R v Lote-Telea

[2023] NZHC 1959

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 [42] AND

FOOTNOTE 13. 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 1959

THE KING

v

SIAUMAU LOTE-TELEA

Hearing:

25 July 2023

Appearances:

J Hamilton for the Crown

K Burroughs and L Wilkins for Mr Lote-Telea

Sentencing:

25 July 2023

(REDACTED) REISSUED SENTENCING NOTES OF GORDON J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

K Burroughs, Barrister, Hamilton L Wilkins, Barrister, Hamilton

R v LOTE-TELEA [2023] NZHC 1959 [25 July 2023]

[1]    Mr Lote-Telea, 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]    During the trial seven defendants pleaded guilty to amalgamated charges and counsel for a further defendant sought, and was granted leave, to withdraw. That left three of you who defended the charges through to verdict.

[3]    You were found guilty of 15 out of 21 charges for offending that spanned a period from 29 December 2020 to 2 January 2021 as follows:

(a)arson;1

(b)arson (with a danger to life) (x 3);2

(c)burglary (x 7);3

(d)assault with a weapon (x 2);4

(e)riotous damage;5 and

(f)rioting.6

Factual background

[4]    You were in custody on remand in the High Security Facility at Waikeria Prison at the time of the riot.

[5]    On the morning of 29 December 2020 you were in a group of 21 prisoners in one of the exercise yards, yard 116. An incident occurred in that yard when one of the prisoners refused to return a disposable razor (or razors) to a Corrections officer.

1      Crimes Act 1961, ss 267(2) and 66. Maximum penalty: 7 years’ imprisonment.

2      Sections 267(1)(a) and 66.  Maximum penalty: 14 years’ imprisonment.

3      Sections 231(1)(a) and 66.  Maximum penalty: 10 years’ imprisonment.

4      Sections 202C(1)(a) and 66.  Maximum penalty: 5 years’ imprisonment.

5      Section 90.  Maximum penalty: 7 years’ imprisonment.

6      Section 87.  Maximum penalty: 2 years’ imprisonment.

Several other prisoners offered that prisoner their support. You were not one of those prisoners. When the Corrections officer told those in the yard that they would all be returned to their cells early if the razors were not surrendered, the Corrections officer was told by some that they were not going anywhere and were ready for a fight. Eventually one razor was handed in, the situation was defused, and tensions settled. You and the other prisoners in the yard were then permitted to remain there for the usual period.

[6]    The Crown case was  that  later  in  the  morning  a  group  of  nine  of  the  21 prisoners set in train the events that led to the riot, which proceeded over a period of five days and into the morning of a sixth day. You were alleged to be part of that group of nine.

[7]    Structures in the yard were destroyed, security cameras were covered with wet toilet paper, cups of urine were thrown at Corrections officers through the grille door and Corrections officers were threatened with assault. Wooden seats and structures in the yard were set on fire. Corrections officers were also impeded in their attempts to extinguish the fires.

[8]    You were found not guilty by the jury on the two charges, Charges 1 and 2, relating to events in the exercise yard, namely riotous damage and arson. On the riotous damage charge, the Crown case was that all nine of you were principal offenders. I consider that the not guilty verdict on that charge was explicable having regard to a question from the jury, namely whether they could find a defendant guilty on Charge 1 for assisting or encouraging the causing of damage. Arguably, the jury considered there was involvement by you in a common plan as alleged by the Crown, but because the Crown case was that liability for Charge 1 was as a principal offender, the jury found insufficient evidence for guilt as a principal offender.

[9]    The arson charge relating to fires in the yard was that liability was on the basis of s 66(2) of the Crimes Act 1961. That is, that you were part of a common plan with the other co-offenders. It was not suggested that you lit any of the fires in yard 116.

[10]   The Crown case overall at trial was that you and all the other defendants (the group) were part of a shared understanding or agreement, or common plan, to intentionally damage prison property and/or engage in acts of violence towards Corrections officers and that the offences committed were a known probable consequence of the common plan.   On some charges for you the Crown  relied on    s 66(1) of the Crimes Act on the basis that you were either a principal offender or a party by assisting and/or encouraging the principal offender.

