R v Hall

[2024] NZHC 4015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-088-1317

[2024] NZHC 4015

THE KING

v

LANCE HALL

Hearing:	17 December 2024
Appearances:	B M O’Connor for the Crown C Taylor for the Defendant
Judgment:	17 December 2024

SENTENCING NOTES OF POWELL J

R v LANCE HALL [2024] NZHC 4015 [17 December 2024]

[1]                 Lance Hall, you appear for sentence today having been found guilty by a jury of the murder of Jason McNae (“Jason”) on 19 June 2023.1 The jury also found you guilty of the common assault of Codi Rudolph (“Codi”)2 and threatening to kill or do grievous bodily harm to Courtney Rapata, (Courtney)3 before and immediately after you stabbed Jason.

The offending

[2]                 I begin your sentencing by summarising what happened to bring you before the Court today. I rely on the evidence that was presented in the course of your trial and in particular the extensive CCTV footage available which everybody in this Court has seen. At the suggestion of counsel, I have reviewed the CCTV footage again carefully prior to your sentencing.

[3]                 The offending took place at a block of flats in Anzac Road in Morningside, Whangarei. You had been staying in one of the flats. When you were asked to leave, sometime around May 2023, Codi took you in as he had a spare room. Things did not work out. Somewhere around 12 June Codi had asked you to leave, but you were allowed to stay after your girlfriend intervened and promised to pick you up a week later.

[4]                 On the afternoon of 19 June 2023, a number of the residents of the flats were socialising in the central garage area. You and Codi had a misunderstanding about the access card to the flat. He had thrown it down to you, but you claimed not to have seen it. After a while, Codi came downstairs to see if you had found the access card and you punched him in the head and were behaving aggressively.

[5]                 This was the last straw for Codi. He contacted his ex-partner, Courtney, initially to get somebody else to help get you out of the flat but in the course of the conversation, Courtney agreed that she and her partner Jason together with Courtney’s sister Kelly Rapata (“Kelly”) and Boston Tahitahi (“Boston”), the partner of one of Courtney and Kelly’s sisters, would come round to help Codi.

1      Crimes Act 1961, s 172. Maximum penalty: life imprisonment.

2      Crimes Act 1961, s 196. Maximum penalty: one year imprisonment.

3      Crimes Act 1961, s 306. Maximum penalty: seven years’ imprisonment.

[6]                 At around 5.30 pm, they left their home in a car and drove to the Anzac Road flats. Jason was driving. I accept the evidence of those in the car, which is consistent with the wider evidence available, that they did not have any intention to beat you up and they went to provide support for Codi.

[7]                 At the time the car arrived you were out the front of the flats in the car park area. You had been there for some time. The car arrived quickly and you had to move out of the way. Everyone got out of the car, and Kelly stayed by the vehicle. Jason and Boston headed for the entrance to Codi’s flat which was at the far end of the building, and they were followed at a distance by Courtney.

[8]                 As you heard me discuss with Mr Taylor, it is clear that they did not target you. You were backing up in the direction of the entrance that they were heading for. Although they took slightly different routes, they ultimately walked past you, and Jason and Boston entered the ground floor corridor below Codi’s flat. You stopped and received a large speaker from another person present, and then you followed them into the entrance a few seconds later. Courtney looked around for Codi for a while in the carpark before she too entered the corridor after you. Sometime later, Codi comes into view in the carpark from another part of the flats, greets Kelly by the car, and goes on to enter the corridor.

[9]                 Only a small part of the corridor was visible from the CCTV camera in the stairwell. I acknowledge that the timing of the stairwell CCTV footage cannot be synced with the carpark CCTV, but I do not accept that you were at any point assaulted which was the defence case at trial. You were certainly not assaulted in the stairway as you claimed to police, nor in the corridor prior to becoming visible at the foot of the stairs. It is inconsistent with all of the evidence, including the body language of all those present, yours’ as well, as everyone emerged from the corridor. Even without knowing the exact timing it is clear there was simply no opportunity for the type of beating you described in your CCTV interview with police, and certainly not from everyone at once given they were all entering and leaving the corridor and stairwell at different times.

[10]              Instead, it is clear, and indeed consistent with being the first person into the corridor, Mr Tahitahi comes into view and is seen walking up the stairs. He almost immediately returns as he found Codi’s flat locked. Boston did not go back into the corridor but waited at the bottom of the stairs where he was joined by Courtney, and you and Jason can be seen at the end of the corridor. Consistent with the evidence it is clear that the two of you were talking, and Jason told Courtney that it was “all good”. At some point, you pulled out the access card for the flat which Codi took and, according to Courtney, Codi said “now you can get all your stuff out of my house”, and you agreed.

