R v Hall

[2017] NZHC 410

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-041-2056 [2017] NZHC 410

THE QUEEN

v

CHAZZ HAYDEN HALL

Hearing:                   10 March 2017

Appearances:           C R Walker for Crown

R Fairbrother QC and L Lafferty for Defendant

Judgment:                10 March 2017

SENTENCING REMARKS OF LANG J

[1]      Mr Hall, you appear for sentence today having pleaded guilty earlier this year to charges of murder, being in unlawful possession of a firearm, threatening to kill, dangerous driving and recklessly discharging a firearm. As you know, the maximum sentence on the charge of murder is life imprisonment.  The maximum sentences on the remaining charges range between three months imprisonment and seven years imprisonment.

[2]      There  is  no  dispute  today that  a  sentence  of  life  imprisonment  must  be imposed.  The only issue I need to decide is the length of any minimum term that you must serve in prison before being permitted to apply for parole.  I emphasise at this stage, so that everybody in Court understands, that the minimum term the Court imposes is  not  the sentence that  Mr Hall  will serve.    Rather,  it  is  the term  of imprisonment that he must serve before he is allowed to apply for parole.  From that point it is up to the New Zealand Parole Board to determine how long he should remain in prison before being released.

The facts

[3]      The  events  that  gave  rise  to  the  charges  occurred  on  the  evening  of

26 October 2015.  The primary victim of your offending was your former partner, Victoria Foster.  She was aged just 24 years at the date of her death.

[4]      The agreed summary of facts records that you had been in what is described as an “off-on relationship” with Ms Foster for approximately six years before her death.  You had a five year old daughter as a result of your relationship.  You had been living with Ms Foster until about two years before October 2015.  You then moved out and began living with relatives in Napier, whilst she remained in what had formerly been the family home in Westshore.

[5]      You continued to maintain a degree of contact because you had to bring up your daughter together.  It is clear from the summary of facts and the interview that the police conducted with you in November 2015 that you did not accept, or wish to accept, that the relationship was at an end.  This unwillingness to accept the end of the relationship was what ultimately led to the events that occurred on the night of

26 October 2015.

[6]      On that evening you were drinking with associates.  During the course of the evening you had a number of telephone conversations with Ms Foster.  The longest of these lasted for 22 minutes.  It is clear from social media messages that Ms Foster sent out following these telephone conversations that they did not go well.   She affirmed again that she did not want to continue a relationship with you.  You were seen   by   your  associates   to   become  extremely  agitated  as   a  result   of  the conversations.  You then went back to the address where you were living and you uplifted a shotgun and some ammunition.

[7]      You had acquired that firearm in 2011 and, for reasons I shall explain shortly, you  have  never  obtained  a  licence  in  respect  of  it.    It  had  been  stored  at  the Westshore address for some time. You had uplifted it approximately two weeks prior to 26 October, and you had been storing it in a wardrobe at the address where you were staying. You then went to the Westshore house taking with you the shotgun and ammunition. You also took a bottle of wine you had uplifted from your address.

[8]      When you arrived at the address, you went through the unlocked front door. You then went through a second door, and you found Ms Foster sitting in a chair in the lounge of the address.  She was on the phone to her mother at the time and she told her mother that she had to go because you had arrived.  She said she would call back later. That call was subsequently found to have terminated at 8.39 pm.

[9]      The summary of facts records that Ms Foster immediately told you that she did not want you there.  You told her that you were just there to put the gun back in the gun safe that was at the address.  You then took that opportunity to ask her why she did not want to continue the relationship with you and, again, she outlined the reasons why she wanted it to finish.  She also told you again that she wanted you to go.  You did not go.  You stayed at the address, and this prompted Ms Foster to call her mother again to tell her that you would not leave and that she wanted you to go. It was at this point that you brought the shotgun to bear on Ms Foster and you discharged it.

[10]     The pathological  evidence confirms  there was  no notable damage to  Ms

Foster’s face or lips.  The shot from the shotgun passed through the top of her mouth

and exited the back of her head.  The only reasonable conclusion from this is that the shotgun must have been in her mouth, or very close to the entrance of her mouth. That is something you have never accepted.  Although you accepted responsibility for discharging the shotgun, you have always maintained that you believed that it was discharged towards the side of her head.   You engaged a pathologist from overseas and he confirmed the advice given by the Crown’s pathologist.   At that point, upon receipt of this  advice,  you indicated  you would plead guilty to the charges.

