R v Huritu
[2023] NZHC 1960
•26 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 [36] AND
FOOTNOTE 8. 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-2021-072-000048
[2023] NZHC 1960
THE KING v
LEON HURITU
Hearing: 26 July 2023 Appearances:
R Mann for the Crown W Nabney for Mr Huritu
Sentencing:
26 July 2023
SENTENCING NOTES OF GORDON J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
W Nabney, Barrister, Tauranga
R v HURITU [2023] NZHC 1960 [26 July 2023]
[1] Mr Huritu, you were one of 11 defendants who went to trial on charges arising out of the rioting at Waikeria Prison over the New Year 2020/2021 period. Six of your co-defendants pleaded guilty to amalgamated charges prior to the trial.
[2] Four weeks into the trial you and six other defendants pleaded guilty to three representative charges: arson (with a danger to life),1 riotous damage,2 and assault with a weapon.3 The three charges are an amalgamation of charges in the Crown Charge Notice dated 28 June 2022. At the time you pleaded guilty you accepted the contents of a summary of facts dated 13 March 2023.
Factual background
[3] You were in custody on remand in the High Security Facility at Waikeria Prison at the time of the riot.
[4] On the morning of 29 December 2020 an incident occurred in one of the exercise yards, yard 116, when a prisoner refused to return a disposable razor (or razors) to a Corrections officer. Several other prisoners offered that prisoner their support. You were not one of those prisoners. You were not, in fact, in yard 116 at the time. When a Corrections officer told those in the yard they would all be returned to their cells early if the razors were not surrendered, a number of prisoners in the yard told the Corrections officer they were not going anywhere and were ready for a fight. Eventually one razor was handed in, the situation was defused and tensions eased. The prisoners in yard 116 were then permitted to remain in the yard for the usual period.
[5] By around 1.00 pm a significantly more hostile atmosphere had developed in yard 116. Nine of the prisoners (the group) set in train the events that led to the riot. They damaged property in the yard. They lit fires on top of the wooden seats and structures inside the yard. Efforts made by Corrections officers and firefighters to extinguish the fires were thwarted by members of the group of nine shielding the fires with their bodies and various items. They also covered security cameras with toilet paper and threatened Corrections officers with assault if they attempted to enter 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. Cups filled with urine were thrown at Corrections officers who approached the grille door.
[6] The group of nine then escaped the yard. They did so through a hole in the mesh roofing that had been created by two of the group. Members of the group then smashed windows on the overbridge and set it, and a small guardroom, on fire. The group then attempted to persuade the remaining 12 prisoners in the yard to join them but this was unsuccessful.
[7] The nine prisoners then used a large metal battering ram to smash through cell windows and thereby liberate prisoners housed in the upper level of the East North Wing. The windows of the cells of 12 inmates were smashed in this way. Eight of the inmates in those cells chose to join the group on the roof. You were one of the eight.
[8] The group of prisoners, now numbering 17, spread out and began making their way across rooftops that linked many buildings together, smashing property, breaking off padlocks to allow access to other areas of the roof, throwing objects towards the officers on the ground, with some lighting a number of fires in various places as they did so. I make it clear at this stage that in terms of the charge of arson to which you pleaded guilty, the date for that charge is limited to the last full day of the riot, 2 January 2021.
[9] As the situation escalated, specialist trained Corrections officers (referred to as the Advance, Control and Restraint (ACR) Team) were required to enter the East and West Wings for the purpose of freeing hundreds of prisoners locked inside their cells and other secure areas. By this time the areas were filled with smoke meaning prisoners were not visible to the officers in their cells. Many of the inmates were unresponsive, requiring officers to drag, and in some cases carry, them to get out to safety.
[10] While ACR officers, together with further Corrections officers, were attempting to rescue inmates from inside the prison, they periodically came under attack from the prisoners on the roof, who used metal bars and pieces of wood to smash
skylights, causing glass to fall upon the ACR officers and the prisoners they were in the process of evacuating.
[11] As part of this phase the receiving office was set on fire with significant numbers of Corrections officers and prisoners inside, who were showered with bits of wood and glass from the roof. The nearby paint shop was also set alight.
[12] From the early hours of 30 December 2020 and for much of the two days that followed, the group of prisoners on the roof were observed to conduct rooftop patrols, during the course of which they would occasionally throw objects at Corrections officers below. These included rocks, glass louvers and shards, fire extinguishers, bottles, metal bars and pieces of furniture.