[11]              Consistent with an absence of any tension, Codi led Courtney and Boston up the stairs. They were a long way ahead of you and Jason. They had climbed the second flight before you even began walking up with Jason a few steps behind. As you began up the stairs, you put your right hand into your pocket while carrying your speaker in your left hand.

[12]              You continued onto the first floor landing and up an additional two steps before stopping and turning. You placed the speaker onto the third step and continued turning until you were facing Jason. Jason had his cell phone out and was clearly not expecting you to stop. When he saw you, he stopped with one foot on the first step and looked up at you. Without any warning, you pulled out the scissors from your pocket and struck Jason in the neck.

[13]              Jason was clearly taken by surprise. He tried to grab hold of your shoulder bag. You advanced on him, and he retreated down the stairs back into the carpark.

[14]              You yelled to the others “I’ve stabbed him in the neck”. But you did not let them get past you to help. Boston tried first and you confronted him and he retreated. Courtney followed and you advanced on her and when she fell over, you asked her if she wanted to die today, for which the jury found you guilty of threatening to kill or cause grievous bodily harm.

[15]              After a short standoff, you walked down the stairs out into the carpark. Courtney, Codi and Boston followed and were able to get to Jason. As they came

outside Jason was getting in the driver’s seat. Clearly no one realised how seriously injured he was. The others got into the car to leave while you were aggressively shouting and hurling abuse at them, still at that point holding the scissors and taunting Jason and kicking in the front of the car.

[16]              The car was not going anywhere because Kelly forgot she had the keys and Jason was clearly not in any fit state to drive. He was helped out but when those around tried to get him into the back seat he collapsed on the ground. You continued to strut aggressively and kicked the back door of the car into the people trying to help Jason.

[17]              Eventually, others present that day tried to get you to back off, but you did not actually leave the scene until the first Police arrived. Significantly, and contrary to the defence case at no stage did you indicate that you were fearful of the group. Likewise even after Jason was stabbed none of the group that had arrived tried to retaliate against you. As Ms O’Connor has stated throughout the entire incident the only person who was aggressive was you.

[18]              Jason passed away while in the ambulance prior to leaving the carpark. The operative cause of death was the stab wound to his neck.

[19]              The impact of your actions cannot be understated. I want to acknowledge, at this point in the sentencing, Jason’s family and friends who are in Court today. We have heard read out,4 and I have read,5 a number of victim impact statements and I acknowledge how hard it must have been for those of you who gave statements today. The rawness of the pain of the whānau and friends is visible to me in this Court. I acknowledge the difficulty of the Court process for all of you, and in particular, the fact that so much of the evidence revolved around repeatedly showing the CCTV footage and the ongoing trauma that that has meant for all of you. Like it was for you

4      Victim impact statements were read out by Belinda McNae (Jason’s sister), Josie Rapata (Courtney and Kelly’s mum), Jessica Kaupo (Jason’s sister/cousin), Shayla Herewini (Jason’s former partner and mother of his children) and William Kaupo (Jason’s whāngai further for and on behalf of himself, his wife Joanna Kaupo and the Kaupo whānau).

5      Victim impact statements of Sharon McNae (Jason’s aunt), Kay McNae (Jason’s aunt), and Kelly Rapata.

all, it is not something that I can ever unsee either and I recognise the deep loss that the death of Jason has meant in all of your lives.

Approach to sentencing

[20]Mr Hall, I turn now to the approach I must take in sentencing you today.

[21]              The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case are to:

(a)hold you accountable for the harm you have done to each of the victims, particularly Jason, but also to Codi and Courtney, and to all of their families and friends;6

(b)to promote in you a sense of responsibility, and an acknowledgement of, that harm;7

(c)to protect the community from you;8

(d)to denounce your conduct;9 and

(e)to deter you and others from committing the same type of offences.10

[22]The relevant principles of sentencing in this case are:

(a)the seriousness of your offending and your responsibility for it;11

(b)the need for consistency with other similar sentences;12

6      Sentencing Act 2002, ss 4 (definition of victim) and 7(1)(a).

7      Section 7(1)(b).

8      Section 7(1)(g).

9      Section 7(1)(e).

10     Section 7(1)(f).

11     Section 8(a).

12     Section 8(e).

(c)the need to take into account the information provided to the Court concerning the effect of the offending on Jason’s family and friends;13

(d)the need to consider your personal, whanau, community and cultural background in imposing a sentence with a partly or wholly rehabilitative purpose;14 and

(e)the need to impose the least restrictive sentence appropriate in the circumstances.15

[23]              As you have been found guilty of murder, s 102(1) of the Sentencing Act requires me to impose a sentence of life imprisonment unless such a sentence would be manifestly unjust. In this case, there has been no circumstances advanced on your behalf that would suggest that life imprisonment is manifestly unjust, and I can see no basis upon which it would be on the information that I have before me. I am satisfied that imprisonment for life is appropriate.

