R v Cuff
[2023] NZHC 2394
•30 August 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-419-23
[2023] NZHC 2394
THE KING v
MATANGIRAU CUFF
Hearing: 30 August 2023 Appearances:
A Alcock for the Crown
J M Kin for the Defendant
Sentencing:
30 August 2023
SENTENCING NOTES OF WOOLFORD J
Solicitors:Hamilton Legal (Office of the Crown Solicitor), Hamilton Bloem & Associates, Auckland
R v MATANGIRAU CUFF [2023] NZHC 2394 [30 August 2023]
Introduction
[1] Mr Cuff, you appear for sentence today having pleaded guilty to one representative charge each of riotous damage,1 arson,2 and assault with a weapon.3 I gave a sentence indication on 4 October last year of eight years and seven months’ imprisonment, which you accepted on 18 October 2022.4
[2] The background to your offending is outlined in the sentence indication decision, a copy of which is annexed to these notes. In brief, you were involved in the Waikeria Prison riots while remanded in custody at the prison.
[3] The offending took place over a period of six days from 29 December 2020 until 3 January 2021. During that period, you and others conducted a riot in protest of prison conditions by setting fires, damaging property and threatening Corrections staff and firefighters. At one point, you climbed onto the roof of the prison and began liberating prisoners by smashing cell windows and encouraging them to join the riot.
[4] In the last days of the riot, you continued to light fires, damage property, and seize protective body armour, shields, and a grinder from the prison armoury. On 1 January 2021, a confrontation occurred between four of the rioters and a group of Advance Control and Restraint (ACR) officers and the Police Armed Offenders Squad (AOS) in which rubber bullets were deployed and hit one rioter in the torso. Following this incident fires erupted on top of several buildings, the kitchen facility was set alight, and rioters threw objects at Corrections officers and firefighters. The following day, teams of Corrections officers entered the prison. You responded by lighting fires at a barricade in the Prison Chapel which swept through the facility and caused near complete destruction of the prison.
[5] On 3 January 2021, the remaining 16 rioters surrendered to Police. The total damage caused by the riot is estimated to be at least $50 million.
1 Crimes Act 1961, ss 90 and 66.
2 Crimes Act 1961, ss 267(1)(a) and 66.
3 Crimes Act 1961, ss 202C(1)(a) and 66.
4 R v Cuff [2022] NZHC 2545.
Pre-sentence report
[6] A pre-sentence report was made available to Court on 21 November 2022. The report assesses you as being at medium risk of re-offending, and as presenting a high risk of harm to others on the basis of the nature, seriousness and number of charges faced. The report recommends imprisonment.
[7]It records that you are remorseful and accept responsibility for your offending:
“I wish it never happened. I am not justifying anything that has happened. I highly regret the results of my wrong decisions. I feel very sorry for traumatising others. It has ruined a big part of my life,” he indicated. He said he could have done things differently. “I should not have done it at all. I should have put in a personal complaint instead. I should have done things legally instead of resorting to all of this”
[8] The report further notes that you are willing to participate in any rehabilitative programmes imposed by the Court to address your offending-related behaviours.
Victim impact statement
[9] A global victim impact statement was made available to the Court, prepared by Terry Buffery, the Regional Commissioner for the Central Region of the Department of Corrections. The report outlines loss to individuals, primarily as a result of fire damage, and more wide-ranging and enduring issues from the damage to the facility.
[10] The report states that staff and prisoners were subject to extreme stress, with many exposed to dangerous smoke inhalation over the course of the riot. Staff worked hours that were extreme, with some deployed at the site for 72 hours at a time. Holidays and family commitments were delayed or missed altogether. Damage to the prison TV and phone systems meant that many prisoners lost their means to contact whānau or other support.
[11] Many personal items were destroyed, belonging to prisoners and staff. The statement records that:
Close to 800 prisoners had personal property stored in the Top Jail which has been destroyed. One tane has lost the ashes of his daughter. The 200 plus tane located in the Top Jail also lost the personal property they held in their cells.
This would have included family photographs, identification such as passports and drivers’ licenses and personal documents and letters.