[13] During the period on the roof the prisoners used a battering ram to break down walls to obtain access to secure areas. The armoury was one of those areas accessed and the prisoners were able to seize protective body armour, shields and other equipment. The prisoners were observed to communicate using radios they had retrieved along with binoculars used as they carried out their patrols.
[14] As the days continued, the prisoners began to fortify an area behind the prison chapel on the roof of the Master Control building. Furniture was stacked in the stairwell leading up to the chapel as a barricade to prevent entry to the chapel roof. The chapel was a location the prisoners had taken as their sleeping quarters and was effectively a base from which they made patrols on to the roof.
[15] On the evening of 1 January 2021 all but one of the prisoners on the roof, armed with various makeshift weapons, made their way off the roof and charged at Police and Corrections staff on the ground. It is not suggested on your behalf that you did not come off the roof. It was only as a consequence of members of the Police Armed Offenders Squad (AOS) deploying a taser and rubber bullets that the prisoners retreated back up on to the roof. Further fires were then lit.
[16] I come now to the date of 2 January 2021, which is particularly relevant in relation to the arson charge to which you pleaded guilty.
[17] On the evening of 2 January 2021, two teams of Corrections officers and the Police AOS entered the prison with the intention of going up the stairwell to access the chapel and the roof. As they were attempting to do so, the barricade of furniture was lit from above by prisoners and the two teams were forced to withdraw. 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 in the High Security Facility.
[18] Within a short time of the officers getting out of the building, flames were observed to be coming out of the windows and the building was fully alight. Upon the evacuation of the officers, prisoners on the roof pelted them with debris from piles collected earlier by them, including stones, plates and chunks of concrete, some of which struck the officers.
[19] 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 retreating officers. Members of the group were observed to be wearing riot helmets, stab-resistant vests and other items of Corrections’ uniform.
[20] These fires continued burning until the following morning and caused the complete destruction of the High Security Facility.
[21] On the morning of 3 January 2021 the group of prisoners advised they were ready to surrender.
[22] As a result of the offending several Corrections and Police staff sustained injuries and continue to be on stress leave. Currently, the Department of Corrections estimates the financial cost of the damage to be in the vicinity of $50 million.
[23] I proceed with your sentencing on the charges of arson and assault with a weapon on the basis that you were part of a common plan or shared understanding with all the other defendants to intentionally damage prison property and/or engage in acts of violence towards Corrections officers. That makes you liable for the criminal conduct of your co-defendants. On the charge of riotous damage you are liable as a
principal offender. That is that you committed damage yourself. That was the Crown’s case at trial on that charge.
Approach to sentencing
[24] Sentencing is a two-stage process.4 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, the information in the Provision of Advice to the Courts (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 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 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. However, having said that I accept that the arson charge to which you pleaded guilty, was restricted to 2 January 2021.
[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
4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
incident. Some staff lost personal property that was on the site. 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 charge of arson (with a danger to life) is the lead, or the most serious offence. I will set a starting point for the arson charge and then apply an uplift for the other 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 had the benefit of sentences passed on some of your co-offenders. I will have regard to those sentences to ensure parity as between co-offenders when setting the starting point.
Crown submissions
[31] Ms Mann, for the Crown, submits the appropriate global starting point for all charges is 10 years’ imprisonment having regard to the following considerations.
[32] First, 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 damage estimated to exceed
$50 million.
(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: within the course of an afternoon the offending quickly escalated to prolonged and violent offending against the prison officers.
(e)Risk of injury: the fires that were lit posed a serious risk of injury both to prison staff and prisoners, particularly those still locked in their cells. (That of course relates to fires lit prior to the date of the charge to which you pleaded guilty.) The risk to Police and Corrections officers during the course of the chapel fire on 2 January 2021 was extreme and each of the offenders involved knew and understood the potential for real danger given the earlier stacking of flammable material on the stairs and the deliberate lighting of fires in that location.
(f)Impact on victims: a substantial number of victims were impacted by the offending.
[33] In terms of parity considerations Ms Mann refers to your co-offenders who have been sentenced by other Judges. Ms Mann notes that as a result of resolution being achieved pre-trial, those defendants who pleaded guilty entered guilty pleas to three representative charges: riotous damage; arson (with a danger to life); and assault with a weapon. Ms Mann acknowledges that the charge of arson with a danger to life for which those other defendants were sentenced, covered the period from
29 December 2020 to 2 January 2021, as opposed to the charge to which you pleaded guilty which was in respect of arson just on 2 January 2021.
