IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-063-005475 [2013] NZHC 1757

THE QUEEN

v

MENZIES REGINALD JOHN HALLETT

Hearing:	22-24, 26 and 29-30 April, and 12 July 2013

Counsel:	A F Pilditch and A D Hill for the Crown
P G Mabey QC for the Prisoner

Sentence:	12 July 2013

SENTENCE OF DUFFY J

Counsel:	P G Mabey, QC

Solicitors:	Gordon Pilditch, Rotorua

R v HALLETT [2013] NZHC 1757 [12 July 2013]

[1]       Mr Hallett, you may be seated until I come to the time when I formally pass sentence. Then I will ask you to stand. You may be seated for now.

[2]       Mr  Hallett,  you  pleaded  not  guilty  to  the  murder  of  Rodney Tahu,  and following a trial by jury, you were found guilty of that count and thereby convicted. You are now to be sentenced.

[3]       The offending occurred at approximately 1.03 am on 16 August 1979.  It has taken this long to bring you to trial because although the Police have always been aware that you were responsible for Mr Tahu’s death, until the enactment of the Evidence Act  2006,  you  were  protected  against  prosecution  by  the  law,  which prevented your former wife, Mrs Sharpe, from giving evidence against you.  Shortly after you shot and killed Mr Tahu, you made a full confession of the offending to Mrs Sharpe.  As any responsible member of our community would do, she promptly reported the content of your confession to the Police.  However, because of the law at the time, the Police could not use this evidence to prosecute you, even though Mrs Sharpe was willing to give evidence against you.   Without her evidence, the Police had insufficient evidence to prosecute you for the murder of Mr Tahu.  Hence, you were able to avoid prosecution up until the change in our law that cleared the way for Mrs Sharpe to give her evidence to a jury.

[4]       The facts of the offending are straightforward.  Mr Tahu worked as a service station  attendant  at  a  service  station  in Turangi.    The  station  usually  closed  at
1.00 am.  At approximately three minutes past one on the day in question, Mr Tahu had closed up, set the burglar alarm and was in his motor vehicle preparing to leave the station when you drove onto the station forecourt in your motor vehicle.  Your vehicle had developed a knock in the engine and so you wanted to purchase oil for it.

[5]       When you arrived, you were already angry and upset, as a result of a dispute with Mrs Sharpe over the custody arrangements regarding your elder daughter.  You wanted her to stay with you, whereas she had expressed a wish to live with her mother.   You were driving south, either to see Mrs Sharpe in Wellington, or your elder daughter, who was with her grandparents in Palmerston North, to discuss this issue.  You were not in a good frame of mind; you had consumed a fair amount of

alcohol the previous evening; and you had a loaded hand-gun in your possession. You had already fired the hand-gun twice earlier in the evening when you were at the home of a friend you had visited.  In doing so, you displayed an arrogant disregard for your friend’s circumstances, as she was in rental accommodation, and by firing two bullets into the wall of her dwelling and so damaging the wall, you put the recovery of her tenancy bond at risk.  Her unhappiness with your action caused you to leave.  You then set off in what must have been a drunk and disgruntled, angry state, heading south.

[6]       When you realised the station was closed, you asked Mr Tahu to open it up, in order to sell you some engine oil.  Mr Tahu refused to do so. You called Mr Tahu, who was Maori, a “black bastard”.  Mr Tahu took two steps towards you.  There is no evidence that he did anything more than that.  It was enough to cause you to draw the hand-gun and fire at Mr Tahu.

[7]       Mr Tahu was unarmed.  He posed no threat to you. The first shot missed him. Once he saw and heard the first gunshot, he ran away from you.  He clearly wanted to get away from you.  He must have been fearful of you.  But this was not enough for you.  Instead of letting him get away, you ran after him.

[8]       From a range of about one metre, you fired another shot, which hit Mr Tahu in the shoulder.  You told Mrs Sharpe that after the first shot hit Mr Tahu, he fell down.  Then while he was down on the ground, helpless, you stood over him and shot him again.  This shot wounded Mr Tahu just above his left eye at the inner edge of his left eyebrow.   It would have been obvious to you that a shot to that part of Mr Tahu’s head would be fatal.