[11]     Your five year old daughter was in the house and she was asleep at the time that the shooting occurred.  Fortunately, she did not wake up and so she was never a witness  to  what  had  occurred  or  its  aftermath.    You  then  left  the  address  and contacted two cousins, explaining to them what you had done and asking at least one of them to call the police.  Not surprisingly, they immediately did so and the police went to the Westshore address where they discovered Ms Foster’s body.

[12]     You  then  went  to  a  cousin’s  address  and  told  her  what  had  happened. Thereafter you travelled in your vehicle to your father’s address in Hastings, where you thanked him for being a good father.  You then left your father’s address, and your father also called the police.

[13]     One  of  your  cousins  subsequently  called  you  in  the  company  of  police officers.   Discussions then occurred as you were driving your vehicle around Hastings.   The summary records that you were distressed and suicidal during this time.  You told the police that you were going to kill yourself, and that you would shoot any police officer who tried to stop you. You also said that you were holding the shotgun, that it was loaded and that you were ready to shoot the police. The police were eventually able to locate your vehicle and, over the next hour, they followed it around the streets of Hastings and, eventually, out to Clive.

[14]     Although you were not travelling at speed, from time to time your vehicle crossed over to the other side of the road and oncoming vehicles were forced to take evasive action.  Fortunately, the speed at which you were travelling meant they were able to do so and no harm occurred as a result of that.  You also fired several shots

into the air.  The Crown accepts, as do I, that you did so not with the intent to shoot any police officer, but instead to encourage them to shoot you.  The police tried to stop your vehicle by putting out road spikes.  You got around this by driving round the side of the spikes so that only one set of wheels was punctured.  Eventually your vehicle arrived in Clive, by which stage it was travelling on the rims of its wheels on one side.  The police were then able to apprehend you, although not before they had been forced to fire a shot to wound you in order to incapacitate you and thereby facilitate your arrest.

[15]     In an interview on 13 November 2015, you candidly accepted that you were

responsible for Ms Foster’s death.

Impact on victims

[16]     Any  murder  involves  significant  damage  to  a  large  number  of  people. Obviously, the victim has the most to lose.  This young woman was robbed of her life.   She was robbed of the opportunity of seeing her daughter grow up into a woman.   You have also left parents without a daughter.   You have left siblings without a sister, and you have left aunts, uncles and cousins without a close relative.

[17]     I have had the benefit before sentencing today of reading thoughtful, yet heartrending, victim impact statements from a large number of Ms Foster’s relatives. They speak of the pain and anguish that your offending has caused them.  Their lives will never be the same.  You accept that this offending has had that kind of ripple effect.

Aggravating factors

[18]     Your offending has several aggravating features.  First, it involved the use of a deadly weapon at close range.  Secondly, it comprised a shot to the head, the most vulnerable part of the body.  Thirdly, it occurred in a household where a young child was sleeping and was therefore potentially in the line of fire.   Finally, it occurred within the sanctity of Ms Foster’s home.  That was a place where she should have been safe.   It was also a place from which she had asked you to leave repeatedly.

The timing of the two telephone calls between Ms Foster and her mother suggests that you were at the house for some ten minutes before the fatal shot was fired.

[19]     The Crown suggests that the offending was premeditated in the sense that you took the shotgun and the shells to Ms Foster’s house knowing that you might use them.  I am not prepared to go that far, because you also took with you a bottle of wine.  This suggests you may well have wanted to try to talk to her and reason with her again in an effort to ensure that the relationship did not come to an end. You may well have used the shotgun and the shells as an excuse for visiting the property namely, to put them back in the cabinet.

Is s 104 of the Sentencing Act 2002 engaged?