[12] Key functional areas of the facility were destroyed by the fire and have needed to be established elsewhere on site, at the expense of building equipment and staff and contractor time. Destruction of the kitchen and laundry required meals and prisoner laundry to be prepared at the Spring Hill Corrections Facility and transported to Waikeria daily, a four-hour round trip. Two hundred prisoner bed spaces were lost, which ordinarily would have been used to accommodate remand prisoners from Courts in the Bay of Plenty. Those prisoners have been required to move or be placed at different facilities, which has disrupted the Court services and is expected to continue for at least two years while the new Waikeria facility is constructed. Remand prisoners being taken to other facilities experience longer transport times when leaving and returning to Court.
Section 27 report
[13] A report was also provided to the Court under s 27 of the Sentencing Act. The report, which I have read and carefully considered, describes your background in some detail and provides context for your offending. The report writer spoke to you, and later to your mother. The report writer considers that your background has causative links to your offending, saying that:
Central to Mr Cuff’s narrative is his unresolved sense of anger, resentment and abandonment stemming from a dysfunctional relationship with his father. This anger has manifested itself in addiction, gang involvement, and violent tendencies, including his most recent charges. Cultural deprivation is also a contributing factor.
[14] The report describes a “relatively settled” home life in your early years, despite some financial hardship. However, you left school early at 15 and began associating with youth gangs in Tokoroa after being influenced by your older brothers, both gang members. These associations led to drug use, initially cannabis, but later methamphetamine, to which you were introduced at aged 14 and began to abuse regularly. You report being clean and sober for about five years and are self-reflective about the role methamphetamine, in particular, played in your history of offending.
[15] The report also says that you have two sons, aged five and six, and that you have a good relationship with them and your ex-partner, their mother. It states that you are well-supported by family and are “enthusiastic and optimistic” about your future, with plans to find work, be around for your family, and leave the gang lifestyle. You also speak positively about your experience at the Grace Foundation and your desire to return there, for yourself and to support other youth struggling with alcohol and drugs.
Grace Foundation
[16] Prior to the sentence indication hearing, counsel had indicated that they would seek a discount to reflect your rehabilitation prospects.5 To that end, the Court received a letter dated 13 October 2022 from Alexandria Teepa and David Letele, Administrator and General Manager at the Grace Foundation where you were a resident. The letter noted that, having at that point been a resident at the Grace Foundation for three months, you were “actively engaged” in several programmes including the ‘Solutions’, ‘Mindshop’, ‘Parenting’ and ‘SafeMan SafeFamily’ programmes, which seek to address addiction issues and build healthy life styles. The letter also states that you had completed the SouthSeas Addictions course and was enrolled in several other classes.
[17] A further letter, dated 22 August 2023, was sent to the Court from the Grace Foundation. It again outlined your participation while at the facility and emphasised the “significant progress” you had made, stating that your “compliance on EM bail [had] been exemplary.” The Grace Foundation confirms that they will continue to support you regardless of the outcome of the sentencing.
Crown submissions
[18] The Crown acknowledges that discounts may be sought to reflect the factors in the s 27 cultural report and acknowledge that discounts of 10 to 15 per cent may be appropriate for cultural factors, and a further five per cent for remorse.
5 Section 9(2)(f).
[19] In recognition of the fact that no minimum period of imprisonment has been imposed upon other defendants sentenced as a result of this offending, the Crown does not seek a minimum period of imprisonment.
Defence submissions
Conditions at Waikeria and Auckland Prisons
[20] Your counsel provided submissions which purported to argue for a discrete discount under s 9 of the Sentencing Act, on the basis that you were subject to negative experiences while on remand at the Waikeria and Auckland prisons. An affidavit was provided in which you assert that the prison conditions at Waikeria prison were unfit for purpose.6 Counsel made further submissions that you were subject to extensive periods of solitary confinement at both the Waikeria and Auckland prisons.
