R v Harris
[2023] NZHC 1475
•12 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-090-4273
[2023] NZHC 1475
THE KING v
DYLAN HARRIS ADAM MAIAKI NORTH
JASMINE MURRAY
Hearing: 9 and 12 June 2023 Appearances:
B D Tantrum for Crown
D J Dufty and S Kumar (on instructions from R M Mansfield KC) for Defendant Harris
S N B Wimsett for Defendant North
L O Smith and P K Hamlin for Defendant MurraySentence:
12 June 2023
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Auckland
R v HARRIS & ORS [2023] NZHC 1475 [12 June 2023]
[1] Dylan Harris, Adam North, and Jasmine Murray, you have each been found guilty and convicted of the crime of manslaughter following the fatal shooting of Robert Hart on 5 November 2021. You now appear before the Court this morning for sentence. Although the maximum penalty for the crime of manslaughter is life imprisonment, at the conclusion of this hearing I shall impose a determinate sentence for a fixed period on each of you.
[2] In sentencing you I will commence by briefly summarising your offending. I will then outline the approach I will take to deciding the appropriate sentence to impose for the manslaughter offending and to determining an appropriate starting point for the sentence for each of you which will be informed in each case by the role you played and by my assessment of your respective culpability. In determining the starting point for your sentences I will have regard to the sentences imposed on other defendants convicted of manslaughter so as to ensure that the sentence I impose on each of you is consistent with those imposed on other defendants for comparable offending. I will then explain my reasons for adjusting that starting point having regard to any aggravating factors or mitigating factors that apply to your offending. I will then consider whether there are any mitigating factors relating to your personal backgrounds and circumstances which warrant a discount or reduction from the adjusted starting point I have adopted. That process will lead me to the sentences that I impose.
[3] However, I commence by acknowledging once again the presence of members of Mr Hart’s family, and friends who are here in Court this morning. For those members of his family who were present throughout the trial to listen to the evidence regarding the deception employed by the defendants to lure Mr Hart to a rendezvous for the ostensible purpose of doing a drug deal with a young woman he knew, and then found himself confronted by an armed Mr Harris demanding drugs and intent on robbing him, who then recklessly discharged that weapon with a shot striking him in the head and killing him, listening to all that must have been and obviously was an intensely distressing process for all of you. As the emotional impact statements read by members of Mr Hart’s family last Friday morning clearly showed, Mr Hart’s death has caused them to suffer an overwhelming sense of grief as they struggle to come to terms with the shock of his sudden death and their loss.
[4] You have all lost a much-loved family member, a husband, a son, a brother, a father to some young children whose lives have been drastically and enduringly affected. Robert’s tragic death is yet another illustration of the very serious dangers posed to anyone who involves themselves in using and dealing methamphetamine and how things can go horribly and rapidly wrong, with tragic and enduring consequences, not just for those directly involved as victims, but also for their family members. The Court extends its sincere sympathy to each member of Mr Hart’s family and his close friends and supporters for your loss.
Sentencing framework
[5] At the outset I note that in sentencing you I must consider and apply the principles and purposes of sentencing set out in ss 7 and 8 of the Sentencing Act 2002. This includes the need to hold each of you accountable for the harm done by your offending, specifically the harm caused by the death of Mr Hart and the effect of his violent death upon his family. The sentence I impose is intended to denounce your conduct, to deter each of you and others from committing similar offences, and to protect the community and assist as well in your rehabilitation. The sentence I shall impose on each of you must also take into account the gravity of your offending and achieve consistency with the sentences imposed in other similar cases. I must impose the least restrictive outcome that is appropriate in the circumstances of this case.
[6] I must also take into account your personal, family and cultural background. In considering that background, I must take into consideration the reports which have been prepared under s 27 of the Sentencing Act, unless I am satisfied that there is some special reason that aspects or contents of those reports make that unnecessary or inappropriate.1
The offending
[7] I turn now to provide a summary of the offending. Mr Harris, Mr North and Ms Murray, while you are all well aware of what you did and the parts you played in
1 Sentencing Act 2002, ss 8(i) and 27(2).
the events that led to Mr Hart’s death, it is nevertheless necessary for me to set out the factual basis upon which you are to be sentenced.
[8] Mr North and Ms Murray, in November 2021 you were living together and had been in a relationship for several years beforehand. Mr Harris and Mr North were friends or associates. All three of you were frequently using methamphetamine. None of you were working. In the days prior to 5 November 2021 Mr North and Ms Murray had possession of a stolen Suzuki Swift car and were staying at the home of their friend, Mr D.
[9] Several days prior to 5 November while Ms Murray and Mr North were visiting at Ms H’s address, her cell-phone which she had left in the bathroom was taken. It was obviously stolen by one or other of Ms Murray or Mr North and Ms H sent a Facebook Messager message to Mr North on 3 November enquiring about her phone. Ms Murray used her own cell-phone to take a photograph of Ms H’s phone and Mr North contacted Ms H and asked her for the PIN code to the phone. Ms Murray and Mr North then obtained a new SIM card which they installed in the H cell-phone. The new SIM card was in the cell-phone by around 4.00 pm on 4 November 2021 when a Vodafone notification was sent to the H phone with instructions for activating the SIM card. Around 3.30 am on the morning of 5 November, Mr D drove in the Suzuki Swift to a Mobil service station in Kelston, where he purchased a Vodafone top-up voucher. Just over 15 minutes later at around 3.45 am the voucher he had purchased was used to put a $20 credit on the H cell-phone which by then had the new SIM card installed in it.
[10] At around 5.50 am Mr Harris messaged Mr North using Facebook Messenger, to ask: “All good?” From this communication it is clear that Mr North and Mr Harris had been communicating with one another about what they were about to do.
[11] At 8:14 am on 5 November Ms Murray and Mr North used Ms H’s phone to send a message to Mr Hart asking if he had “Eny” – a clear reference to methamphetamine and drugs by code. Having been sent using Ms H’s phone, and as intended by Mr North and Ms Murray, it appeared to Mr Hart to be a message sent to him by Ms H, who was someone he knew and who he had previously supplied with
methamphetamine. Mr North and Ms Murray then exchanged a series of messages with Mr Hart in which they - pretending to be Ms H - indicated that they had $3000 with which to pay for 14 grams of methamphetamine. They proceeded to exchange a total of 23 messages with Mr Hart in the course of which they suggested that Mr Hart meet them at Pine Street, New Lynn.
[12] At around 8.30 am Ms Murray used her own cell-phone to connect to a website called CARJAM to see whether the Suzuki Swift that she and Mr North were using had been reported to the police as having been stolen or otherwise was wanted by the police.
[13] At 9.05 am Mr North and Mr Harris had a video chat which lasted two minutes. During this conversation Mr Harris was in a car being driven by his associate Mr M. During the video call Mr North obviously arranged to pick Mr Harris up because at around 9.15 am he sent Mr Harris a Facebook Messenger message asking him where he was, to which Mr Harris replied that he was in Pleasant Road at the West Coast end. Further messages were exchanged between them before Mr North and Ms Murray in the Suzuki Swift picked Mr Harris up in Pleasant Road at around 9:36 am. The three defendants then drove to the Mega Laundromat on Margan Avenue in New Lynn. Around the time of their arrival Mr Hart sent a message to Mr North and Ms Murray on the H cell-phone saying he was on his way – “I com[ing] now”.
[14] The three defendants then drove in the Suzuki from Margan Avenue to Great North Road near the intersection with Titirangi Road and also near Pine Street which is off Great North Road. Mr North was driving the Suzuki and Mr Harris was seated in the front passenger seat, with Ms Murray seated on the rear passenger seat. At around 10 minutes to 10.00 am, Mr Hart telephoned the H phone in the possession of Ms Murray and Mr North. From the text messages which followed it is clear that Mr Hart spoke to Ms Murray during that phone call. It is also clear that when speaking to Mr Hart, Ms Murray impersonated Ms H to make Mr Hart think he was talking to Ms H and that it was she who he would be meeting with shortly to do the drug deal. At least two further phone calls were made by Mr Hart to the H cell-phone and one call was made from the H cell-phone by Ms Murray to Mr Hart during this period in which they were exchanging information about where Mr Hart was waiting for the woman
he thought was Ms H. It is also clear that Ms Murray gave Mr Hart no indication that she was being accompanied by anyone else to the meeting. Several further text messages were then exchanged regarding Mr Hart’s location, and Ms Murray maintained her deception and impersonation of Ms H, referring to Mr Hart as “Hun”.
[15] Mr Harris gave evidence that after they had arrived at the Laundromat and were sitting in the car in the carpark, Mr North told him that he had a firearm which Mr Harris could use to intimidate Mr Hart with when he went to carry out the stand-over and robbery. Mr Harris said in his evidence that at that stage he was not shown the firearm. He said that he was given the firearm by Mr North when the Suzuki was stopped at the side of Pine Street before they went and located Mr Hart standing in the driveway, and parked next door in the New Haven Motel carpark. Mr Harris said that Mr North while parked in Pine Street produced the firearm out of a black backpack and gave it to him. He said that when he was given the firearm he put it in his lap and looked at it - and then pulled the bolt back and saw that there was a round of ammunition loaded in it. He said that seeing the ammunition he did not slide the bolt back to close it, as he did not want to cock the weapon. He said he was told to be careful. He said that “later on when I exited the vehicle I concealed it in my pocket’.
