R v Hayes

[2015] NZHC 1615

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-13119 [2015] NZHC 1615

THE QUEEN

v

EDWARD HAYES

Hearing:	10 July 2015
Appearances:	M J Hammer for Crown P Le'Au'Anae for Mr Hayes
Sentence:	10 July 2015

SENTENCING REMARKS OF LANG J

R v HAYES [2015] NZHC 1615 [10 July 2015]

[1]      Mr Hayes, you appear for sentence today having pleaded guilty to charges of arson,  riotous  damage,  assault  with  a  weapon,  aggravated  assault  and  common assault.      The   maximum   penalties   for   those   charges   range   from   14   years imprisonment in the case of the charge of arson down to 12 months imprisonment on the charge of common assault.   Both your counsel and the Crown accept that the most serious charge is that of arson.

Background

[2]      All of the charges were laid as a result of a riot that occurred at the Spring Hill Correctional Facility on Queen’s Birthday weekend in 2013.   On that date a number of prisoners were in the exercise area during the morning.   The prison officers who were on duty noticed that several of the prisoners exhibited signs of intoxication.   Scuffles and fights then broke out among the prisoners.  When staff intervened, matters escalated quickly.  Staff eventually were forced to retreat into a staff base area, where prisoners used various objects to try to get at them.  Some of the officers were initially trapped in the exercise yard area, and it was necessary for them to find their way to safety.  At some point prisoners began burning objects. They also began smashing items of equipment and furniture.  You were one of the prisoners who took part in these activities.

[3]      In all, some 23 prisoners were arrested as a result of this incident.  All bar two or three have now been sentenced.  As a result, I have the advantage of having read the sentencing notes in most of the cases, so I have a good idea of the range of sentences that have been imposed to date.   Obviously I need to sentence you in a manner that is broadly consistent with the sentences imposed in other cases.

[4]      Your offending took several forms, and this is reflected in the charges to which you have pleaded guilty.  I will now summarise the activities that you engaged in during the riot.  These were disclosed on CCTV film footage that prison officers subsequently viewed in order to ascertain who was responsible for participating in the riot.  You and your counsel have had the opportunity to view that footage, and you accept that it accurately reflects your activities on the day in question.

[5]      You were seen kicking and punching the staff base doors and windows.  You also threw several tables against the staff base windows, thereby causing the tables to be damaged.  You were one of a number of inmates who broke into an interview room and removed property. You then destroyed that property by smashing it against the windows and walls.  You also assisted others to uplift items from the kitchen and dining areas.  You threw these against the staff base doors and windows.  The items were  damaged  in  that  process  and  were  later  burnt.    These  included  toasters, sandwich presses, tables and chairs. You also used various objects, including a piece of timber, a metal table leg and a table frame to smash the windows of the staff base and dining room.   Along with others and armed with weapons, you entered the dining room and used the weapons to smash various fixtures in that room.

[6]      The arson charge was laid as a result of the fact that you were seen to place two items on a fire that had already been started on or around a desk by other prisoners.  The Crown accepts that you were not the person who originally started the fire.  Nevertheless, the fire was particularly serious because it posed a risk not only to the people in the immediate vicinity,  but also to other prisoners in the complex who were locked in their cells and extremely anxious about what was going on.

[7]      The end result is that more than $5 million worth of damage was done to the area in which the riot took place.  Obviously you were not responsible for all of that, but nevertheless the sentences the Court has imposed in other cases, and must now impose on you, needs to reflect the damage that was done.

[8]      The assault charges were laid as a result of incidents that occurred when a control and restraint team entered the pod in order to remove the rioting prisoners. This was necessary to enable the Fire Service to attend and put out the fires.  As one of the members of the restraint team entered the pod, he fell to the ground.  Whilst he was on hands and knees and trying to stand up, you and another prisoner began hitting him.  You hit him on the right side with a plank of wood.  This has given rise to the charge of assault with a weapon.

[9]      The aggravated assault charge was laid after you used a canister of agent similar to pepper spray against a corrections officer.  The officer was not wearing any breathing apparatus, and was overcome with a burning sensation to his forearms and face.   The spray also entered his lungs and impaired his ability to breathe. Whilst you were doing this, you were yelling out that you were going to kill the officer.   You were also taunting him saying words to the effect “Who’s the boss now?”

[10]     The  charge  of  common  assault  was  laid  as  a  result  of  an  incident  that occurred at the beginning of the riot.  At one stage three corrections officers were able to make their way to the stairs of the staff base.  You then punched one of these officers in the back of the head.  When he turned around, you punched him again on the side of the head.

[11]     Obviously the sentence that the Court imposes needs to take into account that this offending involved significant physical damage.   It also involved reasonably serious violence to several officers.   It also occurred in a prison context, which is another aggravating factor.

