R v Haere
[2023] NZHC 1957
•25 July 2023
ORDER PROHIBITING PUBLICATION OF SENTENCE INDICATION
GIVEN TO CO-DEFENDANT MATANGIRAU CUFF IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL CO-DEFENDANT CUFF HAS BEEN SENTENCED. REFER [35] AND
FOOTNOTE 9. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-021-072-000048
[2023] NZHC 1957
THE KING v
GRAYSON HAERE
Hearing: 25 July 2023 Appearances:
R Mann for the Crown
C Taylor (on instructions from R Mansfield KC) and B Gloyn for Mr Haere
Sentencing:
25 July 2023
(REDACTED) SENTENCING NOTES OF GORDON J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
R Mansfield KC, Barrister, Auckland C Taylor, Barrister, Ruakaka
B Gloyn, Barrister, Auckland
R v HAERE [2023] NZHC 1957 [25 July 2023]
[1] Grayson Haere, you appear before me for sentence having pleaded guilty to three representative charges: arson (with a danger to life);1 riotous damage;2 and assault with a weapon.3
[2] The three charges are an amalgamation of charges in the Crown Charge Notice dated 28 June 2022 and arise out of the riot at Waikeria Prison that lasted six days over the 2020/2021 New Year period.
[3] You were to have been sentenced by another Judge in May of this year. However, shortly before the sentencing date you asked for the sentencing to be adjourned so that you could be sentenced by me, the trial Judge for a number of your co-offenders who proceeded to trial.
[4] When you pleaded guilty, you accepted the contents of a summary of facts. When you sought the adjournment you said you also wished to refer to evidence from the trial of your co-offenders as regards your role.
The offending
[5] You were in custody in the High Security Facility at Waikeria Prison on remand at the time of the offending.
[6] On the morning of 29 December 2020 you were part of a group of 21 prisoners in one of the exercise yards, yard 116. There was an incident involving one of the prisoners in the yard (Matangirau Cuff) using a disposable razor (or razors) to give another prisoner (Arleye Tapara-Taipari) a haircut. As disposable razors were prohibited in the exercise yard a Corrections officer, supervising from the overbridge, who had seen what was happening, directed that the razor(s) be handed in. That request was not complied with. A principal Corrections officer then said that unless the razor(s) was/were surrendered, you would all be returned to your cells early. Members of your group said you were not going anywhere and were ready to fight. Eventually one razor was handed in and all of you were permitted to remain in the
1 Crimes Act 1961, ss 267(1)(a) and 66. Maximum penalty: 14 years’ imprisonment.
2 Section 90. Maximum penalty: 7 years’ imprisonment.
3 Sections 202C(1)(a) and 66. Maximum penalty: 5 years’ imprisonment.
yard in accordance with the usual routine. The situation was defused and the mood in the yard was seen to improve.
[7] But then at midday Mr Haere, you made a telephone call to a Newshub journalist via an approved contact.4 You expressed the intentions of the group to stage a riot and assault any Corrections officers who entered the yard. You said that the purpose of the intended offending was in protest against conditions at the prison.
[8] Following that phone call you were in a group of nine of the 21 prisoners (the group) who lit fires on top of the wooden seats and structures in the yard, covered security cameras with wet toilet paper, prevented Corrections officers from extinguishing the fires, threw cups of urine at them and threatened to assault them if they attempted to enter.
[9] At approximately 2.19 pm you made another phone call from yard 116 to a second Newshub journalist. You stated that the riot at Waikeria had begun and fires had been lit. You said the intention of the group was to “go to war”. You made further statements along similar lines. I will refer to those statements later in these sentencing remarks when addressing submissions made on your behalf.
[10] Shortly after the second phone call you and eight others escaped from the yard through a gap in the wire mesh forming part of the roof of the yard, that two of the group had created. The remaining 12 inmates who stayed in the yard were threatened with violence by members of the group.
[11] Having escaped from the yard, you, Mr Haere, and others in the group of nine, smashed windows on the overbridge above the yard. Others in the group set a small guard room on the overbridge alight.
[12] The group then began liberating prisoners housed in the upper level of the East North Wing by using a battering ram to dislodge the bars over the cell windows and to smash through the cell windows. A total of 12 inmates were freed from their cells in this way, eight of whom chose to join the riot.
