R v Keil
[2024] NZHC 1777
•2 August 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-419-000050
[2024] NZHC 1777
THE KING v
BRONSON TRUMAN KEIL
Appearances: I Stewart for Defendant
A S C Alcock for the Crown
Sentenced:
2 August 2024
Charges:
Riotous damage (representative charge) Arson with risk to life (representative charge) Assault with a weapon (representative charge)
Plea:
Guilty
SENTENCING NOTES OF ANDERSON J
Solicitors:
Hamilton Legal, Crown Solicitor, Hamilton
R v KEIL [2024] NZHC 1777 [2 August 2024]
[1] Mr Keil you are for sentence on charges arising out of the riot that occurred at Waikeria Prison between 29 December 2020 and 3 January 2021.
[2]The charges are:
(a)a representative charge of riotous damage;1
(b)a representative charge of arson with risk to life;2
(c)a representative charge of assault with a weapon.3
[3] You accepted a sentence indication I gave on 6 March this year. I sentence you in accordance with that indication.
[4] Mr Keil, at the time of your sentencing indication I provided only the key information to give you the indication. So I make my full sentencing remarks now, as well as considering any discounts for additional mitigating factors that your counsel has sought on your behalf.
[5] In sentencing you I take into account the relevant purposes of sentencing of accountability, responsibility, deterrence, denunciation and public safety.4 There is a need to take account of the seriousness of the offending and culpability. Your counsel submits, and I accept, that the Court can and should still have some regard to the community as a whole in assisting in your rehabilitation and reintegration.
Facts
[6]I first set out the facts of your offending.
[7] You were part of the group with eight others who started the riot in the prison yard 116 at Waikeria Prison.
1 Crimes Act 1961, s 90.
2 Crimes Act 1961, s 267(1)(a).
3 Crimes Act 1961, s 201C(1)(a).
4 Sentencing Act 7 and 8.
[8] On the morning of 29 December 2020, an incident arose in the exercise yard when a prisoner refused to return disposable razors to a Corrections Officer. Ultimately a Corrections Officer advised that unless the two razors were surrendered all prisoners would return to their cells. You were one of several other prisoners who stated that you were not going anywhere and were ready to fight. This incident was subsequently resolved and the usual routine continued.
[9] Subsequently, a more hostile atmosphere developed. The nine participants then involved lit fires, ripped doors from hinges, and used them to get out of the yard, to access the roof. You were heard to say as you have just heard counsel for the Crown say, “that is what happens when you bring Pare prisoners to Waikeria.” You were also observed feeding items into a fire to keep it growing.
[10] The nine of you escaped to the roof. You were then actively involved in releasing an additional eight prisoners who were housed in upper levels of the prison. This included you using a metal bar to strike the sides of the windows so as to disconnect them from their concrete casing. You were one of the individuals who used a battering ram to smash through cell windows to release other prisoners.
[11] The group now of 17 prisoners participated in a riot on the roof, involving a stand-off for six days until 3 January 2021 when the group surrendered.
[12] During those days, the prisoners set traps on access points to the roof, threw objects including burning objects at the Police and Corrections staff and continued to light fires. You were one of the offenders observed conducting roof top patrols and throwing objects down at those below. The group of you accessed the facility’s armoury, dispensary and the receiving office to obtain protective body armour and shields.
[13] On 1 January you were one of two prisoners actively involved in setting fire to the Visitors Centre. Your use of an accelerant to do this resulted in an explosion or flash fire. This fire spread through the Visitors Centre and into Master Control. On that night at least seven fires were lit.
[14] Further fires were lit on 2 January causing the near complete destruction of the High Security Facility. As part of this, burning objects were dropped onto the Advance Control and Restraint (ACR) team members and Armed Offenders Squad (AOS) officers as they entered the facility. Ultimately the imminent risks to them required the officers to evacuate.
[15] As a result of the offending, several Corrections and Police staff sustained injuries and at least at the date of the victim impact I have read, several continued to be on stress leave. Initial estimates are that the overall cost incurred by the Corrections Department from the riot will exceed $50 million.
Starting point
[16] I first consider the starting point of the charges. The lead charge is one of arson, with an uplift required for the remaining offending.
