R v Larkins
[2023] NZHC 2545
•12 September 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-419-000026
[2023] NZHC 2545
THE KING v
IAN LARKINS
Hearing: 12 September 2023 Appearances:
R Mann for the Crown
W Rhodes for Mr Larkins
Sentencing:
12 September 2023
SENTENCING NOTES OF GORDON J
Solicitors: Hamilton Legal, Hamilton Counsel: W Rhodes, Barrister, Auckland
R v LARKINS [2023] NZHC 2545 [12 September 2023]
[1] Mr Larkins, you were one of 11 defendants who went to trial on charges arising out of rioting at Waikeria Prison over the New Year 2020/2021 period. Six of your co- defendants pleaded guilty to amalgamated charges prior to 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.
Factual background
[3] At the time you pleaded guilty you accepted the contents of a Summary of Facts dated 13 March 2023. Although you are familiar with the facts it is necessary for me to summarise them in my decision. I repeat the summary from my sentencing decision of Beau-James Paul,4 one of your co-offenders who, like you, pleaded guilty to the same three charges during the trial.
[4] You were in custody in the High Security Facility at Waikeria Prison at the time of the riot.
[5] 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.
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.
4 R v Paul [2023] NZHC 1985.
[6] 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 wet toilet paper and threatened Corrections officers with assault if they attempted to enter the yard. Cups filled with urine were thrown at Corrections officers who approached the grille door.
[7] 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 attempted to persuade the remaining 12 prisoners in the yard to join them but this was unsuccessful.
[8] 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.
[9] 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 arson charge to which you pleaded guilty, the date for that charge is limited to the last full day of the riot, 2 January 2021.
[10] 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 the officers to drag, and in some instances carry them, to get out to safety.
[11] 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.
[12] 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.
[13] 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.
[14] 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.
[15] 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.
[16] 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.
[17] I come to the date of 2 January 2021, which is particularly relevant in relation to the arson charge to which you pleaded guilty.
[18] 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 on the stairwell 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.
[19] 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.
[20] 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 the retreating officers. Members of the group were observed to be wearing riot helmets, stab-resistant vests and other items of Corrections’ uniform.
[21] These fires continued burning until the following morning and caused the complete destruction of the High Security Facility.
[22] On the morning of 3 January 2021 the group of prisoners advised they were ready to surrender.
[23] As a result of the offending several Corrections and Police staff sustained injuries and continue to be on stress leave.
Amount of loss
[24] The Summary of Facts states that the Department of Corrections estimates the financial cost of the damage will exceed $50 million.
[25] In written submissions on your behalf you took issue with this figure. However, as Ms Mann pointed out, that figure was stated in the Summary of Facts which you accepted when you pleaded guilty. But in any event today, on your behalf, Mr Rhodes did not continue with and explicitly withdrew the challenge to the figure estimating the amount of loss.
Conditions at Waikeria Prison
[26] Mr Rhodes makes the submission that your level of culpability should be reduced because of the conditions at Waikeria Prison. That submission has been rejected by three other Judges involved in sentencing co-offenders.5 I also rejected that submission when sentencing one of those co-offenders, Grayson Haere.6 I said:7
... [Counsel] first says in his written submissions that the conditions at Waikeria Prison should be taken into account. In those written submissions, he relied on the conditions as somehow acting in mitigation of culpability. I do not accept that. As you are aware, Mr Haere, I declined to hear any oral submissions this morning regarding the conditions at the prison.
[46] I can do no better than adopt the words of Downs J when he granted your application for an adjournment of your sentencing. There were two grounds relied on in support of the application for an adjournment: (a) the trial Judge would be well placed to resolve any difficulty about your role; and (b) the trial Judge would be in a better position to address prison conditions.