4 A telephone in the yard was able to be used by the prisoners to phone approved contacts.
[13] The group, now numbering 17 prisoners, spread out and began making its way across the rooftops that linked many buildings together, smashing property, breaking off padlocks to allow access to other areas of the roof and lighting a number of fires in various places.
[14] As part of this phase the receiving office for the prison was set on fire when there were a significant number of Corrections officers and prisoners inside that area. They were showered with bits of wood and glass from the roof. The paint store which was located near the receiving office was also set on fire and smoke began to fill the buildings. Multiple objects were torn off the building structure and thrown at Corrections staff who were on the ground.
[15] On that first evening members of the group lit at least 26 fires on the prison rooftops. Below, hundreds of prisoners were locked inside their cells and other secure areas. Those areas were burning and filled with smoke. Corrections officers had to enter those areas to free those prisoners. A number of prisoners were unresponsive and had to be either dragged or carried out by Corrections officers. Meanwhile, members of the group continued to attack the officers and prisoners from above. Those other prisoners were rescued with little time to spare. It was only through the efforts of Corrections officers that no lives were lost.
[16] From the early hours of the morning on the second day, 30 December 2020, and over the days that followed, members of the group were seen to conduct rooftop patrols, during the course of which objects would be thrown at Corrections officers, firefighters and Police officers below. These included rocks, glass louvers and shards, fire extinguishers and bottles, metal jars and pieces of furniture.
[17] Over the next four days until 2 January 2021, the armoury in the High Security Facility was accessed and protective body armour, shields, a grinder and radios were seized and used by the group. The group also fortified an area in the prison chapel as sleeping quarters and storage for other items retrieved from various secure locations in the High Security Facility.
[18] On the evening of 1 January 2021, the group came down off the roof and confronted a group of Corrections officers in the Advanced Control and Restraint (ACR) team and members of the Police Armed Offenders Squad (AOS). You advanced on these officers with weapons. It was only as a consequence of members of the AOS team deploying a taser and rubber bullets that you all retreated back up onto the prison roof.
[19] Following this event, fires erupted on the top of several buildings and objects continued to be thrown at Corrections officers and Police officers. On the night of 1 January 2021 at least seven fires were lit with discrete points of origin. By the early hours of the morning on 2 January 2021 all fires were extinguished. Although the fires caused extensive damage, the main High Security Facility structure remained safely accessible to you and the other prisoners on the roof.
[20] On 2 January 2021 at approximately 7.00 pm, two teams of ACR officers and AOS officers entered the High Security Facility with the intention of making their way to the prison chapel, which the group had used as a base. However, access via the stairway was impeded by items of furniture which had been stacked by members of the group in the stairwell. As the officers attempted to make their way up through the stairwell, burning objects were dropped by the prisoners from above. An order was made for all staff members to evacuate in order to prevent their death or injury as fire began to sweep through the chapel and the High Security Facility.
[21] As the officers evacuated, prisoners on the roof pelted them with debris from piles earlier collected by them, including stones, plates and chunks of concrete, some of which struck the officers. Some of the group used Corrections’ riot shields to approach the edge of the roof for this purpose, providing cover for other members of the group to throw items down on the retreating officers. Members of the group were observed to be wearing riot helmets, stab-resistant vests and other items of Corrections’ uniform.
[22] The fires continued burning until the following morning and caused the near complete destruction of the High Security Facility.
[23] On 3 January 2021 all 16 of you surrendered.5 The entire High Security Facility, which used to house in the region of 260 prisoners, was destroyed. The Crown has filed a written statement of Andrew Cowan, a Senior Business Partner, Corrections Services, for the Department of Corrections. His evidence is that the total damage caused by the events I have referred to was $51.6 million. With insurance proceeds of $23.1 million applied against those costs, the net cost after insurance proceeds is $28.5 million. Within the list of items making up the $51.6 million is a figure of $18 million for demolition costs. Those costs include demolition of areas of the High Security Facility which had previously been decommissioned and which were not used. I accept in that regard, some discounting of the $18 million figure is required. But whichever number is adopted, the loss was substantial.
Approach to sentencing
[24] Sentencing is a two-stage process.6 First, I must determine a starting point. In doing so, I will take into account any aggravating and mitigating features of your offending. Then I will consider factors personal to you that may operate so as to adjust the starting point. This will include your personal background, your conviction history, your guilty plea, the information in the Provision of Advice to the Court (PAC) Report and the report under s 27 of the Sentencing Act 2002 (the Act) which you commissioned.
