circumstances leading up to Mr Tumai’s death. This mirrors their respective approaches in their closing addresses.
[13] The way in which the various assaults on Mr Tumai unfolded and the number and severity of such assaults is acknowledged by both counsel as relevant to my
assessment of whether the murder was sufficiently brutal to engage s 104 of the Sentencing Act 2002. As the trial judge, I am therefore required to set out my factual findings for the purposes of the sentencing. Although it is not necessary for me to explain my reasoning at a level of detail that would, for example, be required in reasons for verdict, I will, where appropriate, give brief explanations for my conclusions.
[14] The defendant and the deceased were respectively 46 and 51 at the time of the murder and had generally enjoyed a good relationship from childhood. Both had very sporadic work histories, were on benefits and abused substances. Mr Tumai was a heavy drinker. So had Mr Oti been in his youth, although the evidence was that he had since “slowed down”. Mr Oti regularly consumed marijuana to the extent of stating to the writers of his report under s 27 of the Sentencing Act:
Oh its like I would have it in the morning, afternoon and dinner time. And yeah, quite a bit. All day, mornings afternoons and the dinner time.
[15] Mr Tumai was itinerant and, approximately two weeks before his death, was located homeless under the Mangere Bridge by a family member. Mr Oti agreed that Mr Tumai could move into the house which Mr Oti rented at 33A Trimdon Street in Manurewa. On 26 February 2020 Mr Tumai signed a tenancy agreement with the landlord who rented that property by the room.
[16] On 27 February Mr Oti spent a significant part of the day at the Viaduct Harbour, swimming with friends and neighbours Mr Harley Wilson and Mr Donald Hona. He returned to Manurewa at about 6.30 pm. I find that Mr Tumai was home at that point and drinking. He had earlier obtained two bottles of spirits.
[17] The Crown case was that Mr Oti was persistently and increasingly aggressive and violent towards Mr Tumai over the course of the night of 27 February and into the early hours of 28 February before fatally assaulting him between around 4.40 and 5.30 am.
[18] I accept the evidence of neighbour, Victoria Sa-uniu, that around 9.30 pm she heard Mr Oti swearing at Mr Tumai, yelling “Fuck you” repeatedly. I accept (as does
the defence) that around 11.45 pm, at which point only Mr Oti and Mr Tumai were in the house, Mr Oti punched Mr Tumai in the face after a minor provocation involving a comment by Mr Tumai about Mr Oti’s children. The assault left Mr Tumai with a small cut (about one centimetre in length) above his right eye. At that point Mr Oti went to his bedroom.
[19] I accept Mr Wilson arrived at the address at around midnight. He had been on a run to obtain marijuana and arrived back with it. He got Mr Oti out of his bedroom. Mr Oti told him that he had “Just finished whacking the cunt over. Fucking cunt was talking about my kids”. Mr Oti was still angry with Mr Tumai and continued swearing at him telling him to “Fuck up” and “Shut up” although Mr Tumai remained sitting quietly at the dining table still drinking. I accept that the shouting and swearing got to the point where Mr Wilson had to tell Mr Oti to leave Mr Tumai alone.
[20] Mr Wilson left the house and returned shortly after with his partner Liz Wilson who became uncomfortable at the level of anger and aggression still being directed at Mr Tumai by Mr Oti. She therefore quickly left.
[21] Soon after Mr Hona arrived at the address. He started watching television. At around 1.00 am Messrs Oti, Wilson and Tumai were all standing in the kitchen. They had their shirts off and were “spotting” marijuana on the stove. Mr Oti and Mr Wilson were rowdy.
[22] At some stage Mr Tumai went to his bedroom and retrieved a Nike bag which he wanted to give to Mr Wilson. This caused an argument with Mr Oti who said that the bag should be returned to one of Mr Tumai’s relatives, from whom he thought the bag had been stolen. Mr Oti became increasingly angry. Mr Tumai returned to his seat at the dining table where Mr Oti joined him. Mr Oti moved his chair closer to Mr Tumai and then, with what Mr Hona described as “full strength” punches, hit him in the face three times. This caused Mr Tumai’s nose to bleed. After the third punch Mr Hona and Mr Wilson intervened. They pulled Mr Oti into the sitting room “While he was still trying to throw hooks”. They sought to calm him down.
[23] Although the Crown suggests that at this point Messrs Hona, Wilson and Oti left the house on a cigarette run before returning at around 2.00 am, I am satisfied, having regard to Mr Hona and Mr Wilson’s evidence, that they did not do so until later and that the events I next explain followed the assault at the table.
[24] Mr Tumai endeavoured to get up but fell to the floor between the kitchen and the hallway. He refused to budge which made Mr Oti even angrier. I accept Mr Wilson’s evidence that Mr Oti punched Mr Tumai while on the ground in that location. Mr Oti then grabbed Mr Tumai by the wrists and dragged him down the hallway into the bedroom telling him to “Just fucking go to sleep”. I accept Mr Wilson’s evidence that Mr Oti continued to punch Mr Tumai as he was dragging him. In Mr Wilson’s words “He just carried on getting even more aggressive”. Significant volumes of blood on the hallway carpet are consistent with this evidence.
[25] I accept also that further punching occurred in the bedroom. That was Mr Hona’s evidence. He said he was in the hallway and Messrs Oti and Tumai were on the other side of the bedroom door. He could see Mr Oti’s arm doing the motion of throwing his hands “[by way of hooks at Mr Tumai]”. Mr Niven is broadly critical of this evidence which he says was not in Mr Hona’s police statement and which lacks credibility because, if Mr Tumai was against the door, it would inevitably be shut and Mr Hona unable to see what was going on. However, Mr Wilson says that he was “standing in the doorway” which suggests it was ajar, albeit slightly, and that he subsequently went into the bedroom “to stop [Mr Oti]”. I accept his evidence that he grabbed Mr Oti and pushed him into the wardrobe where blood was subsequently found on the wall. I am satisfied that his reason for doing so was the fact that, as Mr Hona said, Mr Oti was continuing to throw punches at Mr Tumai. I do not consider that if all Mr Oti was doing at this time was verbally abusing Mr Tumai that Mr Wilson’s reaction would have been so forceful.
[26] Mr Wilson then told Mr Oti to go for a walk to calm down. By the time Mr Oti left the bedroom I accept the evidence of Mr Wilson and Mr Hona that Mr Tumai was lying on his back mumbling with a bleeding nose, black eyes and blood all over his face.
[27] At around 3.40 am Messrs Oti, Wilson and Hona exited the address leaving the front door “wide open”. Mr Oti was heard swearing before being seen in the driveway carport area by both Ms Tuilasea (a resident of the [Redacted]) and Lui Pau (from Redacted). The group walked to [Redacted] (where Mr Wilson lived) and where Mr Oti and Mr Wilson subsequently “had a scuffle”, the reason being that Mr Wilson did not like what Mr Oti had done to Mr Tumai. Mr Wilson and Mr Oti then left and went back to the top of the driveway at [Redacted] where they met Mr Hona who was waiting for them. By that stage Mr Wilson thought Mr Oti had calmed down so they walked him home.
[28] I reject Mr Oti’s evidence that at this point he took himself quietly to bed and that the next interaction with Mr Tumai was when he woke to Mr Tumai rubbing his trousers in the genital area (which Mr Oti now accepts as having likely been innocent and simply an attempt to wake Mr Oti up in his darkened room). To the contrary, I find during the course of Mr Oti’s absence from the house Mr Tumai gathered sufficient strength to shut and lock the front door and he did so for self-protection.