[21] Counsel referred the Court to R v Bassett in which the defendant’s adverse experiences of physical and psychological abuse while in prison were taken into account at sentencing as mitigating factors.7 While counsel sought to apply that same reasoning here, I issued a minute dated 22 May 2023 stating that I did not consider the assertions in your affidavit relevant to sentence.8 In reaching that conclusion, I had reference to the sentencing notes of Campbell J in the case of Mr Parata Taite, formerly a co-defendant, who raised the same argument.9 Campbell J considered, as do I, that while a reduction in sentence may be available in some cases to remedy a breach of a prisoner or other offender’s rights under the New Zealand Bill of Rights Act 1990, this is not such a case. While I acknowledge that there may be connection between your alleged ill-treatment at the Waikeria and Auckland facilities and the inciting riot, that connection does not limit your culpability in the resulting offending. As Campbell J noted, distinguishing R v Bassett:10
[17] … In that case, a small fire was started, it was quickly extinguished, and no-one’s life or safety was endangered. It was all over in minutes and there
6 Counsel for the defence provided, in support of Mr Cuff’s assertions, the “Final report on an unannounced inspection of Waikeria Prison under the Crimes of Torture Act 1989” by Chief Ombudsman, Peter Boshier (August 2020).
7 R v Bassett [2021] NZDC 5067.
8 Sentencing Act 2002, s 24(2)(a).
9 R v Taite [2023] NZHC 975.
10 R v Taite, above n 9.
was no riot. In your case, the arson and riot and damage went on for six days and, as I emphasised, you put hundreds of lives at risk. You continued to do so even while Corrections officers were putting themselves at further risk by rescuing your fellow prisoners.
[22]Your counsel sought discounts, which I will address shortly, as follows:
(a)Twenty per cent for the contents of the s 27 cultural report that highlights the nexus between your personal circumstances and offending;
(b)Twenty per cent for your rehabilitative efforts and genuine remorse;
(c)Ten per cent for your youth; and
(d)A deduction of one and a half months’ imprisonment for time spent on EM bail.
Sentence
Sentence indication
[23] You are sentenced today on the basis of the sentence indication given on 4 October 2022, in which I found that an adjusted starting point of eight years and seven months’ imprisonment was appropriate. The starting point was reached with reference to the purposes and principles of sentencing as outlined in ss 7 and 8 of the Sentencing Act 2002.
[24] As I noted at the indication hearing, I took into account the nature and gravity of the offending. The riot which you participated in was unprecedented in this country and caused, as I have said, spectacular damage and loss. Its effects were widespread. While acknowledging that your individual role in the riot was difficult to ascertain, I accepted that you were centrally involved in the inciting incident by refusing to hand over disposable razors when asked by Corrections officers. I also noted that there was no dispute that you were the first to escape the yard and move onto the prison roof. Given these factors, I considered your role to be more than passive. On the remaining charges of riotous damage and assault with a weapon, I applied an uplift of one year,
nine months’ imprisonment. The global starting point reached was of 11 years and three months’ imprisonment.
[25] I next considered factors personal to you which aggravate or mitigate your offending. Looking at your criminal history and that the offending occurred whilst on bail, I applied an uplift of two months’ imprisonment. I then considered discounts. On the information available, I indicated that a discount of the full 25 per cent for guilty pleas would be available upon your acceptance of the sentencing indication. Those pleas have since been entered, with a minimal delay of 10 days from the indication hearing. On the application of that discount, an adjusted starting point of eight years and seven months’ imprisonment was reached.
Parity with like cases
[26] Section 8(e) of the Sentencing Act requires the Court to consider like cases and promote consistency in sentencing when dealing with offenders. Your co-offenders have faced sentence in this matter, and I will refer to three of those sentences in a footnote to these sentencing notes – R v Tapara, R v Haere and R v Taite.11
Personal circumstances
[27] I now turn to your personal mitigating circumstances, having had the benefit of your counsel’s submissions and other relevant reports.
[28] Looking to your background, it is clear that while your experience growing up was not among the worst seen in this Court, you faced difficulties and were exposed to influences that normalised drug use and criminality. You describe feeling keenly the absence of your father growing up and feeling isolated in your whanau, not knowing why he was not present in your life.
