R v Fruean

[2015] NZHC 1670

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-13119 [2015] NZHC 1670

THE QUEEN

v

CRUZ SONNY KIPA FRUEAN

Hearing:	10 and 17 July 2015
Appearances:	M J Hammer for Crown R Mansfield for Defendant
Judgment:	17 July 2015

SENTENCING REMARKS OF LANG J

R v FRUEAN [2015] NZHC 1670 [17 July 2015]

[1]      Mr Fruean, you appear for sentence today having pleaded guilty to charges of arson, causing riotous damage and assault with intent to injure.  Those charges carry maximum sentences of between 14 and three years imprisonment.  The most serious of the charges is that of arson, which carries a maximum sentence of 14 years imprisonment.

Background

[2]      All  of  the  charges  arise  out  of  a  riot  that  occurred  at  the  Spring  Hill Correctional  Facility  on  the  weekend  of  1  June  2013.    This  caused  significant damage to the facility, and has required repairs costing more than $5 million.

[3]      The riot took place in Unit 16B, which was a medium security unit.  The unit contains two pods, each of which held around 45 prisoners.  You were being held in one of the pods at the time.

[4]      The riot began when prisoners were released from their pods for morning exercise.  At that point, corrections officers noticed that some of the prisoners appeared to be intoxicated.  After a short period of time, scuffles and fights broke out.  When corrections staff moved to intervene, matters escalated quickly.  Some of the officers were trapped in the yard with prisoners who became more and more aggressive.   These officers were eventually able to make their way through to the staff base, where other officers were barricaded.  The prisoners then began attacking the staff base using poles and other objects in an effort to gain entry.  Ultimately the corrections officers had to abandon the staff base, and prisoners entered it.   They then smashed a large amount of furniture and equipment from both the staff base and the dining and kitchen areas.  They also lit fires in the yard, some of which were up against the walls of buildings.  This caused significant consternation for inmates who were locked in cells nearby.

[5]      It took some considerable time for the situation to be brought under control. Order was eventually restored when the prison authorities sent in a control and restraint team.  This was necessary to enable the Fire Service to gain access to the premises so that they could put out the fires the prisoners had lit.

[6]      Your involvement in these events occurred because you placed chairs and a mattress on a fire that had been lit by other prisoners.  You also used an unknown object to hit the staff base door and windows.  When staff vacated the staff base, you climbed in and out of the staff base window carrying television sets and keyboards. You threw these out into the pod.  You also assisted prisoners to remove files from the staff base.

[7]      The charge of assault with intent to injure was laid after you struck a member of the control and restraint team with a volleyball pole when the team entered the area.  This dislocated the officer’s shoulder and caused him to be hospitalised.  He had his arm in a sling for two weeks and was unable to work.

[8]      In all, some 23 prisoners were arrested as a result of the incident. All but one have now been  sentenced.   As  a result,  I have the benefit  of a large  range of sentencing decisions which guide me in the sentences to be imposed on you.

Starting point

[9]      The lead charge is that of arson.   The courts have distinguished between offenders charged with arson arising out of the riot.  In the case of the ringleaders, the courts have selected starting points of around six to six and a half years imprisonment.  The Crown accepts that you were not a ringleader and that you were not responsible for starting the fires.  It submits that your role in relation to adding fuel to the fire should attract a starting point of around five to five and a half years imprisonment.

[10]     Last week I sentenced one of your co-offenders, Mr Hayes, who was also charged with arson.1   He had placed two pieces of wood on a fire.  In his case I took a starting point of four and a half years imprisonment.

[11]     I see your offending as slightly more serious than that of Mr Hayes because of the fact that you added chairs and a mattress.  I propose to adopt a starting point of five years imprisonment on the arson charge.

[12]     Other offenders who have been charged with riotous damage as well as arson have generally had uplifts of around 12 months imprisonment added.  In your case, having regard to totality principles, I consider an appropriate uplift is one of six months.

[13]     Your  counsel  submits  that  an  uplift  of  six  months  imprisonment  is  also sufficient to take account of the assault charge.  I do not accept that submission.  The assault charge related to entirely different offending and it was a reasonably serious assault.   As I have already recorded, it required the corrections officer to be hospitalised and he was off work for some time because of the dislocation of his shoulder.  I consider that offending warrants discrete recognition, and I therefore add another six months to reflect that charge.

Aggravating factors

[14]     I now need to consider aggravating factors personal to you that operate to increase  the  starting  point  of  six  years  imprisonment.    You  have  a  number  of previous convictions for violent offending.   Both counsel accept that an uplift is necessary to reflect that fact.   This is not to punish you again in relation to past offending, but rather to demonstrate that the present offending is made more serious by the fact that you have not learned from earlier sentences imposed on you.  Both counsel suggest that an appropriate uplift to reflect this factor is two months, and I agree.