Justice Downs said the following, which I adopt:8
[5] I considered (b) has no merit whatsoever. First, and most obviously, prison conditions do not comprise an ingredient of any of the offences nor afford a defence to any of the charges. Second, Campbell J recently rejected an argument by a co-defendant that prison conditions mitigated the offending. Third, to hold otherwise than Campbell J did would be to invite rioting and violence within prisons, in turn undermining the rule of law and placing Corrections officers at even further risk (they already perform a difficult, dangerous role). Fourth, the law sets its face against self-help
5 R v Taite [2023] NZHC 975; R v Haere HC Auckland CRI-2021-072-000048, 10 May 2023 (Minute of Downs J); and R v Cuff [2023] NZHC 2394.
6 R v Haere [2023] NZHC 1957.
7 From [45].
8 R v Haere (Minute of Downs J), above n 5, footnote omitted.
remedies, in part because legitimate avenues of redress already exist. In the context of prison conditions, inmates may, for example, complain to the Ombudsman or sue the government under the New Zealand Bill of Rights Act 1990. These remedies are real and at the risk of repetition, consistent with the rule of law. Fifth, even if I am wrong about all this, the sheer scale of the offending overwhelms any possible mitigation.
[27]Subsequently, when sentencing Matangirau Cuff, Woolford J said:9
… Campbell J considered, as do I, that while a reduction in sentence may be available in some cases to remedy a breach of a prisoner or other offender’s rights under the New Zealand Bill of Rights Act 1990, this is not such a case. While I acknowledge that there may be connection between your alleged ill- treatment at the Waikeria and Auckland facilities and the inciting riot, that connection does not limit your culpability in the resulting offending. …
[28] While it may be the case that your actions commenced as a protest, for all the reasons I have referred to, the alleged conditions do not mitigate your culpability so as to reduce the starting point.
Basis for liability
[29] The Court is told by your counsel that in relation to the charge of arson, in correspondence with the Crown the position was that your guilty plea would be accepted on the basis of s 66(1) of the Crimes Act 1961, but as a secondary party and not as a principal offender. On the charge of riotous damage and the charge of assault with a weapon, it is said by your counsel that the agreed basis was that you were liable as a principal offender. That is, you committed the criminal acts yourself.
[30] For the Crown, Ms Mann noted in relation to the charge of riotous damage, the Crown position even prior to the trial was that all offenders were principal offenders. Ms Mann notes there was correspondence with counsel for your co-offender Beau- James Paul as regards the basis of the guilty plea on the charge of assault with a weapon, but she is not able to assist in relation to any particular correspondence as regards your position. But in any event, Ms Mann submits that you pleaded guilty on the basis of an Agreed Summary of Facts, so whether the Court proceeds to sentence
9 R v Cuff, above n 5, at [21].
you on the basis of s 66(1) as a principal or a party, or on the basis of 66(2), she submits this is a distinction without a difference. I accept that submission.
Approach to sentencing
[31] Sentencing is a two-stage process.10 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.
[32] 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
[33] I have received a victim impact statement. I have referred to it in my other sentencing decisions but it is necessary to set it out again here in sentencing you. 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 that 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. Having said that, I accept the arson charge to which you pleaded guilty was for fires on 2 January 2021.
[34] 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
10 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
their families had holiday plans severely interrupted. Mr Buffery further reports the many physical and psychological injuries suffered by Corrections officers from the 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.
[35] 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
[36] 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.
[37] 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 with similar cases. In sentencing you, the Court has 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
[38] Ms Mann submits the aggravating features of your offending are: the use of actual and threatened violence; the extent of loss and damage; the scale of the offending; that the victims were prison officers acting in the course of their duty; the risk of injury, particularly during the chapel fire on 2 January 2021; and the impact on the victims.
[39] Ms Mann submits that having regard to the magnitude of the offending and risk to life as a result, the aggravating features present and your role in the offending
together with parity considerations, the appropriate global starting point for your offending is nine years and six months’ imprisonment consistent with the approach taken for Mr Huritu and Mr Paul.
