R v Hart

[2023] NZHC 3364

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-11967

[2023] NZHC 3364

THE KING

v

GREGORY DAVID ALLAN HART

Hearing:

24 November 2023

Appearances:

N Fletcher and A Al-Janabi for Crown

P Borich KC and J Hudson for Defendant

Judgment:

24 November 2023

SENTENCING NOTES OF VENNING J

Solicitors:           Kayes Fletcher Walker Ltd, Manukau, Auckland Counsel:  P Borich KC/J M Hudson, Auckland

R v HART [2023] NZHC 3364 [24 November 2023]

[1]    Gregory Hart you are for sentence this morning for manslaughter for your role in the death of Wiremu Arapo on 20 October 2020 and on the associated charge of attempting to pervert the course of justice by setting fire to his home at Minerva Terrace. The maximum sentence for manslaughter is life imprisonment. The maximum sentence for attempting to pervert the course of justice is seven years. Your co-defendant Sean Hayde, was convicted of murder and attempting to pervert the course of justice. He is now for sentence on 29 February 2024.

[2]    The jury differentiated between the roles that you and Mr Hayde played in the killing of Mr Arapo. Having presided over the trial I have a clear view of how the jury came to make that distinction between your respective roles in his killing. I agree with it.

[3]    Mr Hayde and you were close friends. In the first half of 2020 he introduced you to Mr Arapo, who at the time was Mr Hayde’s boxing trainer. Then in about July 2020 you moved into Minerva Terrace and became Mr Arapo’s flatmate. You had both previously served in the army. At about the same time Mr Arapo introduced Mr Hayde to his friend, Jenifer McManus with whom Mr Arapo had previously shared a brief sexual relationship. From about mid-August 2020 Mr Hayde and Ms McManus began a sexual relationship. While this was going on problems emerged between you and Mr Arapo as flatmates. You were often late with your payments of rent and general expenses. Mr Arapo was an organised and motivated person. He was annoyed that you did not keep your part of the house tidy and he was frustrated at your attitude and lack of motivation. From text and other messages it seems clear that Mr Arapo considered you to be lazy and a poor father to your then seven-year-old son. Mr Arapo tried to encourage you and arranged work for you from time to time but you came to resent what you referred to as Mr Arapo’s ‘bullshit chats’.

[4]    By 15 October 2020 the situation had deteriorated to the stage where Mr Arapo had given you notice to leave the flat. By this time also, the previous friendship between Mr Arapo and Mr Hayde had completely broken down. They had ceased communicating with each other via text messages or Facebook. The underlying issue was Mr Hayde’s relationship with Ms McManus and his apparent jealousy of Mr Arapo’s connection with her. When discussing Mr Arapo with you, Mr Hayde had

taken to referring to him in a disparaging way. On 17 October 2020, shortly after an exchange of text messages between Mr Hayde and Ms McManus about the 2020 election referendum which had annoyed Mr Hayde because he considered Ms McManus had been influenced by Mr Arapo, he then text you with the text message which was referred to a number of times in Court:

Mate its time to move out NOW

Im about to turn on the black arse. And you should know its not good to be on my wrong side? Hence move out asap so I can kick his teeth out

His saving grace atm is that if I fuck him up now, that he might be more of a cunt to you. Bro the day you get your bond back ill actually kick his teeth out, lol

[5]    There was then a communication from Mr Arapo to Mr Hayde on 19 October 2020, the first in some time, which effectively was a warning from Mr Arapo to Mr Hayde about how he should treat Ms McManus. This message seems to have been the tipping point. Mr Hayde became aggravated to the stage that the next day he convinced you to join him in a plan where the two of you would go to Mr Arapo’s property at Minerva Terrace and give him a beating. It would take two of you because Mr Arapo was very fit and an accomplished boxer.

[6]    On 20 October 2020, the next day, you spent the afternoon drinking with Mr Hayde at his flat in Bucklands Beach Road. By late afternoon you were both very drunk. The two of you then travelled to and from the Minerva Terrace property although without going inside it until the last occasion. While your gear was still there you were no longer living there. I accept that you and Mr Hayde went there on 20 October because Mr Hayde intended to assault Mr Arapo and you had agreed to help Mr Hayde do that.

[7]    You arrived at the property at about 5.55 pm and very shortly thereafter the assault on Mr Arapo commenced.

[8]    I reject your evidence, as the jury did, that you were not involved in the assault. I find that you were involved in the assault and that you physically assisted Mr Hayde to assault Mr Arapo to the head and neck but I do accept that you did not know Mr Hayde was going to go on to cause the extent of the injuries that he inflicted on Mr

Arapo nor did you understand that Mr Hayde meant to cause Mr Arapo’s death or was reckless and prepared to run that risk. As you said to one of your associates: “Sean just lost it”, but as Ms Al-Janabi submitted the assault itself was a prolonged assault.