[25] In sentencing you, I must have regard to the purposes of sentencing set out in s 7 of the Act. In this case, the relevant purposes are accountability, denunciation, deterrence, protection of the community and rehabilitation.
Victim impact statement
[26] I have received a victim impact statement. Because there were so many Corrections officers involved who were affected by your offending, the victim impact statement was prepared on a global basis by Terry Buffery, the Regional Commissioner for the Central Region of the Department of Corrections. He says many officers were exposed to smoke inhalation as they had to enter a burning building in
5 Mr Kameta having surrendered on 30 December 2020.
6 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
order to save the lives of the 200-plus men who were locked in their cells. Mr Buffery says if the prisoners had not been evacuated when they were, there is no doubt that lives would have been lost. Having heard the evidence at trial, I agree with Mr Buffery’s assessment. What he says is not an overstatement.
[27] Additionally, the immediate response to the incident required resources to be mobilised from around the country. Due to the timing of the events, many staff and their families had holiday plans severely interrupted. Mr Buffery further reports the many physical and psychological injuries suffered by Corrections officers from the incident. Some staff lost personal property that was onsite. Welfare support for staff continues. Hundreds of prisoners also lost personal property in the fire including family photographs and in one case his daughter’s ashes.
[28] The destruction of the High Security Facility has also meant that the prison is no longer able to receive remand prisoners from the Bay of Plenty and South Waikato. As a consequence, remand prisoners are housed further away from the courts in which they appear and their families. This continues to affect those prisoners. A similar impact continues for hundreds of Corrections staff who have had to be relocated from their normal place of work.
Starting point
[29] The arson charge is the lead, or the most serious, offence. I propose to set a starting point for the arson charge and then apply an uplift for the other two charges.
[30] There is no tariff or guideline judgment for arson. The appropriate starting point is set having regard to the aggravating features of the offending and by comparison to similar cases. In sentencing you, the Court has the benefit of sentences passed on some of your co-offenders. I will have regard to those sentences to ensure parity between co-offenders when setting the starting point.
Crown submissions
[31] Ms Mann, for the Crown, submits that having regard to parity considerations, an overall starting point for all three offences between 11 years and three months’
imprisonment and 12 years’ imprisonment would be appropriate to reflect your culpability. She submits the starting point should be at the upper end of that range.
[32] Ms Mann submits the following aggravating features of your offending are present:
(a)Use of actual and threatened violence: the acts the subject of the charges are inherently violent.
(b)Extent of loss and damage: while the Crown accepts that you are not solely responsible for the entirety of the damage caused, your actions contributed in a significant way to the damage in the sum that I have referred to.
(c)Scale of the offending: the offending is of an unprecedented scale within New Zealand and is arguably the most serious of its kind. Seventeen prisoners were involved and 16 of you did not surrender until the sixth day. The lives of hundreds of prisoners were put in jeopardy and multiple prison staff, Police and firefighters were involved as a consequence.
(d)The victims were Prison officers acting in the course of their duty: the events had a serious impact on staff involved.
(e)Risk of injury: the multiple fires posed a serious risk of injury to both prison staff and prisoners, particularly those still locked in their cells.
(f)Victim impact: the offending had a significant impact on the many victims.
[33] In terms of parity considerations, Ms Mann refers to your co-offenders who have been sentenced by other Judges. I briefly summarise those decisions.
[34] Following a guilty plea, Parata Taite was sentenced by Campbell J on 28 April 2023 on the same three representative charges: riotous damage; arson (with a danger
to life); and assault with a weapon.7 The Judge adopted a starting point of 11 years and six months’ imprisonment for the arson charge with an uplift of one year’s imprisonment for the other two charges. This produced a global starting point of 12 years and six months’ imprisonment, which was one year and three months higher than that indicated for Mr Cuff. While expressing the view that the starting point for Mr Cuff was lenient,8 Campbell J reduced the global starting point by six months to temper disparity, resulting in 12 years’ imprisonment.