Starting point

[12]     The important feature about this sentencing exercise is the need to reach an end sentence that reflects the overall culpability of your offending.  Counsel are not far apart regarding the starting point to be adopted in relation to the arson charge. The Crown accepts that your offending was not as serious as that of the persons who started the fire.  Those persons have received starting points of around six and a half

years’ imprisonment.1   Your lesser involvement means that your culpability is to be

assessed at a lower level.  The Crown submits that the appropriate range is five to five and a half years imprisonment, whereas your counsel submits that four to four and a half years is appropriate.

[13]     I accept that your involvement was much less than that of other prisoners. For that reason, I take a starting point of four and a half years imprisonment.

1      R v Waru DC Manukau CRI-2013-004-013119, 21 March 2014; R v Vakapuna DC Auckland

CRI-2014-004-007234, 29 August 2014.

[14]     I now need to determine the extent to which that starting point should be increased to reflect the charge of riotous damage and the three charges relating to the assaults on the prison officers.

[15]     The Crown points out that in other cases the Court has applied an uplift of

12 months imprisonment to reflect charges of riotous damage where they have been laid in addition to charges of arson.2    I accept that would ordinarily be appropriate, but I need to bear in mind principles of totality.  For that reason, I am going to apply an uplift of nine months imprisonment on the charge of riotous damage.

[16]     Each of the assault charges was serious, because the prison officers you assaulted were in a vulnerable position.   Ordinarily, I would accept the Crown’s submission that an uplift of around 12 months is required to reflect those charges. Having regard to totality principles, however, I propose to add an uplift of nine months.   This means that I am left with an end starting point of six years imprisonment before taking into account aggravating and mitigating factors that are personal to you.

Aggravating factors

[17]     You have a large number of previous convictions.   Although you have no previous convictions for arson, nevertheless you have a significant body of convictions for violent offending.  The most serious of these were charges of injuring with intent to injure and injuring with intent to cause grievous bodily harm.  You have three convictions for such offending between March 2008 and January 2011.  It appears that in each case you have reoffended again very shortly after being released from prison.  You were serving a sentence of two years three months imprisonment at the time of the present offending. Your counsel tells me that this rash of offending has meant that you have spent the bulk of the last eight years in prison.

[18]     I am sure you realise, Mr Hayes that, continuation of this type of behaviour will mean that you remain in prison indefinitely.  That is the last thing I am sure you

2      R v Hohaia [2015] NZHC 82.

want given the fact that you now have the support of a partner and your mother has stood by you through all of this.

[19]     I could easily apply an uplift of six to nine months to reflect your previous offending, but I am going to take a lenient approach and apply an uplift of just three months to reflect this factor.

Mitigating factors

[20]     I now need to consider factors that operate to reduce your sentence.  These are factors personal to you.

[21]     Your  counsel  urges  me  to  take  into  account  the  remorse  that  you  have expressed in the letters to me and through his remarks on sentencing.  He has also provided me with various certificates that you have obtained during your prison sentence as a result of courses you have undertaken.  I am going to apply a reduction of six months to reflect these factors.   That really is an encouragement to you to continue in your professed desire to change your ways.   As I am sure you know, continued offending like this is unlikely to attract similar discounts in the future.

[22]     This brings me to a sentence of five years nine months imprisonment before taking into account your guilty pleas.  These were obviously not entered until a very late stage in the proceedings.  Your counsel submits, however, that until he and you viewed film footage shortly before the trial you were unaware that the Crown could prove both that you were guilty of arson and of causing riotous damage.

[23]     The Crown  accepts  that  a discount  of 20  per  cent  is  appropriate.   Your counsel seeks a larger discount than that to reflect the fact that some disclosure may have been late.  In other cases arising out of this incident, I am aware that the Crown has agreed to a further discount of five per cent over and above the 20 per cent to reflect the fact that the State was not put to a lengthy and expensive trial.  I propose to take those factors into account in fixing a discount of one year two months to reflect that fact.  That is not far off 25 per cent.  This means that the effective end sentence is one of four years seven months imprisonment.

Sentence

[24]     Mr Hayes, on the arson charge you are sentenced to four years seven months imprisonment.  On the charge of riotous damage, you are sentenced to nine months imprisonment.  On the charge of assault with a weapon, you are sentenced to nine months imprisonment.   On the charge of aggravated assault, you are sentenced to nine months imprisonment.  On the charge of common assault, you are sentenced to three months imprisonment.  All of those sentences are to be served concurrently, which  means  you  will  serve  an  effective  sentence  of  four  years  seven  months

imprisonment.

Lang J

Solicitors:

Crown Solicitor, Auckland
Counsel:

P Le’Au’Anae, Auckland