R v M
[2023] NZHC 2541
•12 September 2023
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-072-000048
[2023] NZHC 2541
THE KING v
M
Hearing: 12 September 2023 Appearances:
R Mann for the Crown I Jayanandan for M
Sentencing:
12 September 2023
(REDACTED) SENTENCING NOTES OF GORDON J
Solicitors: Hamilton Legal, Hamilton Counsel: I Jayanandan, Barrister, Auckland
R v M [2023] NZHC 2541 [12 September 2023]
[1] Mr M, 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 19 out of 21 charges for offending that spanned a period from 29 December 2020 to 2 January 2021 as follows:
(a)arson (x 2);1
(b)arson (with a danger to life) (x 3);2
(c)burglary (x 8);3
(d)assault with a weapon (x 3);4
(e)riotous damage (x 2);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.
When the Corrections officer told those in the yard 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, with eventual surrender on the morning of the sixth day. You were part of that group of nine.
[7] The Crown case overall 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. For some of your charges the Crown relied on s 66(1) of the Crimes Act 1961 on the basis that you were either a principal offender or a party by assisting and/or encouraging.7
[8] The events in yard 116 began when security cameras were covered with wet toilet paper, structures in the yard were destroyed, cups of urine were thrown at Corrections officers through the grille door and Corrections officers were threatened with assault. The Crown case was, and I accept, that you were an instigator involved from the outset in putting the plan into action. You covered one of the CCTV cameras almost immediately before the violent acts in yard 116 started. You were caught on camera about to throw wet toilet paper at one of the CCTV cameras.
[9] I accept the evidence of one of the Corrections officers that you were one of the group who were breaking and smashing seats in the yard. I also accept the evidence of another officer who said he saw you and Matangirau Cuff on top of the toilet where Mr Cuff was using a piece of wood to batter a hole through the roof and you were assisting him. I accept the officer’s evidence that he saw both you and
7 For the charges of riotous damage and the charge of rioting the Crown proceeded on the basis that all the defendants were principal offenders.
Mr Cuff peeling back the roofing. In her closing address, Ms Jayanandan properly acknowledged the jury could find you guilty on Charge 1, a charge of riotous damage involving prison property in yard 116. The jury, accordingly, found you guilty.
[10] There was a further charge, Charge 2, relating to events in yard 116. That was a charge of arson. The evidence was that wooden seats and structures in the yard were set on fire. Corrections officers were impeded in their attempts to extinguish the fires. You were found guilty by the jury on this charge which the Crown pursued on the basis of s 66(2) of the Crimes Act, namely that the lighting of fires was a known probable consequence of the common plan I have referred to. There was evidence, which I accept, that you were heard saying the words “burn it up, burn it up”.
[11] The jury, by its verdict, finding you guilty on Charge 2, must have found that you were part of the common plan at that early point in time.
[12] You then escaped through the hole that you had assisted Mr Cuff to make in the wire mesh over the top of the yard. Mr Cuff escaped first on to the roof of the prison, closely followed by you.
[13] By its guilty verdicts on the other charges that related to events after you had escaped from yard 116, the jury clearly did not accept the submission made on your behalf that (despite your acknowledgement of guilt on Charge 1) once you were on the roof, you were there with men much larger and stronger than you and that you were in a situation where you needed to be careful to ensure your own safety and security.
[14] It was further submitted on your behalf to the jury that your continued presence on the roof did not mean you had joined any plans that the members of the Mongols gang may have had. It was submitted that you were acting on your own, doing your own thing. The jury was patently correct not to accept that position advanced on your behalf. While there were two charges on which you were found not guilty,8 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.
8 Charges 11 and 20.
[15] You made the choice to leave the yard, escaping through the roof with eight others. At the time you left the yard: you were part of the group that had damaged prison property and had lit fires in yard 116; you knew those fires had caused damage; you knew that the fires were lit by people who you were engaged with on the prison roof; and you knew that at least one member of the group was threatening to burn the prison down. In particular, Mr Cuff had said, while in yard 116, “this prison is going to burn down because of you [naming a prison officer]”. As I have already mentioned, you had also said “burn it up”.