[16] I note however that Mr North has told the author of the pre-sentence report that was prepared for him that he was unaware that Mr Harris had a gun, and so he obviously takes issue with Mr Harris’ evidence and account of being given the firearm by Mr North while they were seated in the Suzuki shortly before Mr Harris got out and went and confronted Mr Hart. It is not possible to resolve this issue on the evidence, and in my view it is not necessary to do so for the purposes of assessing the respective culpability of the defendants.
[17] Having regard to the size of the Suzuki Swift and the relatively close proximity of all three occupants, I am satisfied that leaving aside the issue of whether it was Mr Harris or Mr North who brought the firearm with them into the car, all three defendants must have been well aware that Mr Harris had possession of a loaded firearm when he was seated in the front passenger seat of the vehicle while it was being driven between Pine Street and the Motel carpark. He says that he held it in his lap, and in that position it would have been obvious to Mr North and Ms Murray.
Furthermore he says he opened and slid the bolt back which would have been an action which caused some metallic noise which would have attracted their attention, and he said he was told to be careful with it, which shows that the person who told him to be careful, knew he was in possession of a loaded firearm. Although Ms Murray was in the rear passenger seat she was nevertheless still close to both Mr North and Mr Harris, and she was interacting with Mr North about what she was saying to Mr Hart and what Mr Hart had told her about where he was. I am accordingly satisfied that all three defendants were well aware that Mr Harris had possession of a loaded firearm, and that he was intending to take it with him and use it to intimidate Mr Hart when he carried out the stand-over robbery to get his methamphetamine.
[18] At 10:00 am Ms Murray made another call on the H phone to Mr Hart. It appears that the defendants had gone to Pine Street and found that Mr Hart was not there. This phone call was no doubt made to ascertain just where he was. The call duration was 36 seconds and I consider it likely that Mr Hart told Ms Murray where he was waiting for her in the driveway next door to the New Haven Motel, on Great North Road.
[19] At the same time, 10:00 am, the Suzuki Swift being driven by Mr North arrived at the New Haven Motel carpark. Mr North parked on the left side from the entrance, where the vehicle was closest to the driveway where Mr Hart was waiting on his bike. This event and time was captured and recorded on the Motel CCTV. Mr Harris then got out of the Suzuki and as he did the CCTV recording shows him putting the firearm into the front pouch pocket of his hoodie. By doing that as he was getting out of the car confirms his evidence that prior to exiting the car the firearm was either being held or was in his lap, where in either instance it was out in the open and visible to Mr North and Ms Murray. Having exited the car Mr Harris paused to briefly speak to the manager of the Motel who had intervened and told him that the car could not remain parked there. Mr Harris then moved out onto to Great North Road and first walked and then ran down the driveway towards where Mr Hart was waiting beside his motor bike. As Mr Harris moved away from the Suzuki and was making his way down the driveway towards where Mr Hart was waiting, Mr North with Ms Murray still seated in the rear passenger seat, drove in the Suzuki out of the Motel carpark, turned right onto Great North Road and then left into Pine Street where Mr North turned and
positioned the Suzuki to be facing back out towards Great North Road and ready to drive away as soon as Mr Harris returned.
[20] At about this time, Mr Hart prepared another text message on his cell-phone which it appears he was about to send to his Ms H customer who had still not arrived. Mr Hart’s unsent message said: “My bike no start, can u just come to me”. The precise time when that unsent message cannot be determined, but it is possible that Mr Hart was preoccupied with his unsent text message when he was being approached by Mr Harris, and Mr Harris’ arrival beside him is why he was interrupted and didn’t send that message. However, as nothing of significance, so far as this sentencing is concerned, turns on whether or not Mr Hart was preoccupied with looking at his cell-phone phone as he was being approached by Mr Harris it is unnecessary to make any direct finding on that point.
[21] By the time Mr Harris reached Mr Hart, Mr Harris had withdrawn the cut-down firearm from the pouch pocket of his hoodie. Mr Harris says he stepped towards Mr Hart holding the firearm in two hands, and brandished it at Mr Hart, pointing it towards him at about chest height. On Mr Harris’ own account he said he demanded that Mr Hart hand over his methamphetamine. Mr Harris said that when Mr Hart then denied having any knowledge of drugs he cocked the firearm by grabbing bolt action and clicking it down to put the firearm into a firing position. Mr Harris said he did that to emphasise the threat and show Mr Hart he was serious and meant business.
[22] Mr Harris said that when Mr Hart stepped back, he, that is Mr Harris, thrust the firearm towards Mr Hart’s face. Mr Harris said he continued to demand the drugs, and when Mr Hart again denied having any, Mr Harris stepped in and struck him with the weapon, with the barrel of the firearm connecting with the side of Mr Hart’s motorcycle helmet. Mr Harris says at that point the firearm discharged, and Mr Hart fell over his motorbike and onto to the ground.
[23] Mr Harris said that it all happened in the blink of an eye and he did not deliberately pull the trigger of the firearm and that he did not intend to discharge the firearm when it fired and fatally struck and wounded Mr Hart.
[24] The only witness to what happened was a woman working in one of the motel units which overlooked the driveway. She heard what sounded to her like a firework being let off, and looked out the window to see a man lying on the ground beside or over a motorbike, and another man with his back towards her holding a gun in his hands and pointing it at the man lying on the bike on the ground. The witness then ran to tell the hotel manager what she had seen.
[25] Mr Harris said that he became scared when he saw the bullet had struck Mr Hart and he had a hole in the side of his head. He said he knew he was in trouble and ran up the driveway and across Great North Road to Pine Street where Mr North and Ms Murray were waiting for him in the Suzuki ready to drive way.
[26] At 10:07 am, which was shortly after Mr Hart had already been shot, the H phone was used to send two text messages to Mr Hart’s phone. Both messages said: where are you? (“Where u”). By this time Mr Harris had returned to join Mr North and Ms Murray in the Suzuki, and these messages were sent either by Ms Murray or Mr North as a means of distancing the sender of the earlier messages sent from the H phone to Mr Hart, by indicating that the sender of those messages had not in fact made contact with him, and did not know where he was.
[27] As soon as Mr Harris got back into the Suzuki, Mr North drove to Green Bay where they left the car parked near the end of quiet cul de sac. At around 10:10 am Mr Harris used his own mobile phone to contact his friend Mr M and arranged with him to be picked him up in his car from nearby Cliffview Drive, and at around 10:25 am Mr North and Ms Murray called a taxi and were collected and taken back to the Margan Avenue Laundromat where Ms Murray retrieved the laundry which she had left there, before they went to the meeting with Mr Hart. Mr Harris then made arrangements enabling him to get through the Auckland Covid boundary at Bombay and made his way down to Rotorua. Mr North and Ms Murray left Auckland and went to stay at a motel north of Auckland. The firearm and the H cell-phone were disposed of in order to prevent those items connecting the defendants with the offending and they have not been recovered.
Victim impact statements
[28] I have of course read the victim statements of Mr Hart’s family and I listened carefully to the victim impact statements as they were read to the Court on Friday. They express the profound grief and sense of loss of Mr Hart’s family and loved ones as a result of his sudden death.
[29] Ms C, his partner and the mother of his youngest child, has endeavoured to express the pain she and her son have experienced having lost a father and best friend. Mr S speaks of his anguish and grief at the loss his brother, compounded by the COVID-19 lockdown restrictions which denied him and his family the opportunity to see and be with Mr Hart following his death in a way which would have been far more resolving for them than the circumstances with which they had to cope. The grandmother of Mr Hart’s eldest child expresses the permanent consequences the offending has had on the whole family and the devastating impact it has had on his eldest son and the concern that she has expressed and the frustration she has expressed is graphically expressed in her victim impact statement. The immeasurable heartbreak felt when the family heard the news of Mr Hart’s death is undeniable and it is clear from everything that has been said that, irrespective of what Mr Hart was involved in, he was a much-loved member of his family who will be dearly missed by all of them and it does just go to show, doesn’t it, that what the consequences are of people becoming involved in methamphetamine dealing and how things can go wrong, and they don’t just go wrong for the family, what goes wrong endures for generations. It is a lesson that all of our community need to take on board – people who are directly involved in the use of methamphetamine cannot see it. It is only when you are out of it and see it from a distance that these patterns are so clear.