[29] The basis for that conclusion is my acceptance of evidence from another neighbour at [Redacted], Mr Scanlan, that at around 4.40 am he observed and heard Mr Oti banging on Mr Tumai’s bedroom windows, which are immediately adjacent to where Mr Scanlan was seated on his porch, saying “Open the fucking door”. I assess Mr Scanlan as a credible witness.2 I regard Mr Scanlan’s identification of the times at which relevant events occurred over the course of the early morning hours as accurate, based on the pattern of shift work which he and his partner were engaged in. His vantage point was also very close to Mr Tumai’s bedroom which he could partially see into through a gap in the curtains. His ability to hear what was said in the room was, in turn, assisted by a missing windowpane in Mr Tumai’s bedroom. His narrative is
2 I accept that the evidence about banging on the window did not form part of Mr Scanlan’s initial statement to the Police. I do not regard that omission as substantially undermining his credibility on that point. He was a candid and straightforward witness with no obvious agenda. His written statement was significantly focused on the violence he had witnessed and what was said inside the house. In addition another witness, Ms Samuelu, gave evidence that she heard Mr Oti swearing and saying things like “Fuckin arsehole, fuckin shit, open the door”, albeit earlier in the evening, around 2.30 am. Ms Tualasea also said that around 3.00 am she heard Mr Oti say “Open the door, open the door. Wait and see what happens to you when I get in there”. It is possible therefore that Mr Tumai locked Mr Oti out of the house on two occasions or on the earlier occasion locked him out of his bedroom.
also supported by the fact that significant quantities of Mr Tumai’s blood were identified on the front porch consistent with Mr Tumai going to open the door.
[30] I conclude that in response to Mr Oti’s demands, Mr Tumai left his room and that when he opened the front door to Mr Oti was further assaulted at that location. Blood splatter on an exterior wall by the porch and a bloodied hand-print, low on a laundry cupboard door in the adjacent entrance way, satisfy me the assault was such as to again knock Mr Tumai to the ground.
[31] I accept Mr Scanlan’s evidence that shortly after Mr Oti gained entry to the house, he returned to Mr Tumai’s bedroom where he yelled “Fuck you cunt, fuck this” and similar phrases around 20 times. I find the likely catalyst for this renewed outburst of anger to be Mr Tumai’s decision to lock the front door. Front door keys located very close to Mr Tumai’s body reinforce this narrative. It is possible but I cannot be certain that as he retreated to his room at this point, Mr Tumai locked his bedroom door behind him and that Mr Oti kicked it in. It is possible also that this occurred a little earlier in the morning, around 3.00 am. The scene examination showed the door off its hinge and fresh paint and wood fragments [on the carpet]. I accept it as having been kicked in by Mr Oti at some point in the evening.
[32] At this point Mr Scanlan left his seat on the front porch to help with his children. He did not therefore witness what immediately followed. However, other residents in the same house, Mr Silafue and his partner Ms Samuelu (who were also readying themselves for work) gave evidence of Mr Oti swearing, of thumping noises that sounded like someone being beaten and Mr Tumai crying out in pain “You hurt me”. Ms Samuelu also heard Mr Oti saying to Mr Tumai “Get up, get the fuck out of my house. Shut the fuck up. Get out of my house”. At this point I conclude that Mr Tumai was on the floor of his bedroom with Mr Oti standing over him.
[33] Shortly afterwards Mr Scanlan returned to his observation point on the front porch. He heard Mr Oti say “Fuck you. Fuck you cunt” and “You know what you have fucking done”. Through the gap in the bedroom curtains he observed Mr Oti punching down on Mr Tumai while he was on the ground, using both arms, hitting
him four or five times and saying things like “Fuck you, fuck you cunt”. Mr Tumai was at this point groaning. I accept that evidence.
[34] Mr Scanlan then said that he heard Mr Oti telling Mr Tumai “Get up. Get up. Get up”, and that Mr Oti himself then stood upright, walked towards the bedroom door, turned off the bedroom light and left the room. Again I accept this evidence. This marks the end of what the Crown refers to as phase one of the fatal assault.
[35] Mr Scanlan says that Mr Oti returned to the room five to seven minutes later. Again I accept this evidence. He says Mr Oti switched the light back on shouting “Get up” more than once. Mr Scanlan then observed Mr Oti punching Mr Tumai again, following which he heard Mr Oti say “I’m not gay. I’m not gay. You watch what I’m gonna do to you”. I find that this was in response to some comment by Mr Tumai which Mr Oti thought impugned his sexuality. Mr Tumai had some history of provoking Mr Oti in this way. The evidence was that the previous month Mr Oti and Mr Tumai had been at [a] relative’s house, that Mr Tumai made some remark about Mr Oti being a “faggot” and that Mr Oti had responded by punching him in the head. This was consistent with other evidence that Mr Tumai was generally “cheeky” and would say things that people took umbrage to, particularly when he was drunk. I conclude that having been serially assaulted over the course of the evening and now effectively defenceless, Mr Tumai’s only means of retaliation was some “lippy” or ill- considered barb about Mr Tumai being or acting “gay”.
[36] At this point Mr Oti started kicking Mr Tumai in the ribs and stomping on the front of his chest. He admitted doing so in his evidence and doing so in anger. I find that the significant injuries to Mr Tumai’s chest area, including his multiple fractured ribs, occurred during this part of the assault and what immediately followed.
[37] Mr Oti armed himself with a drawer from a chest of drawers in the bedroom. I find that he struck Mr Tumai with the drawer in the area of his chest, upper body and head, at least six times. Mr Scanlan said he heard a sound which was like someone being hit with a guitar (something which he had previously experienced). I find that this was the sound of the assault which fractured the base of the drawer (resulting in a confined area of compression to the plywood base). The nature of the damage to the
drawer suggests an assault to the head and not to a flat surface like Mr Tumai’s chest or back. However, multiple linear marks on Mr Tumai’s back and similar marks on his chest indicate a significant number of further assaults with the drawer to those areas.
[38] I accept Mr Scanlan’s evidence that at this point Mr Oti again left the bedroom for a period which was “roughly the same amount as the first time”. I accept Mr Oti then returned to the bedroom a third time. At that point what the Crown refers to as phase three of the fatal assault commenced. Mr Scanlan heard five knocks on the floor. He described it as a thumping noise. He did not see Mr Oti at this point but he heard Mr Tumai groan in pain during the first two thumps. Thereafter he was silent.
[39] I find, consistent with the pathologist’s identification of compression injuries to Mr Tumai’s neck (including a small fracture of the thyroid cartilage structure) and contusions on the back of Mr Tumai’s scalp, that this phase of the attack involved Mr Oti crouching down beside Mr Tumai, grabbing him by the neck and slamming Mr Tumai’s head into the floor multiple times. Because the floor was carpeted, but Mr Scanlan was nevertheless able to hear it clearly, I conclude that he did so with considerable force. This was around 5.30 am.
[40] Mr Oti then left Mr Tumai to, as events transpired, die. He went to bed, waking up about noon on Friday 28 February. He says that he went to Mr Tumai’s bedroom at that point, opened the door and found him motionless and cold on the floor. He replaced the drawer in the chest (either at this point or at the conclusion of the fatal assault). When subsequently interviewed by the Police he denied any involvement in Mr Tumai’s death. He said that he had gone to bed as normal on the evening of 27 February, that Mr Tumai was not home at the time and that he must have been assaulted by person or persons unknown and returned to his room where he died.