[20]     The Crown suggests that one aspect of your offending means that s 104 of the Sentencing Act 2002 is engaged.  Section 104(1)(c) requires the Court to impose a minimum term of 17 years imprisonment in any case where a murder has one or more qualifying factors.  The only factor that the Crown relies on here is that the murder occurred in circumstances where you had unlawfully entered, or unlawfully remained in, a dwelling place.1

[21]     Sections 104(1)(c) is often applied in circumstances where an offender breaks into a dwelling unannounced and murders an occupant.  That is not the case here, as the  Crown  acknowledges.    The  Crown  suggests,  however,  that  you  unlawfully entered the property because you knew from your telephone discussions with Ms Foster that she did not want to see you again and did not want you to go to her property.  At the very least, the Crown suggests that once she had asked you to leave and you refused to do so, you were unlawfully on the property.

[22]     On  your behalf  Mr Fairbrother suggests  that  s  104  is  not  engaged.    He submits that you went there with the purpose of discussing your relationship with Ms

Foster, and that any unlawful presence must have been fleeting.

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

[23]     I accept the Crown’s alternative submission on this point, because I do not consider your unlawful presence on the property to be fleeting.  You were told as soon as you arrived that you should leave and you failed to do so.  You knew once Ms Foster was speaking to her mother on the second occasion that she still wished you to leave.  You had ten minutes within which to leave that property.   Had you done so, none of this would have occurred.  The tragedy would have been avoided completely.

[24]     I consider that the murder of Ms Foster in the sanctity of her own home engages s 104(1)(c).   I therefore need to consider whether I must impose the minimum term of 17 years imprisonment, or whether it would be manifestly unjust to do so.  In a case called R v Williams, the Court of Appeal set out the procedure the

Court should follow when considering the application of s 104.2   The first step in the

procedure is to review other cases of broadly similar offending in order to see whether the minimum terms imposed in those cases is broadly consistent with the minimum term to be imposed in the present case.

Other cases

[25]     The Crown has provided me with a range of cases that have arisen out of similar circumstances, namely the breakdown in a domestic relationship.3   They also involved the use of deadly force through weapons such as knives and firearms.  The minimum terms imposed in those cases ranges between 12 and 14 years imprisonment.  For that reason the Crown suggests that, on its own, the minimum term for the sentence to be imposed in respect of the murder charge should be one of

13  years.    I agree  with  that  submission.    I consider that,  having regard to  the authorities to which I have been referred, your offending falls within the middle of the range and that, on its own, the murder charge would justify a minimum term of

imprisonment of 13 years.

2      R v Williams [2005] 2 NZLR 506 (CA).

3      R v Rajamani HC Auckland CRI-2005-004-1002, 26 March 2006; R v Tiumalu HC Wellington

CRI-2005-091-581, 9 November 2006; R v Ryan HC Hamilton CRI-2005-019-9389, 26 July
2007; R v Meads HC Hamilton CRI-2009-019-08828, 31 March 2011; R v Prole [2013] NZHC
1267; R v Singh [2015] NZHC 2369.

Uplift for other offending

[26]     That is not the end of the matter, however, because in setting a minimum term the Court is entitled to take into account other relevant factors.  In the present case the Court must also take into account your other offending.   The other offending involved the threats that you made to shoot police, the fact that you drove around in a dangerous manner for approximately an hour and the fact that you discharged the shotgun into the air on no fewer than three occasions.  All of those actions placed innocent persons, and particularly police officers on duty, at risk of being injured or killed.  I accept the Crown’s submission that on its own the starting point for those charges would be one of three years imprisonment.

[27]     Having regard to totality principles, however, I consider that the minimum term should be increased by 12 months, as the Crown suggests, to reflect your remaining offending other than the charge of being in unlawful possession of a firearm.

Uplift for previous convictions and the firearms charge

[28]     The remaining factor to be taken into account is the fact that you have a significant set of previous convictions and you were in unlawful possession of a shotgun on the night when the murder occurred.  Those two matters are interlinked as I shall now explain.

[29]     Your earlier offending occurred in April 2004.  On 13 April 2004, you went with a female associate to a rural address.  You had earlier planned to kidnap the occupant of that address.  You were dressed in a balaclava and you were carrying a loaded shotgun. When the victim arrived home at about 7 am, a struggle immediately occurred.  The victim was eventually hooded and bound. He was then placed in his own car and driven away from his address by you.  You then handed over the car to your female associate, who took the victim into a remote bush area and left him on the side of the road.   He was left to wander through the bush until the following afternoon before he was found.