[16] With that knowledge you were fully involved with the group until surrender on 3 January 2021.
[17] 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.
[18] The evidence of a Corrections officer was that after you and Mr Cuff escaped through the roof of yard 116, you rushed straight to the sentry bridge above the yard and you started, to use his words, “firing the place”. His evidence was that you and Mr Cuff were joined by two other prisoners and within a very short time of the four of you approaching the guardroom and starting to damage it, a fire was lit.
[19] There was evidence from other officers who saw you and others smashing up the guardroom on the sentry bridge and then seeing a fire in the guardroom. Ultimately, the overbridge was destroyed by fire leaving the charred timber at waist height. The Crown framed Charge 3, a charge of arson relating to these events, on the basis that you were either a principal offender or a party by assisting or encouraging others. The jury, by its verdict, obviously accepted that you at the very least assisted or encouraged the lighting of a fire in this location. I will sentence you on the basis that you were a party either assisting or encouraging or both and that the assistance or encouragement was immediately proximate to the fire being lit in that location.
[20] In finding you guilty of Charge 4, a charge of burglary, the jury obviously accepted the evidence identifying you as the prisoner who was involved in breaking out another prisoner, Malachi Naua-Tuilotolava, from his cell in the West North Wing.
The evidence of a Corrections officer was that both you and another prisoner were using a metal bar hitting the outside of the windows where the bars connected into the concrete, which had the effect of releasing the bars. On the basis of that evidence, I am satisfied that you were a principal offender, that is, you committed the offence in Charge 4 yourself.
[21] The group of nine prisoners, 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.
[22] The Crown case on the charge relating to the breaking into the cells in the East North Wing (Charge 5) was that you were liable under s 66(1) either as a principal offender or as a party assisting and/or encouraging a principal offender(s). There was evidence, which I accept, that you were amongst the prisoners seen to be using the battering ram against the cell walls. You were seen working on Mr Ronaki’s cell and then moving to work on Mr Larkins’ cell. You were an active participant in trying to gain access to those cells. In other words, you were a principal offender on this charge. You committed the offence yourself.
[23] 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 pieces 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.
[24] 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.
[25] You were found guilty by the jury on a charge of arson (with a danger to life) for the fires lit in the course of 29 December 2020 (Charge 12) on the basis you were a party under s 66(2).
[26] Throughout the entire period you were on the roof, the group caused damage to prison property (separate from damage caused by fire). That gave rise to charge 13, a charge of riotous damage. You were found guilty of that charge.
[27] 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 were thrown at Corrections officers, firefighters and Police officers below. Those objects included rocks, glass louvers and shards, fire extinguishers and bottles, metal jars and bits of furniture.
[28] You were found guilty on the three charges of assault with a weapon (Charges 9, 10 and 14). On Charge 9 Ms Jayanandan was correct to concede in her closing address on your behalf that you were responsible as a principal offender for throwing items from the roof at Corrections officers and firefighters. You threw those items yourself. Your actions were deliberately dangerous. The objects thrown were intended to make contact with the bodies of Corrections officers or firefighters and at least in one instance they did so. Glass was very much being used as a weapon.
[29] In Charge 10 the particulars of the charge were that you threw lit objects from the rooftops at Corrections officers and firefighters. The jury found you guilty on that charge. On the evening of 29 December 2020, when prisoners were being walked through the visitor interview area, you were seen standing on top of the Master Control building throwing pieces of burning material at Corrections officers as they made their way escorting prisoners to the pedestrian gate. You were the person doing that act.