[17] There is no guideline judgment for arson because of the varying circumstances and motives behind the particular offending.5 The sentences of others in the yard who were involved from the start provide the most informative indication for sentencing. However, I have also considered the other cases cited by the Crown, particularly on rioting and arson in a prison environment and arson outside that environment.6
[18] Your counsel and the Crown are largely agreed on the aggravating features of the offending in this case. The extent of loss and damage is significant. Your actions contributed to damages as I have said estimated to exceed $50 million. The offending is of a scale unprecedented within New Zealand. The riot lasted six days involving 17 prisoners, with a substantial number of fires. Lives of prisoners were put at risk. Multiple prisoners, staff, police and fire fighters were involved. Importantly, the victims were prison officers acting in the course of their duty.
5 R v Gilchrist CA429/90, 15 April 1991.
6 R v Huritu [2023] NZHC 1960; R v Paul [2023] NZHC 1985; R v Munroe CA 132/02, 24 July 2002; R v Gilchrist CA429/90, 15 April 1991; Howarth v R [2010] NZCA 523; Tryselaar v R [2012] NZCA 353; Kepu v R [2011] NZCA 104; Mouat v Police HC Gisborne CRI-2006-416-20, 11 December 2006; Ratu v R [2016] NZCA 97; R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493; R v Z CA138/00, 27 June 2000; and R v Honan (1998) 3 CRNZ 532.
[19] Offending in prison requires a stern response. That is necessary to ensure the maintenance of discipline in prison, and because prison officers must be entitled to the fullest level of protection.7 Arson in prison creates particular issues given that prisoners cannot simply unlock their cells and the state impliedly agrees to secure their safety where they have been imprisoned.8
[20] The fires lit posed a serious risk of injury. The Crown was right to say that those involved knew and understood the potential for real danger given that there was earlier stacking of flammable material in the area and deliberate lighting of fires. A substantial number of victims were impacted with the effects reflected in the victim impact statement that I have read.
[21] There is also the context here, that you are the last of those prosecuted as a result of the Waikeria events to be sentenced. Some other defendants reached resolution pre-trial by entering guilty pleas on the same basis you have. Both the Crown and your counsel agree that it is appropriate to have regard to parity with those others who have been sentenced before you.9 With the exception of Mr Kameta for whom different considerations apply due to his early surrender, the combined starting points for those defendants has ranged from 11 years and 3 months to 12 years and 6 months upon consideration of parity.
[22] The Crown submits that your culpability is the same as Mr M’s10. He was an instigator from the outset and played a central role. He covered security cameras inside the yard to prevent them capturing actions of the group. He was heard to say “Burn it up. How do you like me now? Burn it up”. Mr M was observed to use a piece of wood to access and damage reinforcing roof space to seek access there and also another object to significant effect. He was involved in releasing the first of the prisoners. Mr M was observed throwing lit objects at corrections officers required to
7 Kepu v R [2011] NZCA 104 at [19].
8 Mouat v Police HC Gisborne CRI-2006-416-20, 11 December 2006.
9 R v Kameta [2023] NZHC 965; R v Cuff [2022] NZHC 2545; R v Taite [2023] NZHC 975; R v Tapara-Taipari [2022] NZHC 3219; R v Haere [2023] NZHC 1957; R v Soames [2023] NZHC 1969; R v Lote-Telea [2023] NZHC 1959; R v M [2023] NZHC 2541; R v Huritu [2023] NZHC 1960; R v Paul [2023] NZHC 1985.
10 Anonymised due to suppression orders.
carry shields over their heads for protection. He was found guilty at trial on 19 charges. The combined starting point adopted was 12 years and six months.
[23] Your counsel submitted that your culpability is most comparable to Mr Cuff and Mr Tapara-Taipari. Both of them pleaded guilty prior to trial to the same charges as in your case. Both of them were actively involved throughout. Mr Cuff and Mr Tapara-Taipari were part of the initial dispute concerning possession of a razor in the yard and the issue around surrendering these. Mr Cuff, like Mr M, covered cameras inside the yard. Mr Cuff was seen with others holding items such as a shower door against the grill gate when corrections officers and firefighters were trying to extinguish the fires with hoses. Mr Tapara-Taipari’s sentencing judge described he and Mr Cuff as the ringleaders.