[41] The pathologist, Dr Glenn, was unable to identify which assault or combination of assaults was responsible for Mr Tumai’s death. He said that Mr Tumai died as a result of various injuries caused by multiple blunt force trauma to the head, neck, chest and abdomen, each of which was so serious as to itself be capable of causing death. He considered, however, that the most probable cause of death was Mr Tumai’s chest
injuries. That was because the multiple fractures to the front, sides and back of his rib cage, together with the fractures to his sternum, resulted in a “flail” chest, in other words, where a portion of the rib cage is separated from the rest of the chest wall, usually due to severe blunt force trauma. Mr Tumai’s left lung had also collapsed and there was air trapped in the chest cavity, meaning his chest could not expand in the usual way. In addition, the multiple fractures caused a significant volume of bone marrow and fat emboli to enter the blood stream which Dr Glenn said would have further impaired blood flow across Mr Tumai’s lungs and contributed to his death. He said it was unlikely that any one or more of the fatal injuries had been caused by any of the falls which Mr Tumai sustained during the course of the evening. There were also multiple other injuries including a subdural haematoma (which could have resulted in a fatal seizure) and lacerations to Mr Tumai’s liver and kidneys.
[42] I conclude that all of Mr Tumai’s life-threatening injuries occurred as a result of assaults by Mr Oti and that the injuries which ultimately killed him were inflicted during the course of the three phase final attack which started around 4.40 am and concluded around 5.30 am.
Mr Oti’s background
[43] Mr Oti, you are a 47 year old Māori of Tainui descent. You are the fifth born of eight children, with five living siblings including two whāngai sisters. Your parents are deceased. Growing up you attended Wymondley Road Primary School, Papatoetoe Intermediate and Otahuhu College, but you never cared much for school. You left school at 15 without qualifications, but did courses in bone carving and small motor mechanics before finding work on roading gangs, work you did “on and off” thereafter.
[44] You have a criminal history dating back to 1990 totalling some 43 convictions for dishonesty, violent offending, driving offences, sexual offending and non- compliance with community-based orders and sentences. It is unnecessary for the purpose of this sentencing to refer to that prior history further, suffice to say that you are no stranger to violence.
Victim impact statements
[45] I have heard the victim impact statement given by Mr Tumai’s brother, your cousin, Mr Frank Tumai. I found his words moving, both what he said in writing and before me today. They speak of grief and loss, sadness and forgiveness. He describes initially feeling angry with you, but after speaking face to face, that anger was replaced with sadness and understanding. He believes you feel genuine remorse over what you have done to Mr Tumai. He says that life is too short for hating, that there is no excuse for what you have done but that at the end of the day you are all whānau. He forgives you for what you have done. He is, in my view, a generous man.
[46] It is clear that the deceased’s death is felt very deeply by all of those who have attended the sentencing, in person and remotely today. I extend to them the sympathy of this Court. Their grief speaks to the humour and good nature of Mr Tumai and to the pleasure he brought to many of you during his life. There is nothing I can say today which can adequately address the sadness you feel for his passing, or right the wrong he suffered, but I hope that it at least begins the process of closure.
Crown submissions
[47] The Crown contends that s 104(1)(e) is engaged by this offending. While it acknowledges that all murders are inherently brutal to some degree, it submits that your offending was so brutal and so callous as to engage that section.
[48] It bases this submission on a number of factors, including the progressive nature of the violence inflicted on Mr Tumai over the course of the evening, repeated foreshadowing of what was to come, targeting of particularly vulnerable areas of Mr Tumai’s body, the sustained nature of the final beating spanning some 30 to 40 minutes, the fact that you did not seek immediate assistance for Mr Tumai and that you consistently lied to Police about the circumstances of his death. In these circumstances, the Crown submits that the minimum period of imprisonment of 17 years specified in s 104 must apply.
[49] As to the aggravating features of your offending, the Crown submits that I should take into account the high level of brutality involved, the implicit breach of
trust and vulnerability of Mr Tumai, the use of a weapon, your failure to seek assistance and the extent of loss involved in this case. By this, of course, I refer to the fact that Mr Tumai lost his life as a result of your attack.
[50] The Crown does acknowledge that there may be a mitigating feature to your offending in the form of some provocation said to have been offered by Mr Tumai. However, it submits that your narrative around waking up to Mr Tumai’s hand on your shorts, in the genital area, is directly contradicted by Mr Scanlan’s evidence that he saw you banging on the window of Mr Tumai’s bedroom. It submits that you cannot have gone home and straight to sleep in your room as suggested. Any provocation said to have been caused by Mr Tumai touching you inappropriately should therefore be rejected.
[51] It also submits that even if your narrative was accepted, namely that you awoke to this occurring and that this conjured up memories of sexual abuse suffered as a child, this cannot have a material impact on your culpability. It submits that there is no evidence you lost self-control or acted unthinkingly. It notes your own evidence given under cross-examination that you knew it was Mr Tumai and not your previous abuser in your room. It suggests that you knew who you were attacking, and even if some initial reaction had been provoked by your childhood trauma, it submits that by the time you had dragged Mr Tumai into his bedroom and began the fatal assault, your primary motivation was anger. You were not motivated by some misplaced fear or anger towards your previous abuser. You wanted to kill Mr Tumai, or at least hurt him [and] were reckless as to whether or not his death occurred. Significantly all of those submissions must now be considered in the context of my finding that the alleged incident in your bedroom did not occur.
[52] The Crown submits that in these circumstances no discount should be given for provocation, or if some lower order provocation in the nature of a verbal slur is accepted, it should be considered in combination with a personal discount “in the region of five per cent” for “historic experiences of violence, sexual abuse and alcoholism”.
[53] Taking into account the aggravating features of the offending and the absence of any mitigating features in that respect (including provocation), the Crown submits that a starting point of 17 years’ imprisonment is appropriate. It refers to three cases it says are similar, R v Werahiko,3 R v Lavemai,4 and R v Turner.5 Each involved violent murders sufficiently brutal as to engage s 104(1)(e). The Crown suggests that your offending is at least as serious, if not more serious, than all three.
[54] As to your personal circumstances, the Crown submits that no discount should be allowed for remorse, personal hardship or cultural deprivation and that the totality of discounts should be limited in the way previously identified i.e., up to five per cent.
[55] In these circumstances, the Crown submits that it would not be manifestly unjust to impose a minimum period of imprisonment of 17 years under s 104 of the Sentencing Act. However, it does submit that a sentence of life imprisonment without parole under s 86E would be manifestly unjust.
[56] Its final position is therefore that you should be sentenced to life imprisonment with a minimum non-parole period of 17 years. That is the Crown case.
Defence submissions
[57] Mr Niven responsibly accepts that a sentence of life imprisonment is appropriate in the present case in that there is no circumstance that would make this manifestly unjust. However, he disagrees that s 104 of the Sentencing Act is engaged. He submits that the level of violence in your offending falls short of the brutality threshold required by s 104. Likewise, the level of callous indifference to the deceased present in some other cases was, he says, wholly absent here.6 He submits that a minimum period of imprisonment of between 12 and 15 years, depending on my assessment of the facts, would be appropriate to reflect the aggravating features of this offending, including the assaults during the earlier part of the evening, the sustained
3 R v Werahiko [2013] NZHC 3413; and Werahiko v R [2015] NZCA 194.
4 R v Lavemai [2014] NZHC 797.
5 R v Turner [2015] NZHC 189; and R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602. The consolidated decision in Harrison also involved the Court hearing Mr Turner’s appeal.