[9]       At some time when the shots were fired, Mr Tahu called out “help, help”. Finding himself alone in the early hours of the morning with a man who was a stranger to him and who was firing shots at him must have been a terrifying experience. After firing the last shot, you got back into your vehicle and drove off to Wellington.

[10]     During the trial there was evidence from other witnesses, who were close to the scene of the shooting, which was consistent with parts of Mrs Sharpe’s evidence, thus showing that she could only have learned of the events she described to the Police and in her evidence to this Court from someone who was present when Mr Tahu was shot.   Furthermore, her evidence of how Mr Tahu came to die was largely unchallenged by you.

[11]     You said at the time to Mrs Sharpe that when Mr Tahu refused to supply you with oil, you reached a “flashpoint”.  Mr Tahu bore the brunt of that flashpoint with the loss of his life, as did his family through the loss of a loving husband and father.

[12]     What occurred on the morning of 16 August 1979 was a callous, brutal, senseless and cowardly killing of a helpless, wounded man.   A man who was a complete stranger to you and who had done nothing to harm you. A man whose only conduct towards you merely caused you the inconvenience of being unable to buy oil for your vehicle at a time when the station had closed.

[13]     Since then, in relation to this offending, you have continued to behave in a callous and cowardly manner.  You have sought to avoid being held responsible for Mr Tahu’s death.   You have used the fact that the law did not previously allow Mrs Sharpe to give evidence against you to avoid being held to account for your conduct.   The best words to describe your subsequent conduct are those used by Colin Hair in his victim impact report, and I shall adopt them:

[Mr Hallett] has had ample opportunity to do the right thing to put his hand up, to express remorse to try to put things right in some way but he hasn’t. Instead he has ducked and dived, and done everything possible to try and avoid responsibility.

Those words accurately sum up your behaviour.

[14]     You have always exercised your right to silence and it is your legal right to do so.  At this trial, initially you accepted that under the current law, Mrs Sharpe could give evidence against you.   Then you sought to challenge the admissibility of her evidence in order to reduce the weight of the prosecution evidence against you.   I ruled that her evidence was admissible against you.  During the trial you sought to

preserve your ability to appeal the ruling I made on the admissibility of Mrs Sharpe’s evidence, and you continued after your conviction in this way by refusing to discuss the offending with the writer of the pre-sentence report.

[15]     You have never suggested that Mrs Sharp’s account of what you told her of the killing of Mr Tahu is incorrect.  You have simply tried to exclude her evidence from consideration, so as to increase your chance of acquittal.  In principle, a plea of guilty, or an admission of regret for the offending, demonstrates willingness to own up and to take responsibility for criminal conduct, which in turn is a good indication of remorse.  Whilst you are entitled to rely on your legal rights and to sit back and put the Crown to proof of the charge of Mr Tahu’s murder, your continuing with this conduct at this stage of the proceeding demonstrates to me that you have little or no remorse for what you have done.

[16]     Likewise, your attempt to rely on the partial defence of provocation, which I did not allow to be put to the jury, demonstrates your lack of remorse and lack of insight into your offending.  Your conduct demonstrates that at all times you have sought to put your own interests first, and not once have you put the interests of Mr Tahu or his family ahead of your own.   Since 1979, you have enjoyed a life; Mr Tahu has not, and his widow and his children have had to live with this loss, as have his siblings and other members of his whanau.  I acknowledge that your recent attempts to avoid conviction may be more a reflection of the fear that you have as an elderly man of serving a sentence of imprisonment.   Such fear is understandable. Nonetheless, not once have you expressed any sorrow or regret for your actions to the family of the man you killed.

[17]     The  victim  impact  reports  of  Mr  Tahu’s  widow,  Mrs  Hair,  her  spouse, Mr Hair, Mr Tahu’s son, Hemi Tahu, Mr Tahu’s sister, Linda Rarere, as well as a victim impact report prepared on behalf of Mr Tahu’s youngest son, Hamiora Tahu, reveal the depth of the hurt and the loss that they have suffered as a result of the murder of Mr Tahu.  It has had a profound impact on their lives.  It is clear to me that Mr Tahu’s whanau have never recovered from the blow that they suffered the day they learned of his death.  It is also clear to me that Mr Hair has suffered indirectly

through seeing the ongoing suffering of Mrs Hair, Mr Tahu’s children, and other

whanau members.