[11]   The jury, by its verdict on Charge 2, must have found that you were not part of the common plan at that early point in time.

[12]   However, by its guilty verdicts on the other charges, the jury clearly did not accept the submission made on your behalf that once you were out of yard 116 and on the prison roof, things just happened around you and that you were not part of a shared understanding or common plan. The jury was patently correct not to accept that position advanced on your behalf. While there were four further charges on which you were found not guilty, they were discrete charges and the not guilty verdicts were explicable for reasons pertaining to each charge. But that did not affect your overall culpability.

[13]   You made the choice to leave the yard, escaping through the roof with eight others. At that time you left the yard, escaping through the roof: you knew, first that members of the group had caused damage to prison property; you knew they had lit fires in yard 116; you knew that those fires had caused damage; you knew that those fires were lit by people who you were engaged with on the prison roof; and you knew that members of the group were threatening to burn the prison down. In particular, Matangirau Cuff had said, while in yard 116, “this prison is going to burn down because of you [naming a prison officer]” and that [redacted] had also said “burn it up”.

[14]   With that knowledge you were fully involved with the group until surrender on 3 January 2021.

[15]   After climbing out of yard 116 through the roof, the group attempted to persuade the remaining 12 prisoners in the yard to join them, but this was unsuccessful.

[16]   The group of nine prisoners on the roof, of which you were part, then used an iron bar to smash through cell windows and thereby liberate other prisoners who were housed in  the upper levels  of the East  North Wing.  The windows of the cells of   12 prisoners were smashed in this way. Eight of the inmates in those cells chose to join the group on the roof. There was now a group of 17 of you on the prison roof.

[17]   The Crown case on the charge relating to the breaking into the cells (Charge 5) was that you were liable under s 66(1) either as a principal or as a party assisting and/or encouraging. I accept the evidence of one of the Corrections officers that he saw you working together with another prisoner using a battering ram trying to break the cement in all the windows. You were an active participant in trying to gain access to the cells. In other words, you were a principal offender on this charge. You committed the offence yourself.

[18]   As part of this early phase on 29 December 2020, the receiving office for the prison was set on fire when there were a significant number of Corrections officers and prisoners inside that area. They were showered with bits of wood and glass from the roof. The paint store, which was located near the receiving office, was also set on fire and smoke began to fill the buildings. Multiple objects were torn off the building structure and thrown at Corrections staff who were on the ground.

[19]   On that first evening members of the group lit at least 26 fires on the prison rooftops. Below, hundreds of prisoners were locked inside their cells and other secure areas. Those areas were burning and filled with smoke. Corrections officers had to enter those areas to free those prisoners. A number of prisoners were unresponsive and had to be either dragged or carried out by Corrections officers. Meanwhile, members of the group continued to attack the officers and prisoners from above. Those other prisoners were rescued with little time to spare. It was only through the efforts of Corrections officers that no lives were lost.

[20]   From the early hours of the morning on the second day, 30 December 2020, and over the days that followed, members of the group were seen to conduct rooftop patrols, during the course of which objects would be thrown at Corrections officers, firefighters and Police officers below. These included rocks, glass louvers and shards, fire extinguishers and bottles, metal jars, and pieces of furniture.

[21]   Over the next four days until 2 January 2021, secure areas of the prison were accessed, including the armoury, where you and others were able to seize protective body armour, shields and other equipment. That gave you access to phonelines, prisoner and staff property, and the prisoners also accessed the secure medical area. The accessing of the secure areas gave rise to a number of charges of burglary, and your liability on those charges was mostly on the basis of s 66(2). On one of the charges (Charge 19) which involved entering the armoury, you were found liable on the basis of s 66(1). [Redacted] was clearly seen on the drone footage inside the armoury. He was passing out to you a number of items including shields, body armour, batteries, crow bars, bolt cutters, radios and binoculars. In other words, you assisted [redacted] in committing this offence.