6 Mr Niven refers to the decisions in R v Frost [2008] NZCA 406; Marong v R [2020] NZCA 179;
Hamidzadeh v R [2012] NZCA 550; and Lavemai, above n 4.
period of time over which the fatal assault occurred, the fact that the attack culminated with the use of a weapon, and the serious injuries caused to multiple parts of Mr Tumai’s body.
[58] As to mitigating factors, Mr Niven notes your objection to comments in the PAC report suggesting an absence of genuine remorse. He says you have expressed such remorse on multiple occasions and that it is heartfelt. He also refers to the cultural report prepared pursuant to s 27 of the Sentencing Act. He notes that certain background factors are relevant to your offending including harmful alcohol and drug use, your experience of violence during childhood and sexual abuse. Mr Niven observes that you have written a personal letter of remorse, have completed several short courses and programmes since being remanded into custody and have generally engaged positively with the Department of Corrections staff.
[59] In these circumstances, Mr Niven submits that a reduction to your minimum period of imprisonment of around one to two years would be appropriate. He submits that the Court would be entitled to consider as a mitigating factor your history of sexual abuse and the flashbacks you experienced as a result of the trigger of the alleged incident in your bedroom or, as I have found, the trigger of some “lippy” remark. He notes that although what Mr Tumai did was likely accidental, referring to the alleged bedroom incident, the Court is entitled to view his actions as a catalyst for what followed. He submits a further discrete discount of five per cent may also be appropriate to reflect your participation in a restorative justice conference and remorse.
[60] I will now outline the structure of the sentencing exercise which I intend to adopt.
Sentencing framework
[61] I record at the outset my requirement to consider the principles and purposes of sentencing under ss 7 and 8 of the Sentencing Act. This includes the need to hold you accountable for the harm done to Mr Tumai and his whānau, denounce your conduct, deter you and others from committing similar offences and protect the community. The sentence I impose must also take into account the gravity of your
offending and achieve consistency with the sentences imposed in other, similar, cases of murder.
[62] Under s 102(1) of the Sentencing Act, there is a presumption in favour of life imprisonment where an offender has been convicted of murder unless such a sentence would be manifestly unjust. Both parties accept that it would not be manifestly unjust in your case. I will accordingly sentence you to life imprisonment.
[63] Section 103 of the Act provides that if a court sentences an offender to life imprisonment for murder, it must impose a minimum period of imprisonment of at least 10 years. Again, it is accepted that your case warrants a minimum period of imprisonment of at least 10 years.
[64] Section 104 of the Act provides that in certain circumstances, the Court must impose a minimum period of imprisonment of at least 17 years if it would not be manifestly unjust to do so. As I have indicated earlier, the Crown submits that s 104 is engaged. Mr Niven, on your behalf, disagrees. It falls to me to decide who is correct.
[65] My overall task today is therefore to determine precisely what minimum term of imprisonment is necessary to satisfy the principles and purposes of sentencing all within the legislative framework I have identified.7 I acknowledge also that as you have previously been given a first strike warning on 29 November 2016, s 86E of the Sentencing Act is engaged in your case carrying with it a presumptive sentence of life imprisonment without parole. It will be necessary in determining your minimum period of imprisonment to reach a view as to whether a sentence of life imprisonment without parole is justified. I can say, however, at this point in the sentencing that I do not consider a sentence of life imprisonment without parole is appropriate.
[66]The process I am required to adopt is as follows:
(a)first, I must determine whether any of the factors outlined in s 104(1) of the Sentencing Act are present;
7 See, in particular, s 103(2).
(b)second, if one or more s 104 factors are engaged, I will then need to identify an appropriate minimum period of imprisonment in accordance with ordinary sentencing principles. This involves considering the circumstances of the offending, including any aggravating or mitigating factors, and also your personal circumstances as they relate to that offending;
(c)third, if the minimum period of imprisonment I identify is less than 17 years, I must determine whether it would be manifestly unjust to impose a minimum period of imprisonment of 17 years under s 104; and
(d)finally, in light of those steps, I must determine whether it would be manifestly unjust to impose a sentence of life imprisonment without parole under s 86E.8 I have already answered that final question.
First stage: s 104 of the Sentencing Act
[67] I turn then to the first stage: determining whether s 104 of the Sentencing Act is engaged.9 Section 104 was enacted in response to widespread public concern about the inadequacy of sentences imposed for murder, particularly those committed with a high degree of brutality.10 In your case, as I have indicated, the Crown submits that s 104(1)(e) is engaged. That subsection requires the Court to impose a minimum period of imprisonment of at least 17 years where, among other things, a murder was committed with a “high level” of brutality, cruelty, depravity or callousness. While all murders necessarily involve some degree of brutality, cruelty, depravity or callousness, s 104 is designed to capture only those murders which particularly demonstrate those features.
[68] The Court of Appeal has described this provision as referring to murders involving savage violence (brutality), callous indifference (cruelty), moral corruption
8 Section 86E(2)(b).
9 The approach to be taken in sentencing offenders where one or more factors under s 104 are engaged was set out by the Court of Appeal in R v Williams [2005] 2 NZLR 506 (CA).
10 Harrison, above n 5, at [38].
(depravity) or an insensitive and cruel disregard for others (callousness).11 Callousness in particular has been defined as a “hardened state of mind”, an individual “without feeling”, a “numbness of the soul”.12 It is further clear that post-murder conduct can be taken into account when considering the factors under s 104(1)(e).13
[69]In your case, Mr Oti, I am satisfied that s 104(1)(e) is engaged.
[70]A number of features of the offending support this conclusion, including:
(a)the progressive and escalating violence over the course of the night. Over much of the evening you forcefully punched Mr Tumai. That escalated to kicking him and stomping on him, including on his chest. It further escalated to your use of a weapon—a nearby drawer which you used to strike him across the chest, upper body and head at least six times. When that did not satiate your rage, you grabbed Mr Tumai around the throat and bashed his head against the floor at least five times;
(b)the extended period of time over which the assault occurred. I refer here both to the hours preceding the fatal assault over which you beat Mr Tumai, often in the head and on multiple occasions, and also to the fatal assault itself, which took place over 30 to 40 minutes. This was not a sudden outburst in the heat of the moment. This was a sustained and violent beating carried out over a prolonged period of time;
(c)the fact that throughout the three phases of the final assault you repeatedly foreshadowed that you were not yet finished with Mr Tumai, that he would be subject to further violence, saying on a number of occasions “Let me show you what I’m going to do to you” before assaulting him further. Clearly this would have added significantly to Mr Tumai’s trauma. Your actions can be considered more brutal for it;
11 R v Gottermeyer [2014] NZCA 205 at [79].
12 See R v Mason [2012] NZHC 1849 at [44]; and R v Christison [2013] NZHC 2813 at [38].
13 Frost, above n 6, at [40]; and Marong, above n 6, at [32].
(d)your single-minded focus. Your actions were in every sense deliberate, evidenced by you leaving the bedroom twice during the final assault, each time for a period of approximately five to seven minutes, only to return and continue the beating. On each occasion you were not content with the injury already inflicted but were determined to inflict further pain and suffering on Mr Tumai, until his death was, as the facts have indicated, almost inevitable;
(e)the fact that you targeted the most vital and vulnerable areas of Mr Tumai’s body, namely his head, neck and chest with what must have been knowledge that these were the places where you would inflict the most severe injury; and
(f)that throughout the entire fatal assault lasting some 30 to 40 minutes Mr Tumai was effectively defenceless. He was, at this stage, lying on the ground in his bedroom. You were standing over him, punching down. He made no effort to defend himself and indeed he was in no position to do so, having been beaten over the course of the preceding hours into a state of complete submission. He was described by Mr Wilson and Mr Hona earlier in the evening as “mumbling”, “with a bleeding nose”, “black eyes” and “blood all over his face”. The fact that you returned time and again to assault Mr Tumai who was visibly in a very vulnerable and injured condition reinforces the brutality of your actions.