Legal basis of liability for manslaughter
[30] Mr Harris, Mr North and Ms Murray at your trial the Crown alleged that you were guilty as parties to the offending committed by Mr Harris and you were also liable as parties under s 66(2) of the Crimes Act 1961 on the basis that all three of you had formed a common intention to carry out an armed stand-over of Mr Hart to rob him of his methamphetamine, and to assist each other to do so, knowing that the infliction of physical harm caused by the discharging of the firearm used for the stand-
over, was a probable consequence of the carrying out of your common purpose. I find that is the most likely basis of the jury’s verdicts finding each of you guilty of manslaughter.
Shared aggravating features of the offending
[31] In this part of the sentencing process I shall first identify what I find are the common aggravating features of your offending, and then turn to consider your role and participation in the offending individually. In doing so I will include some of the features of violent offending identified in R v Taueki in order to inform my assessment of the gravity and culpability of your offending.2
Premeditation
[32] The first aggravating feature of your offending is the high degree of premeditation involved. The armed stand-over and intended robbery of Mr Hart was carefully planned and all three of you were variously involved in the planning and preparation for what was to take place, and it is relevant to note that the planning extended over a period of several days at least prior to 5 November 2021. Soon after Ms H’s cell-phone was taken from her flat by Mr North and Ms Murray, or one or other of you, you two were both involved in taking steps to get access to her phone and set it up in a way that would enable you to send and receive text and Facebook Messenger messages and communications in a way that would enable you to impersonate Ms H and mislead Mr Hart into thinking that he was communicating with her. Achieving this deception required artful and well thought out measures. Mr North extracted Ms H’s PIN number from her; and then a new Vodafone SIM card was purchased. The H Facebook profile was then accessed and used. A test of it was first undertaken by you, Mr North, to make sure it worked and the two of you arranged for your friend to purchase a Vodafone top-up voucher to use on the phone. Mr Hart was chosen as the victim knowing that he knew Ms H, and any messages he received from her by asking to buy methamphetamine would not arouse suspicions about meeting with her to conduct a drug deal.
2 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
[33] The measures taken by Mr North and Ms Murray to set the phone up to be used in this way were not only intended to mislead Mr Hart, but they were also intended to prevent anyone discovering who was actually responsible for sending the messages. Shortly after Mr Hart had been shot and after the last “Where are you?” text message had been sent to Mr Hart’s cell-phone, the H phone was deactivated and, as I have said, has not since been located by the police. The deactivating and disposing of the H phone were measures taken to ensure that you could not be located and identified by means of having possession of the phone and so that you would not be connected to the communications which had preceded Mr Hart’s death and which were obviously going to be recorded on his phone was to be located by the police investigating the circumstances of his death which would have led them to who was responsible for the attack and his shooting.
[34] The H phone was used to send or receive around 30 text communications to or from Mr Hart and for five telephone voice calls for the purpose of purporting to arrange the methamphetamine deal and meeting with him when it was planned that he would be stood over by an armed offender and robbed of his methamphetamine. On each of the occasions when Mr Hart made or received a voice call to or from the H phone, Ms Murray spoke to him and deceptively impersonated Ms H. The messages sent to Mr Hart said that the purchaser had “3” meaning $3000, and wanted to purchase “14” meaning 14 grams of methamphetamine. This information regarding the amount available to purchase the drug was obviously intended to encourage Mr Hart to think it was a worthwhile transaction for him to get involved in and also to get him to bring 14 grams of methamphetamine to the rendezvous where it was to be taken from him. As no methamphetamine was found by the police to be in Mr Hart’s possession when his body and his motor bike were examined, it is likely that the methamphetamine he had bought with him for the purpose of the expected sale was taken by Mr Harris although there is no direct evidence of that.
[35] A further aspect of the planning by Mr North and Ms Murray was the involvement of Mr Harris to be the person to carry out the confrontation of Mr Hart and robbing him of the methamphetamine he had brought with him to sell. While Mr North and Ms Murray were involved in the obtaining of the H phone and setting it up so as to be able the impersonation of Ms H, Mr Harris clearly knew what had to be
done and what was intended to be done when he messaged Mr North before 6.00 am on 5 November to enquire: “All good?” And subsequently, shortly after 9.00 am, when Mr North contacted Mr Harris and had a two minute video chat with him before picking him up at Pleasant Road around at 9.30 am.
[36] Another aspect of the planning and premeditation was the obtaining of a loaded firearm for use in the robbery. Whether the firearm was brought by Mr Harris - as Mr North says it was, or whether it was Mr North who brought the firearm and gave to Mr Harris - as Mr Harris says occurred, is immaterial as regards premeditation, because both Mr Harris and Mr North were fully aware that the plan was for Mr Harris to take a firearm with him when confronting Mr Hart, and the planning of the robbery clearly involved making arrangements to obtain or access a loaded firearm which was to be used to threaten and intimidate Mr Hart.
[37] A further aspect of the premeditation in the offending was the wearing of COVID masks and sunglasses as measures intended to conceal identities.
[38] When all these aspects of the premeditation and planning of the offending are identified as having been undertaken by the defendants working collectively, it is clear that their premeditation and planning of armed offending against Mr Hart is a very significant aggravating feature of the offending. It was an ongoing aspect of their premeditation that went through various phases and was all designed over a period of days to ensure that the offending would be successfully carried out and the offenders not identified or identifiable.
Use of a weapon
[39] The use of a loaded weapon when carrying out an intended robbery is another seriously aggravating feature of the offending. The brandishing of an unloaded weapon will be threatening and intimidating and the use of an unloaded weapon can clearly amount to being an aggravating factor of offending. However, where a loaded firearm is used by offenders for a stand-over confrontation and robbery, irrespective of whether the offender or offenders had any intention of firing the weapon or of harming the victim by shooting them, the taking of a loaded weapon to the confrontation introduces a very high degree of risk that it could be fired and someone
seriously injured or killed, and it can be anticipated by offenders who take a weapon to a crime scene to intimidate a victim or victims that it could be used in the course of their offending.3
[40] Here, the jury’s verdicts of manslaughter indicate that they were not satisfied beyond reasonable doubt that when the firearm being held by Mr Harris and being pointed towards Mr Hart’s head discharged, Mr Harris did not intend to either kill Mr Hart or cause him some serious injury known by him to be likely to cause death. So the jury accepted that the firing was accidental in that sense. Nevertheless the fact that Mr Harris with the full knowledge and support of Mr North and Ms Murray took the loaded firearm to his confrontation with Mr Hart for the purpose of threatening and intimidating Mr Hart so that he would hand over the 14 grams of methamphetamine he was expected to have in his possession, is a seriously aggravating feature of the offending. As Mr North and Ms Murray were either directly involved or knew about Mr Harris’s possession of the firearm and his intended use of it in the course of standing-over Mr Hart and demanding the methamphetamine, I find that the culpability of all three defendants is informed by their knowledge of and participation in the planned use of a loaded firearm in the offending in which that they had all been involved in the planning for. I accordingly find that the use of a loaded weapon is another significantly aggravating feature of the offending.
[41] A further aspect of this feature of the offending was that the planned use of a loaded firearm was to take place in a mixed residential and commercial area where any discharging of the firearm would present a danger to members of the public who happened to be nearby.
Extreme violence/serious injury
[42] Here, where a loaded weapon was used to threaten Mr Hart and its discharge caused a fatal injury, the offending clearly involved a high degree of violence and resulted in serious, indeed fatal, injury. That is another aggravating feature of the offending.
3 R v Taueki, above n 2, at [31(d)].
Vulnerability of the victim
[43] I also consider that Mr Hart’s vulnerability as the intended victim of the planned offending is a further aggravating feature of the offending of all three defendants. The objective of the defendants’ elaborate planning and deception of Mr Hart was to get him on his own to meet Ms H to exchange methamphetamine for cash. By deceiving him into thinking that he was meeting a woman who would be on her own and who he knew would pose no physical threat to him, the defendants were intending that Mr Hart would not take any precautions or prepare to deal with or resist any anticipated violence or intimidation. Furthermore by planning to use and then using a loaded firearm to threaten Mr Hart for the purpose of robbing him, the defendants were clearly intending to take advantage of Mr Hart’s vulnerability in the face of an armed offender. I therefore find that Mr Hart’s vulnerability to an armed attack, as was set up and engineered by the defendants collectively, is another significant aggravating feature of the defendants’ offending.
Victim impact
[44] I have earlier referred to the victim impact statements and the devastating affect your offending has had on Mr Hart’s family, obviously causing his death. They too are victims of your offending and the enduring effect and consequences of your offending upon them is also a significant aggravating feature of your offending.
Setting a starting point
[45] As I have said the first step in determining the sentence to be imposed is to decide upon a starting point. The Crimes Act provides that the maximum penalty for the crime of manslaughter is life imprisonment. The offence of manslaughter can be committed in wide range of circumstances and involve a wide range of culpability for those responsible for causing a death by an unlawful act. There is no guideline judgment relating to appropriate sentences for manslaughter. Guidance as to the appropriate sentence will be found by reference to sentences imposed in similar manslaughter cases,4 and by cross-reference to the guideline judgment for grievous bodily harm offending in the case of R v Taueki which the Court of Appeal has
4 R v Leuta [2002] 1 NZLR 215 at [49]–[59].
described as being of considerable assistance in fixing the appropriate penalty for manslaughter offending, and where features of offending which contribute to the seriousness, or mitigate the seriousness of grievous bodily harm offending, are also relevant and applicable to the assessment of culpability for manslaughter offending.5
[46] So the first step is to set a starting point based on a comparison of your offending with starting points adopted in similar manslaughter cases having the same or similar aggravating and mitigating features as I have found to be present in your offending. I shall also consider where your offending sits by reference to the three bands of offences and sentence ranges set out in R v Taueki.