[24] Your counsel noted that Mr Cuff was described in sentencing as one of the first to escape the yard to the roof. The sentencing judge in Mr Tapara-Taipari’s case described him as having culpability comparable to Mr Cuff and adopted the same global starting point of 11 years and 3 months. He told the officer who had earlier asked for the razor that the prison was going to burn down because of her and that he knew where she lived, where her family lives and where she shops. Like Mr M, Mr Cuff was observed to use a piece of wood to access and damage reinforcing roof space. He and then Mr M were the first to make their way out in the gap created. The Crown said the factual basis of Mr Cuff’s and Mr Tapara-Tapiri’s offending differs from yours. The Crown says you played a principal and central role, increasing your culpability.
[25] I have identified aspects that relate to you in my summary of the facts that I recounted earlier. Of course, your involvement is not limited to the agreed statement given your overall participation in the events.
[26] As I see it, Mr M appears to have culpability greater than both you and Mr Cuff and Mr Tapara-Taipari. Because of involvement in the visitor centre fire and because you were involved in using the battering ram, I do consider your role is somewhat more than Mr Cuff and Mr Tapara-Taipari. The Crown’s description of your role as central is accurate.
[27] Having regard to all the above factors, I apply a starting point of nine years and nine months’ imprisonment for the lead charge of arson. I then make an uplift for the other charges of one year and nine months for the remaining offending. That gives a combined starting point of 11 years and six months’ imprisonment.
Aggravating factors – previous convictions
[28] I do not apply any uplift to the sentence to reflect your previous convictions as an aggravating factor. They are different in nature to the conduct that led to the present charges. The approach is consistent with sentencing of other defendants involved in the Waikeria events.11
Mitigating factors
[29] To that point I have been dealing with issues dealt with in the sentence indication. I turn now to mitigating factors and the first was also dealt with in indication which is your guilty plea.
[30] Your trial was to commence on 27 May 2024, and you pleaded guilty following my sentencing indication on 6 March 2024. Your counsel proposed a 20 per cent discount for your guilty plea. She acknowledged that that was high relative to usual circumstances where a guilty plea is given only a few months prior to trial after a lengthy period.
[31] Your counsel refers to guilty plea discounts for other offenders involved in the Waikeria riots who received 25 per cent discounts.12 She says, and I accept, that when determining what credit is appropriate, timing is not the only factor. The Court is to consider all relevant circumstances.13
[32] You initially proceeded to trial alongside a number of co-defendants with charges being severed and a new trial ordered for you due to concerns regarding the health of your then counsel. You say you did not have regular contact with that counsel
11 R v Tarau [2023] NZHC 2564; R v Tapara-Taiperi [2023] NZHC 1812 at [7].
12 Messrs Taite, Cuff and Lote-Telea.
13 Hessell v R [2010] NZSC 135 at [62], [65], [76]-[77].
throughout the period of preparation for trial and did not fully appreciate the evidence against you at the time.
[33] Your present counsel was reassigned the file in early May 2023 with a new trial date being set for May 2024. Your Counsel’s submission for a 20 per cent discount was made on the basis of the significant and complex nature of the case, the time during which other defendants were resolving their cases but during which you appear to have representation difficulties, and the request to resolve the proceedings once new counsel had been briefed and was in a position to address that issue.
[34] The Crown submits that a credit of no more than 15 per cent is appropriate in circumstances where all those charged have already been convicted following sentence indications and/or trial, and where the Crown case is strong.
[35] I do not have any evidence as opposed to assertion from the bar of difficulties with prior counsel in the preparation period. You did resolutely proceed to the first trial. It is unusual to now be seeking a substantial guilty plea discount. I do not consider that the circumstances justify the level your counsel proposed. In my view, a 15 per cent discount for your guilty plea is appropriate.
[36] I now consider whether there are any further credits for other mitigating factors.
Poor prison conditions
[37] Ms Stewart raised on your behalf that objectively observed poor conditions in the prison in the months preceding the riot are relevant to the sentencing in your particular circumstances. She suggested I make a discount of five per cent on account of this.
[38] This same submission has been rejected in the previous sentencing of a number of your co-offenders involved in the riot. 14 I reject it also. This was not a mere protest at prison conditions. The arson and riot went on for six days and hundreds of lives
14 R v Cuff [2023] NZHC 2384; R v Taite [2023] NZHC 975; R v Haere [2023] NZHC; R v M [2023] NZHC 2541.
were put at risk. Whether or not a reduction in sentence might be available in appropriate cases for this factor, it does not limit culpability here because of the seriousness of the offending.