[40] Ms Mann also refers to other cases which I will reference in a footnote when my decision is typed up.11
Defendant’s submissions
[41] Mr Rhodes responds to the aggravating features identified by the Crown by submitting: violence is inherent in the charge and double counting should be avoided; you should not be held accountable for all of the alleged loss and damage; the arson offending is in relation to a single charge (or date) only; the fact that the victims were prison guards acting in the course of their duties should not be treated as a significantly aggravating factor; the fact that you are a secondary party to the arson offending must temper the extent to which you can be held responsible for causing risk of injury; and the victim impact statement is accepted.
[42] Mr Rhodes submits that the appropriate starting point for the charge of arson should be seven years and six months’ imprisonment. He makes a distinction between the starting point of nine years for Mr Huritu and Mr Paul because in sentencing those two defendants I did not take into account the alleged conditions at Waikeria Prison. He also referred in the written submissions to an issue over the value of the loss caused. For the balance of the offending Mr Rhodes submits that an uplift of six months’ imprisonment is appropriate, leading to a global starting point of eight years’ imprisonment.
Discussion
[43] When I set the starting point for both Leon Huritu and Beau-James Paul I took into account that they were not present in yard 116 when the riot began and also the fact that the charge of arson that they faced was only for 2 January 2021. Both of
11 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); R v Lucas- Edmonds [2009] NZCA 193, [2009] 3 NZLR 493; Tryselaar v R [2012] NZCA 353 at [18]; Kepu v R [2011] NZCA 104 at [19] and Ratu v R [2016] NZCA 97.
those points apply to you. For that reason, rather than adopting a starting point for the arson charge of 11 years’ imprisonment (as I adopted for other co-offenders) I adopted a starting point of nine years’ imprisonment for Mr Huritu and Mr Paul. That addresses the submission made by Mr Rhodes that the arson offending was in relation to a single charge (date) only.
[44] As I said when sentencing Mr Huritu and Mr Paul, the lives of members of the Corrections ACR Team and the members of the AOS squad who had entered the High Security Facility on 2 January 2021, were put at risk. I agree with the Crown that the fact that the victims were acting in the course of their duty is an aggravating factor.
[45] I do not consider the fact that you are for sentence on the basis that you were a secondary party to the arson by assisting or encouraging reduces the extent to which you can be held responsible for causing risk of injury. Finally, the fire damage to the High Security Facility on 2 January 2021 was significant. Regardless of the actual quantum of loss the High Security Facility was completely destroyed.
[46] I do not see any distinction between you and Mr Huritu and Mr Paul as far as the initial starting point. Similarly, I do not see a distinction on the other two charges. An uplift of six months appropriately reflects your involvement in the conduct that gave rise to the charge of riotous damage and the charge of assault with a weapon.
[47] Accordingly, I adopt a global starting point of nine years and six months’ imprisonment.
[48]There are no mitigating features of the offending.
Personal aggravating features – previous convictions
[49] The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.12 Prior convictions may be taken into account in three ways: as an indicator of character and culpability; as showing the
12 Sentencing Act 2002, s 9(1)(j).
need for a greater deterrent response from the court; and as an indicator of the risk of re-offending.13
[50] Your New Zealand criminal history records one offence each of aggravated robbery with a firearm, wounding with intent to cause grievous bodily harm and aggravated burglary with a firearm, all committed in 2019. A term of seven years’ imprisonment was imposed in October 2020. Your Australian criminal history prior to your deportation to New Zealand in 2019 discloses offending from 2011 to 2018. It includes armed robbery, other offences of a violent nature and possession of prohibited drugs.
[51] Ms Mann submits that having regard to your criminal history and the fact that you were a sentenced prisoner at the time of the offending, an uplift of three to four months’ imprisonment is appropriate.
[52] Mr Rhodes accepts that there should be an uplift and says that two months is appropriate.
