R v Kameta
[2023] NZHC 965
•28 April 2023
SUPPRESSION ORDERS EXIST: SEE [20] IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-072-48
[2023] NZHC 965
THE KING v
MANUTAKI HEEMI KAMETA
Hearing: 28 April 2023 Appearances:
R L Mann for Crown P Broad for Defendant
Sentence:
28 April 2023
SENTENCING REMARKS OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v KAMETA [2023] NZHC 965 [28 April 2023]
[1] Mr Kameta, you appear for sentence having pleaded guilty to one representative charge each of causing riotous damage,1 arson2 and assault with a weapon.3 The maximum sentence on the charge of arson is 14 years imprisonment. The maximum sentences on the other two charges are five and seven years imprisonment.
[2] You entered your pleas after I gave you a sentence indication on 21 December 2022.4 I do not propose to repeat the factual background to your offending. It is set out in the sentence indication, and this will be attached to, and form part of, these remarks. In short, however, you were part of a group of prisoners who lit fires in a yard at Waikeria Prison on the afternoon of 29 December 2020. You then climbed onto the roof of the prison and assisted in freeing other prisoners by smashing the windows to their cells. Over the next three days the group on the roof roamed around the facility using a battering ram to enter areas of the prison that were locked. They lit multiple fires and damaged the building in other ways.
[3] You decided to surrender on 31 December 2020. When other members of the group learned of your intentions, they physically assaulted you. You nevertheless surrendered to the prison authorities and your role in the riot came to an end at that point.
The sentence indication
[4] I adopted a starting point of eight years four months imprisonment and applied a credit of 25 per cent, or two years one month, to reflect guilty pleas. I indicated that you may be entitled to credit for other mitigating factors identified at sentencing. I am now required to address these.
1 Crimes Act 1961, s 90.
2 Section 267(1)(a).
3 Section 202C(1)(a).
4 R v Kameta [2022] NZHC 3629.
Additional mitigating factors
[5] Your counsel has now tendered a report under s 27 of the Sentencing Act 2002. He submits the mitigating factors identified in the report justify an additional discount of around 15 per cent.
[6] The report was prepared using information you provided to the report writer. The report writer was unable to verify the information you provided with other members of your family, but I have no reason to doubt its veracity.
[7] The report notes that you had a very difficult upbringing. You had no relationship whatsoever with your father, who appears to have spent most of his life involved with gangs and in prisons. You only met him on two occasions. Your mother also had little to do with your upbringing. Your grandparents took responsibility for that role.
[8] In your teenage years you lived in an area of Rotorua that is synonymous with gang-related activity, including regular incidents involving the infliction of violence. Virtually every household in your neighbourhood was connected with a gang. You frequently observed incidents involving violence, heavy drinking, drug taking and other forms of misconduct.
[9] Your upbringing meant you had very little in the way of education. At one stage you were sent to a residential youth facility in Auckland. This does not appear to have provided you with any material benefit. Rather, it forced you to use violence against those around you as a means of self-protection. Your contact with the education system appears to have ceased whilst you were at intermediate school.
[10] Like so many others in your position, you became involved in the consumption of alcohol and drugs at an early age. You continued to deal with problems that beset you by resorting to violence. You also became involved in petty crime to obtain food and other necessities. You frankly acknowledge that your pattern of behaviour was to “always get drunk and fight”.
[11] You never became a fully fledged member of a gang, although you were associated with the Crips. You told the report writer you have recently left that gang and are now in the process of having gang-related facial tattoos removed. You said you left the gang because you did not like being part of a group that had power over you.
[12] On a further positive note, you say that one of the benefits you have obtained from serving short sentences of imprisonment is an improvement in your literacy and numeracy skills. Your present ability to read and write is largely attributable to the programmes that have been made available to you in prison.
[13] You expressed remorse for the present offending and have insight into the likely effect it would have had on the prison staff who were forced to confront the group of which you were a part over a prolonged period.
[14] I see a causal link between the factors that led both to you being imprisoned at the time of the offending and to becoming involved in the activity that led to the present charges. I also see some prospect of rehabilitation given your present commitment to abandoning your gang connections and leading a more pro-social life.
