R v M

Case [2023] NZHC 2541 12 September 2023

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v M

Details

AGLC: R v M [2023] NZHC 2541
Case: [2023] NZHC 2541
Decision Date: 12 September 2023

CaseChat Overview and Summary

The case of R v M involved one of 11 defendants who faced charges arising from a riot at Waikeria Prison over the New Year 2020/2021 period. Mr M was found guilty of 19 out of 21 charges, including arson, burglary, assault with a weapon, riotous damage, and rioting. The High Court of New Zealand, Hamilton Registry, presided over the case, with Gordon J delivering the judgment and sentence. The legal issues centered on determining the appropriate starting point for sentencing, taking into account aggravating and mitigating factors, and ensuring parity with sentences handed down to co-defendants.

The court considered various aggravating features, such as the use of actual and threatened violence, the extent of loss and damage, the scale of the offending, the risk of injury, and the impact on victims. The Crown argued for a starting point of 12 years and six months’ imprisonment, while the defence suggested a starting point of eight and a half years’ imprisonment. After careful consideration, the court adopted a starting point of 12 years and six months’ imprisonment, adjusted for parity reasons.

Personal aggravating and mitigating factors were also considered. The court found no need to uplift the sentence for the defendant's previous convictions, but did apply discounts for personal circumstances and youth/prospects of rehabilitation, resulting in a total reduction of 30%. The final sentence imposed was eight years and nine months’ imprisonment, to be served concurrently on all charges, with no minimum period of imprisonment.

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