[53] I put to one side the fact that you were in custody when you offended. But on the basis of your conviction history which discloses relatively recent violent offending I consider an uplift of three per cent is appropriate. That would be a period of
3.24 months. However, I will proceed on the basis of a percentage as all other personal features will be calculated on a percentage basis.
Personal mitigating factors
[54] Mr Rhodes submits the Court should apply the following discounts: 10 per cent for your guilty plea; 20 per cent for your background, and a reduction of one year for totality.
[55]I address each of those matters in turn.
13 R v Casey [1931] NZLR 594 (CA) at [597]; Kushell v Police [2012] NZHC 2380 at [10].
Guilty plea
[56] Mr Rhodes submits that although your guilty plea came part way through the trial, prior to the trial, counsel then acting for you had a number of telephone discussions with the Crown during which it was made clear that resolution in advance of the trial was possible. It is said by Mr Rhodes in his written submissions that the scope of the arson charges was the “sticking point” for you.
[57] Mr Rhodes says that your willingness to resolve matters had been indicated in advance of trial on a basis not dissimilar to the offending for which you are now for sentence. He submits that a reduction of 10 per cent is appropriate.
[58] Ms Mann notes that from the Crown perspective there was never a suggestion of resolution pre-trial that encompassed arson.
[59] Ms Mann acknowledges I gave a guilty plea discount to Mr Huritu and Mr Paul. She submits the appropriate level of discount should be the same, namely five per cent.
[60] I accept that some credit should be given and I adopt the approach I took when sentencing both Mr Huritu and Mr Paul. In sentencing Mr Huritu I said:14
[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.15 Second, your guilty plea resulted in a saving of the cost of the trial to the State, albeit a relatively small reduction in cost.16 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
14 R v Huritu [2023] NZHC 1960.
15 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.
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].
at the end of the Crown case, and counsel’s addresses would have extended the trial had you not pleaded guilty.
[61] Accordingly, Mr Larkins, I give you a five per cent discount for your guilty plea.
Personal circumstances
[62] You have provided the Court with a report prepared under s 27 of the Act by Dr Jarrod Gilbert and others (the writers). The report is based primarily on an interview with you. The writers also spoke to your foster sister in Australia, to whom you are close.
[63]The Court has the benefit of a PAC report as well.
[64] You are a 29 year old Māori-Samoan born in New Zealand. Your mother is Māori and your father Samoan. You have never met your father. You lived with your mother, stepfather and two younger brothers in New Plymouth until your family moved to Australia when you were about four or five years old. You reported to the writers that your stepfather was physically and psychologically abusive to you and your mother. You also alluded to another form of abuse from your stepfather’s father.
[65] As a consequence of the violence you were experiencing in your home life, you were placed in foster care at about age 11. You were expelled from school about the age of 12 or 13 and eventually moved with your older foster brother into your older foster sister’s house.
[66] You began using alcohol and drugs regularly from the age of 13 and you were addicted to methamphetamine by the age of about 17, at which point you were using daily.
[67] You told the writers you started doing crime such as tagging when you were about 14 or 15 and you say you were socialised into crime from a young age as your mother and stepfather were drug dealers.
[68] You are the father of two children, a 12 year old daughter and a six year old son, to different mothers who live in Australia. Your daughter was born when you were about 17 years old.
[69] You spent some time in a youth detention centre in 2011 at the age of 18 after being convicted of robbery and intentionally causing injury. After your release you lived briefly with your mother and stepfather again. As a consequence of your stepfather’s violence you left home and had no fixed address, living with friends, your older foster brother and in motels. You began selling drugs.
[70] You were briefly a member of the Hells Angels gang before being imprisoned again for armed robbery, burglary and theft in 2014. Your son was born while you were in prison. He was about two years old when you were deported to New Zealand in August 2019 as a 501 deportee. You stated to the writers that you felt lost after being deported as you knew no one in New Zealand. Your foster sister believes you still feel alone and isolated in this country.