[47] Having determined the appropriate starting point for each of you, I will then proceed to consider any aggravating or mitigating features that are personal to each of you, and apply any uplifts or discounts to take account of any personal aggravating and mitigating factors. By that process I will arrive at the sentence that I will impose on each of you.
Mr Harris
Submissions
[48] Mr Harris, the Crown submits that the appropriate starting point I should adopt in your case falls between 11 and 12 years’ imprisonment. Mr Mansfield KC on your behalf, submits that the appropriate starting point in your case is one of nine years’ imprisonment.
As I have explained, in order to determine the starting point to be adopted in your case I must assess your culpability. In addition to the aggravating factors which I have found to common to all three defendants, I consider that there are some further features of your offending which are aggravating factors which increase your criminal culpability. The first is that your offending involved you attacking Mr Hart’s head.
5 R v Jamieson [2009] NZCA 555 at [34].
Attacking the head/Causing serious injury
[49] While the jury did not find that you intended to shoot Mr Hart in the head, on you own evidence you said that you pointed the weapon at his head and deliberately struck him with the barrel of the firearm on the side of his motorcycle helmet. You did that knowing that the firearm you were holding was loaded and intending to focus your attack on Mr Hart’s head in the course of threatening him to show him that you were serious and meant business. Your action of pointing the firearm towards Mr Hart’s head and striking his helmet with the barrel of the firearm moments before it discharged and caused the fatal wound are a significant aggravating feature of your offending.
Recklessness
[50] I also consider that although the jury found that you did not intend to either kill or cause Mr Hart some serious injury when you struck him on the head with the barrel of the firearm, striking his motorcycle helmet with a loaded firearm is an act of extreme recklessness and dangerousness. I consider that the extremely dangerous and reckless nature of your actions is a separate and further aggravating feature of your offending.
Manslaughter cases and starting points
[51] I have considered the cases referred to by the Crown in its submissions, and also the cases referred to me by your counsel. However, none of the cases cited are closely similar to yours.
[52] The Crown refers to the case of R v Chase, Clarke & Griffin where a starting point of 12 years imprisonment was adopted in respect of Mr Griffin.6 In that case Mr Griffin was one of three offenders who went onto a rural residential property at night for the purpose of robbing the victim of drugs and money. One of Mr Griffin’s co-offenders entered the property carrying a loaded shotgun which was one of three firearms and ammunition Mr Griffin had obtained prior to the group driving to the victim’s property. Justice Katz found that all three offenders knew that the shotgun
6 R v Chase [2018] NZHC 3332 at [77].
was loaded. When the three offenders encountered the victim’s partner outside the house, Mr Griffin detained her while the other two offenders went off to look for her husband. When the victim appeared from around the corner of a shed, one of Mr Griffin’s co-offenders shot him with the shotgun from close range causing a fatal wound from which he died at the scene. That co-offender was found guilty of murder. Mr Griffin was found guilty of manslaughter.
[53] In determining the appropriate starting point for Mr Griffin in respect of the manslaughter charge, Katz J noted that he was not immediately present at the time when the victim was shot, which was when he was elsewhere on the property detaining the victim’s wife. Her Honour also noted that Mr Griffin had agreed with his co-offenders with the plan to go to the victim’s property to rob him and he had actively participated in carrying out the plan. He had provided the shooter with the shotgun prior to their arrival at the property and he knew the shotgun was loaded. Justice Katz also noted that the jury verdict meant that they had found that Mr Griffin knew, prior to the armed robbery commencing, that a probable consequence of proceeding with it was that the victim would be shot and injured, but he went ahead nevertheless. As I have said the Judge adopted a starting point of 12 years’ imprisonment in relation to Mr Griffin.
[54] Mr Mansfield submits that this case can be readily distinguished from your offending as the principal offender who discharged the shotgun was found guilty of murder. However, I consider that as Mr Griffin was found guilty of manslaughter and he was sentenced for that offending, the case is relevant and of assistance to an assessment of the appropriate starting point to be adopted in your case Mr Harris.
[55] I also consider your offending to be fairly comparable with that of Mr Griffin as your offending involved several common features. Like Mr Griffin you were involved in a criminal enterprise that set out to rob a victim of drugs. You were involved in the planning and preparation for an armed robbery of Mr Hart, and you were well aware that the firearm you were holding was loaded. While Mr Griffin had supplied the shotgun and ammunition to his co-offender, and was not present when the victim was shot, you were present and you were holding and pointing a loaded firearm at Mr Hart’s head immediately before it discharged and fatally wounded him.
Significantly, when Mr Hart resisted your demand for drugs and said he did not have any with him, you closed the bolt of the firearm thereby cocking it and putting into a state where it could be fired if the trigger was pulled deliberately or accidentally knocked. Your direct involvement with Mr Hart and your extreme recklessness by striking him on the helmet with the barrel of the firearm in my view shows your offending to be on a comparable level of culpability with that of Mr Griffin.
[56] The Crown also refers to the case of Jefferies-Smith v R, in which the offender went to premises where the victim was staying in order to recover a vehicle which the victim had taken from the offender in satisfaction of drug debt.7 The offender took a loaded firearm with him intending to demand that the victim return his car keys and car. Once inside the premises the offender waited for the victim in the kitchen, and when the victim appeared from one of the bedrooms the offender pointed the firearm at him and demanded the return of his car keys. The victim then made some dismissive comment and turned and began to walk and then run away from the offender. Mr Jefferies-Smith then fired two shots as the victim was moving away which both struck the victim in his back and caused fatal wounds. The sentencing Judge rejected a claim that the defendant had acted in self-defence believing that the victim was going to get a gun. The Judge found that Mr Jefferies-Smith had lost his temper when the victim mocked him by saying that he would not use the gun, and he had fired the gun deliberately and caused the fatal wounds to the victim. The Judge adopted a starting point of 10 years’ imprisonment which was upheld by the Court of Appeal describing it as being undoubtedly within the available range.8
[57] Mr Mansfield submits that that the Jefferies-Smith case is the most analogous case to yours, Mr Harris. He submits however that the offending in that case is clearly more serious than your offending as it involved the offender losing his temper and deliberately firing the firearm he had taken to the address twice into the victim’s back. He further submits that the offender’s deliberate firing at the victim makes that offending more readily distinguishable from yours.
7 Jefferies-Smith v R [2020] NZCA 315.
8 At [20].
[58] While the jury’s verdicts mean that it accepted that you did not deliberately discharge the firearm at Mr Hart and I accept that distinguishes the Jefferies-Smith offending from yours, I nevertheless consider that your act of pointing the firearm directly at his head when threatening him and then striking him on his helmet with the barrel of the loaded firearm immediately before the firearm discharged was extremely dangerous and reckless, as I have said. Nevertheless, it is in contrast to the deliberate shooting in the back of the victim in Jefferies-Smith, but in my view those acts of yours, when considered together with the other aggravating features of your offending I have referred to, indicate an appropriate starting point around the same level as adopted in Jefferies-Smith and certainly not distinguishably less than that.
[59] The Crown also refers to R v Johnson in which the offender and his victim were neighbours.9 Following a dispute between them which arose from the victim taking issue with Mr Johnson for lighting paper lanterns, Mr Johnson returned to his home and obtained a shotgun and ammunition with the intention of returning to the victim’s address and shooting him in the foot. Upon Mr Johnson’s arrival at the victim’s address, the victim grabbed a baseball bat and a brief argument ensued before Mr Johnson deliberately shot the victim in the foot. A struggle over the shotgun then developed during which Mr Johnson deliberately fired the remaining rounds in the shotgun magazine to ensure that they could not be used against him. One of those shots struck the victim in the chest and he died. Mr Johnson did not realise what had happened and left the victim’s address. Mr Johnson was subsequently charged with murder but convicted of manslaughter on the basis of his unlawful act of carelessly discharging the firearm. Justice Cull adopted a starting point of eight and a half years in that case.
[60] Mr Mansfield submits that the offending in Johnson is on a similar level to your offending, but that that offending was more serious by reason of Mr Johnson’s deliberate firing of the shotgun to discharge all of the remaining rounds to prevent them being used against him. However that case can be distinguished from yours. The victim in that case had previously confronted Mr Johnson over his lighting of lanterns and had physically attacked him and in fact beaten him up, before returning
9 R v Johnson [2022] NZHC 2560.
to his own house. There was therefore a significant element of provocation by the victim prior to Mr Johnson fetching his shotgun and going to the victim’s house with the intention of shooting him in the foot. Mr Johnson had been drinking and was in a rage when he went to the victim’s house. The fatal shooting occurred during the course of a struggle for control of the shotgun. Justice Cull noted that the jury’s verdict of manslaughter meant that it accepted that Mr Johnson did not intend to kill the victim or that he had any murderous intent, and the verdict of manslaughter was based on Mr Johnson’s unlawful act of carelessly using a firearm.