[29] In addition, you describe having difficulty in school and consequently leaving early to work in forestry. You began using drugs and drinking as an adolescent,
11 R v Tapara-Tapari [2023] NZHC 1812 – six years and three months’ imprisonment; R v Haere [2023] NZHC 1957 – eight years’ imprisonment; R Taite, above n 9 – four years and seven months’ imprisonment.
influenced by your brothers and friends who were involved in youth gangs. Your mother says that she sought help from various agencies to get you on track in school and away from drugs, but kept hitting “brick walls”. She believes that with better support, and more connection to te ao Māori, things may have turned out differently for you. It is clear that you have been given few opportunities to take the right path and did not have those behaviours modelled. Instead, you followed your brothers’ example, patching to the Nomads and using drugs to, as you describe, “[numb] the outside world”.
[30] Your counsel say that you are remorseful for your actions, and that this is evidenced not only by your desire to rehabilitate, but by your taking responsibility for the offending and seeking a sentence indication, the first of 17 defendants in this matter to have done so. In addition, your comments recorded in the pre-sentence and s 27 reports demonstrate remorse and understanding as to the consequences of your actions. You wrote a letter to the Court in which you express those same sentiments. You addressed the Court this morning, saying much the same thing. I consider that your remorse is genuine.
[31] I also consider that the material before the Court indicates that you have good prospects of rehabilitation, and that you have taken meaningful steps towards that goal. During your short time on EM bail at the Grace Foundation you made efforts to engage in rehabilitative programmes, and the communication from the Grace Foundation suggest that your engagement was meaningful. You have said that you wish to return and complete your outstanding sessions, as well as becoming involved with other youth struggling with similar issues. I consider this to be a positive sign that you want to make a change in your life. In your s 27 report you describe wanting to live a more pro-social life and to develop your connection to your Māori identity, moving away from drugs, gang associations and criminality. Given that these were introduced to you early on through your whanau, it is heartening that you have recognised the harm they you have caused and now wish to improve yourself and give back to other youth in your community. This is especially important as you have two young sons.
[32] You are yourself still young, and I consider it relevant that you were 22 when your offending took place. In Churchward v R, the Court of Appeal held that youth is
a relevant consideration in sentencing, not only to recognise the established behavioural and cognitive differences between young people and adults, which may impact their propensity to offend, but also to acknowledge the adverse effects of long sentences of imprisonment on young people, and conversely, their increased ability to rehabilitate.12 The Court in that case referred mainly to adolescent offenders, but the principle has been applied to young people in the 18 to 25 range.13
[33] However, the application of leniency for youth must be balanced against the gravity of the offending,14 which in your case was very serious. Therefore, while your counsel have suggested that a discrete discount be applied to recognise your age, I have taken it into account as a further positive indication for rehabilitation.
[34] Altogether, I consider that a discount of 25 per cent is warranted to recognise your background, prospects of rehabilitation, and remorse.
[35] Finally, I must consider your time spent on EM bail. I accept that your compliance with the strictures of EM bail was high and adopt your counsel’s submission that a deduction of one and a half months’ imprisonment should be applied.
Result
[36]Mr Cuff, would you please now stand.
[37] On the charges of riotous damage and arson, you are sentenced to five years and eight months’ imprisonment. On the charge of assault with a weapon for which the maximum sentence of five years’ imprisonment, you are sentenced to three years’ imprisonment, to be served concurrently. So, the total sentence in the end is one of five years and eight months’ imprisonment.
[38] As requested by the Crown, I also discharge, pursuant to s 147 of the Criminal Procedure Act 2011, the charges of arson, aggravated burglary, riotous damage,
12 Churchward v R [2011] NZCA 531 at [76]– [92].
13 R v Makoare [2020] NZHC 2289 at [25].
14 Churchward v R, above n 15 at [84], referring to R v Rapira [2003] 3 NZLR 794 (CA).
aggravated burglary, rioting, arson, setting traps and arson, which are set out in the amended Crown charge notice for resolution.
[39]You may stand down.
Woolford J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-072-48
[2022] NZHC 2545
THE KING v
MATANGIRAU CUFF
Hearing: 4 October 2022 Appearances:
R l Mann for Crown J Kim for Defendant
Date of
sentence indication:
4 October 2022
SENTENCE INDICATION OF WOOLFORD J
Solicitors:Jacinda Hamilton (Office of the Crown Solicitor), Hamilton Bloem & Associates (J Kim), Auckland
R v CUFF [2022] NZHC 2545 [4 October 2022]
Introduction
[1] Mr Cuff, you are facing one representative charge each of riotous damage,1 arson,2 and assault with a weapon.3 You have asked for a sentence indication on these charges.
