R v Naua-Tuilotolava

[2023] NZHC 1105

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-072-000048

[2023] NZHC 1105

THE KING

v

MALACHI DAMIEN NAUA-TUILOTOLAVA

Hearing:

10 May 2023

Counsel:

RL Mann for Crown

TC Tran for Defendant

Judgment:

10 May 2023

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Hamilton. TC Tran, Hamilton.

R v NAUA-TUILOTOLAVA [2023] NZHC 1105 [10 May 2023]

[1]    Malachi Naua-Tuilotolava, you are for sentence on three charges: riotous damage,1 which has a maximum penalty of seven years’ imprisonment; arson,2 which has a maximum penalty of 14 years’ imprisonment; and assault with a weapon,3 which carries a five-year maximum.

[2]    Mr Naua-Tuilotolava, you were one of a group of defendants who participated in the rioting at Waikeria Prison that began 29 December 2020. The rioting lasted six days. It caused damage of approximately $50 million. You participated in inflicting that damage. You participated in the lighting of fires that endangered life, and in the throwing of burning objects at Police and Corrections staff who were trying to restore order and protect other inmates.

[3]    My remarks today will be brief because you are already serving a 24-year sentence for importing a very large amount of methamphetamine.4 That happened back in 2016. Consequently, it is common ground the sentence I impose should respect that which you are already serving, so your overall sentence is not disproportionately severe. Or, to borrow the language of the law, I must sentence you today in accordance with the totality principle.

[4]    Other offenders in the Waikeria Prison riot have received starting points of imprisonment between 12 years and 10 years, nine months.5 Your lawyer, Mr Tran, acknowledges that if I were sentencing you in isolation, a starting point of 10 and a half years’ imprisonment would be appropriate.

[5]    You sought a sentence indication toward the end of last year.6 You were given that indication 2 December 2022. You declined to accept it. Instead, you pleaded guilty the morning your trial began 13 February 2023. You now argue there was a miscommunication in relation to your sentence indication and you actually wanted to accept it.

1      Crimes Act 1961, s 90.

2      Crimes Act, s 267(1)(a).

3      Crimes Act, s 202C(1)(a).

4      R v Tuilotolava [2017] NZHC 2621.

5      R v Cuff [2022] NZHC 2545 at [35]; R v Taite [2022] NZHC 2935 at [21]; and R v Lote-Telea

[2022] NZHC 3204 at [13].

6      R v Naua-Tuilotolava [2022] NZHC 3215.

[6]    There is no evidence before me to support that argument. On the face of the record, you declined the indication and pleaded guilty on the morning of the trial.  So, were I sentencing you in isolation, I would have deducted not more than 10 percent for your late guilty pleas.

[7]    I have been given little information about your  personal  circumstances.  Your pre-sentence report is sparse. There is no cultural report, as I gather you did not wish to engage about your personal circumstances. You are now 32. You were born and raised in Australia, albeit your heritage is Tongan. Because I have so little information about you, I read the sentencing remarks in relation to your long drugs sentence. It turns out I was the Judge who imposed that.  When I imposed it in 2017, I noted you were hitherto of “good character” and that you were described as “intelligent, well-educated and thoughtful”.7 I also noted you had a diploma in counselling and an apparently steady employment record.8 Sadly, you now have more convictions for serious criminal offending.

[8]    Mr Tran does not identify any mitigating features beyond your guilty plea. None are apparent from the little I know about you. So, if I were sentencing you in isolation, I would adopt a 10 and a half-year starting point.   I would then  deduct   10 percent for your late guilty pleas. That would have meant a nine-year, five-month prison sentence.

[9]    However, and this point I stress, I am not sentencing you in isolation. As I have said, you are already serving a 24-year term of imprisonment. Because of that, the prosecution contends I should impose a cumulative term of six years’ imprisonment.  Mr Tran agrees.  He says your sentence should be “around” six years.

[10]   I am satisfied another six years is right. A higher sentence would be disproportionately severe given the one you are already serving. A lower sentence would constitute an invitation to inmates serving long sentences to riot with impunity, believing there would be no real penalty for doing so.  As it happens, this outcome

7      R v Tuilotolava, above n 4, at [27].

8 At [24].

accords the sentence indication that you declined. But, that is only because there is little room for me to move given your existing sentence.

[11]Mr Naua-Tuilotolava, please stand:

(a)I impose a sentence of six years’ imprisonment on the riotous damage and arson charges; and five years’ imprisonment for the charge of assault with a weapon.

(b)The sentences are concurrent between themselves, but cumulative on the 24 years you are already serving.

In short, I add six years’ imprisonment to your existing term.

Addendum

[12]   I conclude with the obvious: this case should not be regarded as a precedent for the other defendants in this case. It reflects particular and unusual facts.

……………………………..

Downs J