[61] Mr Harris, I consider your offending to be significantly more culpable than the offending in Johnson. In the present case there was absolutely no provocation by Mr Hart prior to you standing over him, and there was no attempt made by him to take control of the firearm you were carrying. The features of premeditation and vulnerability of the victim which were features of your offending were not present in the Johnson offending.
[62] Mr Mansfield also refers to the case of R v Christie in which the offender was convicted of manslaughter after shooting his brother.10 The victim and other siblings were working in a garage when the victim was heard calling out “that fella’s got a gun”. The victim ran out of the garage and followed Mr Christie into the house. Although intending to scare the victim by firing a shot into the ground, Mr Christie shot the victim in the abdomen. Mr Christie did not provide any assistance to the victim after the shooting. A starting point of eight years’ imprisonment was adopted in that case.11
[63] The offending in Christie involves some features also present in your offending Mr Harris. These include the premeditation involved in deliberately obtaining a firearm, and taking it into a confrontational dispute. Further, the failure to assist the victim.12 The Judge considered Mr Christie was fully responsible for the creation of the situation in which the accidental release of the bullet occurred, allowing the tension to reach that level and approaching the situation with a firearm.13 There is therefore
10 R v Christie HC Gisborne CRI-2003-016-6552, 28 October 2004.
11 At [32].
12 At [9] and [12]–[15].
13 At [31].
some similarity with your offending, Mr Harris, as the jury’s verdict shows that they were satisfied that like the offender in Christie you did not intend the death of Mr Hart, and you did not intend to cause him any bodily injury that you knew was likely to result in his death and with that knowledge were reckless as regards the risk of that occurring. You were nevertheless found guilty of the manslaughter.
[64] However Mr Mansfield acknowledges that your offending is more serious than the offending in Christie, and he accepts that the stand-over element of your offending makes your offending more culpable than that of the offender in Christie in which an eight year starting point was adopted. I agree.
[65] Mr Mansfield accepts that your offending is more serious and culpable than the offending in Christie and he submits that your offending fits therefore somewhere between the cases of Johnson (eight and a half years’ starting point) and Jefferies-Smith (10 years’ starting point). He accordingly submits that having regard to the most comparable cases, the appropriate starting point for your offending is the nine year term of imprisonment that I mentioned earlier.
[66] Having regard to those manslaughter cases I have referred to I consider a starting point of around 10 – 12 years would be appropriate on that comparative basis. However, before I decide the starting point I shall apply when sentencing you Mr Harris, I will first turn to consider the sentencing bands set out in Taueki and what starting point would be reached by reference to the guidelines set out by the Court of Appeal in that case which relates to grievous bodily harm offending. In doing so I note the Court of Appeal’s comment regarding the need to carefully assess the gravity of each aggravating feature in order to properly reflect the culpability inherent in the offending.14
[67] The sentencing range for offending which falls within sentencing band three in Taueki is between nine and 14 years’ imprisonment. Offending falling within band three will normally be serious offending which has three or more of the aggravating features set out in the Court of Appeal’s judgment, and where the combination of those aggravating features is particularly grave. The Court of Appeal in Taueki explained
14 R v Taueki, above n 2, at [42].
that where the victim was particularly vulnerable a higher starting point will be required, and where the victim is left with injuries which will have an ongoing impact on his or her enjoyment of life, a starting point at the top end of band three will be called for and I will set out in my written sentencing remarks a quotation from the case of R v Rapira in which reference is made to a starting point of 10 years being necessary to reflect aggravating features present in the case including the use of a firearm. The Court of Appeal observed:15
Where the common aggravating features are worse (as where there is the use of a fire-arm, torture, repetitive violence, or home invasion) a starting point of ten years is unlikely to be sufficient to reflect the gravity of the offending. In the absence of those features, a starting point of ten years was necessary to reflect the aggravating features which were present in the case and which are summarised above at para [99].
[68] Mr Harris, in your case I have found that there were at least six discrete seriously aggravating features of your offending which would result in your offending being placed in band three and which would warrant the adoption of a starting point approaching the upper end of that band. However I note that the grievous bodily harm offending addressed in the Taueki bands are predicated on the basis that the violent offending was intentional and the harm caused deliberate. That does not necessarily cross-refer to manslaughter offending where the harm was not caused intentionally, but was the result of carelessness or recklessness. This cross-check nevertheless confirms my assessment of your culpability as being at a high level, and I find that the high level of culpability involved in your manslaughter offending warrants the adoption of a starting point of 11 years’ imprisonment, which is the starting point I shall adopt.
Uplift for previous convictions
[69] The Crown submits that I should uplift the starting point by four months to take account of your previous relevant violent offending. Mr Mansfield accepts that an uplift of four months to take account of your previous convictions is appropriate.
[70] At the time of your offending and of Mr Hart’s death, you were 35 years old. You have an extensive history, Mr Harris, of previous criminal offending which
15 R v Rapira [2003] 3 NZLR 794 (CA) at [132].
relevantly includes convictions for aggravated assault committed in 2016 and assault using a blunt weapon committed in 2011. More recently in 2021 you were convicted of being in possession of a knife in a public place. You have no prior convictions relating to the possession or use of firearms. In my view your previous violent offending is sufficiently relevant to your manslaughter offending to warrant an uplift of the starting point of four months’ imprisonment. The addition of that uplift takes the adjusted starting point to eleven years and four months’ imprisonment.
Personal mitigating features and background
[71] I now turn to consider what adjustments should be made to this starting point to take account of your personal background and circumstances.
[72]You are now 36 years old.
[73] Mr Mansfield submits that the starting point should be reduced to take account of your willingness to plead guilty to manslaughter prior to your trial and your acceptance at trial that you were guilty of manslaughter. Mr Mansfield notes however that although no formal written offer to enter a plea of guilty to the charge of manslaughter was made by the defence, the way in which your case was advanced at trial made it plain to the jury that you accepted that you had caused Mr Hart’s death by your unlawful act and you accepted that you were guilty of the offence of manslaughter. Mr Mansfield submits that a 10 per cent discount is warranted to reflect that acknowledgement.
[74] I accept that submission and note that from the outset of the trial through your counsel you accepted that you had caused Mr Hart’s death by an unlawful act in discharging the firearm, and that you were guilty of manslaughter as a consequence. I also accept that your counsel had communicated that to the Crown prior to the trial starting. While the Crown were entirely justified in rejecting your offer to admit to manslaughter, and accept a plea of manslaughter as a resolution of the charge brought against you, I nevertheless agree that a discount should be allowed on that account and I shall allow you a discount of 10 per cent for that factor.
[75] I also accept that you have expressed genuine remorse for your offending, Mr Harris. You spoke of your remorse in the course of giving evidence and I accept that it is genuine. You have consistently expressed your remorse in your interview both for the Department of Corrections pre-sentence report, and then in your interview for the s 27 report which was prepared. I also note that you indicated your willingness to engage in restorative justice with Mr Hart’s family. While that proposal was rejected, your willingness to engage in restorative justice is consistent with your genuine remorse. I propose to allow a five per cent discount in recognition of your remorse.
[76] Turning to your personal background and the matters set out in the s 27 report prepared by Professor Gallavin. I note the author’s description of your familial history as being “nothing short of shocking”. You never knew your father who died by suicide when you were still very young. Your mother was an alcoholic and subjected you to violence. Your mother was not able to consistently care for you and you spent a significant time in foster care during your childhood. You became estranged from your mother aged 13 and thereafter did not speak to her, and she died when you were
15. From around age 10 you became a heavy user of cannabis and you commenced using methamphetamine as a teenager, either from 15 or 17 – the dates are differently stated in the reports. But certainly from around 15 or 17 years’ old you were using methamphetamine. And you have explained that once you were addicted to methamphetamine you would use it as often as you could get your hands on it.
[77] In his report Professor Gallavin draws a connection between your personal circumstances and background and your offending. He observes that your personal background represents significant deprivation and loss of agency, and made you prone to rash and opportunistic decision making, a tendency to be easily led and to have an ill formed structure of ethics, morality or tikanga. Professor Gallavin expresses his opinion that your severe methamphetamine addiction has led to your involvement in opportunistic offending to satisfy your desire to obtain the drug.
[78] To your credit you have expressed the desire to quit methamphetamine and to lead a pro-social life in the future. You are described as intelligent and have shown
yourself to be capable of learning a trade by undertaking a building apprenticeship which I understand you only have one further year to complete.
