R v Hohaia
[2015] NZHC 83
•5 February 2015
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2013-004-13119
[2015] NZHC 83
THE QUEEN v
WIREMU HOHAIA
Hearing: 5 February 2015 Appearances:
M J Hammer for Crown S Moala for Defendant
Sentence:
5 February 2015
SENTENCING REMARKS OF LANG J
R v WIREMU HOHAIA [2015] NZHC 83 [5 February 2015]
[1] Mr Hohaia, you appear for sentence today having pleaded guilty to charges of arson and causing riotous damage. The maximum penalty on the charge of arson is seven years imprisonment, whilst the maximum penalty on the charge of causing riotous damage is also seven years imprisonment.
[2] You pleaded guilty at the end of a sentence indication hearing in which I examined the facts underlying your offending and identified a starting point of six years imprisonment.1 I do not propose to repeat the comments that I made at that time. The remarks that I made during the sentence indication hearing have been transcribed and will form an addendum to the present sentencing remarks.
[3] There is nothing in the material I have seen since the sentence indication to indicate that I should revisit my initial impression that a starting point of six years imprisonment was appropriate on the arson charge, and your counsel has not sought to persuade me otherwise. I added an uplift of 12 months to reflect the charge of causing riotous damage. I did that following the approach taken in other cases. Again, there is nothing that has come to light since the sentence indication hearing to suggest that this approach was wrong. I therefore maintain that starting point of seven years imprisonment.
[4] I then reduced that sentence by nine months to reflect the fact that you had assisted a prison officer to safety during the course of the riot at the prison. I have now read the pre-sentence report and this amplifies the role that you took in guiding the officer to safety. It reinforces my view that concrete recognition should be given to that aspect of your conduct. I am therefore left with an end starting point of six years three months imprisonment.
[5] At the end of the sentence indication hearing, I identified two factors to mitigate sentence. These were your guilty plea should you enter one, together with the consequential saving of time and money for the State in not having to prosecute you at a trial. Those operated to reduce your sentence by a total of 25 per cent, and produced a discount of one year seven months imprisonment. Neither counsel seeks to persuade me that those discounts should be altered.
1 R v Hohaia [2014] NZHC 3096.
[6] Having read the pre-sentence report and a letter from your mother, I am prepared to make a further small adjustment to reflect the fact that, through your counsel, you have apologised today and your mother has explained some of the difficulties in your upbringing.
[7] In addition, the pre-sentence report points out that you have never yet had the opportunity to undertake counselling to address some of the issues that you obviously face. You have indicated to the probation officer that you wish to undertake counselling, and you are concerned that you may not be able to do so given the sentence I am about to impose. I would hope that the prison authorities take note of my suggestion that it would be in the interests of both yourself and society if you were able to attend such courses whilst serving the present sentence. If you do not, then you run the risk of returning to prison again in the future.
[8] In order to mark the remorse you have expressed, the difficulties you clearly have faced in your upbringing and your expressed willingness to attend these courses, I propose to reduce your sentence by a further two months. This means that I am left with an end sentence of four years six months imprisonment.
[9] You have now completed the sentence that you were serving at the time that the events giving rise to these charges occurred. This means that I do not need to consider whether or not to impose a cumulative sentence. Totality issues, therefore, do not arise. Your eligibility for parole will take into account the time that you have spent in remand on these charges after you completed your earlier sentence.
Sentence
[10] On the charge of arson, you are sentenced to four years six months imprisonment. On the charge of causing riotous damage, you are sentenced to 12 months imprisonment. Those sentences are to be served concurrently, which means you will serve an effective sentence of four years six months imprisonment.
[11]Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland Counsel:
S Moala, Auckland
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.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-004-13119 [2014] NZHC 3096
THE QUEEN
V
WIREMU HOHAIA
Hearing: 4 December 2014 Appearances: D Johnstone for Crown
S Moala for Defendant
Judgment: 4 December 2014
SENTENCE INDICATION OF LANG J
R v HOHAIA [2014] NZHC 3096 [4 December 2014]
[1] Mr Hohaia faces two charges. One is a charge of arson and the other is a charge of riotous damage. He now seeks a sentence indication in respect of both charges. This means that sub-part 4 of Part 3 of the Criminal Procedure Act 2011 is engaged. If Mr Hohaia accepts the sentence indication, the Court will be bound to impose that sentence on him unless some material fact arises that alters the Court’s view. In that event the Court will be required to provide Mr Hohaia with an opportunity to vacate his plea. In addition, nothing about this sentence indication or the sentence indication itself may be published.
[2] I record that, for today’s purposes, I have received an agreed summary of facts. I have also received full sentencing submissions from both the Crown and counsel for Mr Hohaia.
The facts
[3] The charges arise out of a riot that occurred at the Spring Hill Corrections Facility on the weekend of 1 June 2013. This caused significant damage to the facility and has required more than $5 million to repair.
[4] 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. Mr Hohaia was being held in one of the pods at the time.