[2] I am satisfied I have sufficient information to give you an indication, including the material referred to in s 61(3) of the Criminal Procedure Act 2011. This includes an agreed summary of facts and information as to your previous convictions.
[3] I have written submissions from Ms Mann for the Crown, and Mr Kim on your behalf. I have also had the benefit of oral submissions from both counsel today.
[4] I am conducting this hearing in open Court, but I remind any member of the media who is present that it is an offence to publish any information about a request for a sentence indication or about any indication that is given.4
Background
[5] The charges you face arise out of your involvement in the Waikeria Prison riots. These took place over a period of six days from 29 December 2020 until 3 January 2021. You were remanded in custody at the prison at the time.
[6] On the morning of 29 December 2020, there was an incident in the exercise yard involving disposable razors that you refused to hand over to Corrections staff. A number of co-defendants came to your support. When a Principal Corrections Officer advised that you would all be returned to your cells early if the razors were not surrendered, the group said that they were not going anywhere and were ready to fight. Eventually one razor was handed in and the situation de-escalated. You were all permitted to remain in the exercise yard until 2:00 pm as was routine.
1 Crimes Act 1961, ss 90 and 66.
2 Crimes Act 1961, ss 267(1)(a) and 66.
3 Crimes Act 1961, ss 202C(1)(a) and 66.
4 Criminal Procedure Act 2011, s 63.
[7] At approximately midday, however, one of your co-defendants contacted a news media outlet and announced your collective intention to riot in protest against prison conditions. Subsequently, the nine defendants present in the exercise yard, which included you, set fire to wooden seats and structures, covered security cameras with toilet paper, prevented Corrections staff from extinguishing the fires, threw cups of urine at them, and threatened to assault them if they attempted to enter. A second phone call was made to the same news media outlet at 2:19 pm declaring that the inmates intended to “go to war”.
[8] Shortly after this call, you escaped the yard by climbing onto the roof. Eight of your co-defendants quickly followed suit. Together you then attempted, unsuccessfully, to inspire the 12 inmates remaining in the yard to join you.
[9] You then began liberating prisoners housed in the upper levels by using an iron bar to smash through cell windows. A total of 12 inmates were freed from their cells, eight of whom chose to join the riot. The remaining non-rioting prisoners were evacuated from the prison.
[10] Over the next three days, from 30 December 2020 to 1 January 2021, you continued to riot across the rooftops alongside 16 others, lighting multiple fires, vandalising structures and throwing items at Corrections staff. You accessed the facility’s armoury, where you were able to seize protective body armour, shields and a grinder. You also fortified an area behind the Prison Chapel as sleeping quarters and storage for valuable items.
[11] At approximately 4:15 pm on 31 December 2020, one of your co-defendants climbed down off the roof and surrendered to Corrections staff.
[12] At approximately 10:30 pm on 1 January 2021, a confrontation occurred between four defendants and a group of Advance Control and Restraint (ACR) officers and the Police Armed Offenders Squad (AOS). A rubber bullet fired by the AOS hit one of the defendants in the torso, and you all retreated. Following this incident fires erupted on top of several buildings, the kitchen facility was set alight, and defendants threw objects at Corrections officers and firefighters.
[13] On 2 January 2021, at approximately 7:00 pm, teams of Corrections officers entered the prison. Fires erupted behind the barricade at the Prison Chapel. Corrections officers evacuated and fire swept through the facility. These fires caused near complete destruction of the prison.
[14] On 3 January 2021, all 16 remaining defendants surrendered. The total damage caused by the riot is estimated to be at least $50 million.
[15] As a result of this offending, and for the purposes of this indication, you face three representative charges, being one each of riotous damage, arson, and assault with a weapon. The Crown has indicated that if you accept this indication, it will not offer evidence in respect of the further charges in the Crown charge notice as they relate to you.