Personal mitigating factors
[39] As to personal mitigating factors, I now have more information: a pre-sentence report and a cultural report. The cultural report is based on an interview conducted with you and with your mother. It is a detailed report that I have read carefully. It describes a very difficult background.
[40] You are 40 years of age and are Māori of Ngāpuhi descent. You were born in prison. Your childhood was marked by exposure to extreme violence, substance abuse, poverty, gang affiliation and abandonment. Your deprived childhood is in some senses a repeat of the experiences your mother herself described from her own childhood.
[41] You were a target of your father’s violence and bore witness to your mother being beaten until she left him when you were about four. You suffered repeated abandonment as your mother was repeatedly incarcerated. In those periods you were placed in either family or state care. This included being placed with an aunt where you were abused verbally and physically. When your mother re-married, you were also beaten by her new husband and by your father when you stayed with him.
[42] You were expelled from secondary school for a violent incident when you were nearly 14 and had no education since then. The only employment you have had was working on a farm immediately after for a short period. The cultural report suggests that you may have undiagnosed Attention Deficit Hyperactivity Disorder (ADHD) or Oppositional Defiant Disorder (ODD) that are worthy of further investigation.
[43] All the significant adult males in your childhood were gang members. Your mother describes gang membership as an ambition of yours from a very young age. By 16 you were prospecting. You were a patched member of Mangu Kaha for nearly 20 years. That made you a third generation gang member. You exited Mangu Kaha in 2019.
[44] By age 17 you were in adult prison. You have been a recidivist offender ever since. You started drug using at a very young age as it was all around you. Methamphetamine use began in your teens and you became addicted. Drug use has been central to your past offending, either to fund it or because of its effects.
[45] The cultural report writer outlines that at the time of the offending you felt drawn into the events due to your frustration and anger at how prisoners were being treated, combined with memory of bad experiences when you had been at Waikeria previously. You report that you felt stuck once the riot was underway. However, as you have heard, the Crown says you were front and centre of the present offending given your role in the start of it and your role in releasing further prisoners. As I have said earlier, I agree that you did play a central role.
[46] The cultural report offers the opinion that there is a causative link between the deprivation and disadvantage in your cultural background and your recent and previous criminal offending.
[47] It states that you are highly remorseful and have shown a willingness to engage in rehabilitation despite your own doubts as to whether or not you are too old to change. You have support from the mother of your children with whom you remain friends. You express a genuine desire to start being an active father in their lives. I acknowledge and respect that Mr Keil.
[48] In contrast, your pre-sentence report suggests that you continue to show a lack of respect for authority and you have had contraband introduced during a prison visit. The report writer also noted that in March 2023 you were placed on misconduct for not exiting an area with others “until your demands were met”. The Crown fairly says that this is behaviour similar to conduct that was the catalyst for the current offending. It is somewhat at odds with your comments to the cultural report writer and that I should take that into account. I have heard a letter read to me today from your counsel expressing an apology and remorse. Your counsel also notes that that incident in the prison is now historic.
[49] Your counsel contends that the factors outlined in your cultural report justify a discount of 20 per cent. The Crown acknowledges that a modest credit for personal circumstances may be appropriate if I determine a causal nexus. They say a 10 per cent credit would be appropriate.
[50] I accept your counsel’s characterisation that you were born into circumstances of intergenerational incarceration, dysfunction and cultural deprivation. I am satisfied there is a causal connection between your background and your current offending.15 I do not consider a separate discount for remorse is justified although I do take that into account in the overall discount that I propose.
[51] Taking all factors into account, I consider that a 15 per cent discount is appropriate for your personal background and prospects of rehabilitation.
[52] That means that from the initial starting point of 11 years and six months I deduct 30 per cent for your guilty plea and other mitigating factors. That gives me eight years and 0.6 months which I round down to eight years.
Minimum period of imprisonment
[53] The Crown does not seek a minimum period of imprisonment and I agree that this is not required.
Sentence
[54] Mr Keil would you please stand. On the charge of arson (with danger to life) you are sentenced to a eight years’ imprisonment. On each of the other two charges you are sentenced to four years’ imprisonment. All sentences are concurrent with each other. That means that your sentence is eight years.
[55] I discharge you under s 147 of the Criminal Procedural Act 2011 on the remaining charges that you faced arising out of the riot at Waikeria prison.
15 Zhang v R [2019] 3 NZLR 648; Berkland v R [2022] NZSC 143.
Anderson J
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