[5] 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. It turns out that Mr Hohaia was one of those persons. In a short period of time, the intoxicated prisoners began to argue between themselves and several fights broke out. Corrections Officers were called, and some of them were assaulted and driven away from the exercise area. From that point on riotous damage occurred over a period lasting several hours. This involved the breaking of windows, furniture and material taken from locked store rooms.
[6] It is clear that Mr Hohaia was a significant offender. The summary of facts records that the disturbance led to a very difficult situation for some Corrections Officers. They were effectively imprisoned in certain areas of the unit. During this period, they were subject to threats and abuse from prisoners who threatened to enter and physically assault them. During this period, Mr Hohaia was instrumental in obtaining the release of one Corrections Officer who was thereby able to retreat to safety.
[7] Matters reached their height when several inmates obtained a volleyball pole from a storage room and used this as a battering ram against the reinforced glass door of the staff base. The assault on the door was a coordinated effort by several inmates including Mr Hohaia. The assault required other Corrections Officers to take extreme measures in order to diffuse the attack. It could easily have escalated into a very serious incident involving serious injury to one or more Corrections Officers. Eventually, the Corrections Officers were forced to retreat from this area and, within moments, inmates gained access to the staff base and took control of it.
[8] At or about this point, several fires were lit in the two pods. Inmates used a variety of items to fuel the fires. These include toilet paper, clothing, bedding, mattresses and broken tables. Mr Hohaia was seen to assist in this undertaking. He loaded toilet rolls onto the fire and also added other forms of fuel to it.
Starting point
[9] There is little difference between counsel for the Crown and Mr Hohaia’s counsel regarding the starting point to be adopted. A number of offenders who were involved in the riot have already come before the courts for sentence. These have been divided into two broad groups. The first comprises the ringleaders who were responsible for lighting fires that caused much of the damage to the property. The Judges who have sentenced these offenders adopted a starting point of around six and a half years imprisonment. An uplift has then been added to reflect the charge of riotous damage.
[10] The second group of offenders are those who have not been charged with arson, but only with riotous damage. Broadly speaking, they have been sentenced on the basis that a starting point of around three to three and a half years imprisonment is appropriate.
[11] Mr Hohaia clearly falls within the first group because of the fact that he was instrumental in lighting and fueling fires. For that reason a starting point of around six years imprisonment is appropriate.
[12] Counsel point out that two other offenders, Mr Vakapuna and Mr Waru, faced similar charges.2 In each case the sentencing Judge took a starting point of six years six months imprisonment and then added an uplift for the charge of riotous damage. Counsel for the Crown submits that Mr Hohaia’s offending warrants a starting point of around six years to six years six months imprisonment. Mr Hohaia’s counsel submits that a starting point of five years six months to five years nine months would be appropriate.
[13] I consider that the starting point should be less than that adopted in the cases of Mr Vakapuna and Mr Waru. I consider, however, that the Crown correctly identifies the starting point as being one of six years imprisonment, and I propose to adopt that starting point in Mr Hohaia’s case.
[14] It is then necessary to add an uplift to reflect the charge of riotous damage, other than the destruction of property through fire. I consider, broadly in line with the approach advocated by both counsel, that an uplift of 12 months is appropriate to reflect this factor. This means that an end starting point of seven years imprisonment is indicated.
[15] There is, however, a mitigating factor relating to Mr Hohaia’s offending that needs to be taken into account. This relates to the fact that he enabled the staff member to gain a passage to safety through rioting prisoners. Mr Waru, another prisoner who undertook that kind of action, received a discount of nine months to reflect that fact. I
1 R v Vakapuna DC Auckland CRI-2014-004-007234, 29 August 2014; R v Waru DC Manukau CRI- 2013-004-013119, 21 March 2014.
would apply the same discount in the present case, leaving a starting point of six years three months imprisonment.
Mitigating factors
[16] This leads me to consider mitigating factors personal to Mr Hohaia. At this stage, the Crown has identified two factors that mitigate the sentence to be imposed on him. These are the value of any guilty plea, together with the consequential saving of the time and money for the State in not having to prosecute him at trial.
[17] The Crown has adopted a consistent approach in relation to all offenders who have been charged as a result of this riot. The Crown has accepted that a discount of five per cent is appropriate to reflect the latter, whilst a discount of 20 per cent is appropriate to reflect guilty pleas. This means that the end starting point is to be reduced by a total of 25 per cent to reflect these matters. This produces a discount of one year seven months imprisonment, and results in an end sentence of four years eight months imprisonment.
[18] There may be an additional discount available to Mr Hohaia on sentencing to reflect other factors personal to him, including those relevant to his background and personal circumstances. Those factors could only be taken into account once a pre- sentence report is available. I am not prepared at this stage to speculate as to the extent to which any further discount may be given.
Result
[19] Mr Hohaia has now accepted the sentence indication and has entered guilty pleas to both charges. He has been convicted and remanded in custody for sentence on Thursday 5 February 2015 at 2.15 pm.
Lang J
Solicitors:
Crown Solicitor, Auckland
0
0
0