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.…

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 Naua-Tuilotolava

Details

AGLC: R v Naua-Tuilotolava [2023] NZHC 1105
Case: [2023] NZHC 1105
Decision Date: 10 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant Malachi Damien Naua-Tuilotolava was sentenced for his involvement in the Waikeria Prison riot that occurred in December 2020. Naua-Tuilotolava was charged with riotous damage, arson, and assault with a weapon. He pleaded guilty to these charges. The court had to determine the appropriate sentence, taking into account Naua-Tuilotolava's already existing 24-year sentence for drug importation. The legal issues involved balancing the principles of totality and deterrence in sentencing.

The court considered the totality principle, which required that the new sentence should not be disproportionately severe in light of the existing sentence. The starting point for sentencing Naua-Tuilotolava in isolation was determined to be 10 and a half years. However, due to his existing sentence, the court decided that a cumulative sentence of six years would be appropriate, to avoid disproportionate severity and to maintain the deterrent effect of the law. The court also took into account Naua-Tuilotolava’s late guilty plea, which led to a 10 percent reduction in the starting point.

The final orders of the court were that Naua-Tuilotolava was to serve an additional six years for the charges of riotous damage and arson, and five years for the charge of assault with a weapon. These sentences were to run concurrently with each other but cumulatively with the existing 24-year sentence. The court emphasized that this decision should not set a precedent for other defendants involved in the same incident due to the unique circumstances of Naua-Tuilotolava's case.

Orders