[22]   Throughout the period you were on the prison roof, you and others threw objects including concrete pieces, glass, wood, pipes and metal at Corrections officers, firefighters and Police officers, as I have already mentioned. In one of the two charges of assault with a weapon, your liability was on the basis of s 66(2). In other words, you were part of a common plan. On the other, liability was on the basis of s 66(1) either as a principal offender or as a person encouraging and/or assisting the principal offenders. While caution is required in relation to some of the identification evidence on this charge, there was sufficient reliable evidence to satisfy me you were a principal offender on this charge. In other words, you threw objects at Corrections officers.

[23]   On the evening of 1 January 2021 you and the other prisoners on the roof,7 armed with various weapons, made your way off the roof and charged at Police and Corrections staff on the ground. It was only as a consequence of members of the Police Armed Offenders Squad (AOS) deploying a taser and rubber bullets that you all

7      Numbering 16 by this time as one had surrendered.

retreated back up on to the prison roof. That was just one example of repeat occasions over the course of the period when you were on the roof, when large numbers of Police and Corrections staff put themselves in harm’s way in order to try and manage the offending.

[24]   Following that event on the evening of 1 January 2021 when you went back up on to the roof after charging at Corrections officers and Police officers, fires erupted on the top of several buildings. On the night of 1 January 2021 at least seven fires were lit with discrete points of origin. By the early hours of the morning all fires were extinguished. Although the fires caused extensive damage, the main High Security Facility structure remained safely accessible to you and the other prisoners on the roof.

[25]   As the days continued, you and the other members of the group began to fortify an area behind the prison chapel on the roof of the Master Control building. Members of the group piled furniture into stairwells which gave access up to the chapel, preventing Police and Corrections staff from accessing the roof. The chapel itself was used by the group as a base and as sleeping quarters.

[26]   On the evening of 2 January 2021, two teams of Corrections officers and the Police AOS entered the prison. As they were attempting to do so, the barricade on the stairwell was lit from above by members of the group and the two teams were forced to withdraw. You were seen on drone footage going in and out of the chapel shortly before that occurred. The Court is not in a position to find that you actually lit those items of furniture from above but I find that at least you were aware of what the other members of the group were doing. 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.

[27]   As the officers evacuated, some of your group 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. 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. All members of

the group were observed to be wearing either riot helmets, stab-resistant vests and/or other items of Corrections’ uniform.

[28]   The fires continued burning until the following morning and caused the near complete destruction of the High Security Facility.

[29]   On 3 January 2021 all 16 of you surrendered.8 The High Security Facility which used to house around 260 prisoners was destroyed. The total damage caused by the riot is estimated to be in excess of $50 million.

Approach to sentencing

[30]   Sentencing is a two-stage process.9 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 Courts (PAC) Report and the report under s 27 of the Sentencing Act 2002 (the Act) which you commissioned.

[31]   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

[32]   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 that

8      Manutaki Kameta surrendered on 30 December 2020.

9      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

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.

[33]   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 the 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.

[34]   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

[35]   The three charges of arson with a danger to life are the lead, or the most serious offences. I propose to set a starting point for those three arson charges and then apply an uplift for the other charges.

[36]   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 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

[37]   Ms Hamilton, for the Crown, submits that having regard to the magnitude of the offending and the risk to life as a result of the aggravating features, which I will refer to shortly, and your role in the offending, the appropriate global starting point

will be higher than the starting points for the other defendants who resolved the prosecution. Ms Hamilton refers to the reduced number of charges for those defendants who pleaded guilty premised on what she submits can be described as a relatively benign summary of facts.

[38]   Ms Hamilton invites the Court to identify a starting point for the lead offences of arson with a danger to life and an appropriate uplift for the balance of the offending to produce a global starting point of 13 years’ imprisonment.

[39]   Ms Hamilton 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 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. 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)Victim impact: the offending had a significant impact on the many victims.