[71] After being deported you went to live with your mother’s family in Te Puke and joined the Mongols gang around that time. You were sentenced to seven years’ imprisonment in 2020 for aggravated robbery, aggravated burglary and wounding with intent to cause grievous bodily harm.
[72] You also reported to the writers that you had struggled throughout your life with anxiety and told them that you had been diagnosed with “bipolar schizophrenia”. You say you have not had any counselling other than two or three sessions when you were about 12 or 13 and some sessions while you were in prison. You say you would like to undertake individual counselling if that was possible.
[73] You told the writers you are determined to stay away from drugs and to refrain from using methamphetamine when you are released from prison. You say you are determined not to return to prison. You want to be able to support your children.
[74] I am satisfied that there is at least a causative connection between your background and your current offending. There has been deprivation in your life and
other factors that I have referred to that have constrained your individual choice, including the choice not to offend.17
[75] I consider that a 15 per cent discount is appropriate for your personal background.
End sentence
[76] Mr Larkins, 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 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.
Totality
[77] You are a sentenced prisoner currently serving a sentence of seven years’ imprisonment which commenced on 5 October 2020.
[78] Mr Rhodes submits the Court should make a reduction of one year having regard to the totality principle.18 Mr Rhodes submits that without such a reduction the resulting sentences added together would be out of all proportion to the gravity of your offending. He says it would have the effect of eclipsing those who have been sentenced for playing an analogous role. He further submits this would be a “crushing” sentence and carries the risk of discouraging any future rehabilitative prospects.
[79]The Crown accepts the Court will have regard to the totality principle.
17 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [115].
18 Mr Rhodes’ submission is that the one year reduction should be made from the starting point. However, I consider that a reduction should be considered and (if a reduction is made) applied at this stage in the sentencing process.
[80]Section 85(2) of the Act provides:
If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
[81] This principle applies both to sentencing for proximate offending and also to crimes committed while already in custody for other offences.19
[82] A reduction for totality reasons was made in the case of one of your co- offenders, Mr Naua-Tuilotolava.20 However, I see his position as entirely different from yours. He was already serving a sentence of 24 years’ imprisonment.
[83] The issue for the Court is whether the sentence I impose is wholly out of proportion to the gravity of the overall offending. The fact that a sentence is “crushing” may be indicative of that but is not determinative.21 The Court does not have a copy of the Agreed Summary of Facts for the sentence you are presently serving but the charges were serious: aggravated robbery with a firearm; wounding with intent to cause grievous bodily harm, and aggravated burglary with a firearm. All of these offences were committed on the one occasion in December 2019.
[84] The subsequent offences for which you are now being sentenced are serious. They are similarly for violent offending but of a much greater scale. I consider a reduction would be contrary to the accepted principle that violent offending committed while in prison should attract a stern response.22 I do not consider a sentence of 14 years and 10 months (that is adding the two sentences together) is out of proportion to the gravity overall of the two sets of offending.
[85]Accordingly, I do not make a reduction for totality reasons.
19 Ngamoki v R [2022] NZCA 171 at [25].
20 R v Naua-Tuilotolava [2023] NZHC 1105.
21 Ngamoki v R, above n 19, at [30].
22 At [31] citing Waru v R [2019] NZCA 347 at [31]. See also Tryselaar v R, above n 11, at [18] and
R v Connelly [2010] NZCA 52 at [31].
Minimum period of imprisonment
[86] The Crown does not seek a minimum period of imprisonment in your case. I agree that a minimum period is not required.
Sentence
[87] Mr Larkins would you please stand. On the charge of arson (with a danger to life) you are sentenced to seven years and 10 months’ imprisonment. That sentence is cumulative on the sentence you are presently serving. On each of the other two charges you are sentenced to five years’ imprisonment. You will serve those sentences concurrently with each other and with the sentence for arson.
[88] 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