[79] Mr Harris, I note that you accept that a significant prison sentence will be imposed on you and that in order to prepare for life out of prison in the future you will need to engage with professional counselling to assist you to connect with your children and to Te Ao Māori which is seen by you and those who have been providing you with counselling as an important part of your recovery towards developing self-respect and a worthwhile future.
[80] As Professor Gallavin explains, your dislocation from your mother from a young age, your early use of drugs, and the disruption of education that was caused, produced a state of chaos and a general lawlessness throughout your childhood and into your teenage years and young adult years, that left you without the necessary skills needed for developing emotional strength and independence. I accept that your personal background and particular aspects of your personal background have had a significant causative connection to your offending and warrant recognition by way of a significant discount of the starting point. I also agree with Professor Gallavin that your engagement with methamphetamine for effectively half of your life to date has had an operative and causative connection with your offending. And I also accept that your extreme familial separation and the consequences that brought have had a causal connection with your offending.
[81] It is also clear that your offending on 5 November 2021 was directly motivated by your methamphetamine addiction. To take account of what I consider to be the clear causative contribution of your personal background and your addiction to your offending, I shall allow a discount of 15 per cent.
[82] Those discounts total: willingness to admit to manslaughter (10 per cent); remorse (five percent); and the s27 causative contribution of your background and methamphetamine addiction (15 per cent) total 30 per cent. When applied to the starting point of 11 years and four months yield an end sentence of seven years and 11 months’ imprisonment and I will shortly impose that sentence upon you, Mr Harris.
Mr North
[83] Mr North the Crown submits that the appropriate starting point to reflect the culpability of your offending is eight to nine years’ imprisonment, and is equivalent to Ms Murray. Your counsel, Mr Wimsett, submits that the appropriate starting point in your case is in the range of six to seven years’ imprisonment. Mr Wimsett accepts and submits that the starting point should be uplifted by three months to take account of your previous relevant offending. He submits that reductions from that adjusted starting point should be allowed to take account of: the steps you took to shorten the duration of the trial by admitting facts; your remorse; your attempts to date at rehabilitation; and in recognition of the matters set out in the s 27 report which has been prepared. Mr Wimsett submits that when these discounts are taken into account an end sentence of between four years and nine months and five years and six months’ imprisonment is appropriate in your case.
[84] Mr North, in summarising the factual background leading to Mr Hart being shot and killed I have described the central role you played in the planning and carrying out of what was the intended armed robbery which resulted in Mr Hart’s death. Although you did not directly take part in the armed confrontation of Mr Hart, you were clearly responsible for instigating and planning the robbery by using the H cell-phone to deceive him and lure him to a meeting where he thought he would be meeting with Ms H to sell her methamphetamine, and to lure him into a situation where he was alone and vulnerable to being stood over by an armed assailant who would then rob him of the drugs he had taken with him to sell. Mr North, together with Ms Murray you instigated and orchestrated the whole operation. As Ms Murray’s partner and someone around 10 years older than her and with your extensive history of criminal offending, I consider that, as between the two of you, it is likely that you played a more dominating role in directing her actions. Nevertheless, you and Ms Murray clearly worked closely together in planning and carrying out all aspects of the operation by which you intended to rob Mr Hart at gunpoint, to steal his methamphetamine. You and Ms Murray obtained the cell-phone from Ms H’s flat and while the evidence does not establish which of you took the cell-phone from the bathroom where Ms H had left it, both of you were present at her flat when it was taken and I am satisfied that both of you knew it had been taken and both of you were
involved. Mr North you then contacted Ms H and obtained her cell-phone PIN number so that you could access it, so from that moment you obviously had in mind its use for this offending. You obtained a new SIM card and installed it into the phone; you arranged for an associate of yours to purchase the Vodafone top-up voucher; and you accessed Ms H’s Facebook Messenger profile so that you could send and receive messages on that platform impersonating Ms H. And you and Ms Murray then sent messages to Mr Hart to set up the drug transaction and to lure him to a meeting place where he would be isolated and stood-over by an armed assailant and you arranged for Mr Harris to become involved and I find, Mr North, that sometime prior to 5 November 2021 you instructed Mr Harris regarding his role and what he was to do to carry out his part of the offending. You used the stolen Suzuki Swift you had obtained to pick Mr Harris up on the morning of 5 November and you then drove to the Great North Road/Pine Street area where the impersonation of Ms H by Ms Murray was undertaken to make the final arrangements as to where to meet and when. As I have said, for the purposes of sentencing I do not need to determine whether it was you or Mr Harris who provided the cut-down firearm that he used in his confrontation with Mr Hart. Whichever of the two of you provided the firearm, you were both well aware that Mr Harris was taking a loaded firearm to the confrontation with Mr Hart and that he was taking it for the purpose of using it to threaten and intimidate Mr Hart and force him to hand-over the methamphetamine that he had with him. It appears that the reason you involved Mr Harris was because you knew he was someone who would not be known to Mr Hart, and would distance you from having had any involvement in the robbery. You drove Mr Harris to the place where the meeting was arranged to take place and you waited as the getaway driver for him to carry out the armed robbery and then you then you drove Mr Harris away from the scene, knowing that the firearm had been discharged and no doubt having been informed by Mr Harris that Mr Hart had been shot and had collapsed. You took no steps to ascertain what had happened to Mr Hart or to provide him with any assistance or to call an ambulance, and you endeavoured to avoid the police and to avoid being connected with and found responsible for your involvement in the events that had caused Mr Hart’s death.
[85] So Mr North, although you were not holding the firearm that was discharged and caused the fatal injury to Mr Hart, you were not significantly less culpable than Mr Harris for the manslaughter, in my view. I consider that your role in the offending
and your culpability is closely comparable with that of Mr Griffin in the case of Chase, in which the starting point adopted for Mr Griffin was 12 years’ imprisonment, as I have said. However, Mr Griffin physically restrained the deceased’s partner while his two co-offenders, one of whom was armed with a loaded shotgun, went to look for her husband. And I consider that feature of Mr Griffin’s offending puts it on a more serious and more culpable level than yours.
[86] Mr Wimsett submits that your offending is significantly less serious and less culpable than Mr Griffin’s. He notes that in that case the three offenders went onto the victim’s property at night, and he also refers to Mr Griffin’s act of detaining the victim’s partner during the course of the robbery, and the fact that Mr Griffin had provided the loaded shotgun used in the killing of the victim as being significant distinguishing features which show that offending to be more culpable than yours, Mr North.
[87] Mr Wimsett also draws my attention to the case of R v Innes16 which Mr Wimsett submits has similarities between your role Mr North that of Mr Innes. In that case Mr Innes and a co-offender went to an address planning to rob the occupants of drugs. They had arranged that Mr Innes would knock on the door of the house and then lure the occupants out of their house on the pretext of wanting to purchase drugs, while his co-offender who was carrying a hunting knife hid nearby. Once the occupants were lured out of the house Mr Innes’ co-offender would then emerge from hiding and demand the drugs. Having lured the occupants outside their house, Mr Innes then headed down the driveway towards the footpath, and when the occupants of the house retreated back to their house Mr Innes’ co-offender emerged from hiding and pursued them. A struggle then ensued as the occupants attempted to shut their door. In the course of the struggle, one of the occupants of the house was fatally stabbed in the chest. Mr Innes had no involvement in the struggle to get into the house. Upon reaching the footpath he had kept going and did not witness the struggle or the stabbing. The sentencing Judge noted that while it was no part of Mr Innes’ plan that the knife be used to stab the deceased, he must have known of the real risk that violence would be resorted to by his co-offender if necessary, and he
16 R v Innes [2016] NZHC 1195.
knew that his co-offender was armed with a knife. In that case the Judge adopted a starting point for manslaughter of four and a half years’ imprisonment.
[88] Mr Wimsett submits that you Mr North like Mr Innes, was part of a joint enterprise to obtain drugs from an unsuspecting victim, that you knew that your co-offender had a weapon, and you knew that a confrontation involving threats and assaults were likely. Mr North you provided the opportunity for the common purpose to be carried out by picking Mr Harris up and driving him to where Mr Hart had been lured for a meeting. So Mr Wimsett accepts that because of your planning and premeditation, and because of the weapon involved being a firearm rather than a knife, your offending is more serious and more culpable than Mr Innes, where there was no such level of premeditation and the weapon was a knife.
[89] Mr Wimsett submits that the case of R v Burke is also of assistance as it provides guidance for the sentencing of offenders convicted of manslaughter but who did not take part in the fatal assault itself.17
[90] Mr Wimsett also refers to several other manslaughter cases, however none of those cases involve closely similar circumstances, and they serve to highlight the diverse circumstances in which manslaughter offending can be committed.18 He submits, as I have said, that a starting point of six to seven years’ imprisonment should be adopted in your case Mr North.