[34]I briefly summarise the sentences for your co-offenders.5
[35] Following a guilty plea, Parata Taite was sentenced by Campbell J on 28 April 2023 on three representative charges: riotous damage; arson (with a danger to life); and assault with a weapon.6 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,7 Campbell J reduced the global starting point by six months to temper disparity, resulting in 12 years’ imprisonment.
[36] Matangirau Cuff entered a guilty plea after accepting a sentence indication provided by Woolford J on the same representative charges.8 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.
[37] Manutaki Kameta was sentenced by Lang J on 28 April 2023 on the same representative charges,9 having accepted an earlier sentence indication.10 Justice Lang adopted a starting point of eight years and four months’ imprisonment on all charges. The lower starting point was explained by the Judge on the basis that Mr Kameta was
5 I did not read out paragraphs [35] to [44] in the course of giving my sentencing decision but indicated to counsel I would include a summary of the sentencing decisions for co-offenders and a reference to other cases referred to by the Crown in my written decision.
6 R v Taite [2023] NZHC 975.
7 R v Taite [2022] NZHC 2935 at [21].
8 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)).
9 R v Kameta [2023] NZHC 965.
10 R v Kameta [2022] NZHC 3629.
not a ringleader and because Mr Kameta surrendered on 30 December 2021 before most of the major damage occurred to the prison complex.11
[38] 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 principle, Downs J imposed a sentence of six years’ imprisonment cumulative on the 24 year sentence Mr Naua-Tuilotolava was serving.
[39] 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
[40] Yesterday, when sentencing another co-offender who pleaded guilty prior to trial, Grayson Haere, I adopted a global starting point of 11 years and six months.16 Mr Haere was present in yard 116. I found him to be a principal offender and instigator of the offending.
[41] I also passed sentence on another co-offender, Siaumau Lote-Telea, yesterday. Mr Lote-Telea defended the charges through to verdict and was found guilty of 15 out of 21 charges by the jury. He was also present in yard 116. By the jury’s verdict it was apparent they did not consider he was an instigator of the offending. However, he was found guilty by the jury of charges of burglary and rioting, which were not charges to which you (and Mr Haere) pleaded guilty. I therefore adopted a slightly
11 At [15].
12 R v Naua-Tuilotolava [2023] NZHC 1105.
13 At [4].
14 R v Tapara-Taipari [2022] NZHC 3219.
15 R v Tapara-Taipari [2023] NZHC 1812.
16 R v Haere [2023] NZHC 1957.
higher global starting point of 11 years and nine months for Mr Lote-Telea than for Mr Haere.17
[42] 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.18 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 the discipline needed to effectively manage a penal institution.19 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:20
… 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. …
[43] There is also the case of Ratu v R21 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 riots at Spring Hill Corrections Facility. The Court of Appeal described those riots as “the worst in New Zealand’s history” as matters then stood.22 The rioting began when two prison officers were assaulted. The assaults developed into a riot lasting over six hours. The 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.
[44] The two appellants were not involved in the initial assaults on prison officers but were actively involved in a number of events during the riot. The starting point of
17 R v Lote-Telea [2023] NZHC 1959.
18 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.
19 Tryselaar v R [2012] NZCA 353 at [18] and Kepu v R [2011] NZCA 104 at [19].
20 Mouat v Police, above n 18, at [8].
21 Ratu v R [2016] NZCA 97.
22 At [24].
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.
Defendant’s submissions
[45] Mr Nabney submits the most helpful of the cases referred to by the Crown is Ratu v R. He acknowledges that in Ratu the riot lasted a considerably shorter period of time, being something over six hours, but where an entire unit had to be demolished and 89 prisoners relocated to other facilities. Mr Nabney says that is somewhat similar to the present situation.
[46] Mr Nabney accepts there should be a higher global starting point than the seven years adopted in that case to reflect more significant damage. But Mr Nabney submits that account needs to be taken of the fact that you were not one of the initial ringleaders and the arson charge does not cover the entire period of offending. In all those circumstances Mr Nabney submits a global starting point in the region of eight years’ imprisonment would be more appropriate than the 10 years submitted by the Crown.