[18]     The victim impact reports described Mr Tahu as a loving, kind, good and strong man, who, from the time when he was a boy, took on the responsibilities of a man and was always there for his whanau when they needed him.  He was a good husband, a good father to his children, and a good brother to his siblings.  He was their rock, and your cruel, senseless act took him from them.

[19]     Hopefully, now that they have seen you held to account for his murder, they can start to heal.

[20]     Section 154 of the Sentencing Act 2000 requires me to sentence you under that Act. This is despite the fact that the offending occurred in 1979.

[21]     Consequently, I have had regard to the purposes and principles of sentencing. Further, I accept that in accordance with s 6 of the Sentencing Act, insofar as that Act might provide for a more lenient penalty than was available at the time of the offending, you have the right to the benefit of the lesser penalty.

[22]     Under s 102 of the Act, there is a presumption that the sentence for murder should be one of life imprisonment, unless it would be manifestly unjust to do so. Your counsel, Mr Hallett, has submitted that I should depart from the presumption of life imprisonment and instead impose a finite sentence of 21 years’ imprisonment, with a minimum period of imprisonment of seven years.  Whilst that is a sentence that is open to me to impose, I have decided, for reasons that I shall give shortly, that I will not do that.

[23]     The  presumption  in  s  102  in  favour  of  life  imprisonment  for  murder  is consistent with the law that existed in 1979.1    Having considered all the relevant matters, I consider that the proper sentence to impose on you is a sentence of life imprisonment.  It is consistent with the presumption in s 102 and it is consistent with
the sentence that you would have received in 1979.

1  At that time s 172 of the Crimes Act 1961 stated: Every one who commits murder shall upon conviction thereof be sentenced to imprisonment for life.

[24]     However, when it comes to the issue of the minimum amount of time an offender must spend in prison, the current law differs from the law that would have applied to an offender sentenced in 1979.

[25]     In 1979, no minimum periods of imprisonment were imposed as part of the sentence.   Instead, an offender sentenced to life imprisonment for murder would have had to serve seven years of his sentence before his eligibility for parole would be considered by the Prisons Parole Board.2   However, under the current law, s 103 of the Sentencing Act requires a court imposing a life sentence of imprisonment for murder to also impose a minimum period of imprisonment of not less than 10 years.

[26]     The submissions I have received from counsel include an acknowledgement on  their  part  that  the  Sentencing  Act  applies  retrospectively,  including  the requirement in s 103 for me to impose a minimum period of imprisonment.  I do not agree entirely with their view on the retrospective application of the Sentencing Act when it comes to sentencing you.

[27]     I am not going to impose a minimum period of imprisonment.  I accept that s 154 of the Sentencing Act states that I must sentence you in accordance with the provisions of that Act.  I accept that s 103 of the Sentencing Act provides that I must impose a minimum period of imprisonment of not less than 10 years.  However, I must ensure that the sentence I impose on you accords with other provisions of the
Sentencing Act as well.3

[28]     Relevant here is s 6 of the Sentencing Act, which states that despite any enactment or rule of law to the contrary where the penalty has been varied between the commission of the offence and sentencing, you are to have the benefit of the lesser penalty.

[29]     Section 103 is drafted in mandatory language.   On the other hand, s 6 is expressed in equally unequivocal language.  The heading to s 6, which is relevant to

2 Criminal Justice Act 1954, s 33A.
3 See s 154(2) of the Sentencing Act 2002.

the interpretation of the section4 states that “penal enactments are not to have retrospective effect to the disadvantage of the offender”.

[30]     I am satisfied that s 6 trumps s 103.

[31]     It is now well settled on the question of a minimum period of imprisonment, that it is a discrete penalty that is additional to the sentence of imprisonment.  This was recognised by the Court of Appeal in R v Poumako5 and R v Pora.6   Any doubts
that the Supreme Court’s judgment in Morgan v Superintendent, Rimutaka Prison7

may have cast on that understanding have been resolved by the Court of Appeal’s

decision in R v Davies.8

[32]     Because it is now settled law that the imposition of a minimum period of imprisonment is a discrete and additional penalty to the imposition of a term of imprisonment for life, I consider that s 6 precludes me from taking that additional step.