[35] Matangirau Cuff entered a guilty plea after accepting a sentence indication provided by Woolford J on the same representative charges.9 Justice Woolford adopted a starting point of nine years and six months for the arson charge with an uplift of one year and nine months for the other two charges resulting in an overall starting point of 11 years and three months’ imprisonment. Mr Cuff has yet to be sentenced.
[36] Manutaki Kameta was sentenced by Lang J on 28 April 2023 on the same representative charges,10 having accepted an earlier sentence indication.11 Justice Lang adopted a starting point of eight years and four months’ imprisonment on all charges. I refer to the reason for that lower starting point later in this decision.
[37] Malachi Naua-Tuilotolava pleaded guilty to the same representative charges on the first morning of the trial before the trial commenced. He was sentenced by Downs J on 10 May 2023.12 Counsel for Mr Naua-Tuilotolava acknowledged that if he were to be sentenced in isolation, a starting point of 10 and a half years’ imprisonment, as indicated by the Judge, would be appropriate.13 However, given that Mr Naua-Tuilotolava was already serving a 24 year sentence of imprisonment for importing a very large amount of methamphetamine, in accordance with the totality
7 R v Taite [2023] NZHC 975.
8 R v Taite [2022] NZHC 2935 at [21].
9 R v Cuff [2022] NZHC 2545. Mr Cuff has not yet been sentenced. Although a sentence indication is given in open court (Criminal Procedure Act 2011, s 62(2)), it is an offence to knowingly publish any information about a sentence indication that has been given before the defendant has been sentenced (Criminal Procedure Act 2011, s 63(1)).
10 R v Kameta [2023] NZHC 965.
11 R v Kameta [2022] NZHC 3629.
12 R v Naua-Tuilotolava [2023] NZHC 1105.
13 At [4].
principle, Downs J imposed a sentence of six years’ imprisonment cumulative on the 24 years Mr Naua-Tuilotolava was already serving.
[38] Arleye Tapara-Taipari also pleaded guilty following a sentence indication given by Lang J.14 The Judge indicated an overall starting point of 11 years and three months’ imprisonment which was adopted in Mr Tapara-Taipari’s sentencing on 13 July 2023.15
[39] Ms Mann acknowledges that the sentencing decisions for your co-defendants will be of most assistance to the Court but for completeness, the Crown refers to other cases involving sentencing for arson.16 Ms Mann also refers to other cases where the courts have affirmed the proposition that offending in the prison environment demands a stern response, particularly where that offending goes to the maintenance of discipline needed to effectively manage a penal institution.17 More particularly, in the case of arson in a prison environment, Ms Mann refers to Mouat v Police where Baragwanath J observed that such offending:18
… causes obvious difficulties for the authorities who cannot simply unlock the cell doors and permit others who may be violent offenders simply to escape onto the street. Even more important is that the state which takes suspects into custody removes their liberty on an implied and essential undertaking that their safety will be assured. …
[40] There is also the case of Ratu v R19 which concerned arsons in the context of rioting within a prison, albeit on a smaller scale than the offending in this case. The two appellants faced charges arising out of their participation in the 2013 riot at Spring Hill Corrections Facility. The Court of Appeal described those riots as “the worst in New Zealand’s history” as matters then stood.20 The rioting began when two prison officers were assaulted. The assaults developed into a riot lasting over six hours. The
14 R v Tapara-Taipari [2022] NZHC 3219.
15 R v Tapara-Taipari [2023] NZHC 1812.
16 Howarth v R [2010] NZCA 523; Mouat v Police HC Gisborne CRI-2006-416-20, 11 December 2006 at [8]; R v Z CA138/00, 27 June 2000; R v Honan (1988) 3 CRNZ 532 (CA); and R v Lucas- Edmonds [2009] NZCA 193, [2009] 3 NZLR 493.
17 Tryselaar v R [2012] NZCA 353 at [18] and Kepu v R [2011] NZCA 104 at [19].
18 Mouat v Police, above n 16, at [8].
19 Ratu v R [2016] NZCA 97.
20 At [24].
rioters lit several fires which spread and endangered the lives of other prisoners and staff. The cost of repairs to the damage caused was estimated at $5 million.
[41] The two appellants in Ratu were not involved in the initial assaults on the prison officers but were actively involved in a number of events during the riot. The starting point of six years’ imprisonment for Mr Thomas for the lead offence of arson and a 12 month uplift to account for the charge of riotous damage were undisturbed on appeal.