[40]   In terms of parity considerations, Ms Hamilton refers to your co-offenders who have been sentenced by other Judges. I briefly summarise the sentences for your co- offenders.10

[41]   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.11   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,12 Campbell J reduced the global starting point by six months to temper disparity, resulting in 12 years’ imprisonment.

[42]   Matangirau Cuff entered a guilty plea after accepting a sentence indication provided by Woolford J on the same representative charges.13 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.

10     When giving my sentencing decision I did not read out the detail of paragraphs [41] to [48] but indicated to counsel the detail would be included in my written sentencing decision.

11     R v Taite [2023] NZHC 975.

12     R v Taite [2022] NZHC 2935 at [21].

13   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)).

[43]   Manutaki Kameta was sentenced by Lang J on 28 April 2023 on the same representative charges,14 having accepted an earlier sentence indication.15 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 not a ringleader and because Mr Kameta surrendered on 30 December 2021 before most of the major damage occurred to the prison complex.16

[44]   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 2023.17 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.18 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 years Mr Naua-Tuilotolava was already serving.

[45]   Arleye Tapara-Taipari also pleaded guilty following a sentence indication given by Lang J.19 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 2023.20

[46]   Ms Hamilton 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.21 Ms Hamilton 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

14     R v Kameta [2023] NZHC 965.

15     R v Kameta [2022] NZHC 3629.

16 At [15].

17     R v Naua-Tuilotolava [2023] NZHC 1105.

18 At [4].

19     R v Tapara-Taipari [2022] NZHC 3219.

20     R v Tapara-Taipari [2023] NZHC 1812.

21 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.

maintenance of the discipline needed to effectively manage a penal institution.22 More particularly in the case of arson in a prison environment, Ms Hamilton refers to Mouat v Police where Baragwanath J observed that such offending:23

… 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. …

[47]   There is also the case of Ratu v R24 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.25 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.

[48]   The two appellants in that case were not involved in the initial assaults on the prison officers but were actively involved in a number of events during the riot. The starting point of 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 remained undisturbed on appeal.

Defendant’s submissions

[49]   Mr Burroughs realistically accepts the aggravating features identified by the Crown are present. But on one matter he takes issue with the Crown submissions.  Mr Burroughs submits that it is difficult to accept that any lives were indeed put at risk.

22     Tryselaar v R [2012] NZCA 353 at [18] and Kepu v R [2011] NZCA 104 at [19].

23     Mouat v Police, above n 21, at [8].

24     Ratu v R [2016] NZCA 97.

25 At [24].

[50]   I do not agree. The trial evidence, that I accept, was to the effect that a number of prisoners were rescued by Corrections staff just in time before they were overwhelmed by smoke from fires. There was evidence that at times the officers could barely see their own hands in front of their faces. They had to find their way around the facility to evacuate prisoners from their cells, effectively by muscle memory. Those officers put their own lives at risk in the evacuation process.

[51]   Mr Burroughs accepts that your role was not merely a passive one. That is a proper concession on the evidence.

[52]   Mr Burroughs does not suggest a starting point but submits the Court will need to consider the issue of parity with the sentencing of your co-defendants.

Discussion

[53]   I accept that all the aggravating features of the offending 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.

[54]   The starting point I will adopt is influenced by the starting points adopted for your co-offenders who have already been sentenced.

[55]   This morning I passed sentence on Grayson Haere who pleaded guilty prior to trial.26 He was present in yard 116, as you were. I found Mr Haere to be a principal offender and an instigator of the offending. I also saw no reason to distinguish between him and Mr Taite, Mr Cuff and Mr Tapara-Taipari in terms of his role. They were also in yard 116 when the events began.

[56]   You were not an instigator, the jury having found you not guilty of the two charges for the events that occurred in yard 116. In that respect only, your culpability is less than that of Mr Haere. On the other hand, you were found guilty of seven charges of burglary and a charge of rioting, neither of which were faced by those who pleaded guilty. I do not entirely accept the Crown submission that the summary of

26     R v Haere [2023] NZHC 1957.

facts for those defendants who resolved the prosecution was relatively benign. It was a detailed document running to around nine pages. But nevertheless, the convictions on those other charges not faced by those who pleaded guilty elevates your offending above that of Mr Haere.