Discussion
[47] The writer of the PAC report says that you told him there was a lot of smoke and you could not breathe so you broke out of the windows and climbed on to the roof. That is at odds with the summary of facts which you accepted when you pleaded guilty. I therefore do not accept your version. You are also reported as stating that although you pleaded guilty to the three charges, this was just you following the crowd. If that statement is intended to refer to the fact that you were not one of the instigators in yard 116, I accept that. However, once released from your cell you participated fully. I note that you were a founding member of the Mongols gang. The eight prisoners released from their cells by other prisoners were members of that gang. You would have had some standing in terms of your participation. In other words, once you were released, I do not accept that you were just a follower.
[48] You further told the writer of the PAC report that you did not do everything that the summary of facts said, giving, as an example, that you were not a party to a break-in of the prison armoury. However, as you are aware from having been present
during the first four weeks of the trial until you pleaded guilty, the Crown case against you and others was that you were part of a shared understanding or agreement, or common plan, to intentionally damage prison property and/or to engage in acts of violence towards Corrections officers and that the offences committed were a known probable consequence of the common plan. It is therefore irrelevant if you did not break into the armoury yourself.
[49] I accept that all the aggravating features 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.
[50] Ms Mann was correct to acknowledge the distinction between the arson charge that you pleaded guilty to and the arson charge for other defendants who pleaded guilty prior to the trial commencing.
[51] I consider the global starting point of eight years suggested by Mr Nabney is too low. The scale of the offending in this case is far greater than in Ratu.
[52] The best comparator for parity purposes is Mr Naua-Tuilotolava. Like you, he was not present at the outset in yard 116 and was released from his cell, as you were, by the prisoners who had escaped from yard 116.
[53] The distinction between you and Mr Naua-Tuilotolava, who pleaded guilty on the first morning of the trial before the jury was empanelled, is that his arson charge covered the period from 29 December 2020 to 2 January 2021; whereas (as I have already said) the arson charge in your case was just for 2 January 2021.
[54] Having accepted that there is that distinction, I nevertheless note that the fires on 2 January 2021 caused significant damage to the High Security Facility. It was completely destroyed.
[55] I adopt a starting point for the arson charge of nine years’ imprisonment. I uplift that starting point by six months for the other two charges. That results in a global starting point for the three charges of nine years and six months’ imprisonment
(one year less than the starting point the Judge would have adopted for Mr Naua- Tuilotolava had there not been totality issues which required a lesser starting point).
[56]There are no mitigating features of the offending.
Personal aggravating features – previous convictions
[57] The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.23 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.24
[58] Your criminal history in New Zealand records some historic dishonesty offences going back to 2002 and more recent methamphetamine and firearms-related offending from 2019 to 2021. In the intervening period in Australia from 2003 to 2015, you were convicted of around 79 offences including drug, dishonesty and violence offences. For some of those you were sentenced to terms of imprisonment.
[59] Ms Mann submits that having regard to your criminal history and the fact that you were remanded in custody at the time of the offending, an uplift of four months’ imprisonment is appropriate.
[60] Mr Nabney notes that you have a conviction in 2013 for having destroyed or damaged Corrective Services’ facility or property. That resulted in a $600 fine. Mr Nabney suggests that would seem to indicate that the offending must have been of a minor nature. Having made that point, Mr Nabney submits that if there is to be an uplift then it should not be any more than the four months sought by the Crown.
[61] In your case I consider your prior convictions, especially those relating to drug offending, are an indicator of the risk of reoffending and overall an indication of character and culpability. I also take into account your two convictions in Australia for assaulting or obstructing a Police officer. A three per cent uplift is proportionate
23 Sentencing Act 2002, s 9(1)(j).
24 R v Casey [1931] NZLR 594 (CA) at [597]; Kushell v Police [2012] NZHC 2380 at [10].
with the starting point I have adopted. That is 3.4 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.
Personal mitigating factors
[62] In his written submissions Mr Nabney submitted the Court should apply the following discounts: five per cent for your guilty plea and 15 to 20 per cent for your personal circumstances. However, in his oral submissions Mr Nabney says that a total of 20 per cent for both your guilty plea and personal circumstances is the appropriate discount.
[63]I address each of the two matters in turn.
Guilty plea
[64] Mr Nabney submits that although your guilty plea occurred during the trial, the fact of the guilty plea being an acceptance of your responsibility warrants a five per cent discount.
[65] Ms Mann accepts that the Court might consider a discount for your guilty plea but at a level of no more than five per cent.
[66] You pleaded guilty (along with six other co-defendants from the Mongols gang) on 13 March 2023. That was after four weeks of trial (the trial had commenced on 13 February 2023). After your guilty plea the trial continued with four co- defendants.