[42] Ms Mann concludes by submitting that the agreed summary of facts expressly records that all the defendants but for Mr Kameta remained committed to the purpose of the group and engaged in the offending until their ultimate surrender. She accordingly submits there is no basis to distinguish your role from that of Mr Cuff, Mr Taite and Mr Tapara-Taipari in arriving at an appropriate starting point for arson and uplift to reflect the additional offending.
Defendant’s submissions
[43] Mr Mansfield KC in his written submissions says that the appropriate starting point on the lead charge of arson is six years’ imprisonment, with an uplift of one year for the other two charges, resulting in an overall starting point of seven years’ imprisonment.
[44] In oral submissions today Mr Taylor, while not abandoning the seven year starting point, says that nine years would be more realistic.
[45] I do not accept those submissions. They are based on a number of propositions that I do not accept. Mr Mansfield first says in his written submissions that the conditions at Waikeria Prison should be taken into account. In those written submissions, he relied on the conditions as somehow acting in mitigation of culpability. I do not accept that. As you are aware, Mr Haere, I declined to hear any oral submissions this morning regarding the conditions at the prison.
[46] I can do no better than adopt the words of Downs J when he granted your application for an adjournment of your sentencing. There were two grounds relied on
in support of the application for an adjournment: (a) the trial Judge would be well placed to resolve any difficulty about your role; and (b) the trial Judge would be in a better position to address prison conditions. Justice Downs said the following, which I adopt:21
[5] I considered (b) has no merit whatsoever. First, and most obviously, prison conditions do not comprise an ingredient of any of the offences nor afford a defence to any of the charges.22 Second, Campbell J recently rejected an argument by a co-defendant that prison conditions mitigated the offending. Third, to hold otherwise than Campbell J did would be to invite rioting and violence within prisons, in turn undermining the rule of law and placing Corrections officers at even further risk (they already perform a difficult, dangerous role). Fourth, the law sets its face against self-help remedies, in part because legitimate avenues of redress already exist. In the context of prison conditions, inmates may, for example, complain to the Ombudsman or sue the government under the New Zealand Bill of Rights Act 1990. These remedies are real and at the risk of repetition, consistent with the rule of law. Fifth, even if I am wrong about all this, the sheer scale of the offending overwhelms any possible mitigation.
[47] The second submission made on your behalf in terms of the starting point is that it should be fixed on the basis that you were not a principal offender. In his written submissions Mr Mansfield says the summary of facts only establishes you as being liable as a party. He says there is nothing in the summary of facts that identifies you as being individually responsible for the arsons in this case. That summary only identifies you as part of the group. In his oral submissions this morning Mr Taylor emphasised that point. It is also submitted on your behalf that the phone calls made by you to Newshub were made on behalf of the group and they were not acts that made you a principal offender or an instigator of the offending.
[48] I do not accept those submissions. First, in relation to your role, the PAC report says as follows:
In regard to the charges of Arson (CRN 21072000068) Mr Haere admitted to lighting fires on top of the wooden seats and structures inside Yard 116. Mr Haere agreed that he set fires on the rooftops and reported “I’m guilty of lighting many fires”. In regard to the charges of Riotous Damage (CRN 22019500764) he agreed to the statements of smashing windows on the over- bridge of Yard 116. Mr Haere agreed with the information regarding releasing Prisoners in the Northeast Wing of Yard 116 by using a battering ram to smash cell windows, and all other riotous damage of property. In regard to the
21 R v Haere HC Auckland CRI-2021-072-000048, 10 May 2023 (Minute of Downs J), footnote omitted.
22 That was an issue that arose in the trial of the co-defendants and I gave a ruling to that effect.
charges of Assault With a Weapon (CRN 22019500783) he agreed to the statements of the events on New Year’s day and the assaults with makeshift weapons and pipes on Corrections Officers.
[49] As far as phone calls to the journalists, the second phone call contains the following statements by you:
I rung yous earlier about a breaking story.
… a riot in Waikeria Prison well it’s started we’ve set fires …
… we’re setting fire to the umm roofs.
…
Well at the moment we’re just setting everything on fire, we’ve smashed up a few wooden doors …
[50] When the journalist asked what “Are you gonna do beyond the … fires?” and “What have you got planned after that?” and “Are you planning to fight?” you said “Definitely”. Following another question from the journalist “And are you planning to burn the whole prison?” you said:
We’re planning to burn as much of it down as we can.