[30]     This was extremely serious offending.  Its seriousness is reflected in the fact that the Court of Appeal approved a starting point of ten years imprisonment on the charges that were laid as a result of it.4   Ultimately, however, you were sentenced to five  years five months  imprisonment on those charges.   The starting point was reduced from one of ten years because of your age.  You were just 18 years at the time.   Secondly, the sentencing Judge and the Court of Appeal accepted that you were not the instigator of this incident and that your co-defendant was.  Thirdly, the Court accepted that you were suffering from mental health issues that also mitigated

your culpability.

[31]     Those convictions are relevant today not because you need to be sentenced again in respect of them.   Rather, it shows you have not learned from your past serious offending involving firearms.   Instead, you acquired in 2011 a firearm for which you could never obtain a licence given your previous convictions.  You then kept that firearm and you were prepared to take it to Ms Foster’s house notwithstanding the fact that you knew you were entering what was potentially a volatile situation.

[32]     I consider that your previous offending, coupled with the fact that you were in unlawful possession of a firearm on this night, to be worthy of a discrete uplift. The Crown submits that an uplift of around 12 months is appropriate.  I consider that a slightly higher uplift is required because of the seriousness of the earlier offending and the fact that a shotgun was involved.   I consider an uplift of 18 months is warranted in respect of the earlier offending and the firearms charge.

[33]     This means that, in conventional terms and putting aside the provisions of s 104, I reach an end minimum term of 15 and a half years imprisonment.  Against that background, I now need to turn to consider whether it would be manifestly

unjust to impose a minimum term of 17 years imprisonment.

4      R v Hall & Anor CA296/05, 28 February 2006 at [26].

Would it be manifestly unjust to impose a minimum term of 17 years imprisonment?

[34]     A minimum term of 17 years imprisonment may be manifestly unjust in a number of situations.  One of these may be where the factor that qualifies offending under s 104 is peripheral to the offending itself.  Mr Fairbrother has endeavoured to maintain that argument on your behalf, but for reasons I have already given I do not accept it.   I consider the fact that you remained at Ms Foster’s house for a considerable period after being asked to leave is a significant factor in this offending because, had you left, the offending would never have occurred.

[35]     Another approach is to stand back and consider whether this offending falls within the type of offending for which a minimum term of 17 years imprisonment is appropriate.  A minimum term of that length will be appropriate in many different situations.  However, looking at your offending overall and taking into account the background including your previous convictions, I consider that this is the type of offending for which a 17 year minimum term would be appropriate.

[36]     Only one factor causes me not to impose that term.  This is the fact that you have pleaded guilty to all of the charges you face.  That has three important effects. First, it means you have accepted responsibility for what you have done.  Secondly, it saves the State the cost of a trial.   Thirdly, and most importantly, it saves the victims of your offending from the trauma of sitting through a defended trial in which they would be forced to relive the circumstances surrounding Ms Foster’s death.

[37]     Your guilty pleas came at a relatively late stage.  Your counsel indicated to the Court and to the Crown on 22 December 2016 that you proposed to plead guilty. You were then arraigned and entered your guilty pleas on 13 January 2017.   The Court of Appeal has recently said that a discount of no more than 12 months may be appropriate to reflect late guilty pleas.5   I propose to add into the mix a component to reflect the fact that you have consistently expressed remorse for what you have done. I therefore propose to reduce the minimum term of 17 years by 18 months to a

minimum term of imprisonment of 15 years six months.

5      DD v R [2015] NZCA 304 at [21].

Sentence

[38]     On the charge of murder, you are sentenced to life imprisonment and you are ordered to serve a minimum term of 15 years six months imprisonment before being eligible to apply for parole.

[39]     On the charge of being in unlawful possession of a firearm, you are sentenced to three months imprisonment.

[40]     On the charge of threatening to kill the police,  you are sentenced to 18 months imprisonment.

[41]   On the charge of dangerous driving, you are sentenced to two months imprisonment.

[42]     On the charge of recklessly discharging a firearm, you are sentenced to 18 months imprisonment.

[43]     All of those sentences are to be served concurrently with the life sentence of imprisonment imposed in respect of the charge of murder.

Lang J

Solicitors:

Crown Solicitor, Napier