[15] I propose to allow a discount of one year, or 12 per cent, to reflect these factors. This leads to a total discount for mitigating factors of three years one month. This reduces the sentence to one of five years three months imprisonment.
Minimum term of imprisonment
[16] The Crown has also submitted the Court should give consideration to imposing a minimum term of imprisonment. The Court has the power to make an order requiring an offender to serve a minimum term of imprisonment before being eligible for parole where it is satisfied that certain criteria apply. It must be satisfied that the usual parole provisions will not be sufficient to meet the sentencing principles of denunciation, the need to hold the offender accountable and deterrence.5 The Court may also make such an order where it is necessary for the protection of the community.6
5 Sentencing Act 2002, s 86(2)(a)-(c).
6 Section 86(2)(d).
[17] I do not consider the imposition of a minimum term of imprisonment is warranted in your case. I see nothing in the material before me to suggest that you were one of the instigators of the riot, or that you had a major role in it. It may be that minimum terms of imprisonment are appropriate for those who are found to be the instigators, but I do not take that view in your case. I therefore decline to impose a minimum term of imprisonment.
Sentence
[18] On the charges of causing riotous damage and arson, you are sentenced to five years three months imprisonment. On the charge of assault with a weapon, you are sentenced to three years imprisonment. All sentences are to be served concurrently. This means you will serve an effective sentence of five years three months imprisonment.
Suppression
[19] Up until now there has been an interim order suppressing publication of your name and identifying particulars. That order is to lapse with immediate effect.
[20] The trial of your co-defendants is still in progress but is about to conclude. For that reason I make an order suppressing these remarks from publication, including the fact that sentencing has occurred, until delivery of the jury’s verdicts.
Lang J
NOTE: 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. SEE
THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE CRI-2021-072-48 [2022] NZHC 3629
THE KING
V
MANUTAKI HEEMI KAMETA
Hearing: 21 December 2022
Appearances: R L Mann for Crown P Broad for Defendant
Sentence: 21 December 2022
SENTENCE INDICATION OF LANG J
Solicitors:
Hamilton Legal., Hamilton
[1] Mr Kameta faces several charges arising out of a riot that occurred at the Waikeria Prison between 29 December 2020 and 3 January 2021. His trial is due to commence in this Court on 13 February 2023.
[2] Mr Kameta seeks a sentence indication. This is an indication of the sentence he would receive if he entered guilty pleas in the near future. If he declines the indication and is convicted at trial, he will be sentenced on the facts as the trial Judge finds them to be.
[3] To facilitate the sentence indication being given the Crown has offered to accept guilty pleas on one representative charge each of causing riotous damage, arson and assault with a weapon.
Background
[4] The sentence indication is given on the basis of a summary of facts that is accepted for present purposes. This records that Mr Kameta was a remand prisoner in Waikeria Prison at the time of the riot.
[5] On the morning of 29 December 2020 an incident occurred in the exercise yard of the prison when a prisoner refused to return disposable razors to a Corrections Officer. These had been used for the purposes of cutting the prisoner’s hair. Several other prisoners offered this prisoner their support. When the Corrections Officer told the group they would all be returned to their cells early if the razors were not surrendered, the group told him they were not going anywhere and were ready for a fight. Eventually one razor was handed in and the situation calmed down. The prisoners were then permitted to remain in the exercise yard for the allotted period.
[6] At about midday one member of the group in the yard contacted a news media outlet to announce the collective intention of the group to riot in protest against inhumane prison conditions. Mr Kameta was one of a group of prisoners in the exercise yard who then set in train the events that led to the riot. First, they set fire to wooden seats and structures in the exercise yard. They prevented Corrections staff from extinguishing these. They also covered security cameras with toilet paper and threatened to assault Corrections Officers if they attempted to enter the exercise yard.
At 2.19 pm a prisoner made a second phone call to the same news media outlet declaring that the inmates were prepared to “go to war”.
[7] Shortly after this call, nine of the prisoners in the yard used doors that had been ripped off their hinges to climb onto the roof of the complex. Mr Kameta was a member of this group. The group’s attempt to persuade the remaining 12 prisoners in the yard to join them was unsuccessful. The nine prisoners on the roof then used an iron bar to smash through cell windows in order to free prisoners housed in the upper levels of the high security block. 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. The remaining prisoners who were not involved in the riot were then evacuated from the prison.