[91] I have considered the relevance of the cases I have already mentioned in relation to Mr Harris, and I consider Mr Griffin’s offending in Chase to involve the most comparable offending to yours Mr North. Your offending did not involve you being physically involved as was Mr Griffin when he was restraining the victim’s partner, and your offending did not involve a home invasion at night, but like Mr Griffin you were involved in the planning of the robbery and you played a part at least in the provision of the firearm used to shoot the victim. I find your offending to be significantly more culpable than the offending in Innes and less culpable than the
17 R v Burke [2021] NZHC 136; and R v Mako [2000] 2 NZLR 170 (CA).
18 R v Parker [2012] NZHC 2458; R v AJN HC Hamilton CRI-2009-019-9786, 30 September 2010; and R v DP [2015] NZHC 1796.
offending in Chase. You played a leading role in the planning of the robbery and in the steps taken to deceive Mr Hart and lure him to the rendezvous. You drove the vehicle, you contacted and picked up Mr Harris and took him to the location where Mr Hart was waiting and you took Mr Harris away afterwards and the getaway driver.
[92] Having regard to the aggravating features of your offending I consider that your culpability places it in the middle range of Taueki band three which would warrant a starting point in the range of 10 – 12 years’ imprisonment. But as with Mr Harris I do not consider that to be a direct comparison where there was no intention to seriously harm Mr Hart.
[93] Having regard to your offending and the offending of the other cases I have referred to and having also assessed your offending by reference to the sentencing bands in Taueki as a cross-check, in your case I shall adopt a starting point of nine years’ imprisonment.
Uplift for previous convictions
[94] The Crown submits that I should uplift the starting point by six months to take account of your history of consistent offending. Mr Wimsett accepts that your criminal history is substantial, however he submits that an uplift of three months is appropriate.
[95] You were 31 years old at the time of your offending Mr North. Your prior criminal history is extensive and showcases an incredibly consistent pattern of offending from a young age until now. Most relevantly, as the Crown has submitted, are your convictions for aggravated robbery in 2021, your four convictions for possession of a pistol or firearm between 2014 and 2019, your conviction for robbery in 2010 and your conviction for an aggravated burglary in 2006. For your most recent relevant offence, the aggravated robbery for which you were sentenced just two months before the date of Mr Hart’s death, there is disagreement as to whether this offending involved a firearm. The Crown has highlighted that your criminal history records that a firearm was involved in this charge. Mr Wimsett submits that having examined that conviction, the criminal history incorrectly notes that a firearm was involved. I also note that a firearm was not mentioned in the summary of facts for that offending, and so the reference to it on your criminal history may well be an error.
[96] However, your aggravated robbery conviction relates to a serious robbery, which involved aggravating features relevant to your current offending including acting violently and together with a co-offender. Your previous convictions for both firearm and theft and robbery are also relevant to your current offending. In my view your consistent pattern of offending over a long period of time and the similarities of your previous convictions are sufficiently relevant to the current manslaughter offending to warrant an uplift of the starting point by six months’ imprisonment in order to reiterate and emphasise the deterrent objective of your sentence.
[97] The addition of that uplift takes the adjusted starting point to nine years and six months’ imprisonment.
Personal factors
[98] As I have mentioned Mr North, you were 31 years old at the time of your offending. You are now 33.
[99] Mr Wimsett submits that I should allow a discount to take account of your personal background as described in the s 27 report provided to me including a pattern of abuse from a young age and a methamphetamine addiction. Mr Wimsett submits that your acceptance from the outset of being the driver of the Suzuki Swift and owning and operating the cell-phone substantially shortened the proceeding and warrants a further discount. Mr Wimsett also says that you are remorseful for the role you played in Mr Hart’s death, and you should receive a discount for your remorse and willingness to participate in restorative justice.
[100] I have read and considered the pre-sentence report prepared by the Department of Corrections and the s 27 report prepared by Ms Karen Taylor. Ms Taylor interviewed you for several hours before preparing her report and has previously interviewed you for several hours back in April 2021 in relation to earlier offending.
[101] As Ms Taylor details, you grew up living with your mother and older brother in Kaitaia and your father visited the home regularly. When your father visited, he was physically violent towards you and your mother. Your mother, while not physically violent towards you, was seriously neglectful because of her heroin
addiction. You described that deprivation was not just occurring in your family home but was further normalised within the wider community environment in which you were raised including children with whom you were spending time with at school and your mother’s friends who were also exposed through them to drug use. You received a diagnosis of ADHD that had a further detrimental effect upon your behaviour and your education, especially your ability to learn and participate at school. You were expelled at a primary school level. You came before the Youth Court at the age of 13 in relation to activities involving your father.
[102] State care services became involved with your family and because of your entry into the criminal justice system, you also became involved in living in foster care. You experienced abuse while in foster care, and you described that in evidence to the Royal Commission of Inquiry. Ms Taylor also identifies an element of cultural deprivation throughout your life, and a disconnection from your Māori culture that you wish to learn more about.
[103] Ms Taylor draws a connection between your childhood that was marred with neglect, exposure to abuse and state care to your current offending. She notes that your diagnosis of ADHD and inability to learn and develop at school added to your behavioural pattern of impulsive decision making and the increased likelihood of a propensity to engage in crime from an early age.
[104] It is also clear that your methamphetamine addiction was directly connected to your offending. You were introduced to the use of methamphetamine by your own father around the age of 13 and have been using the drug ever since. Since your teenage years you have had one period of abstinence that lasted approximately five years, however in the last eight years you estimated that you have used one ounce of methamphetamine almost every week. You advised Ms Taylor that all of your offending can be linked to funding your serious drug habit, including that of impaired judgment from daily use and the making of impulsive decisions to offend. A clear nexus exists between your current offending and your addiction, reflected by the fact that the role you played in Mr Hart’s death was clearly motivated by obtaining methamphetamine. I note that you say that you wish to quit using methamphetamine
and you have developed and insight into its harmful impact on your relationships, including your ongoing relationship with your own children.
[105] I consider there to be a clear link between your personal background, including your turbulent and abusive childhood, your methamphetamine addiction from a young age, and your current offending, that warrants recognition by way of a discount. Mr North, I shall therefore allow a discount of 15 per cent to take account of the causative contribution that your personal background has had to your offending.
[106] Both the pre-sentence report writer and Ms Taylor refer to your genuine remorse. You have written a letter of apology to the victim’s family and showed a strong willingness to participate in the restorative justice process to express your genuine remorse. The Department of Corrections states that your time in prison on this recent occasion has been positive compared to your previous terms of imprisonment. You have completed a number of programs since you have been in prison, including programs which are directed at your methamphetamine addiction. In recognition of your remorse, I shall allow you a five per cent discount.
[107] Finally, I consider whether the steps you took, in agreeing to certain facts before the trial, which were therefore not in dispute, are matters to your credit which should also attract a discount. Unlike Mr Harris, you maintained your denial of any guilt throughout the trial. While you did admit to some facts, including that you were the driver of the Suzuki Swift and that you had possession of and operated the cell-phone which was used to communicate with Mr Hart, these were facts which were readily provable by the Crown including by the use of the CCTV footage which was recorded and captured you driving the car. I do not consider that your acceptance of easily verifiable or provable facts had any significant effect on the length of the trial and I decline to allow you a discount for that factor.
Sentence North
[108] For your personal mitigating factors I shall allow a discount of 15 per cent to take account of the causative contribution of your personal background and five per cent for your acknowledgement of genuine remorse. Applied to the starting point of
nine years and six months, your end sentence is then seven years and seven months’ imprisonment.
Ms Murray
[109] Ms Murray, I now turn to determining a starting point for your sentence. The Crown submits that your culpability and that of Mr North is equivalent and the same starting point should be adopted for both of you – namely eight to nine years’ imprisonment. However Mrs Smith on your behalf submits that the appropriate starting point in your case is between four years and six months and five years’ imprisonment. Mrs Smith submits that I should discount or reduce that starting point take account of: your youth at the time of the offending; your personal background as described in the s 27 report which has been prepared; the time you spent subject to restrictive bail terms; and for your remorse for your offending and willingness to engage in restorative justice even though your offer to do so was declined by Mr Hart’s family.
[110] Mrs Smith on your behalf accepts that the planning and premeditation is an aggravating feature of your offending, and that the use of a loaded firearm is a serious aggravating feature. Mrs Smith also accepts that the extreme violence involved and the attacking of Mr Hart’s head are further aggravating features as are the actual use of the weapon and violence and Mr Hart’s vulnerability.
[111] Mrs Smith also draws my attention to the case of Innes 19 which she submits is factually close to your case Ms Murray and there, as I have said, the Judge adopted a starting point for manslaughter of four and a half years’ imprisonment.
[112] Mrs Smith submits that the cases relied on by the Crown are distinguishable and all involve more serious offending than yours. She submits that your culpability is close to that of Mr Innes and in your case I should also adopt a starting point in the range of four years and six months to five years’ imprisonment.