…
Yeah, they’ve lost all control. We’re in control now.
[51] I consider your statements as recorded in the PAC report and your statements to the journalist indicate that you were both an instigator and a principal offender.
[52] The third argument made on your behalf is that Mr Kameta acted alone in lighting a substantial number of fires that caused the greatest risk of life and damage to the prison. It is submitted on your behalf it would be grossly disproportionate if you were to receive a higher sentence than a primary offender on the lead arson charge.
[53] I accept that there was evidence at trial of Mr Kameta lighting a number of fires on his own on 29 December 2020. There is drone footage showing his acts.
Those fires did cause risk to life and damage to parts of the prison. However,
Mr Kameta surrendered the following day on 30 December 2020.23
[54] You remained on the roof until you surrendered on 3 January 2021. Significant fires were lit on 1 January 2021 and 2 January 2021 causing extensive damage to the High Security Facility which I have already referred to. But in any event, even approaching your liability on the basis that you were a party under s 66(2) of the Crimes Act 1961, the summary of facts records that you and the other 15 defendants remained committed to the purpose of the group until your surrender on 3 January 2021.
[55] Fourth, Mr Mansfield submitted in his written submissions and Mr Taylor emphasised this on your behalf today, that this was not conduct you engaged in for a malevolent purpose, but rather because of prison conditions. It is said that this was a protest and that in making the phone calls to the journalists you were seeking to draw attention to prison conditions. This is really a subset of the first argument on your behalf which I have already addressed. It is apparent from your statement to the journalist that you and others were intent on burning down the whole prison. That cannot be justified on any basis.
[56] Finally, there was issue taken with the amount of damage caused. I have already addressed that by referring to the amounts paid out for insurance and the reference to the decommissioned central area of the High Security Facility. As I have already said, regardless of the actual cost, the High Security Facility was almost completely destroyed with the consequential effects I have referred to when discussing the contents of the victim impact statement.
[57] It is also submitted on your behalf, in relation to your culpability but not directly in relation to setting the starting point, that you were involved in releasing other prisoners from the East North Wing onto the roof because their cells were filling with smoke and so your conduct was in order to prevent those other prisoners from
23 That was noted by Lang J in setting the starting point in R v Kameta, above n 11, at [15]: “… he surrendered relatively early in the piece and before most of the major damage to the prison complex was done.”
being asphyxiated by smoke inhalation. I do not accept that. Neither did the jury, having regard to the verdict on the charge of burglary that pertained to breaking into the cells to release prisoners in the East North Wing.24
Discussion
[58] I accept that all the aggravating features of the offending identified by the Crown are present. The scale of the offending of which you were part is unprecedented in New Zealand. Many lives were put at risk.
[59] The starting point I will adopt is influenced by the starting points adopted for your co-offenders who have already been sentenced.
[60] Mr Haere, you were with Mr Taite, Mr Cuff, Mr Tapara-Taipari and Mr Kameta in yard 116 when the events started. I accept that in the initial stage involving the escape from the exercise yard Mr Cuff played a more leading role than you. He was the one, closely followed by [redacted], who made the opening in the wire mesh enabling him and others following him, including you, to escape. But I agree with Campbell J that the starting point for the arson charge for Mr Cuff was lenient.
[61] As far as comparison with Mr Tapara-Taipari, I accept that his involvement with Mr Cuff in using the razor and its subsequent handing over to Corrections officers was a trigger for initial unrest in the yard when you were told that you would all be returned to your cells early. However, tensions were observed to settle down after that when you were all told you could remain in the yard and would not be returned to your cells before the usual time. You were clearly in the thick of things from an early stage having regard to what you said to the writer of the PAC report and to a journalist, and you were involved in the offending right throughout the riot.
[62] Your position is not materially different from that of Mr Taite, Mr Cuff and Mr Tapara-Taipari. I would adopt a starting point for the arson charge of 11 years with an uplift of one year’s imprisonment for the other two charges. That would produce a starting point of 12 years’ imprisonment. However, given the starting points adopted
24 Charge 5 in the Amended Crown Charge Notice dated 26 April 2023.
for Mr Cuff and Mr Tapara-Taipari, I will reduce the global starting point by six months to address disparity and adopt a global starting point of 11 years and six months’ imprisonment. That is slightly more than the starting point for those two defendants but less than the starting point for Mr Taite.