[24]              Given that decision, the main issue, as Ms O’Connor submitted, in sentencing you today is to decide what the minimum period of imprisonment should be imposed as part of your sentence. A minimum period of imprisonment, or MPI as I shall refer to it, is the shortest amount of time you will be imprisoned for before you can apply for parole.

[25]              As the Crown accepts that s 104 of the Sentencing Act is not engaged, your MPI stands to be determined under s 103.

[26]                Section 103 requires a minimum MPI of 10 years. Your MPI must also be the minimum period that I consider necessary to satisfy all or any of the following purposes:

(a)holding you accountable for the harm done to the victims and community by your offending;

13     Section 8(f).

14     Section 8(i).

15     Section 8(g).

(b)denouncing your conduct;

(c)deterring others from similar offending; and

(d)protecting the community.

Submissions on MPI

[27]              In your case and as you have heard Ms O’Connor submit this morning, she considers a 10-year MPI is not sufficient for the purposes of s 103. Instead with a reference to a range of cases that both she and Mr Taylor addressed in their written submissions,16 Ms O’Connor has identified a number of aggravating features of your offending namely threatened and actual use of violence, use of a weapon, the extent of loss, damage or harm, particular cruelty (being specifically your behaviour after you stabbed Jason), and premeditation.

[28]              As a result, Ms O’Connor has submitted that an appropriate MPI is in the range of 11 years and six months’ imprisonment to 12 years’ imprisonment for the murder. To this she seeks an uplift of one year for the additional offending, the assault on Codi and the threat to Courtney, and an uplift of six to nine months for your criminal history. Ms O’Connor submitted that there were no mitigating factors which means she was seeking a total MPI of between 13 years and 13 years 9 months.

[29]              In contrast, Mr Taylor on your behalf, in his written submissions and with reference to a similar range of cases submitted that an MPI of 10 years and 6 months is appropriate if I accepted “the view [you] had of what was intended for [you] and the need to remove [yourself] from risk” and that [your] actions were reactionary to the situation [you were] placed in”. In Mr Taylor’s submission there was no premeditation and all you were concerned about after you had stabbed Jason was ensuring that he got prompt medical attention—that the group leave and get him to hospital as a matter of urgency.

16     R v Locke [2021] NZHC 1843; R v Browne [2017] NZHC 2389; R v Middleton [2012] NZHC 3261; and R v Millar HC Auckland CRI-2010-090-5044, 21 June 2011.

[30]              Within the figure proposed by Mr Taylor, Mr Taylor submitted that any uplift for the assault and the threat was part of the surrounding circumstances to the murder and must be tempered to six months’ imprisonment, noting also totality considerations. As you have heard in written submissions Mr Taylor saw no need to account for your relevant previous convictions at sentencing as he felt that that could be done by the Parole Board in due course, although in oral submissions as you have heard, Mr Taylor accepted that that is actually a matter that can appropriately be taken into account at this stage of the sentencing. Finally, in the written submissions, Mr Taylor submitted that your remorse for what you have done was genuine and sincere and for that you should get a reduction of 2 months off the MPI to reflect that.

Discussion

[31]              In assessing an appropriate MPI in your case, I agree with Ms O’Connor there are a number of aggravating factors, that are the things that make your offending more serious, in the context of what was essentially an unprovoked and gratuitous attack. As I have noted, there was no basis for you to fear the group who arrived to support Codi and I do not accept that at any time you were in any way fearful of the group. Had you been so, you did not have to follow Boston and Jason in entering the building. It is equally clear that had you a genuine fear of going on up to Codi’s flat following the discussion at the bottom of the stairs, you could have exited the building through the rear exit at the top of the first flight of stairs – where indeed you ultimately made your escape when the Police arrived. The lack of fear and your own aggression towards the group was equally on display in the car park after the stabbing, and as Ms O’Connor submitted, your behaviour after the stabbing to a large degree simply followed on from the aggressive behaviour you had been demonstrating prior to the group’s arrival.

[32]              With regard to the aggravating factors, it is clear that you used a weapon—the pair of scissors, to deadly effect. It is also clear there was, at least, some premeditation on your part. I simply do not accept Mr Taylor’s submission that when you stabbed Jason it was an “opportunistic and impromptu strike”. There was on the contrary some real deliberation apparent from the CCTV footage as you reach into your pocket for the scissors as you begin to walk slowly up the stairs with Jason following having let

the other three get well ahead of you on the stairs. Again, as you stopped on the second flight of stairs, you placed your speaker down carefully as you turned to face Jason, before stabbing him quickly before he had a chance to react.