[71] As I have indicated the assaults resulted in a range of varied and severe injuries. Such was your brutality, administered to so many parts of the body, that the pathologist could not conclusively point to one cause of death. There were multiple different potential explanations resulting from multiple potentially fatal injuries.
[72] As with many of the cases in which s 104(1)(e) is engaged, you chose to use a weapon, in this case a drawer. I have also concluded that you used this to strike the back of Mr Tumai’s head as well as his back and torso.
[73] After this phase of the assault you left the bedroom before returning one final time. You crouched down and grabbed an already severely injured man by the neck before slamming his head into the ground. This marked a particularly brutal finale to what was at that point around six hours of violence against Mr Tumai.14
[74] In these circumstances, I am satisfied that the offending engages the brutality limb of s 104(1)(e).
[75] I note for completeness that I am not satisfied that the offending involved a sufficient degree of callousness to engage that aspect of the section. On the basis of the authorities referred to me, I consider your actions different in kind to the sorts of murders typically described in such terms. I accept that you did not immediately call for assistance upon discovering Mr Tumai dead in his room on the morning after the fatal assault. I also accept that you sought to minimise your involvement, both initially to Police at the scene and throughout the entire court process. However, unlike the stabbing in Frost where the defendant approached the victim from behind and slit her throat before stabbing her in the heart, later describing the killing in terms which suggested he liked it,15 or the strangling and subsequent burning of the victim in Marong, where the defendant described it as like “hunting in the wild”,16 I do not regard this offending as evincing a “numbness of soul” on your part. The assaults were brutal in my view but not callous to the extent the authorities demand.
[76] I would, however, have been minded, had it been necessary, to find that Mr Tumai was sufficiently vulnerable by reason of his injuries to invoke s 104(1)(g) of the Act. At the time of the final assault around 4.40 to 5.30 am, you had been beating Mr Tumai on and off for hours. As I have already mentioned, he was described by Mr Wilson and Mr Hona as earlier in the evening “mumbling”, “with a bleeding nose”, “black eyes” and “blood all over his face”. At the time of the fatal attacks he was lying on the floor of his bedroom. He had consumed a significant amount of alcohol over the course of the evening and by that point had sustained such extensive
14 See Tim Conder “Murder Most Foul: An Analysis of the Courts’ Approach to s 104 of the Sentencing Act 2002” [2015] NZ L Rev 355 at 375. See also R v Tuporo [2008] NZCA 22 at [46]; and R v Tuporo HC Auckland CRI-2005-092-12850, 31 August 2007 at [34]. In my view this informs both the brutality and callousness limbs of s 104(1)(e).
15 Frost, above n 6, at [32] and [35].
16 Marong, above n 6, at [8].
injuries that he was essentially defenceless.17 He appears to have lost consciousness at some point during the final phase of the assault when he stopped groaning although his head continued to be pummelled against the floor. There is, in my view, an appropriate basis for a finding of particular vulnerability in these circumstances albeit strictly unnecessary given my finding of brutality and not specifically relied on by the Crown in its submissions.18
Second stage: a notional minimum period of imprisonment
[77] I turn now to the second stage of my analysis: having found that s 104 is engaged, I must identify an appropriate minimum period of imprisonment in accordance with ordinary sentencing principles.19
[78] Although murder is one of, if not the most serious type of offending, the law says I must not impose a sentence that is crushing. As far as possible, the Court is required by law to assist in your rehabilitation.20 The first step in that assessment is to determine your culpability in relation to what the law calls the “standard range of murders”.21 This takes into account any aggravating or mitigating features of the particular offending.
Starting point
[79]The following aggravating features are present.
[80] First, the high level of brutality involved. Given what I have already said today, I do not need to address this point further beyond noting that the severe and prolonged
17 I acknowledge that prior to the final assaults his injuries were not so severe that he was unable to get up and lock the front door. However, as the final three phases unfolded he became increasingly incapacitated—to the extent that by the second and third phases at least he was essentially defenceless.
18 Lavemai v R [2016] NZCA 363 at [22] where the Court of Appeal considered that a finding of vulnerability would have been open to the Judge where a 55 year old man was knocked unconscious then beaten further. See also comments of the Court of Appeal in Harrison, above n 5, at [151] where it was noted that the deceased was “particularly vulnerable” given that he was “alone, had been drinking, was smaller than Mr Turner and could not fight back”.
19 See the approach outlined in Williams, above n 9.
20 Section 7(1)(h).
21 Williams, above n 9, at [52]–[54].
beating you inflicted upon Mr Tumai is an aggravating feature under both ss 104(1)(e) and 9(1)(e) of the Sentencing Act.
[81] Second, breach of trust and vulnerability of the victim.22 You and Mr Tumai were cousins. You had known each other much of your lives and appear generally to have got along well. Mr Tumai had only recently moved into 33A Trimdon Street having been found homeless. The Crown submits that he was entitled to the safety and protection of a familial living situation. I agree. Mr Tumai was murdered in his bedroom having attempted to lock himself away from you for his own protection. He was outmatched physically and already severely beaten by the time of the fatal assault. He never fought back or defended himself. By 5.00 am at the latest he was in fact quite incapable of doing so.
[82] Third, the use of a weapon.23 Not only did you punch Mr Tumai, kick him, stomp on him and bash his head against the ground, you also used a drawer as a weapon. You struck him repeatedly with it.
[83] Fourth, the failure to seek assistance for Mr Tumai.24 You in fact concealed evidence,25 and sought to minimise your involvement in the offending. You claimed to the Police that you had no part to play in the injuries Mr Tumai had suffered and that when you woke around noon it was all effectively a surprise to you.
[84] Fifth, the extent of loss resulting from the offending.26 I refer here to the loss of Mr Tumai’s life—as indicated, the greatest loss that can ever occur in the context of violent offending.
[85]As Mr Niven accepts, there are no mitigating features of the offending.27
22 Section 9(1)(f) and (g).
23 Section 9(1)(a).
24 Section 9(4)(a).
25 I refer to replacing the broken and bloodied drawer and placing a mat over blood on the front door porch tiles.
26 Section 9(1)(d).
27 He addresses issues around provocation in the context of discussing personal mitigating factors. I do likewise for reasons I later explain.
[86] In determining an appropriate starting point, it is necessary to consider comparable sentences handed down in other cases with broadly similar features. Of course, no two cases are identical, but there are some which I have found useful by way of benchmark. It is unnecessary in the context of these remarks to set out the full factual background in all the cases which I have considered.28 However, it is appropriate that I discuss in some depth those cases referred to me by counsel which I did find particularly helpful.