[63]There are no mitigating features of the offending.
Personal aggravating features – previous convictions
[64] The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.25
[65] I accept the submission made on your behalf that the Court should not increase the sentence that would otherwise be imposed merely because of a defendant’s previous convictions. Prior convictions may be taken into account in three ways: as an indicator of character and culpability; as showing the need for a greater deterrent response from the court; and as an indicator of the risk of re-offending.26
[66] Your criminal history records 62 convictions for offences including aggravated wounding, wounding with intent to injure, other assaults (including on prison officers and Police) and escaping custody. With that history, the Crown submits that an uplift of four months’ imprisonment is appropriate.
[67]On your behalf it is submitted the uplift should be two months.
[68] I consider, especially in the light of your convictions for assaulting prison officers and Police and in circumstances where the charges on which you are now being sentenced include assaulting Corrections officers, an uplift should be added for your previous convictions. I consider a five per cent uplift is proportionate with the starting point I have adopted. That is 6.9 months. I will use the percentage figure in my further calculations, as the mitigating factors which I now come to will be calculated on a percentage basis.
25 Sentencing Act 2002, s 9(1)(j).
26 R v Casey [1931] NZLR 594 (CA) at [597]; Kushell v Police [2012] NZHC 2380 at [10].
Personal mitigating factors
[69] Mr Taylor submits the Court should apply the following discounts: 25 per cent for your guilty plea; five per cent for remorse; and 20 per cent for personal circumstances.
[70]I address each of those matters in turn.
Discount for guilty plea
[71] Mr Cuff and Mr Taite received sentence indications on 4 October 2022 and 9 November 2022 respectively and each pleaded guilty shortly thereafter. They both received 25 per cent discounts. You pleaded guilty on 2 February 2023. It is submitted on your behalf that you are entitled to the same 25 per cent discount. The Crown submits that a credit of 10 to 15 per cent would be the maximum available.
[72] On your behalf it is said that having regard to the significant volume of security camera footage and drone footage, a review of that disclosure took considerable time. I accept that submission given my knowledge as the trial Judge of the amount of footage involved. In his written submissions Mr Mansfield says the review could only commence once the Crown served a USB provided to the defendants in custody, containing relevant footage of excerpts of raw footage stitched together along with an index spreadsheet.
[73] It is further said on your behalf that over the period from December 2022 up to when you were able to enter your guilty pleas, counsel experienced ongoing difficulties obtaining access to you. It is said the actual final timing of the guilty plea was out of your control.
[74] Nevertheless, the guilty plea date of 2 February 2023 was very close to the trial commencement date of 13 February 2023. I do not consider you should be treated in the same way, as regards the discount, as those defendants who pleaded guilty much earlier. They, similarly, were required to review file footage.
[75]I consider an appropriate discount for a guilty plea is 15 per cent.
Remorse
[76] It is said on your behalf that you have created a five year plan for yourself. It is submitted that this indicates you have acknowledged your actions and want to make a change to better yourself. It is said that a five year plan shows you are realistic about this.
[77] In the s 27 report, which I come to shortly, it is recorded that you said you had made some choices that you cannot change but you say “I can do better for me”. Additionally, the writer of the PAC report states that you presented as remorseful.
[78] Ms Mann submits that there is nothing over and above what is inherent in a guilty plea that would warrant a separate discount for remorse.
[79] Evidence of remorse can warrant recognition over and above the recognition for a guilty plea. In this case, there is limited material available that would warrant separate recognition. However, this morning you sought to address the Court yourself, but in the end a submission was made through counsel and that is that you say you are remorseful and you did not realise that so many lives would be placed in jeopardy. By a narrow margin I am prepared to accept that a five per cent discount for remorse is appropriate.
Personal circumstances
[80] The Court has received a report prepared under s 27 of the Act by Dr Jarrod Gilbert and three others (together, the writers). The information in the report is based primarily on an interview conducted with you. The report notes that where possible, details of your account were corroborated by speaking to your older sister and a pro- social friend of yours. It is a detailed report. I have read it carefully.