[30] On the third charge of assault with a weapon (Charge 14) which covered the period from 29 December 2020 to 3 January 2021, you were found guilty as a party
under s 66(2) on the basis of the acts of others throwing objects at Corrections officers and firefighters. The jury obviously accepted you were part of a shared understanding or common purpose to engage in violence directed at Corrections officers and the offence committed by the others was known by you to be a probable consequence of that common plan.
[31] Over the five days to 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, and prisoner and staff property. The prisoners also accessed the secure medical area. Accessing of the secure areas gave rise to a number of charges of burglary, and your liability on some of those charges (Charges 6, 7, 8 and 16) was on the basis of s 66(2) of the Crimes Act, namely that you were part of the common plan or agreement. The jury obviously accepted that there was a common plan to intentionally damage prison property and that the burglary offences were known by you to be a probable consequence of the common plan of which you were part.
[32] For Charges 15 and 19, also charges of burglary, you were clearly shown on drone camera footage using a battering ram against the outside wall of the armoury (Charge 15) and inside the armoury handing out items to others (Charge 19). You were a principal offender in both of those charges; you committed the offence of burglary yourself. Ms Jayanandan was correct to concede in her closing address on your behalf that you were acting as a principal offender on Charge 19.
[33] On the evening of 1 January 2021 you and the other prisoners on the roof,9 armed with various makeshift weapons, made your way off the roof and charged at Police and Corrections staff on the ground. That gave rise to the charge of rioting (Charge 17) on which you were found guilty. It was only as a consequence of members of the Police Armed Offenders Squad (AOS) deploying a taser and rubber bullets that you all retreated back up on 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
9 Numbering 16 by this time as one had surrendered.
of Police and Corrections staff put themselves in harm’s way in order to try and manage the offending.
[34] 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.
[35] In relation to the charge of arson that covered the events of the evening of 1 January 2021 (Charge 18), on which you were found guilty, the jury obviously accepted that arson (with a danger to life) was known by you to be a probable consequence of the common plan.
[36] As the days continued the prisoners on the roof began to fortify an area behind the prison chapel on the roof of the Master Control building. Members of the group piled furniture into the stairwell 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 sleeping quarters.
[37] 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 in the stairwell was lit from above by the 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. You were seen hugging other defendants and high fiving them after the fire took hold. You were found guilty by the jury on Charge 21, a charge of arson relating to fires on the evening of 2 January 2021 on the basis of s 66(2).
[38] As the officers evacuated, 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. You were one of those who 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.
[39] The fires continued burning until the following morning and caused the near complete destruction of the High Security Facility.
[40] On 3 January 2021 all 16 of you surrendered. The entire High Security Facility which used to house 260 prisoners was destroyed. The total damage caused by the riot is estimated to be in excess of $50 million.
Approach to sentencing
[41] 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 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.
[42] 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
[43] 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. I have referred to this statement when sentencing other defendants but it is necessary to summarise it again today. Mr Buffery says many officers were exposed to smoke inhalation as they had to enter a burning building in order to save the lives of 200-plus men who were locked in their cells. Mr Buffery says if the prisoners had not been
10 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
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.
[44] 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 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.
[45] 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.
Conditions at Waikeria Prison
[46] Ms Jayanandan submits that when setting the starting point for your sentence, I should take into account as a mitigating feature of your offending, the conditions at Waikeria Prison. She says there should be a discount of 10 per cent.
[47] I will come to the process of setting a starting point shortly but I address this matter as a discrete issue.
[48] The submission that Ms Jayanandan makes has been rejected by three other Judges involved in sentencing co-offenders.11 I also rejected that submission when sentencing one of those co-offenders, Mr Haere.12 I said:13
... [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:14
[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 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.
[49]Subsequently, when sentencing Matangirau Cuff, Woolford J said:15
… 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. …
11 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.
12 R v Haere [2023] NZHC 1957.
13 From [45].
14 R v Haere (Minute of Downs J), above n 11, footnote omitted.
15 R v Cuff, above n 11, at [21].
[50] 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.
Starting point
[51] 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.