[87] The Crown suggests that your offending bears significant factual similarities to that considered in Werahiko v R.29 I agree. In that case, the appellant beat his 77 year old friend, who was a retired journalist and Order of Merit recipient, to death in the victim’s home. The appellant claimed that he awoke to find the deceased touching the outside of his pants in the genital area. He claimed to have been sexually abused in his childhood, and that as a result of the deceased’s touching, the memory of this abuse had resurfaced causing him to fall into a rage. The cause of death was blunt force trauma to the head and neck. The victim also sustained chest haemorrhages, rib fractures, bruises and abrasions. The appellant had punched, kicked and stomped on the victim until he died. The Judge considered that s 104 was engaged and that a starting point of 17 years was warranted. His conviction and sentence were both upheld on appeal.30
[88] In R v Lavemai, the defendant was found guilty following trial on one charge of murder and one charge of theft.31 He had visited the property of a neighbour intending to steal something to pay a drug debt. The deceased came to the door and invited him in. Without any warning or provocation, the defendant punched him. The victim fell onto his sofa and shortly after lapsed into unconsciousness. He was unable to offer any resistance as the defendant continued to punch him to the head and neck. The pathologist gave evidence that the attack involved a minimum of eight blows to
28 Among others, the Court of Appeal’s decision in Te Hiko v R [2019] NZCA 41 and the authorities referred to therein were of particular assistance. I found decisions involving physical beatings such as punching, kicking and stomping, and even those which involved blunt weapons, of more assistance than cases such as Frost, above n 6 (involving a knife); Marong, above n 6 (involving strangling and burning the body); Hamidzadeh, above n 6 (involving a knife); and R v Paewhenua [2018] NZHC 301 (involving a shotgun).
29 Werahiko, above n 3.
30 At [45].
31 Lavemai, above n 4.
the head and three blows to the neck.32 The defendant then stole items from the property and made no attempt to assist the victim. He later referred to the punching as a “thrill”. The Judge considered that s 104 was engaged and imposed a minimum period of imprisonment of 17 years. Again that was upheld on appeal.
[89] In R v Turner, the appellant and victim had met a few weeks prior to the offending.33 Both were homeless. Mr Turner viciously attacked the victim with a combination of punches, kicks and stomps to the head while the victim lay on a concrete floor. He described punching the victim in the face for 20 to 30 minutes before stomping on his head for a further half hour. On appeal, the Court found that the murder was committed with a high degree of brutality and callousness with the result that s 104(1)(e) was engaged, and also that the deceased was particularly vulnerable having consumed alcohol and having been alone, smaller in stature than Mr Turner and not in a position to fight back.34 It considered a starting point of 18 years appropriate for the minimum period of imprisonment.35
[90] I accept the Crown’s submission that your offending is factually similar to that in Werahiko.36 Each involved severe physical beatings involving punching, kicking and stomping on a victim who was unable to defend themselves. The alleged provocation in Werahiko is also strikingly similar to your own narrative. I accept that certain aspects of the offending in Werahiko indicated a particularly grave assault, such as blood spatter on the ceiling despite the fact that the assault took place near floor level. However, your offending culminated in the use of a weapon and involved potentially fatal injuries to four discrete areas of the body as against fatal injuries to only the head and neck in Werahiko. Further, the fatal assault you inflicted upon Mr Tumai was preceded by hours of previous attacks, including attacks to the head. That must inform the severity of your offending. I note also that while the victim in Werahiko was plainly vulnerable by reason of his age, I have already indicated that Mr Tumai was rendered particularly vulnerable during the final phases of the assault
32 Lavemai, above n 4, at [4].
33 Harrison, above n 5. See also the decision at first instance in Turner, above n 5.
34 Harrison, above n 5, at [151].
35 At [152].
36 Werahiko, above n 3.
through a combination of the earlier beatings and his intoxication. Broadly speaking, I consider that the offending in your case was at least as serious as the offending in Werahiko.
[91] I consider your offending more serious than the offending in Lavemai which involved a much smaller number of blows, somewhere in the region of 11 in total. The significant number of blows inflicted to multiple vulnerable parts of Mr Tumai’s body means a higher starting point is arguably appropriate. The final phase of the assault in which you returned to the bedroom, slamming Mr Tumai’s head against the floor at least five times warrants particular denunciation.
[92] Mr Niven submits that three separate factors under s 104 were involved in Lavemai and that the level of brutality should accordingly be seen as barely reaching the required threshold. I do not agree. The Court of Appeal specifically noted that it was a “particularly brutal and callous murder” and that the Judge “was right to conclude for the reasons he gave that s 104 was clearly engaged”.37
[93] However, I regard your offending as less serious than in Turner. While I accept the Crown’s submission that your offending involved the presence of a weapon and multiple potentially fatal injuries to different parts of Mr Tumai’s body, I nevertheless consider that the brutality in Turner was greater, in my view, by a significant margin.
[94] Taken together, I consider the particular aggravating features of this offending, lack of any mitigating features and relative severity in comparison with other cases would warrant a starting point of 17 years’ imprisonment.
[95] I turn now to consider any adjustments that would be appropriate to that minimum period of imprisonment in light of your personal circumstances.
Uplifts for personal circumstances
[96] The Crown submits that no uplift is appropriate to reflect your personal circumstances. You have accrued some 43 previous convictions spanning over 30
37 Lavemai, above n 18, at [22].
years. Some of those convictions are for serious offending. However, given the age and type of the various convictions, I agree with the Crown’s submission. There will be no uplift on this basis.
Discounts for personal circumstances
[97] Mr Niven submits that two personal mitigating factors operate to reduce the MPI which would otherwise be imposed:
(a)the final assaults were precipitated by something said or done by Mr Tumai which challenged your sexuality and caused you to relive childhood abuse by a male relative which, taken together with other factors identified in the s 27 report, justify a reduction of between one and two years from the MPI; and
(b)your remorse (justifying a discrete discount in the order of five per cent).
[98] As to the first, I have already indicated that I do not accept the narrative about Mr Tumai rubbing or shaking your crotch in your bedroom. Mr Niven refers to evidence of blood on your shorts in that general area. But I do not regard that as compelling evidence of that narrative. There were many other opportunities for Mr Tumai’s blood to end up on your shorts. As I have also indicated the allegations do not fit with Mr Scanlan’s evidence of the events from around 4.40 am, which I accept.
[99] However, as I have also indicated, I do accept that some comment was made by Mr Tumai during the period of the final assaults which you considered impugned your sexuality. The “I’m not gay, I’m not gay” response is consistent with that conclusion.
[100] The point has surely been reached in New Zealand in 2021 where a suggestion by one male to another that the latter is gay—whether intended as a reference to their sexuality or as a form of light-hearted mockery or ridicule (for example equivalent to
“weak” or “lame”) ought not, ordinarily, be recognised as a sufficient “provocation” to justify a finding that the offender’s culpability is reduced.
[101] Indeed in Werahiko v R the Court of Appeal held that even if it had accepted that the defendant in that case woke to the deceased touching the outside of his trousers in the genital area (an allegation very similar to that made by you in this case but without credible evidence of the feature I next discuss):38
… it could not in our assessment mitigate the seriousness of the offending to the point of justifying any reduction in the non-parole period.
[102] There is, however, an aspect of your childhood which in my view requires this basic starting point to be modestly adapted to the particular facts of this case.
[103] You gave evidence that between the ages of five and 10 you were sexually abused by [Redacted]. You said that this abuse was accompanied by threats and violence and involved both [Redacted] masturbating your penis and you being required to masturbate [Redacted] penis. You said that on one occasion [Redacted] attempted to have penetrative sex with you but that you managed to get free. You said that you told your mother at about age 10 and that she thereafter prevented [Redacted] from visiting.
[104] I accept that your account derives additional credibility from the fact that in your early adolescence there was an altercation with [Redacted] consistent with the alleged abuse and that in your early 20s you physically assaulted [Redacted] who had no involvement with the family thereafter.
[105] I note that the Crown did not cross-examine on any of this evidence, that you have subsequently made an ACC claim and that ACC have accepted that the abuse occurred. I have received a report from Kathryn Daley, a registered ACC counsellor, confirming a diagnosis of PTSD as a result of sexual abuse. She confirms that you have already attended 20 counselling sessions and that ACC will provide ongoing funding on an indefinite basis to treat what it describes as your “mental injury”.
