R v Nelson

[2015] NZHC 963

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-13119 [2015] NZHC 963

THE QUEEN

v

WILLIAM NELSON

Hearing:	7 May 2015
Appearances:	M R Walker and M J Hammer for Crown G Newell for Defendant
Sentence:	7 May 2015

SENTENCING REMARKS OF LANG J

R v NELSON [2015] NZHC 963 [7 May 2015]

[1]      Mr Nelson, you appear for sentence today having pleaded guilty to a charge of participating in a riot.   That charge carries a maximum sentence of two years imprisonment.  I record that I have entered a conviction on the charge.

[2]      You were originally charged with the more serious charge of riotous damage. This carried a maximum sentence of seven years imprisonment.  The new charge to which you have now pleaded guilty reflects the Crown’s acceptance that your involvement in the incident underlying the charge was less than the Crown originally believed to be the case.

Background

[3]      The charge arises out of a riot that occurred at the Spring Hill Corrections Facility on  the  weekend  of  1  June  2013.    This  caused  significant  damage  that required repairs costing about $5 million.

[4]      The riot occurred in a medium security unit that contained two pods.  On the morning in question, these held a total of 88 prisoners.  You were being held in one of the two pods.

[5]      The riot began when one-half of the prisoners in the unit were released for morning exercise.  The prisoners were released into an open area in the pod. Almost immediately,  corrections  officers  noticed  that  a  large  number  of  the  prisoners appeared to be intoxicated.  They were able to tell this from the manner in which the prisoners were behaving after being released into the unit.   Very shortly after the prisoners were released, a scuffle broke out.   This led to two corrections officers going into the yard to intervene.   Having separated the fighting prisoners, the prisoners moved to another area of the pod.  There another scuffle broke out.  The two corrections officers again went to intervene.   On this occasion, they were set upon by a large number of prisoners.  As a result, two officers who were in the staff base were forced to go into the pod and guide the other two officers to safety.  From that point on, a large-scale riot occurred in which furniture and property were destroyed.  Broken pieces of furniture were used as weapons to attack the staff base in which the corrections officers had sought refuge.

[6]      The  incident  went  on  for  some  considerable  time.    During  this  period extensive damage was caused to the pod and staff base as a result of the smashing of windows and attempting to smash through the doors of the base.  The corrections officers inside the base were in a sense being held hostage by the mob of rioting prisoners outside.  The riot included the lighting of fires in the pod onto which the prisoners heaped broken property and other items.   This obviously caused a significant amount of damage and also danger to other inmates and staff.

[7]      Your role in the incident related to one particular aspect of it.  At a disputed facts hearing earlier today, I held that you were standing adjacent to a group of prisoners  who  were  involved  in  breaking  up  picnic  tables  situated  in  the  pod. Broken pieces of the picnic tables were then handed to other prisoners for use as weapons to smash windows and doors.   The issue in dispute at the hearing was whether  or  not  you  were  actively  involved  in  smashing  up  the  tables.    The corrections officer who gave evidence said that you were part of that group, but he could not say exactly what you did.

[8]      In those circumstances, in a findings given just before sentencing, I held that I could not be satisfied beyond reasonable doubt that you were one of the prisoners who actually smashed up the furniture.   However, you accepted when you gave evidence that you were in close proximity to the prisoners who created this damage. I reached the view that, by your presence very close to these prisoners, you provide active or passive encouragement to what occurred.  You fall to be sentenced on that basis.

Starting point

[9]     The Crown submitted that an appropriate starting point was 18 months imprisonment.  That is the starting point I applied in relation to Mr Tie, who pleaded guilty to the same charge to which you have pleaded guilty.1   Mr Tie was involved in

breaking up furniture and handing it to other prisoners for use as weapons.

1      R v Tie [2015] NZHC 802.

[10]     Your culpability, as I have found it to be, is not that extensive.   For that reason, I propose to select a starting point in your case of 13 months imprisonment.

Aggravating factors

[11]     You have a very long list of previous convictions.   Many of these are for incidents involving violence, and you have served significant sentences of imprisonment for these.   This was  without  any doubt  an incident that  included elements of violence, both actual and potential.

[12]     In those circumstances, a modest uplift is appropriate.  This does not punish you again for past convictions.  Rather, it makes your present offending more serious because you have been prepared to continue involving violence, notwithstanding the fact that you know that the Court views such actions seriously.  I propose to add an uplift of two months to reflect this factor.  This means that you are left with an end starting point of 15 months imprisonment before taking into account factors personal to you.

Mitigating factors

[13]     The only factor that I can take into account in this context is the fact that you have entered a guilty plea to the charge. Although it came at a relatively late stage, it came virtually immediately after you had the opportunity to plead guilty to a lesser charge.    Having said  that,  the fact  that  you  encouraged  persons  who destroyed property means that you do not fall at the bottom end of the scale.  Indeed, I am sure that the Crown could have proceeded with the original charge based on the facts as I have found them to be.

[14]     For that reason I am not prepared to give you a full discount of 25 per cent to reflect your guilty plea.  I consider you already received a significant benefit by the reduction of the charge.   I propose to apply a reduction of three months, or approximately 20 per cent, to reflect your guilty plea.

Sentence

[15]     On the charge to which you have pleaded guilty, you are sentenced to 12 months imprisonment.  I direct that the sentence is to be served concurrently with the existing sentence you are already serving.

[16]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:
G Newell, Auckland