[52] 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
[53] Ms Mann, for the Crown, submits the following aggravating features are present:
(a)Use of actual and threatened violence: the acts the subject of the charges are inherently violent.
(b)Extent of loss and damage: while the Crown accepts that you are not solely responsible for the entirety of the damage caused, your actions contributed in a significant way to damage estimated to exceed
$50 million.
(c)Scale of the offending: the offending is of an unprecedented scale within New Zealand and is arguably the most serious of its kind. Seventeen prisoners were involved and 16 of you did not surrender until the sixth day. The lives of hundreds of prisoners were put in jeopardy and multiple prison staff, Police and firefighters were involved as a consequence.
(d)The victims were prison officers acting in the course of their duty: within the course of an afternoon the offending quickly escalated to prolonged and violent offending against the prison officers.
(e)Risk of injury: the fires that were lit posed a serious risk of injury both to prison staff and prisoners, particularly those still locked in their cells. The risk to Police and Corrections officers during the course of the chapel fire on 2 January 2021 was extreme and each of the offenders involved knew and understood the potential for real danger given the earlier stacking of flammable material on the stairs and the deliberate lighting of fires in that location.
(f)Impact on victims: a substantial number of victims were impacted by the offending.
[54] In terms of parity considerations Ms Mann refers to your co-offenders who have already been sentenced.16 She also refers to other cases involving arson and other offending in a prison context.17
[55] Ms Mann submits the most comparable of your co-offenders for the purpose of setting a starting point are Siaumau Lote-Telea and Taimana Soames, both of whom, like you, defended the charges at trial. The global starting points I adopted for those two defendants were 11 years and nine months’ imprisonment and 11 years and 10 months’ imprisonment respectively. Ms Mann submits that a global starting point of 12 years and six months’ imprisonment is appropriate in your case having regard to the fact that you were found guilty of more charges than those two co-defendants.
16 R v Kameta [2023] NZHC 965; R v Cuff [2023] NZHC 2394; R v Taite [2023] NZHC 975; R v Tapara-Taipari [2023] 1812; R v Haere [2023] NZHC 1957; R v Soames [2023] NZHC 1969; R v Lote-Telea [2023] NZHC 1959; R v Huritu [2023] NZHC 1960; R v Paul [2023] NZHC 1985; and R v Naua-Tuilotolava [2023] NZHC 1105.
17 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 (1988) 3 CRNZ 532.
Defendant’s submissions
[56] Ms Jayanandan accepts that the aggravating features of large-scale loss and damage, and that the victims were prison officers acting in the course of their duty, may be taken into account by the Court.
[57] As to the starting point, Ms Jayanandan submits that the Court should adopt as the lead offence the chapel fire (on 2 January 2021). She submits an appropriate starting point for that offence is seven years’ imprisonment.
[58] She submits the remaining charges ought to attract an uplift of one and a half years’ imprisonment. That results in a global starting point of 8 and a half years’ imprisonment.
[59] In support of those submissions Ms Jayanandan says that: on some of the charges you were found guilty as a party rather than as a principal offender; there is no evidence that you lit any of the fires yourself; and your conduct of throwing objects at Corrections officers and Police did not result in any identified injuries to those officers.
Discussion
[60] Leaving aside Mr Kameta,18 for those defendants who were in yard 116 and thus involved from the outset, global starting points ranged from 11 years and three months’ imprisonment to 12 years’ imprisonment, having regard to parity considerations.
[61] The defendants who were subsequently released from their cells by the yard 116 prisoners and who pleaded guilty during the trial were sentenced on the basis of a global starting point of nine years and six months’ imprisonment.19
18 Mr Kameta’s position is somewhat different as his early surrender from the roof on day two resulted in a lower starting point.
19 The defendant Mr Naua-Tuilotolava was also subsequently released from his cell. He pleaded guilty on the first morning of the trial. Because he was serving a 24 year sentence of imprisonment, for totality reasons, the sentencing Judge added a cumulative term of six years’ imprisonment.