Approach to sentence
[16] I turn now to the indicated sentence. The indicated sentence I would impose must be sufficient to hold you responsible for your actions and to deter you and others from committing similar offending in the future. I must also treat you consistently with others and impose the least restrictive sentence available in the circumstances.
[17] The first part of the sentencing process is to set what is known as a “starting point”. This reflects the circumstances of the offending itself, rather than any factors personal to you as the offender. The second part of the process is to adjust the starting point to reflect any factors — both good and bad — personal to you. I have little information to enable me to do that today but, at the very least, I can tell you what credit you will receive if you plead guilty to the three charges. This means that by the time I finish today you will know the maximum sentence you will receive.
Starting point
[18] Turning to the starting point, the arson charge is the lead, or the most serious offence. I propose to set a starting point for that offence and then apply an uplift for the other charges.
[19] There is no tariff or guideline judgment for arson. The appropriate starting point is set with regard to the aggravating features of the offending, and by comparison to similar cases.
Crown submissions
[20] For the Crown, Ms Mann submits the following are aggravating features of the offending.
[21] First, the use of actual and threatened violence. You used a makeshift weapon to break through the roof of the yard during the initial stage of the riot, verbally abused and threw objects at Corrections staff, and threatened one officer’s family. Ms Mann submits that your actions fed the atmosphere of the riot and encouraged further violence from others.
[22] Secondly, the extent of loss and damage. Ms Mann acknowledges that you did not act alone in causing this, but submits your actions contributed in a significant way to at least $50 million dollars’ worth of damage.
[23] Thirdly, the scale of the offending. This was an unprecedented event in New Zealand and, Ms Mann argues, the most serious of its kind.
[24] Fourthly, the impact on the victims, many of whom were officers acting in the course of their duties. Though victim impact statements are not yet available, Ms Mann contends that it can be readily inferred that the events had a serious impact on staff involved, as well as the prisoners who were required to be evacuated.
[25] The final aggravating feature highlighted by the Crown is the risk of serious injury, particularly that arising from the fires. Ms Mann submits that you actively participated in setting and fuelling fires, and that you prevented fire fighters from being able to extinguish the fires and evacuate prisoners.
[26] Ms Mann also referred me to several cases which make the point that offending in a prison environment requires a stern response.5 Outside of the custodial environment, starting points of seven to eight years’ imprisonment have been adopted in cases involving arson on a much smaller scale.6
[27] Ms Mann says that the present offending is capable of being viewed at the most serious end of the spectrum for arson offending. She submits that a starting point in the vicinity of 10 to 11 years’ imprisonment for the representative charge of arson is warranted and may even be viewed as conservative.
[28] The Crown then proposes an uplift of two years’ imprisonment to reflect the remaining charges, taking into account totality principles. This gives a global starting point of 12 to 13 years’ imprisonment.
Defence submissions
[29] Mr Kim submits that I should adopt a lower starting point of eight years’ imprisonment on the lead charge of arson. Mr Kim says that your culpability must be assessed as an individual, and that the summary of facts does not point to any specific or direct action on your behalf in respect of the arson. Nor does it suggest you had an overall leadership role in the riot.
[30] Mr Kim further submits that caution must be taken in applying an uplift to reflect the remaining charges, as the high starting point for arson already takes into account the overall scale of the offending. However, he accepts that an uplift of one year, six months’ imprisonment would appropriately reflect the entirety of the offending.
[31] Mr Kim therefore contends for a global starting point of nine years, six months’ imprisonment.
5 Tryselaar v R [2012] NZCA 353 at [18]; Kepu v R [2011] NZCA 104 at [19]; Mouat v Police HC Gisborne CRI-2006-416-20, 11 December 2006 at [8]; and Ratu v R [2016] NZCA 97.
6 R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493; R v Z CA138/00, 27 June 2000; and
R v Honan (1998) 3 CRNZ 532 (CA).
Discussion
[32] Having regard to all of those matters, I consider a starting point of nine years, six months’ imprisonment is appropriate on the representative charge of arson.