[8] Over the next three days the group on the roof roamed around the facility using a battering ram to enter areas of the prison that were locked. They lit multiple fires and damaged the building in other ways. They also accessed the facility’s armoury, where they were able to seize protective body armour, shields and other equipment. They fortified an area behind the prison chapel to use as sleeping quarters.
[9] Mr Kameta decided to surrender on 30 December 2020. When he made his intentions known, other members of the group physically assaulted him. He nevertheless carried through with his intention and surrendered to the prison authorities. His role in the riot came to an end at that point.
[10] After Mr Kameta had surrendered teams of Corrections Officers entered the prison on the evening of 2 January 2021. At this point fires were lit behind the barricade in the prison chapel. Fires swept through the facility and the Corrections Officers were forced to withdraw. These fires caused near complete destruction of the building.
[11] The remaining prisoners did not surrender until 3 January 2021. The summary of facts records that the cost of the total damage caused by the riot is estimated to be at least $50 million.
Starting point
[12] As both counsel acknowledge, a helpful guide to the appropriate starting point in the present case is provided by recent sentence indications given to two defendants facing the same charges as Mr Kameta. On 4 October 2022, Woolford J gave Mr Cuff, who appears to have been one of the ringleaders in the riot, a sentence indication in which he adopted an overall starting point of 11 years three months imprisonment.7 In a sentence indication given to Mr Taite on 9 November 2022 Campbell J observed that he considered the approach taken by Woolford J to have been lenient.8 After making an adjustment for parity purposes Campbell J selected a starting point of 12 years imprisonment for Mr Taite.
[13] Mr Kameta was one of the persons who was in the yard at the time the riot began. However, he was not involved in the initial incident involving the disposable razors. He only became involved once the group of prisoners decided to leave the exercise yard and climb onto the roof. Thereafter, however, he participated in the actions of this group for a period of approximately 24 hours.
[14] The Crown points out that Mr Kameta was present when the rioting prisoners undertook actions that directly threatened the wellbeing of other prisoners who were locked in their cells. Ms Mann therefore suggests a starting point of nine years imprisonment. Mr Broad suggests a lower starting point of seven years nine months imprisonment.
[15] The starting point to be adopted in relation to Mr Kameta must obviously be significantly less than that adopted in relation to Mr Cuff and Mr Taite because he was not one of the ringleaders of the incident. In addition, he surrendered relatively early in the piece and before most of the major damage to the prison complex was done. However, I acknowledge the force of the Crown’s submission that Mr Kameta participated in actions that put the wellbeing of other prisoners at considerable risk. I therefore propose to adopt a starting point of eight years four months imprisonment on all charges.
7 R v Cuff [2022] NZHC 2545 at [35].
8 R v Taite [2022] NZHC 2935 at [21].
Aggravating factors
[16] The Crown seeks an uplift to reflect the fact that the offending occurred in a prison environment. Mr Kameta also has previous convictions for offending involving violence. I do not consider it appropriate to increase the starting point to reflect the fact that the offending occurred whilst Mr Kameta was in custody. That factor is already encompassed within the starting point I have selected. Furthermore, although Mr Kameta has previous convictions for offending involving violence, he does not have previous convictions for offending of a similar type to that comprising the charges he currently faces. It follows that the sentence remains one of eight years four months imprisonment before taking into account mitigating factors.
Mitigating factors
[17] The only mitigating factor for which I would be prepared to give credit at this stage is guilty pleas. The Crown has accepted that a credit of 25 per cent was appropriate in several recent cases where sentence indications have been given to defendants who participated in the riot. I propose to apply the same level of discount in Mr Kameta’s case. I would therefore apply a discount of two years one month to reflect guilty pleas.
[18] Mr Kameta may also be entitled to credit for further mitigating factors identified at sentence. For present purposes, however, the indicated sentence is one of six years three months imprisonment.
Time for acceptance
[19] Mr Broad is to file and serve a memorandum no later than 3.30 pm on Thursday 22 December 2022 indicating whether Mr Kameta accepts the indication. If he does, he will be arraigned in this Court on 23 December 2022 at 9.30 am.
Lang J