38 Werahiko, above n 3, at [44]. The Court in that case regarded Mr Werahiko as a witness lacking any credibility.
[106] For the purposes of this sentencing I accept that such abuse occurred. The Crown’s submissions proceed on the same premise.
[107] I consider that childhood sexual abuse by an older male left you with an impaired ability to rationally respond to the suggestion of being called gay. In that sense the abuse is appropriately considered through a similar lens to that used to mitigate culpability when a violent offender establishes similar violence in their own upbringing. I therefore consider the abuse and the associated “trigger” of Mr Tumai’s comment should be modestly reflected in assessing what MPI would apply in the absence of s 104.
[108] The Crown suggests that a discount of five per cent might be appropriate within a bundle of other s 27 factors including experiences of violence and alcoholism, the defence suggests a reduction of between one and two years from a possible MPI of 15 years (i.e., between 6.5 and 13 per cent). I consider the Crown’s proposed reduction more appropriate, particularly in light of the comments made by you to the s 27 report writers. In that respect, you said of the sexual abuse “I sort of grew out of it, let it go”.39 Nor did you express any concerns about how you were raised. Although your parents were heavy drinkers, they did not use cannabis or other drugs. Likewise, although physical punishment was part of the discipline regime in the household you never thought it was excessive.40 In the pre-sentence report you described your parents as “Good people. They fed us, put food in the cupboard”. You also appear to have received considerable support from your grandmother.
[109] In Hohua v R, the Court of Appeal noted that where a person is being sentenced for murder the discretion available to the Court to reduce an otherwise appropriate sentence on account of circumstances personal to an offender’s background is more constrained.41 That is because the minimum period of imprisonment must accurately reflect the seriousness of the crime and the need to give effect to the legislative policy mandated by the statutory minimum period of imprisonment—particularly that
39 Even so, I acknowledge that victims of sexual abuse in this context may not have the requisite insight or ability to recognise the lingering effects of historical abuse.
40 Noting, however, that in the Restorative Justice Report both Mr Frank Tumai and Ms Fiona Totorewa describe you as regularly beaten.
41 Hohua v R [2019] NZCA 533 at [44].
imposed by s 104 in respect of (for example) murders with a high level of brutality and callousness. The authorities also establish the need for a causative link between the offender’s background (including cultural considerations) and the offending.
[110] I do not consider your background was one of substantial deprivation—at least in comparison with many others sentenced by this Court. I also have some reservations about the strength of the causative link between such deprivation and dysfunction as you did face (particularly the sexual abuse) and the totality of the offending over the evening and morning of [27/28] February. You were after all exceedingly violent and aggressive towards Mr Tumai long before the ‘provocation’ I have referred to. You have chosen to pursue a life which has been largely unstructured, undisciplined and marked by long term drug abuse. From that has emerged a violent and recidivist offender with strongly anti-social behaviours. Nevertheless within a “bundled” five per cent discount I am prepared to accept that unfortunate aspects of your childhood did to some extent at least shape the man Tainui Oti had become by the night of 27 February 2020.
[111] As to remorse, Mr Niven suggests a further discount in the order of five per cent. There is some conflict within the evidence about the extent to which recent demonstrations of remorse by you are genuine. In the Provision of Advice to the Courts the writer records that:
Throughout the interview, Mr Oti displayed limited insight into his offending, seemingly justifying his use of force against the victim. He stated he had been angered by the victim on three separate occasions across the evening which had resulted in three, in his view, warranted acts of violence. Mr Oti went on to state “if he didn’t do what he did he wouldn’t be where he is and I wouldn’t be where I am”.
[112] You have, however, subsequently participated in a restorative justice conference which was attended by three victim representatives (Mr Tumai’s brother, sister and sister-in-law). I have considered the detailed report by the Conference facilitators. They record unqualified acceptance by you of your responsibility for Mr Tumai’s death. In particular you described the deceased as a humble non-violent person and said you “didn’t mean to beat him like that, I wish I had done better. I beat him up. He died. There is no excuse”. You read a letter of apology to the family representatives. This was accepted by the deceased’s brother and the deceased’s sister-
in-law expressed that she was “glad” she had attended the conference despite initially not wanting to go.
[113] You have also provided a letter to the Court in which you express your sincere regret for the grief you have caused and the hope that your whānau can one day “except [sic] my sincer [sic] forgiveness”. You say that although there is no explanation for your actions Mr Tumai “triggered something that happened to me when I was a child and I lost control of my emotions which I am now paying the consequences for”. You say that you are “so sorry”.
[114] I accept that, possibly as a result of some of the therapeutic interventions in which you have already participated, there is now genuine remorse on your part for this death. As I have indicated I accept that you never intended to kill Mr Tumai and that the jury’s verdict is appropriately seen as one based on a finding under s 167(b) of the Crimes Act 1961. I take into account also what appear to be genuine, albeit formative steps at rehabilitation as evidenced by your engagement in a number of Howard League, Department of Corrections, Prison Chaplaincy Service and related courses. I also note a Certificate of Achievement for Exemplary Service in respect of allocated cleaning duties within the prison.
[115] Cumulatively I would be prepared to recognise a discount of five per cent for remorse and rehabilitation if sentencing independently of s 104.
[116] In total therefore I would recognise discounts of 10 per cent on account of personal mitigating factors which, against a starting point of 17 years would, with rounding down, result in a sentence of 15 years [and] three months’ imprisonment.
Conclusion on MPI (apart from s 86E and s 104)
[117] On the basis of the preceding analysis I would, apart from the operation of ss 86E and 104, sentence you to a non-parole period of 15 years and three months’ imprisonment.42
42 In precise terms a discount of 10.3 per cent.
Third stage: manifest injustice under s 104
[118] Having determined that an appropriate minimum period of imprisonment in the absence of s 104 would be 15 years and three months, I must now decide whether it would be manifestly unjust to impose a minimum period of imprisonment of 17 years under s 104. As is often the case, this is a finely balanced exercise and involves difficult issues of judgment. The Court of Appeal has described manifest injustice as a matter of overall impression—a question of whether the case falls outside the scope of the legislative policy which underlies s 104.43 The overall assessment must take into account all your circumstances and those of the offending and all of the purpose[s] and principles of the Sentencing Act. In this respect, the presence of mitigating circumstances personal to the offender will rarely displace the statutory presumption.44 It is a high threshold.
[119] The full Court of Appeal in [Harrison], for example, noted that imposing a 17 year minimum period of imprisonment in respect of Mr Turner under s 104 was not manifestly unjust in the circumstances, even where the minimum period otherwise imposed would have been only 15 years.45 A similar conclusion was reached in the very recent Divisional Court judgment in Clarke v R.46 By contrast, in another recent Court of Appeal decision Vea v R, which again involved sufficient brutality to engage s 104(1)(e), the Court was satisfied that to uplift the minimum period of imprisonment from 15 and a half years to 17 years would have been manifestly unjust.47 I note, however, that this case involved a guilty plea and very early expressions of remorse and desire to make amends.
[120] A disparity in the order of two years does not therefore drive any automatic conclusion. The policy underpinning s 104 calls for an evaluative assessment of the particular facts and circumstances of each case.
43 Williams, above n 9, at [67] as cited in Harrison, above n 5, at [40].
44 Hamidzadeh, above n 6, at [86]–[88] as cited in Harrison, above n 5, at [155]. See also Williams, above n 9, at [66]; and R v Parrish (2003) 21 CRNZ 571 (CA) at [21].