[33]      Section 6 reflects a fundamental legal principle which protects offenders from a retrospective increase in penalty.   This principle is enshrined in s 25(g) of the New Zealand Bill of Rights Act.9   Section 6 of that Act requires me to interpret the Sentencing Act in a way that is consistent with the rights protected in the New Zealand Bill of Rights Act if such an interpretation is feasible.

[34]     Furthermore, to uphold the right in s 25(g) of the New Zealand Bill of Rights Act and s 6 of the Sentencing Act would be consistent with New Zealand’s international obligations.  Section 25(g) of the New Zealand Bill of Rights Act was
enacted to give effect to art 15.1 of the International Covenant on Civil and Political

4 Interpretation Act 1999, s 5.
5 R v Poumako [2000] 2 NZLR 695 (CA).
6 R v Pora [2001] 2 NZLR 37 (CA); see also R v B CA398/02, 7 April 2003.
7 Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1.
8 R v Davies [2011] NZCA 546, [2012] 1 NZLR 364 at [55], [56] and [60].
9 Section 25 states:
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
...
(g) the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:

Rights.10     Domestic law should, where possible, be interpreted in a way that is

consistent with New Zealand’s international obligations.11

[35]     It  is  not  unprecedented  for  a  court  to  find  that  a  provision  of  the Sentencing Act, which is drafted in mandatory terms, must be subordinated to the right protected in s 6.12

[36]     I am satisfied, therefore, that to impose a minimum term of imprisonment of

10 years, when there was no such minimum term of imprisonment in 1979, would constitute an increase in penalty and would therefore violate your rights under s 6 of the Sentencing Act and s 25(g) of the New Zealand Bill of Rights Act.  It would also undermine the integrity of the legal principles that underlie those rights.

[37]     I accept that Parliament can increase penalties retrospectively.   But when it does so, it must do so clearly and expressly.   I reject the Crown’s submission that Parliament  has  made clear in  express  language  its  intent  that  s  103  be applied retrospectively, even when to do so would be to impose an additional penalty that did not exist at the time of the offending.

[38]     The effect of holding that s 103 does not apply, Mr Hallett, is that you will receive a life sentence of imprisonment with no minimum term of imprisonment. This is the same penalty that you would have received if you had been sentenced in
1979 or thereabouts under the law at that time.  However, practically speaking, the outcome for you is the same as if s 103 had been applied.   This is because your parole will be administered under the Parole Act 2002.   Under that Act, the non-
parole period of a sentence of life imprisonment is 10 years.13

10  International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16
December 1966, entered into force 23 March 1976). Art 15.1 states that:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
11 New Zealand Airline Pilots’ Association v Air New Zealand Ltd [1992] 2 NZLR 656 (CA).
12 See R v Walsh (2005) 21 CRNZ 946 (CA).
13 Parole Act 2002, s 84(3).

[39]     You will, therefore, not become eligible for parole until you have served 10 years of your life sentence.   It may seem odd to non-lawyers that the Court will refuse to impose a minimum term of imprisonment of 10 years in circumstances where the offender will not become eligible for parole until 10 years of the sentence have been served anyway.  However, the case law makes it very clear that there is a distinct difference between the administrative parole regime governing sentenced prisoners and minimum periods of imprisonment imposed by the Court as part of the sentencing process.   The latter constitutes part of the penalty, whereas the former
does not.14

[40]     Under s 102 of the Sentencing Act, there is a discretion not to impose life imprisonment if this sentence would be manifestly unjust in the circumstances.  The principle against the retrospective application of a penalty that did not exist at the time of the offending does not extend to disentitle an offender from enjoying the benefit of a lesser penalty, even though it also did not exist at the time of the offending.   The imposition of a 21 year finite sentence of imprisonment, coupled with a minimum term of imprisonment that is the equivalent of the seven year term for qualifying for parole that existed in 1979, might be said to be a less harsh sentence than the mandatory sentence of life imprisonment that was in force in 1979.