[62] I accept the aggravating features identified by the Crown are present. I also accept the Crown’s submission that the same starting point I adopted for the three lead charges of arson with a danger to life for Mr Lote-Telea and Mr Soames should also be adopted in your case. That is, a starting point of 11 years’ imprisonment.
[63] For Mr Lote-Telea I considered an uplift to that initial starting point of one year and three months’ imprisonment was appropriate to reflect his further offending. But I made a downward adjustment for parity purposes to reach a global starting point of 11 years and nine months’ imprisonment.
[64] For Mr Soames I considered an uplift of one year and four months’ imprisonment for his further offending would be appropriate but made a parity adjustment arriving at a global starting point of 11 years and 10 months’ imprisonment.
[65] You were found guilty by the jury of more charges than Mr Lote-Telea and Mr Soames. (They were found guilty of 15 and 16 charges respectively). In particular, having regard to what I consider was your central role from the outset in yard 116 and the fact that you were found guilty of throwing lit objects at prison guards and prisoners, a higher uplift is appropriate to reflect the balance of your offending. I consider an uplift of two years is appropriate.
[66] However, for parity reasons I reduce what would have been a global starting point of 13 years’ imprisonment to a global starting point of 12 years and six months’ imprisonment.
[67]There are no mitigating features of your offending.
Personal aggravating features – previous convictions
[68] The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.20 Prior convictions may be taken into account in three ways: as an indicator of character and culpability; as showing the
20 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.21
[69] Your criminal history includes one conviction for each of robbery in 2016 and assaulting Police and wounding in 2015.
[70] The Crown submits that a modest uplift of two months’ imprisonment is appropriate having regard to your history and because you were remanded in custody at the time.
[71] Ms Jayanandan submits that your limited list of previous offending is an absence of a mitigating factor of previous good character rather than an aggravating factor requiring an increase to the identified starting point.
[72] I do not propose to make an uplift. I put to one side the remand in custody. The two convictions in 2015 although, on their face, are offences involving violence, in each case attracted only short sentences of home detention: two months for assaulting Police and 10 months and 14 days on the wounding charge.
[73] That leaves the offence of robbery in 2016 for which you were sentenced to two years and three months’ imprisonment. That offending was four years prior to the present offending and was of a different nature and on a much lesser scale compared to the present offending.
[74] Accordingly, I do not propose (as I have said) to add an uplift for your prior convictions.
Personal mitigating factors
[75] As regards personal mitigating factors, Ms Jayanandan submits the Court should make the following discounts: 15 per cent for personal factors contained in the s 27 report filed on your behalf; and 15 per cent for your youth and prospects of rehabilitation.
21 R v Casey [1931] NZLR 594 (CA) at [597]; Kushell v Police [2012] NZHC 2380 at [10].
[76]I address each of those issues in turn.
Personal circumstances
[77] You have filed a cultural report prepared under s 27 of the Act by Emma Lutui. Ms Lutui obtained the information for her report by speaking to both you and your mother.
[78]The Court also has the usual PAC report.
[79] You are now aged [redacted] years and you are of [redacted] heritage through both your mother and father. You are the [redacted] siblings. You say your mother lived a hard life trying to raise you amongst the “chaos and trauma” of being involved with your father, who was in and out of prison. When he was present you witnessed his violent abuse of your mother, punching and stomping on her head. When you tried to intervene you would become a victim of your father’s rage.
[80] As a result of intervention by Child, Youth and Family (CYF) services, you were removed from your mother’s care and brought up by your maternal grandparents, [redacted].
[81] You say you enjoyed learning at school but you struggled and your teachers did try to help you. There was a reasonable routine in your life during primary school as your father was mainly incarcerated during that time and there was a routine at your grandparents’ home.
[82] By the time you were in [redacted] at school, your father was out of prison again and back living with your mother. [Redacted] you would watch over your siblings and feed and bathe them when your mother was intoxicated or out following your father.