19 R v Innes, above n 16.
[113] Ms Murray, in early November 2021 you and Mr North were living together at a friend’s place. You were just 20 years old and Mr North I think was 31 years old. Several days before the offending and Mr Hart’s death, you were either directly or closely involved with Mr North in the theft of Ms H’s cell-phone from her flat. You then collaborated with Mr North in the various actions required to set Ms H’s cell-phone up so as to use it in a manner that enabled her to be impersonated and enabled you and to be able to send and receive messages to set up the drug deal. Your involvement from soon after the theft of the cell-phone can be seen from your action of using your own cell-phone to take a photograph of the H cell-phone. You were present and involved with Mr North throughout the whole process of setting the cell-phone up to impersonate Ms H, and once you had done so you messaged Mr Hart to arrange to meet with him to purchase methamphetamine. While the evidence does not establish which of you actually wrote and sent the messages to Mr Hart, I am satisfied that you were directly involved and indeed during the communications to and from Mr Hart from the Suzuki Swift on the morning of 5 November, you obviously had the H cell-phone in your physical possession, as you were the one speaking to Mr Hart and pretending to be Ms H. So you had the phone with you to actually prepare the texts that were being sent and respond to the texts from Mr Hart.
[114] So Ms Murray you were closely involved in planning to lure Mr Hart to a rendezvous where he would be on his own and expecting to be doing a drug deal with Ms H, when in fact all along you were planning for him to be stood-over by an armed assailant and robbed of the methamphetamine he had taken with him to sell. The evidence shows that on the morning of 5 November you checked as to whether the Suzuki Swift had been reported as stolen, and you were with Mr North in the Suzuki that morning when Mr Harris was picked up and the three of you stopped at the laundromat before proceeding on to Pine Street for the meeting with Mr Hart. By your presence in the car while Mr Harris was holding the firearm and operating its bolt action immediately prior to getting out and committing the robbery, you knew that a loaded firearm was to be used, and so you knew there was a real risk of the firearm being discharged in the course of the planned stand-over and a real risk that Mr Hart could be seriously wounded or killed as a result. Ms Murray from the theft of Ms H’s phone to the armed stand-over of Mr Hart, you were directly involved in what was an artfully planned series of deceptions calculated to lure him to the meeting where he
was to be robbed by an armed assailant. Your role as a female impersonating Ms H was essential to that deception. However, you were not responsible for providing or obtaining the firearm. Either Mr North or Mr Harris were responsible for that. And Mr North was driving the Suzuki and consequently in control of where you went and when, and it was he who had contacted Mr Harris and arranged to pick him up on the morning of 5 November. I also consider that Mr North played a dominating role in your relationship which meant that to an extent he directed you in relation to your actions in carrying out the various steps that made up the plan. Having regard to those factors I consider that Mr North played more of a leading role in the offending than you notwithstanding the essential role you played in your verbal communications and deceptions of Mr Hart. I therefore consider that your culpability is appropriately assessed as below that, or less than that, of Mr North.
[115] I consider your offending to be significantly more culpable however than the manslaughter offending in Innes. By comparison with your extensive involvement in the setting up of the deception of Mr Hart and luring him to a meeting for a drug deal, including impersonating Ms H during phone made to Mr Hart, Mr Innes simply went and knocked on the door of the intended victims of a drug related robbery. He knew that his co-offender was armed with a knife, you knew that Mr Harris had a loaded firearm. The level of risk of serious injury or death was obviously considerably greater where a firearm was to be used.
[116] Having regard to the aggravating features present in your offending I consider that your culpability places it in the upper range of band two or lower range of band three of Taueki warranting a starting point in the range of seven to nine years’ imprisonment. In your case I shall adopt a starting point of seven years’ imprisonment.
Personal factors
[117] Ms Murray as I have said, at the time of your offending in November 2021 you had just turned 20 years old. You are now 21 years old. You have an extensive list of prior offending for dishonesty offences, theft, shoplifting, taking and using credit cards and bank cards, and for possession and use of utensils relating to methamphetamine,
and possession of cocaine. However, you do not have any previous convictions for violent offending.
[118] Mrs Smith submits that on account of your relative youth at the time of your offending I should allow a discount and reduce the starting point in your case by reference to that factor. She submits that I should also allow a discount to take account of your personal background as described in the s 27 report including your methamphetamine addiction and the controlling influence that Mr North has had on you. Mrs Smith submits that you are genuinely remorseful and you should also receive a discrete discount for your remorse; and your willingness to engage in restorative justice; and the time you have spent subject to restrictive EM bail conditions.
[119] I have read and considered the pre-sentence report prepared by Department of Corrections, and the detailed s 27 report prepared by Ms Tara Oakley following her interview of you and lengthy conference with your mother in which much of the information you provided was confirmed.
[120] As the author of the s 27 report outlined, the fact that from around age 15 you had been dominated and abused in a prior relationship with a much older man, this is prior to your involvement with Mr North, which had resulted in you being particularly vulnerable to Mr North’s controlling influence when you commenced your relationship with him. I am satisfied that your personal background and particularly the controlling and dominating influence you were subjected to by Mr North during the course of your relationship was a significantly contributing factor in your involvement in the offending and as regards the role you played in the planning and carrying out of what was to be the fatal stand-over of Mr Hart.
[121] It is also clear that your methamphetamine addiction was a significant contributing factor in your offending. You and Mr North were both heavily addicted to methamphetamine, and your strong desire to get methamphetamine motivated your offending. The author of the s 27 report says that your methamphetamine addiction has a causative nexus to your offending by reason of: the addictive psychopharmacological effects of methamphetamine; the economic and compulsive aspects of your addiction; and as a drug user, and your enmeshing in a criminal social
sphere. Ms Oakley comments that having regard to your childhood history and the trauma you have experienced, you were highly susceptible to developing a substance abuse disorder. Ms Oakley also identifies cultural deprivation; trauma experienced through your life; and learning difficulties as having contributed to your involvement in the offending. She observes that you appear genuinely remorseful for the part you played in the events that resulted in Mr Hart’s death. I agree with Ms Oakley that your personal background and particular aspects of your personal background had a significant causative connection to your offending and warrant recognition by way of a discount to the starting point.20
[122] Your youth is also a relevant consideration. In my view it is particularly relevant in your case because of the significant age disparity between you and Mr North and the dominating nature of his influence on you. In the recent judgment of Dickey v R the Court of Appeal observed:21
[85] In Churchward, this Court accepted that there are significant neurological differences between young people and adults. The Court recognised that the abilities to plan, consider, control impulses and make wise judgments are the last parts of the brain to develop, and that young people’s brains are built to take more risks. The Court also recognised that young people are more susceptible to negative influences, and that the social context in which they act could lead to inappropriate behaviour. The Court accepted that long sentences can have a particularly crushing effect on young people, but on the other hand, young people have greater capacity for rehabilitation as their character has not yet fully formed.
[123] However, the young age of an offender cannot be accorded presumptive or paramount weight, and the objective seriousness of the offending and the young person’s part in it, whether aggravating or mitigating must be weighed.22 In Dickey the Court of Appeal further observed:23
There is no outer limit to the discount for youth in current sentencing practice but discounts of 10- 30 per cent are common . Discounts may also be given for, among other things, guilty pleas, mental health, addiction and cultural factors. As [counsel] acknowledged, the advent of s 27 reports has had a substantial impact on sentencing. Youth offenders commonly present with more than one mitigating factor. It is always to stand back and make an overall assessment when sentencing, and manifest injustice is assessed as a matter of
20 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[109].
21 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [85] (footnote omitted).
22 Pouwhare v R [2010] NZCA 268 at [96].
23 Dickey v R, above n 21, at [175] (footnotes omitted).
overall impression. Discounts overlap and there is a risk that some statutory purposes of sentencing can be lost sight of when they are treated separately and simply tallied up. But the point remains that some offenders present with a combination of personal mitigating factors which may collectively justify a sentence substantially less than that which would otherwise be imposed.
[124] Ms Murray you present with a combination of personal mitigating factors including: the nature of your relationship with Mr North and his dominating influence on you; your methamphetamine addiction which motivated your offending and influenced your decision making; your youth; and your personal background as described in the s 27 report. I accept that you are genuinely remorseful and I note that you have offered to engage in restorative justice with Mr Hart’s family and to express your remorse directly to them. I have also read the letter which you have written to the Court in which you express your remorse.
[125] For all your personal mitigating factors I shall allow discounts totalling 35 per cent, comprised of 20 per cent for your personal background factors as described in the s 27 report and 15 percent on account of your youth, your remorse, and an element of contribution of time spent on restrictive EM bail.
[126] Applied to the starting point of seven years yields an end sentence of four years and six months’ imprisonment in your case.
Sentences imposed
[127]Would all three defendants now stand.
[128] Dylan Harris, you having been found guilty and convicted of the manslaughter of Robert Hart on 5 November 2021, I sentence you to seven years and eleven months’ imprisonment.
[129] Adam North, you having been found guilty and convicted of the manslaughter of Robert Hart on 5 November 2021, I sentence you to seven years and seven months’ imprisonment.
[130] Jasmine Murray, you having been found guilty and convicted of the manslaughter of Robert Hart on 5 November 2021, I sentence you to four years and six months’ imprisonment.
[131]You may all now stand down.
Paul Davison J
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