[9]    Mr Hart, I know you continue to deny it but I find you agreed to help with a serious assault on Mr Arapo and that you participated in it. The jury found you guilty of manslaughter rather than murder because you lacked murderous intent yourself and you did not appreciate or understand that Mr Hayde would act with murderous intent during his assault on Mr Arapo.

[10]   Shortly after Mr Arapo had been killed by Mr Hayde’s actions, with your involvement, the two of you were then faced with a murder scene. I accept that Mr Hayde was the one who suggested setting the scene on fire and staging the knives and turning the gas on the oven to make it look like the fire was caused by a cannabis spotting incident gone wrong. But you went along with his plan, perhaps because of his influence and dominance over you which is apparent. Given the empty petrol can in the back of Mr Hayde’s car, the petrol on your shoe, and the description of the scene by the fire experts, I accept that an accelerant was used. The two of you agreed to set fire to the property to destroy the evidence, which included Mr Arapo’s body, and an accelerant was used to do so. You then effectively staged a performance for the neighbours by running about the property on the pretence of trying to get into the house to assist Mr Arapo, who you knew was dead.

[11]   To compound matters, over the coming days, weeks and months you and Mr Hayde both lied to the Police and your associates and family about your involvement in Mr Arapo’s death and fire. You kept notes in the ‘Hidden Agenda’ notebook and even lied to Mr Arapo’s family about what had occurred.

[12]   In sentencing you the Court is required to have regard to the purposes and principles of the Sentencing Act 2002. The primary purpose of the sentence in this case must be to denounce your conduct and to hold you accountable for the harm caused to Mr Arapo and his family and the community by this type of offending. You heard from the victim impact reports how your offending has affected Mr Arapo’s family and his fiancée.

[13]   The sentence should promote in you a sense of responsibility for the harm you have caused. I note you continue to deny your offending. The sentence imposed should also carry an element of deterrence to deter others from acting in similar ways.

[14]   The particularly relevant principles of sentencing are the need to take into account the gravity of the offending which has led to the totally unnecessary loss of Mr Arapo’s life; your culpability which is reflected by your conviction for manslaughter in the role you played; and the seriousness of the offences themselves.

[15]   I am also required to consider your ultimate rehabilitation and reintegration into society and to take account of other comparative cases where relevant.

[16]   In fixing the starting point I agree with the Crown that there are a number of aggravating factors. First, the consequences of the offending. Mr Arapo was killed. Next, the serious violence involved in the attacks to Mr Arapo’s head. The forensic evidence was that Mr Arapo died from multiple blunt force trauma injuries to his head and neck. The injuries were severe and included a number of fractures to his face and head, and the hyoid bone in his neck.

[17]   The further aggravating features are that there were two of you involved in the assault on Mr Arapo and that you attacked him in his home. I also find there was a degree of planning in the assault at least to the extent that you travelled to Minerva Terrace intending to confront and assault him. That is supported by the background circumstances and the evidence of the neighbours, Mr and Mrs Dammert. Their evidence confirmed the assault must have commenced very shortly after you arrived at the property.

[18]   Although there is no tariff for manslaughter, counsel have referred to a number of cases which I have read and considered.1

1      Edwardson v R [2017] NZCA, citing R v Connelly [2008] NZCA 550; B (CA58/2016) v R [2016] NZCA 432; R v Ovaleni [2018] NZHC 2034; Murray v R [2013] NZCA 177; R v Tai [2010] NZCA 598; Jefferies-Smith v R [2020] NZCA 315; R v Taueki [2005] 3 NZLR 372 (CA); Te Pana v R [2014] NZCA 55; R v Tepana [2013] NZHC 1592; R v Betham & Ors [2016] NZHC 2107; Reuben v R [2017] NZCA 138; Deane v R [2011] NZCA 60; M (CA469/2013) v R [2013] NZCA 385; R v Callaghan [2012] NZHC 596; Bowman v Police [2017] NZHC 884; Winklemann v R [2010] NZCA 215; Wharrie v R [2019] NZHC 633; Parata v R [2017] NZCA 48; R (CA528/16) v R [2017] NCA 210; Chea v R [2016] NZCA 207; R v Mihaka [2014] NZHC 2921;

[19]   The Crown submit a starting point for the manslaughter should be nine years with an uplift of six years for attempting to pervert the course of justice charge. Taking account of totality, the Crown submit an adjusted start point of 14 years could be taken by the Court. The Crown accepts you may be entitled to a modest good character discount and a reduction for the time spent on EM bail. It acknowledges there may other personal factors. The Crown seeks a minimum period of imprisonment (MPI) of at least 50 per cent.

[20]   Mr Hudson has submitted that the Court should take a starting point of seven years for manslaughter, uplift that by four years for attempting to pervert the course of justice, which would lead to an adjusted start point of 10 years to reflect totality. He then argues for a reduction for previous good character, time spent on EM bail and for personal matters referred to in the reports. In summary, he submits an end term of eight years, with no MPI.

