Sentencing Act 2002 – sentencing for murder – life imprisonment for murder – minimum period of imprisonment – gang shooting – drug offending – aggravating, mitigating personal factors – contempt of court – Contempt of Court Act 2019, s 16
R v Vaitohi & Talakai [2023] NZHC 2761 per Fitzgerald J.
The defendants, Sosaia Vaitohi and Methuselah Talakai, were unanimously found guilty of murder after a jury trial. The murder was a gang-related shooting, related to a drug deal. The defendants were given similar terms of imprisonment based on their involvement in the offending.
The sentence for murder is life imprisonment unless imposing it would be manifestly unjust for the court to do so. The minimum period of imprisonment (MPI) is the amount of time a convicted person must spend in custody before they become eligible for parole. The MPI is not the sentence.
Fitzgerald J did not consider s 104 of the Sentencing Act – the court must impose an MPI of at least 17 years if the circumstances of a murder were particularly serious – applied in this case as it did not meet the requisite level of premeditation. The offending was brutal and callous, but not to the high level that would trigger s 104.
The biggest question in sentencing was what the MPI should then be. The judge found that both defendants were equally culpable despite only one of them pulling the trigger.
During the sentencing, it was difficult for Fitzgerald J to find applicable case law as most were outdated or included other factors, such as youth. The case most closely aligned adopted an MPI of 15 years’ imprisonment, so the judge considered the Crown’s submission of 14 years was more appropriate than the 11 or 12 years put forward by the defence. Vaitohi was given an MPI of 14 years. Talakai, who did not pull the trigger but was involved in the crime, was given an MPI of 13 years and six months.
In terms of mitigating factors, Talakai did not receive any discount for personal circumstances. Vaitohi, on the other hand, received an uplift of three months for his previous criminal history and an eight-month discount for personal circumstances and upbringing, largely because of his involvement in gangs from a young age. This brought Vaitohi’s MPI to 13 years and seven months, similar to his co-offender.
There was also an issue of contempt of court when Vaitohi refused to answer certain questions because of the “gang code”. This led to the court finding of breach of s 16 of the Contempt of Court Act 2019. However, the judge noted she did not have the power under the Act to sentence Vaitohi for his contempt. Section 16 is directed at “enforcing” court directions, not sentencing someone for an earlier contempt.
Nevertheless, Fitzgerald J said that recording the contempt was important. Had it been possible, a two-month concurrent sentence would be been imposed.
Applicable principles: Sentencing Act 2002 – sentencing for murder – life imprisonment for murder – minimum period of imprisonment – gang shooting – drug offending – aggravating, mitigating personal factors – contempt of court.
Held: Talakai was sentenced to life imprisonment with an MPI of 13 years, six months. Vaitohi was sentenced to life imprisonment with an MPI of 13 years, seven months.
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