Sentencing Act 2002 – murder – s 104 presumption of life imprisonment for murder – s 104 minimum period of imprisonment for murder in some circumstances  – s 104(1)(d) engaged due to murder occurring during aggravated robbery – manifestly unjust to impose minimum period of 17 years imprisonment – 10 year minimum period of imprisonment imposed.

 R v Te Hivaka [2024] NZHC 1421 per Lang J

Julius Te Hivaka appeared for sentencing on 31 May 2024 after a jury found him guilty of murder.

On the 3 June 2022 Benjamin McIntosh, a lower-level drug dealer, was shot. Te Hivaka had contacted McIntosh under the pretence of purchasing drugs. However, Te Hivaka and his co-defendant, Ethan Dodds, were aware that McIntosh had recently won a significant sum of money.

During the encounter, at a park in West Auckland, Dodds shot McIntosh with a .22 caliber rifle, causing a fatal brain injury. The evidence indicates Te Hivaka knew about the firearm and the risk of fatal consequences.

Te Hivaka’s counsel submitted that a finite sentence of imprisonment should be imposed rather than one of life imprisonment under s 102 of the Sentencing Act 2002. But Lang J found that there were no grounds to indicate that it would be manifestly unjust to impose a sentence of life imprisonment.

Lang J was then required to consider whether a 17-year minimum period of imprisonment should be imposed under s 104 of the Sentencing Act.

The Crown submitted, and Lang J accepted, that s 104(1)(d) was engaged because the murder occurred while committing a serious offence, an aggravated robbery. Therefore, the judge was required to consider whether it would be manifestly unjust to impose a minimum period of 17 years imprisonment.

When sentencing Dodds earlier in the day, Lang J held that it would be manifestly unjust to impose a 17-year minimum period of imprisonment because the Crown never alleged that the plan was to rob McIntosh and it was not contended at trial that Dodds intentionally killed McIntosh.

Given the approach taken with Dodds, Lang J held that it would be unjust to take a different approach for Te Hivaka. He held that it would be unjust to impose a minimum period of 17 years’ imprisonment.

Lang J then considered what mimumum period of imprisonment should be imposed on Te Hivaka, stating that 12 years was appropriate, one year less than Dodds because Dodd’s was ultimately responsible for killing McIntosh. But Te Hivaka was still “instrumental” in McIntosh’s death.

Te Hivaka received a two-year discount for factors in relation to youth, background and addiction to methamphetamine, resulting in an end-sentence of life imprisonment with a 10 year minimum period of imprisonment.

Applicable principles: sentencing – party liability – parity in sentencing for co-defendants – considerations of manifestly unjust matters in murder sentencings – mitigating and aggravating factors

Jamie Dierick is employed criminal defence barrister

R v Te Hivaka