[81] You are a 30-year-old Māori man belonging to the Ngāti Porou iwi. Your father was a Black Power associate but not a patched member. You can recall patched members partying at your home.
[82] You say your family was poor and you often did not have shoes to call your own. You described times when your family could not afford to put food on the table and you were homeless for a period of months when your family was unable to pay rent.
[83] You reported to the writers that you can remember your father beating up your mother and seeing blood from her injuries and hearing arguing. Both your parents openly smoked cannabis and your mother progressed to smoking methamphetamine.
[84] Your parents separated when you were about three or four years old when your father went to prison.
[85] You first started entering Child, Youth and Family (CYF) care once your father went to prison. As I have said you were aged about three or four. You also spent time living with extended family members and you described being beaten by your cousins.
[86]At one home you recall a particular event that occurred with an older boy.
[87] At the age of seven you joined a Crip gang. You stayed with the Crips until you were 18.
[88] On returning from the boys’ home your mother had a new partner, who would beat you for the most mild infractions. This partner also taught you to burgle.
[89] As a teen you started huffing solvents, drinking and using cannabis. By the time you were 18 you tried methamphetamine. You joined the Nomads gang while in prison and stayed with that gang until you were about 26 or 27. Next, you joined the Mongols.
[90] Although you have used drugs heavily in the past, you report you have been clean of methamphetamine for six years. However, you did take prescription pills that were stolen from the medical centre in the prison during the riot.
[91] I accept that at no point in your life did you have a positive role model or a realistic opportunity to do something positive with your life. It was mostly a matter of survival.
[92] On a positive note, you have support from your sister, who is two years older than you and the two of you are close. Your pro-social friend, referred to by the writers, once had a life of crime but has turned his life around and now works as a rehabilitation coach. He is supporting you.
[93] I accept there is a causative contribution27 from the factors that led you to being imprisoned at the time of the offending and becoming involved in the violence that led to the present charges: offending was normalised in your upbringing; your father was incarcerated during your childhood; there was deprivation;28 a lack of stability in your childhood; and you experienced violence as a child. But I see some prospect of rehabilitation as referred to in the s 27 report.
[94] Ms Mann submits that the credit sought on your behalf is too great. At most there should be a modest allowance in the region of five to 10 percent.
[95] I propose to allow a discount of 15 per cent for your personal factors. I have given you a separate discount for remorse.
End sentence
[96] Mr Haere, I have adopted a global starting point of 11 years and six months’ imprisonment. I have made allowances of: 15 per cent for your guilty plea; five per cent for remorse and 15 percent for your personal circumstances. That is a total of 35 per cent. From that I deduct five per cent for your previous convictions. The total discount for your personal factors is therefore 30 per cent. Calculated in months against the starting point of 11 years and six months that is 41.4 months (or three years and six months’ imprisonment – rounded up in your favour). The end sentence is therefore eight years’ imprisonment.
27 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[112].
28 At [115].
Minimum period of imprisonment
[97] In earlier written submissions Ms Mann submitted the Court should impose a minimum term of imprisonment because all of the purposes for which a minimum period may be imposed are engaged in your case. In her oral submissions today Ms Mann acknowledges that no minimum period was imposed in relation to those co- offenders who have already been sentenced.
[98] The Court has the power to impose a minimum term of imprisonment when it imposes a sentence of two years or more on an offender.29 The Court may only do so where the normal parole provisions, which require an offender to serve one-third of the sentence before being eligible to apply for parole, would be insufficient to meet the sentencing principles of denunciation, the need to hold the offender accountable, deterrence and the need to protect the community.30
[99] There was no minimum term imposed by the Court for Mr Taite, Mr Kameta or Mr Tapara-Taipari. There is no real distinction that I can see between you and Mr Taite and Mr Tapara-Taipari on this issue. For parity reasons, I will not impose a minimum term of imprisonment.
Sentence
[100] Mr Haere, would you please stand. On the charge of arson you are sentenced to eight years’ imprisonment. On each of the charges of riotous damage and assault with a weapon you are sentenced to five years’ imprisonment. You will serve all those sentences concurrently.
[101] I discharge you under s 147 of the Criminal Procedure Act 2011 on the remaining charges that you faced arising out of the riot at Waikeria Prison.
Gordon J
29 Sentencing Act, s 86(1).
30 Section 86(2)(a)–(d).
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