[33] On the one hand, it is difficult to discern your actions as an individual from that of the group in respect of the arson, at least on the basis of the information before me. On the other hand, the sheer scale of the offending and the extent of the damage must carry some weight. This was an unprecedented event in New Zealand. As your counsel responsibly accepts, a higher starting point is warranted than in the cases to which I have been referred.
[34] While there is some disagreement as to whether you played a leading role in the offending, the incident as a whole appears to have been sparked (at least in part) by your possession of, and subsequent refusal to hand over, the disposable razors. Furthermore, there is no dispute that you were the first to escape the yard and climb onto the roof. The global starting point that I set must appropriately reflect your role in the entirety of the offending, which cannot be said to be merely passive.
[35] I consider an uplift of one year, nine months’ imprisonment appropriately reflects the remaining charges of riotous damage and assault with a weapon, taking into account totality principles. This gives a global starting point of 11 years, three months’ imprisonment.
Aggravating features personal to the defendant
[36] Turning to aggravating features personal to you, you have 21 previous convictions dating to 2015. These include two for escaping custody in 2020. At the time of the current offending, you were on remand for a raft of serious family violence charges.
[37] Ms Mann submits that an uplift of three months’ imprisonment is adequate to reflect your criminal history and your status as a prisoner on remand at the time of the offending.
[38] Mr Kim accepts that your previous convictions have some relevance to the present offending but submits that they do not show a tendency to commit arson. He says the current facts are unique and that an uplift of one month’s imprisonment would appropriately reflect your criminal history.
[39] There are cases in which previous convictions do not attract an uplift because they are few and far between, or because they bear no relevance at all to the present offending. This is not one of those cases. While your criminal history may not show a tendency to commit arson, it does show a tendency for violence and a general disregard for Court-imposed orders and sentences. I propose to apply a modest uplift of two months’ imprisonment to reflect your previous convictions and the fact that you were remanded in custody at the time of the current offending.
[40] This takes the sentence to 11 years, five months’ imprisonment before taking into account mitigating features personal to you.
Mitigating features personal to the defendant
[41] The only mitigating features that have been raised at this stage relate to rehabilitation and guilty pleas.
[42] Addressing rehabilitation first, Mr Kim notes that you have been undertaking residential rehabilitation at the Grace Foundation for the past three months or so. He refers to a progress report of 21 September 2022 from the Foundation, which states that when you are present, you actively engage, and that with the right support and guidance you have the potential to make the changes you so desire.
[43] Mr Kim submits that a discount of at least 20 per cent should be made available to reflect this factor. This information was not provided to the Crown prior to the filing of its submissions, however, and the report makes clear that you are still at an early stage in your rehabilitation journey. I am therefore not prepared to make an assessment of this factor at this stage and leave the matter for the Judge at sentencing.
[44] Turning to guilty pleas, Ms Mann notes at the entry of guilty pleas at this stage would not be particularly early nor late. This prosecution commenced more than
18 months ago, but a trial is not scheduled until February 2023. However, Ms Mann acknowledges that disclosure has only taken place in recent months. As such, the Crown accepts that a full credit of 25 per cent remains available to you at this stage, should you accept this indication. Mr Kim, unsurprisingly, agrees with the Crown’s assessment.
[45] I see no reason to depart from this position. If you accept this sentence indication, I would discount the starting point by 25 per cent, or approximately two years, 10 months’. That would mean you would not be sentenced to more than eight years, seven months’ imprisonment. As I have said, there may be further mitigating factors in your favour on the basis of information that is before the Court at sentencing.
[46] The final point to address is the imposition of a minimum period of imprisonment (‘MPI’). This is the period that you would be required to serve before being eligible for parole. Ms Mann submits that an MPI is required to hold you accountable, denounce and deter your conduct, and to protect the community. Mr Kim submits that such a term is not required to meet the purposes and principles of sentencing. However, both counsel agree that a substantive consideration of this issue is best left to the sentencing stage when further relevant material is available. I would have to agree.
[47] The sentence indication is therefore a maximum of eight years, seven months’ imprisonment. It may be less depending on personal factors considered at sentencing.
[48] This sentence indication will lapse in two weeks – at callover at 9:00 am on Tuesday, 18 October 2022.
Woolford J
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