[83] Your parents were regular users of marijuana, methamphetamine and alcohol. That was simply part of your home environment.
[84] You say that you finished intermediate school but remember only a little of it. You were then enrolled at high school in [redacted] but stayed in school only for a couple of months. You do not remember if you completed your first term at high school.
[85] CYF became involved again because you were absconding from your grandparents’ home. You were moved to your paternal grandparents’ home also in [redacted]. It was there that you met your father’s brothers and became close to his younger brother. That uncle was deeply involved in the [redacted] and introduced you to the [redacted] lifestyle and world.
[86] You began experimenting with marijuana and methamphetamine after you met that uncle. You say you were terrorised and manipulated by your uncle, who taught you how to steal, break into vehicles and homes, and to have an aggressive demeanour and be ready to use violence to get what you wanted. You say your uncle glorified the [redacted] lifestyle and you decided to become a member.
[87] As is apparent from what I have said, violence and alcohol were part of your early life. Your mother has been in and out of rehabilitation for drug and alcohol addiction and is currently still receiving support and care.
[88] 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 a choice not to offend.22
[89]I will give a 15 per cent discount as submitted by Ms Jayanandan.
Youth and prospects for rehabilitation
[90] You were born on [redacted]. You were thus [redacted] years old at the time of your offending. You would therefore have fallen within the group of individuals aged between 18 and 25 years often referred to as “emerging or young adults”.23
22 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [115].
23 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [76].
[91] Ms Mann submits there should be no discount for your youth or prospects of rehabilitation. She submits there is no evidence of rehabilitative efforts and she contrasts the impulsivity often seen in youth offending with what she describes as the entrenched offending over a period of days in the present case.
[92] In response, first as to rehabilitative prospects, it seems that there have been no programmes yet available to you. However, I propose to allow a discount for your prospects of rehabilitation on the basis that because of your relative youth, you are likely to be more amenable to rehabilitation.
[93] For the reasons set out in Dickey v R,24 because of the characteristics of young people (including emerging or young adults) I accept there should be a discount for youth, which will include your prospects of rehabilitation. I note the Crown’s submission but nevertheless propose to give a discount. In doing so I take into account as regards your youth that you were in a closed environment, that is, in a prison with other individuals, some of whom were older and physically bigger than you.
[94] I accept Ms Jayanandan’s submission that a discount of 15 per cent for your youth and prospects of rehabilitation is appropriate.
End sentence
[95] Mr M I have adopted a global starting point of 12 years and six months’ imprisonment. I have made allowances of 15 per cent for your personal circumstances and 15 per cent for your youth and prospects of rehabilitation. That is a total of 30 per cent. Calculated in months from the global starting point of 12 years and six months’ imprisonment, that is a reduction of 45 months (ie 3 years and nine months). The end sentence is therefore eight years and nine months’ imprisonment.
Minimum period of imprisonment
[96] I did not impose a minimum period of imprisonment when I sentenced either Mr Lote-Telea or Mr Soames. There was no minimum term imposed by the Court for
24 Dickey v R, above n 23. See also Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 and
Frost v R [2023] NZCA 294.
other co-defendants, and although Mr Lote-Telea and Mr Soames went to trial, I did not consider that to be a point of difference in terms of the issue of a minimum period of imprisonment. In those circumstances the Crown has not actively pursued a minimum period of imprisonment. I consider a minimum term should not be imposed in your case and do not do so.
Sentence
[97] Mr M would you please stand. On each of the three charges of arson with a danger to life you are sentenced to eight years and nine 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)) (x 2): Five years (on each charge)
(b)Burglary (x 8): Five years (on each charge)
(c)Assault with a weapon (x 3) Five years (on each charge)
(d)Riotous damage (x 2): Five years (on each charge)
(e)Rioting: One year
[98]The sentences on all charges are to be served concurrently.
Gordon J