[57]   I adopt a starting point for the arson (with a danger to life) charges of 11 years’ imprisonment. I would have uplifted that starting point by one year and three months for the other charges, but I reduce the uplift for parity reasons in relation to your co- offenders who pleaded guilty, to reach a global starting point of 11 years and nine months’ imprisonment. The additional three months more than Mr Haere’s global starting point creates the required distinction between the global starting points for each of you.

[58]There are no mitigating features of the offending.

Personal aggravating features – previous convictions

[59]   The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.27 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.28

[60]   Your New Zealand criminal history records 10 convictions for offences including injuring with intent to injure, assault with intent to injure, and possession of offensive weapons. However, any terms of imprisonment were very short. Your prior Australian criminal history between 2013 and 2017 evidences 11 convictions including entries for drug dealing offending, firearms offending and dishonesty offending. The most serious of those was a drug dealing conviction for offending in 2016 for which you were sentenced to three years’ imprisonment.

27     Sentencing Act 2002, s 9(1)(j).

28     R v Casey [1931] NZLR 594 (CA) at [597]; Kushell v Police [2012] NZHC 2380 at [10].

[61]   Ms Hamilton submits that having regard to your criminal history and the fact that you were remanded in custody at the time of this offending, an uplift of at least three months’ imprisonment is appropriate.

[62]   Mr Burroughs notes that you were not convicted on the matters for which you were in custody at the time of this offending. He submits in those circumstances an uplift would be severe.

[63]   In your case I do not consider that your previous convictions are of sufficient relevance to your current offending nor of the necessary level of seriousness for the Court to take them into account by way of an uplift. I therefore do not do so.

Personal mitigating factors

[64]   Mr Burroughs submits you are entitled to a discount for matters raised in a report prepared under s 27 of the Act. He suggests a discount in the region of 15 to 20 per cent.

[65]   The information in the report is based primarily on an interview with you and also your partner. I have read it carefully.

[66]   The report does not convey the extent of deprivation and violence that is sadly so often revealed in the lives of offenders who rely on s 27 reports. Certainly, there have been times of real hardship in your life and lost opportunities, but not to the extent that is all too commonly seen.

[67]   You are aged 29  and  are  of  full  Samoan  descent.  You  were  born  in  New Zealand but your parents returned to Samoa after your birth. When you were four you were sent to live in New Zealand with your aunt, your mother’s sister. You say your aunt was a very strict woman and you were frightened of her.

[68]   Your parents returned to New Zealand and for a while your family lived in Auckland before moving to the United States of America so your mother could look after your maternal grandmother who was in ill health. Life there was difficult for your family. There was no stability and no work prospects.

[69]   In 2003, when you were nine, the family moved to Australia. At school you were reasonably academic and you excelled in sport, especially rugby league. By 2005, when your family moved to Brisbane, they were eligible to buy a home there.

[70]   You were offered scholarships to high schools. However, your mother wished to keep you close and you were sent to a local high school where there were no rugby programmes.

[71]   At age 13 you started rebelling: smoking cannabis, missing class, and you were suspended a couple of times for fighting. By the time you were 14 you started getting into trouble with the law and your mother made you leave home. There began a cycle of couch surfing at friends’ places and going back to your parents. During this time you were smoking cannabis, drinking alcohol and at 16 you started smoking methamphetamine. At the age of 18 you got a job, but you spent the money on drugs and you started dealing in drugs to fund your habit. At age 21 you were sent to prison doing the best part of a five year sentence. In 2020 you were sent to New Zealand as a 501 deportee.

[72]   You found it difficult to fit in here. You were separated from your family, you started using methamphetamine again and began committing crime to fund your methamphetamine use.