[21]   Mr Hart, all cases involving the killing of another person are obviously serious. The circumstances and level of culpability vary considerably from case to case. I consider this offending and the killing of Mr Arapo in the circumstances he was killed to be particularly serious. Your involvement in the assault which led to Mr Arapo’s death was borne out of a sense of anger that you harboured towards Mr Arapo, a man who had tried to help you.

[22]   The most relevant cases, although acknowledging each case of course is different, are the cases of R v Barlow & Tukaki; Betham and Reuben v R; and R v Heremaia for manslaughter and R v Callaghan for the attempting to pervert the course of justice offence.2

[23]   I take the manslaughter charge as the lead charge. Given the aggravating features of the offending I agree with the Crown and take as a start point for your

Prattley v Police [2014] NZHC 486; Keown v R [2010] NZCA 492; R v Laloni [2015] NZCA 55; R v Barlow and Tukaki HC Auckland CRI-2003-19-01, 27 April 2007; R v Heremaia [2022] NZHC 443; Heremia v R [2023] NZCA 232; Cooper v R [2014] NZCA 275; R v Vaux-Phillips [2012] NZHC 1119; Zhang v R [2019] NZCA 507; R v Hart HC Auckland CRI-2020-092-11967,

20 June 2022; Arona v R [2018] NZCA 427; Solicitor-General v Heta [2018] NZHC 2453; Davidson v R [2020] NZCA 230; Aramoana v R [2021] NZCA 558; Berkland v R [2022] NZSC 143; and Carr v R [2020] NZCA 357.

2      R v Barlow & Tukaki, R v Heremaia, Betham and Reuben v R; and R v Callaghan, above n 1.

sentence nine years. On the charge of attempting to pervert the course of justice, I consider that the lengths you went to to destroy the scene which ultimately led to the indignities to Mr Arapo’s body and the fact that you then maintained the falsity you had created for a considerable period of time, places this offending towards the worst of such cases.3 An uplift of five and a half years is required for your role in that, accepting that Mr Hayde may have been the instigator. Having regard to totality I take an adjusted starting point of 13 and a half years’ imprisonment.

[24]   I turn to your personal circumstances. There are no personal aggravating factors. You have recently turned 35 years old. You are appearing before the Court for sentence for the first time. You have no previous criminal history. You were born in Auckland, grew up in Papatoetoe, you were the third eldest of four boys. You were raised by both parents but you are closest to your mother who continues to be supportive of you. You had an uncle who was a role model. You had various jobs after leaving school and achieved NCEA Level 2. You worked at First Security and then for a time in the army. You enjoyed the army, particularly the structure and the bonds with the people you worked with. Unfortunately you were invalided out of the army after sustaining serious injuries to the lower calves which required surgery. There was evidence during the trial of various relationships you have been in. You have a son and apparently, prior to trial you were in another relationship and may be expecting another child.

[25]   On the day of this offending you were seriously affected by alcohol. You self- report suffering from Post-Traumatic Stress Disorder, anxiety and depression and are currently taking anti-depressants and anxiety medicine. You have in the past had suicidal thoughts. You have struggled with your situation following your discharge from the army.

[26]   Mr Hudson arranged a s 27 report. It adds little to the pre-sentence report. It confirms your upbringing was a good and stable one. While your relationship with your father was strained there was no violence or drugs in the home. I do not accept

3      Sentencing Act 2002, s 8(d).

there is anything disclosed in the s 27 report which supports a causal link between your background and your offending.

[27]   As you continue to deny your offending, I can give you no credit for remorse. However, you are entitled to credit of six per cent for your clean record, the fact you at the age of 35 have no previous convictions, and I allow a credit of five per cent for your mental health issues and the challenges you have faced since your discharge from the army, and five per cent for the time spent on EM bail. I note that while you were on EM bail for a considerable period of time, you admit you did breach it on at least one occasion and the Crown points to other instances. But further the curfew was limited from time to time. Those reductions total 16 per cent which leads to an end sentence of 11 years, four months.

[28]   The Crown also seeks a minimum period of imprisonment of 50 per cent. It says such a minimum term is required to meet the purposes of accountability, denunciation and deterrence and protection of the community.

[29]   Given your background and personal circumstances I do not consider a minimum term is necessary for the protection of the community or for that matter from deterring you from acting in this way in the future. I consider it appropriate to leave the term you spend before release to the Parole Board.

[30]   Mr Hart please stand. For the manslaughter of Wiremu Arapo you are sentenced to imprisonment for 11 years, four months. For the attempting to pervert the course of justice you are sentenced to imprisonment for five and a half years. The sentences are concurrent. The effective term of imprisonment is 11 years, four months.

[31]Stand down.

Venning J