45 Harrison, above n 5, at [157]. I referred to this decision as ‘Harrison and Turner’ for the sake of clarity at the hearing as the consolidated decision in Harrison also involved the Court hearing Mr Turner’s appeal.
46 Clarke v R [2021] NZCA 151.
47 Vea v R [2020] NZCA 68 at [24]. I note this was a decision of the Divisional Court. By comparison
Harrsion was a decision of the Full Court of the Court of Appeal.
[121] In the case of your offending, Mr Oti, I am satisfied that to impose a minimum period of imprisonment of 17 years under s 104 would not be an appropriate sentencing response. Despite the brutal and savage nature of your attack on Mr Tumai, I consider that uplifting your minimum period of imprisonment by almost two years would instead create a manifest injustice. I do not consider the murder to have been the product of any overarching malice on your part—you lost control Mr Oti, that much is clear, you were in a rage and committed acts of savage violence which warrant a very significant level of denunciation. However I accept you did not set out with the intention of killing your cousin. You were intent on beating him, intent on hurting him, but I believe you were simply reckless as to whether his death ultimately ensued. Significantly you acknowledged before trial that you were guilty of Mr Tumai’s manslaughter. In that sense there was at least partial acknowledgment of guilt.
[122] I also recognise, what the victim’s immediate family are satisfied, were the genuine expressions of remorse made in the course of your restorative justice conference.48 That conference was, in my view, a particularly valuable exercise in the context of what was offending against a member of your own whānau. I believe that in the particular circumstances of this case, uplifting by almost two years to a minimum period of imprisonment of 17 years would not adequately recognise the benefits of this process, which has laid out a future roadmap whereby whānau expectations have been very clearly identified and you have committed to regular updates to a nominated representative in terms of progress with your counselling and rehabilitation generally. There are some similarities in this respect with the very recent sentencing in R v Mete.49
[123] Nor, as a matter of overall impression, do I consider that a MPI of 17 years would appropriately recognise the impacts of the childhood abuse you suffered and the linkage between those events and the “trigger” for the final assaults.
48 As distinct from the remorse expressed by Mr Turner in Harrison, above n 5, at [154] which was expressed long after the event and which the Court considered was not genuine
49 R v Mete [2020] NZHC 1573.
[124] I therefore find an MPI of 17 years would be manifestly unjust and that, apart from the application of s 86E of the Sentencing Act, the appropriate MPI would therefore be 15 years and three months’ imprisonment.
Would an end sentence of life imprisonment without parole be manifestly unjust?
[125] You know the answer to that question. I consider it would be manifestly unjust but I am obliged in my sentencing notes to set out why I have come to that conclusion.
[126] The Crown submits that although it would be open to the Court to sentence you to life imprisonment without parole, it would be manifestly unjust to do so.
[127] The approach to manifest injustice under s 86E is different from that taken under ss 102 and 104 because of the “fundamentally different statutory purposes, context and consequences”.50
[128] There has not as yet been any case where a court has found that it would not be manifestly unjust to impose a sentence of life imprisonment without parole on a second strike (or even third strike) murder offence.51
[129] In [Harrison] the Court identified that the relevant inquiry should take place against the background of a presumption in favour of life imprisonment without parole and involves assessing whether this would be “grossly disproportionate”. The inquiry is to be made having regard to all the circumstances of the offending and of the offender, the circumstances of the first strike offending and by reference to the public’s right to protection and the case law. I discuss each of these briefly.
Circumstances of the offending
[130] For reasons earlier addressed in these sentencing notes, I regard the offending as involving a high degree of brutality and thus among what the legislation considers as the most serious category of murders.
50 Harrison, above n 5, at [108].
51 See, for example, R v Winter [2020] NZHC 1115; R v Tai [2018] NZHC 1602; Harrison, above n 5; R v Kingi [2016] NZHC 139; R v Herkt [2016] NZHC 284; R v Eruera [2016] NZHC 532; R v Heihei [2017] NZHC 2243; R v Puna [2018] NZHC 79; and R v Davis [2018] NZHC 1162.
Circumstances of Mr Oti
[131] You are 47 years old. The average life expectancy identified by Statistics New Zealand for Māori males is 73.4 years. Therefore if the statutory presumption is applied it could result in you spending in excess of 26 years in prison before your death. Although the disparity between the length of a potential sentence without parole and the sentence that would otherwise be imposed by this Court is not as great as in respect of other younger offenders who have been sentenced on second strike murder offences,52 it is nevertheless a significant one given my assessment that an appropriate MPI for you, absent s 86E, is one of 15 years and three months’ imprisonment. This of itself is a strong pointer to gross disproportion.53
Circumstances of first strike offending
[132] Your first strike offences involved charges of unlawful sexual connection, with female 12-16, and indecently assaults female, 12-16. The offending occurred in 2014 and you were sentenced in 2017. You pleaded guilty to the charges. The victim in each case [Redacted], aged 14. You were 40 at the time.
[133] The statement of facts records that you got into the victim’s bed while she was asleep, moved your hands over her breasts, on top of her bra, and then began to touch her vagina under her underwear. The victim was scared and pulled herself out of the bed on to the ground. You told her to “get back on the bed or I will kill you”. You then grabbed the victim by the hair and pulled her towards you. The victim subsequently ran into the lounge where she lay on the couch. You laid down next to her but when the victim moved away, you said “fine then” and went to sleep.
[134] I accept the Crown’s submission that this was moderately serious offending, certainly more so than the first strike offence in R v Tai to which the Crown refers to in its submissions.
52 For example the defendant in Tai, above n 51, who was only 23.
53 It would involve an uplift of approximately 70 per cent on a minimum period of imprisonment of 15 years and three months.
Public protection
[135]The provision of advice to the courts records that in light of:
… the extreme level of violence involved in Mr Oti’s index offending and the presence of other violence, child sex offending and his criminal history, he has been assessed as posing a very high risk of harm to others … his likelihood of re-offending is high.
[136]This factor weighs in favour of applying the presumption in s 86E.
Comparison with the case law
[137] I have considered a range of other cases under s 86E, including R v Turner, R v Tai and R v Davis. These reinforce me in my belief that the Crown is correct in identifying a sentence of life imprisonment without parole would be manifestly unjust. I base that conclusion on the following considerations:
(a)As the Crown accepts, the case does not involve the very worst type of offending, even allowing for the s 104 context. In R v Davis, in which Davison J likewise set a fixed non-parole term (in that case on the third strike), the facts were in my view appreciably worse. As I have indicated I conclude that you did not intend to kill Mr Tumai.
(b)The offending which attracted the first strike warning was likewise not the most serious of its kind.
(c)Although given your age, a sentence of life without parole would be less disproportionate than in respect of other younger offenders, the additional time you are likely to spend in custody over that prescribed by ss 102, 103 and 104, would be nevertheless very significant.
(d)Although the PAC report suggests that you are almost beyond rehabilitation, the outcome of the restorative justice conference and the commitment you have thus far made to addressing factors which might be considered relevant to your offending satisfy me that there is at least some potential for you to turn your life around. That is my assessment
based on the progress you have made and what you said at the restorative justice conference.
Conclusion on s 86E
[138] I therefore conclude that it would be manifestly unjust to impose a sentence of life imprisonment without parole.
Result
[139]Mr Oti would you please stand.
[140] On the charge of murder, I sentence you to a period of life imprisonment with a non-parole period of 15 years and 3 months.
[141]Stand down please.
Muir J
7
22
0