[73]   In July 2022 you were released on EM bail to the address of one of your cousins. In that time you met your partner Aimee. You found out she was pregnant in December 2022 but sadly she lost the baby.

[74]   The report writer states that during the time you were on EM bail you managed to obtain employment and that employment was stable until you went back to prison as a result of a breach of your EM bail when you took your father to a medical appointment. The Court is told that you stayed clean from drugs during the period of your release in 2022.

[75]   As the report writer says, like a lot of young people who choose the wrong path, you became embroiled in a cycle of methamphetamine and crime. The drug took

its toll as it was a precursor to your imprisonment in Australia and eventual deportation.

[76]   On a positive note, the report writer says that while you are in prison you are taking steps to better yourself, being focused on downgrading your status so as to open doors to other opportunities to engage in programmes and courses. You said to the report writer that your “repetitive cycle has come to an end”. You clearly have strong support from your partner Aimee. I note she is here today as are your parents as well.

[77]   In all those circumstances, the Crown’s submission is that a modest credit in the region of 15 per cent might be given for your background.

[78]   While your background is not as distressing as seen in some s 27 reports, I nevertheless accept that the deprivation you have experienced provides a sufficient causal contribution to this offending. Added to that, there is your drug usage and then drug offending, which saw you in New Zealand without immediate family support and that was also a causal contribution in my view. Your family loyalties to your father then saw you back in prison as a result of your breach of EM bail, where you were on remand when the offending occurred.

[79]I consider a discount of 10 per cent is appropriate.

End sentence

[80]   From a global starting point of 11 years and nine months I deduct 10 per cent (or in other words 14.1 months which I round up in your favour to 15 months) for your personal circumstances. That produces an end sentence of 10 years and six months’ imprisonment.

Minimum period of imprisonment

[81]   Ms Hamilton submits that the Court should impose a minimum term of imprisonment because all of the purposes for which a minimum period may be imposed are engaged in this case.

[82]   Ms Hamilton acknowledges that minimum periods of imprisonment have not been imposed for other co-defendants but submits that the decisions in those cases turned on the basis of the agreed summary of facts, as contrasted with the significant body of evidence presented at trial. She notes, for example, in respect of Mr Taite, his progress towards rehabilitation was a factor in the Judge not imposing a minimum period of imprisonment.29

[83]   Further, Ms Hamilton submits that by going to trial you did not accept responsibility for the offending.

[84]   Mr Burroughs submits that the Court should take into account rehabilitation prospects and says a minimum term of imprisonment should be considered as crushing for you.

[85]   The Court has the power to impose a minimum term of imprisonment when it imposes a sentence of two years or more on an offender.30 The Court may only do so where the normal parole provisions, which require an offender to serve one-third of the sentence before being eligible to apply for parole, would be insufficient to meet the sentencing principles of denunciation, the need to hold the offender accountable, deterrence and the need to protect the community.31

[86]   There was no minimum term imposed by the Court for Mr Taite, Mr Kameta or Mr Tapara-Taipari. I also did not impose a minimum term for Mr Haere, seeing no real distinction between him and Mr Taite and Mr Tapara-Taipari.

[87]   Although you went to trial and those other co-defendants pleaded guilty, I do not see that as a point of difference in terms of the issue of a minimum period of imprisonment. I therefore do not impose a minimum term.

29     R v Taite, above n 11, at [46].

30     Sentencing Act, s 86(1).

31     Section 86(2)(a)–(d).

Sentence

[88]   Mr Lote-Telea please stand. On each of the three charges of arson with a danger to life you are sentenced to 10 years and six months’ imprisonment. You will serve those sentences concurrently. I sentence you to terms of imprisonment on the remaining charges as follows:

(a)Arson (under s 267(2)):  Five years

(b)Burglary (x 7):  Five years (on each charge)

(c)Assault with a weapon (x 2):               Five years (on each charge)

(d)Riotous damage:  Five years

(e)Rioting:  One year

[89]The sentences on all charges are to be served concurrently.

Gordon J