[41]     Seen in that light, it would be open to me to impose that type of sentence if I thought it was appropriate to do so.  Your counsel has referred to the delay in the time it has taken for you to be charged with the offending, as well as your age and present health, which your counsel submits would make serving a sentence of imprisonment unduly harsh.  He has also referred me to testimonials from persons who know you now, who knew you in 1979 and who hold you in high regard.   I accept that it is to your credit that since the offending and surrounding circumstances in 1979, there has been no re-offending.  The testimonials inform me that you have led an exemplary life since 1979.  Whilst I have carefully considered everything that your counsel has said, I consider that it is not enough to displace the presumption of
life imprisonment.

14 See discussion in Palmer v Superintendent of Auckland Maximum Security Prison [1991] 3 NZLR
315  (HC);  Norton-Bennett  v  Attorney-General  [1995]  3  NZLR  712  (HC);  and   Morgan  v
Superintendent, above n 7.

[42]     Regarding the alleged delay, this was a feature of a separate application to this Court to have the charge of murder dismissed because of delay in prosecution. In R v Hallett,15  Andrews J found against you and dismissed the application.   I consider that her judgment dealt with any concerns regarding delay in bringing the prosecution.  I see no basis for re-traversing those concerns in sentencing.  Once a Court has found that delay is not fatal to bringing a prosecution, I see no reason why the offender should not then be dealt with like any other offender.

[43]     Regarding  your  age  and  health,  I  consider  that  whenever,  for  whatever reason, an offender is able to avoid detection or conviction for as long as you have, changes in circumstances like the factors you raise will necessarily arise.   In such cases, the offender can be seen to have assumed a risk that detection or conviction and all that this brings might happen much later on in life.   Nonetheless, I acknowledge that in view of your age and the health issues that you have, service of a sentence of imprisonment now is likely to have a harsher effect on you than it may have done if you had been sentenced earlier on at a younger age.

[44]     But  the  assessment  of  manifestly  unjust  under  s  102  goes  beyond  a consideration of the personal circumstances of the offender.   Regarding your subsequent good conduct, it is to your credit, but it cannot reduce the gravity of your conduct in 1979.  Section 102(1) provides that the circumstances of the offence must also be taken into account.  As the Court of Appeal held in R v Smail, the limited discretion in s 102 is intended for cases “where the offending is at the lowest end of
the range of culpability for murder”.16   Thus, on the introduction of the Sentencing

and Parole Reform Bill, the Minister of Justice referred to its retention of “a strong presumption in favour of life imprisonment for murder”, stating that the discretion was reserved for “a small number of cases, such as those involving mercy killing, or where there is evidence of prolonged and severe abuse by the victim towards the
offender”.17

15 R v Hallett [2013] NZHC 424.
16 R v Smail [2007] 1 NZLR 411 (CA) at [14].
17 (14 August 2001) 594 NZPD 10910.

[45]     In R v Rapira, the Court of Appeal held that a finding that it would be “manifestly unjust” to impose a life sentence is a conclusion likely to be reached in exceptional cases only.18   Given the circumstances of the offending here, I am of the view that when those circumstances are weighed against your current personal circumstances, your case falls well short of the standard set by the words “manifestly unjust” in s 102.   I find this to be so, even when I take account of what you say regarding the undue delay in bringing the prosecution, and the comments of Andrews J that the delay in your case could not be condoned.

[46]     The offending here involved a number of aggravating features.   You were armed with a pistol. You fired three shots. You had ample opportunity to stop before the last shot was fired.   The fatal shot was fired to the head, when Mr Tahu was vulnerable, alone, and wounded.   There was an element of premeditation because you had the gun with you.  You had taken it with you on your way south.  Taking all the aggravating features of your offending into account, the nature of the offending clearly, in my view, warrants a sentence of life imprisonment, and nothing less than that.

[47]     Mr Hallett, please stand.  For the murder of Rodney Tahu, you are sentenced to life imprisonment.  Please stand down.

Duffy J

18 R v Rapira [2003] 3 NZLR 794 (CA) at [121].