[67] I am prepared to give you a five per cent discount for your guilty plea for two reasons. First, although the guilty plea was entered after the trial commenced, it was nevertheless an acknowledgement of your guilt.25 Second, your guilty plea resulted in a saving of the cost of the trial to the State, albeit a relatively small reduction in
25 In Botha v R [2015] NZCA 196 a discount of six months was given for a guilty plea mid-trial after the complainant had been cross-examined. The basis for the discount was “extraordinary remorse”. The discount was not challenged on appeal. Compare R v Haine [2013] NZHC 66, where a discount was refused for a guilty plea mid-trial.
cost.26 The trial continued after your plea for a further period of almost eight weeks. Guilty verdicts were delivered by the jury on 4 May 2023. Your guilty plea did not result in a reduction in the evidence called by the Crown as much of the evidence applied to all defendants. However, I accept that cross-examination, possible applications at the end of the Crown case, and counsel’s addresses would have extended the trial had you not pleaded guilty.
Personal circumstances
[68] Mr Huritu, the Court has received a report prepared by Ms Shelley Turner under s 27 of the Act. In order to prepare her report Ms Turner interviewed both you and your mother. These sentencing remarks can only briefly capture the essence of what is a very detailed report. I have read it carefully.
[69] You are 40 years old, Māori, with whakapapa connections to Te Whānau ā Apanui on the East Coast of the North Island. Despite you having spent time on the marae in childhood, Ms Turner says you have a very limited sense of your own cultural identity. The primary influences during your formative years were violence, trauma and the culture of gang life.
[70] Your childhood was defined by dysfunction and violence which was meted out to you by all your caregivers including both of your parents and your grandfather. You spent your earliest years living between your grandparents in Whakatāne and then with your mother in Kawerau before moving to live with your father at the age of 10. Each of those households was a place of violence and substance abuse.
[71] Your education was limited and by the age of 12 you were sent to boys’ homes for your offending. In your early teens you ceased attending school altogether to assist your father with his cannabis-growing operation.
[72] Both your parents had longstanding affiliations to gangs. Accordingly, you grew up deeply immersed in the culture of gangs in the Eastern Bay of Plenty. Your father was a member of the Mongrel Mob and East Coast Riders. Your mother had
26 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].
partners who were members of Black Power. From the age of 11 you became involved with the Crips. Gangs have been a central feature of your life since before you were a teenager and have been at the root of the majority of your offending. More recently you were a founding member of the Mongols motorcycle club when you were deported from Australia as a 501 deportee in 2016.
[73] Alcohol and substance abuse were part of your childhood with your mother and grandparents all heavy drinkers. Your father was a drug user. Your own experiences of using substances began when you were aged 11 and escalated rapidly. You became addicted to methamphetamine at the age of 16 years.
[74] At the age of 17 you moved to Australia and became further entrenched in gang life, substance abuse and offending. After your deportation in 2016, the stress and financial hardship of your return to this country saw your drug use and illegal activity with gangs increase significantly.
[75] In all those circumstances Ms Mann accepts the Court might consider there is a causal nexus between the matters set out in the cultural report, particularly as to gang membership, and your offending. She submits, however, a maximum discount of 10 per cent would be appropriate.
[76] I am satisfied there is the necessary causal contribution from your background to your current offending.27 Particularly with violence having been normalised in your childhood and where loyalty to other gang members (some of whom were your co- offenders) was expected.
[77]I consider a 15 per cent discount is appropriate.
End sentence
[78] Mr Huritu I have adopted a global starting point of nine years and six months’ imprisonment. I have made allowances of: five per cent for your guilty plea and 15 per cent for your personal circumstances. That is a total of 20 per cent. From that I deduct
27 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[112].
three per cent for your previous convictions. The total discount for your personal factors is therefore 17 per cent. Calculated in months from the global starting point of nine years and six months’ imprisonment that is a reduction of 19.38 months (or one year and eight months – rounded up in your favour). The end sentence is therefore seven years and 10 months’ imprisonment.
Minimum period of imprisonment
[79] The Crown does not seek a minimum period of imprisonment in your case. I agree that is an appropriate position for the Crown to adopt.
Sentence
[80] Mr Huritu please stand. On the charge of arson you are sentenced to seven years and 10 months’ imprisonment. On the charge of riotous damage and the charge of assault with a weapon you are sentenced to five years’ imprisonment each. You will serve all those sentences concurrently.
[81] 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
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