[15]    I am therefore left with an end starting point of six years two months imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

[16]     The most obvious of these is the fact that you entered guilty pleas to the charges against you.  You did not enter these at an early stage and, indeed, they were only entered a short time before the trial was due to begin.   However, the Crown accepts that a discount of around 20 per cent is appropriate to reflect your guilty pleas, and this is the discount that has been applied in other cases.   In addition, I propose to provide a small additional discount to reflect the fact that your guilty

pleas saved the State the cost of a very expensive and lengthy criminal trial.   I propose to allow a discount of one year six months to reflect these factors.   This brings me to an end sentence of four years eight months imprisonment.

Totality principles

[17]     Your counsel submits that I should apply a further discount to reflect totality principles.   In order to understand this submission, I need to outline briefly the background against which you are sentenced today.2

[18]     You were originally charged with aggravated robbery.   On 11 November

2011, you were sentenced to three years imprisonment on that charge.  You had been in custody awaiting sentence since 18 August 2011, and were serving this sentence at the time of the riot.  By the time the riot occurred, you had served nearly two months of your sentence.  You had not, however, been granted parole.  It is difficult to say when you would have been granted parole but for the intervention of the riot.  After you were charged as a result of the riot, however, your bid for parole came to an end. You were required to serve the full term of three years imprisonment on the charge of aggravated robbery.

[19]     Approximately six months after the riot, another incident occurred when you were charged with injuring another prisoner with intent to cause him grievous bodily harm.  This occurred on 4 December 2013. You were on remand on that charge until your trial in mid-2015.

[20]     When you had completed the sentence on the charge of aggravated robbery, you resumed the status of a remand prisoner. That occurred on 14 August 2014. You were then on remand on the two sets of charges from 14 August 2014 to 1 July 2015.

[21]     On 1 July 2015, you were sentenced to two years ten months imprisonment on the charge of injuring the other prisoner with intent to cause him grievous bodily harm.  Because this was your second conviction under the so called “three strikes” legislation,  you  are  required  to  serve  the  sentence  of  two  years  ten  months

imprisonment imposed on that charge without parole.  This means that you will not be eligible for release on that charge until around mid June 2017.

[22]     Both counsel accept that a cumulative sentence is appropriate in respect of the present charges.  That is so because they relate to conduct that is entirely separate from your other offending.

[23]     Your counsel submits that I should reduce the end sentence of four years eight months imprisonment so as not to impose a sentence out of all proportion with the overall culpability of your offending.   I have difficulty with that submission because the reason you have been required to remain in prison is that you have continued to offend whilst in prison.   The Court of Appeal has made it clear that offending whilst in prison must be regarded seriously.3    The courts must be careful not to provide discounts that operate to diminish the seriousness of offending that occurs whilst in prison.  I am, however, prepared to make some allowance for the

fact that, had it not been for the charges arising out of the riot, you may have been released on parole at some stage during 2013 or 2014.  It is impossible to say when you would have been released on parole, but I am prepared to allow a discount of six months to reflect that factor.

[24]     I do not consider it would be appropriate to provide a further discount to reflect the fact that you are required to serve the sentence imposed on you on 1 July

2015 in full.   If I was to reduce the present sentence to take into  account that sentence, I would be undermining Parliament’s intention when it passed the “three strikes” legislation.  I would be providing you with a discount that would reduce or diminish the effectiveness of that sentence.   For that reason I am not prepared to make any further allowance for totality, other than the six month period to which I have referred.  This means that the end sentence that I impose on you is one of four years two months imprisonment.

Sentence

[25]   On the charge of arson, you are sentenced to four years two months imprisonment.  That sentence is to be served cumulatively on the existing sentence you are serving on the charge of injuring with intent to cause grievous bodily harm. On the charges of riotous damage and assault with intent to injure, you are sentenced to six months imprisonment.   Those sentences are to be served concurrently with each other and with the sentence you will serve on the arson charge.

[26]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

R Mansfield, Auckland

CHRONOLOGY

18.8.11-11.11.11	In custody awaiting sentence
11.11.11	Sentenced to three years imprisonment on charge of aggravated robbery
1.6.13	Riot at Spring Hill Correctional Institute
4.12.13	Incident giving rise to charge of injuring with intent to cause grievous bodily harm
14.8.14	Paroled on the charge of aggravated robbery
14.8.14-1.7.15	On remand
1.7.15	Sentenced to 2 years 10 months imprisonment on charge of injuring with intent to cause grievous bodily harm
14.6.17	Sentence of 2 years 10 months imprisonment will end