[33]              I likewise accept that there were elements of particular cruelty in your behaviour following the stabbing which in the circumstances of this case are significant. As I noted to counsel, you initially stopped Jason’s friends from assisting him notwithstanding you had loudly told them that you had stabbed Jason and he would die if he did not get medical attention. You were quite clear that you had dealt him a very serious, if not fatal wound. You were not only physically obstructive as you repeatedly kicked the car, you also actively harassed and intimidated those trying to help, while at the same time you went out of your way to taunt, mock and threaten those attempting to help Jason. Quite simply by your actions you made it as difficult as possible for anybody to help Jason which was particularly cruel, not only to Jason, given the nature of his injuries, but those others who were there and powerless while they were trying to assist, and as you have heard, watching it again has traumatised the family and friends here today.

[34]              While then I accept those aggravating features, I do consider that both the threatened and actual violence and extent of harm are inherent in the offending and in particular your murder of Jason.

[35]              Taking these circumstances into account and the cases cited to me, I am satisfied that a 10 year MPI is insufficient for the purposes of s 103. In particular, it is insufficient to properly hold you accountable for what you have done or to protect the community. Instead, I am satisfied that a starting MPI of 11 years and six months for the murder is appropriate. To this an uplift of nine months for the other offending is also appropriate taking into account totality considerations noting that an 18-month starting point for the threat to kill or do grievous bodily harm to Courtney is otherwise appropriate,17 as is sentence of between three and six months’ imprisonment for the

17  Hurring v Police [2020] NZHC 3309 where the District Court imposed a starting point of two years and three months’ imprisonment for the threatening to kill/do grievous bodily harm charges. On appeal, the High Court found the starting point to be on the higher side and noted that a starting point in the range of 18 months to two years’ would be more consistent with the previous cases; and Skerten v Police [2015] NZHC 2882 where starting point of 12 months was considered appropriate. These cases establish that the starting point of 18 months proposed by both counsel

common assault of Codi.18 Likewise, there is no basis for not also providing an uplift for your relevant criminal history.

[36]              In your case you have an extensive criminal history of no less than 59 convictions between 1987 and 2023. Of those some 15 are for violent offending (of which 13 have occurred since 2008). These include your 2009 convictions for wounding with intent to injure and threatening to kill/do grievous bodily harm (stab/cut). I therefore consider that a 9 month uplift is required for this relevant history, making a total adjusted MPI of 13 years.

[37]              Finally, I accept Ms O’Connor’s submission that there are no mitigating features of the offending or personal to you in this case. While I acknowledge what your daughter has written about you as a father it provides no basis for reducing the MPI. Instead, the only mitigating factor identified by counsel was remorse based on what is recorded in your Provision of Advice to the Court (“PAC”) report written by a probation officer. In the written submissions filed on your behalf Mr Taylor submitted “[you accept] fault entirely and you did not attempt to shift blame to suggest Jason died of a heart attack rather that [you] delivered a fatal blow to the neck and reported just how remorseful [you] were”.

[38]              It is difficult to accept that submission when the contents of the PAC report are considered in their entirety. Far from accepting responsibility for what happened the report writer recorded that you continued to assert Codi’s friends “set upon [you]”, that “when the car pulled up there was no negotiating, they just set on [you]… they came with malice and ill intentions”. As I have already outlined, none of that is true. Moreover, the PAC report records that you intend to appeal “any sentence imposed” which does not indicate remorse. On the contrary, in the circumstances it is clear that no discount for remorse is appropriate.

Sentence

[39]Mr Hall, please stand.

was well in range and potentially higher than 18 months is consistent with other cases.

18     Dempsey v Police [2015] NZHC 2589, starting point of 12 months was reduced to six months on appeal; and Omar v Police [2017] NZHC 288, starting point of six months was adopted.

[40]              For the murder of Jason McNae you are hereby sentenced to life imprisonment with a minimum period of imprisonment of 13 years.

[41]              For threatening to kill/ do grievous bodily harm to Courtney Rapata you are sentenced to 18 months’ imprisonment19 and for the assault on Codi Rudolph you are sentenced to four months’ imprisonment.20 Both sentences are to be served concurrent with each other and the sentence of murder.

[42]You may stand down.

Powell J

19     Hurring v Police and Skerten v Police, above, n 16.

20     Dempsey v Police and Omar v Police, above n 17.