R v Pani-Marsden
[2017] NZHC 2696
•3 November 2017
| IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA |
| CRI-2016-044-3943 [2017] NZHC 2696 |
| THE QUEEN |
| v |
| DICKIE PANI-MARSDENSTEAD NUKU |
| Hearing: | 3 November 2017 |
Appearances: | S McColgan for Crown |
Sentence: | 3 November 2017 |
SENTENCING REMARKS OF LANG J
Mr Briggs, Mr Nuku and Mr Pani-Marsden, you appear for sentence today each having pleaded guilty to 13 separate charges involving allegations of violence towards prison officers. The charges are wounding with intent to cause grievous bodily harm, injuring with intent to cause grievous bodily harm, injuring with intent to injure, assault with intent to injure and assault with a weapon.
The charges carry a range of maximum penalties from 14 years imprisonment on the charges of wounding with intent to cause grievous bodily harm down to two years imprisonment on the assault charges.
Background
All of the charges were laid as a result of an incident that occurred at Auckland Prison in Paremoremo on the afternoon of Wednesday 19 October 2016. I do not propose to go through the facts of your offending because they have been traversed fully in each of the sentence indications that I have given.[1] The sentence indications will be annexed to these remarks and will form part and parcel of them.
[1]R v Pani-Marsden [2017] NZHC 1736; R v Pani-Marsden (No. 2) [2017] NZHC 2402; R v Nuku [2017] NZHC 2423; R v Briggs [2017] NZHC 2690.
In short, however, you each became involved in a premeditated plan to assault two prison officers who were stationed outside the block in which you were residing. The plan involved a Mr Waru going to the grille behind which the prison officers were stationed. He then asked for a bucket and mop, supposedly to carry out cleaning duties. Once the prison officers allowed him access to their area, he attacked them using home-made weapons that were strapped to his hands. You three then joined in the attack on the two prison officers. This resulted in four other prison officers being called to the area, and a sustained incident involving significant violence then occurred. This involved significant injury to some of the prison officers, although thankfully their protective clothing prevented them from receiving more serious injuries.
Starting point
I have accepted that you were of the same culpability, or blameworthiness. Although you were not carrying weapons yourselves, you each knew that Mr Waru was carrying two weapons and that you knew that he was likely to use them. You must also have been aware that the incident was inevitably going to spread and become one of significant proportion. The fact that actual injury was caused as an aggravating factor, as is the fact that it involved a numerically superior force of inmates assaulting a numerically inferior group of officers and the fact that the offending occurred in a prison environment is also an aggravating factor.
For those reasons I selected in each of your cases a starting point of five years imprisonment.
Aggravating factors
I then applied an uplift of three months imprisonment to reflect previous convictions involving violent offending within a prison environment on the part of both Mr Nuku and Mr Pani-Marsden. I applied an uplift of six months in respect of Mr Briggs, because he has even more serious charges of violent offending within the prison environment.
Mitigating factors
Although your guilty pleas came relatively late, I allowed a discount of 25 per cent in each case to reflect guilty pleas entered prior to trial. I did this not only because the guilty pleas saved the State the cost of a trial, but also because this would not have been an easy trial for any of the participants in it and would have placed considerable strain on the Court’s resources. For that reason the guilty pleas are of very real value.
Totality
In the case of Mr Nuku, I then undertook a totality analysis and concluded that, in his circumstances, it was not appropriate to reduce the sentence further to reflect totality principles.
In the case of Mr Briggs, I found that it was appropriate to apply a small discount because he is currently serving a sentence of ten years six months imprisonment with a minimum term of seven years imprisonment. That is a significantly greater sentence than the other defendants are serving.
In the case of Mr Pani-Marsden, I did not conduct a totality analysis but have reached the same conclusion in relation to him as I have reached in relation to Mr Nuku. He is currently serving a sentence of seven years three months imprisonment. This comprises an initial sentence of five years imprisonment, together with two cumulative shorter sentences.
I bear in mind the principle that a discount for totality should not be given lightly for offending carried out within the prison environment because it may encourage such offending.[2] If prisoners know that their sentences will be reduced significantly because the offending occurs within a prison environment, it provides little incentive for them to refrain from such offending.
[2]Tryselaar v R [2012] NZCA 353 at [18].
I have concluded that I should not apply a discount for any other mitigating factors in respect of Mr Briggs and Mr Nuku. In the case of Mr Pani-Marsden, I propose to make a slight adjustment to reflect the fact that he is just 22 years of age, whereas Mr Briggs and Mr Nuku are a few years older. In addition, he clearly comes from a disadvantaged background and his counsel has provided me with material today to show that he is making strides in prison in various educational areas. That is obviously to be encouraged.
End sentence
In the case of Mr Briggs, I reached an end sentence of three years ten months imprisonment having reduced the sentence by four months to reflect totality principles. In the case of Mr Pani-Marsden and Mr Nuku, I reached an end sentence of three years 11 months. I propose to reduce Mr Nuku’s sentence by one month simply to bring it into line with that of Mr Briggs notwithstanding the fact that their circumstances are different. I propose to reduce Mr Pani-Marsden’s end sentence to one of three years eight months imprisonment to reflect the further mitigating factors to which I have referred.
Sentences
Mr Pani-Marsden, on the charges of wounding with intent to cause grievous bodily harm, you are sentenced to three years eight months imprisonment. Mr Nuku and Mr Briggs, on those charges you are sentenced to three years ten months imprisonment. In each case those sentences are to be served cumulatively on the sentences you are currently serving. They are to be served concurrently, however, with all of the other sentences I now impose.
On the charges of injuring with intent to cause grievous bodily harm, you are each sentenced to concurrent sentences of three years imprisonment. On the charges of injuring with intent to injure, you are each sentenced to concurrent sentences of two years six months imprisonment. On the assault charges, you are each sentenced to concurrent sentences of two years imprisonment.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
E Priest, Auckland
L Tucker, Auckland
| NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. |
| IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY |
| CRI-2016-044-3943 [2017] NZHC 1736 |
| THE QUEEN |
| v |
| DICKIE PANI-MARSDEN |
| Hearing: | 25 July 2017 |
Appearances: | E L Woolley and R M Dixon for Crown |
Judgment: | 25 July 2017 |
SENTENCE INDICATION OF LANG J
Solicitors:
Crown Solicitor, Auckland
| [1] Mr Pani-Marsden faces 13 charges of wounding, injuring and assaulting prison officers with different forms of intent. He has pleaded not guilty and his trial is due to commence on 20 November 2017. [2] Mr Pani-Marsden seeks a sentence indication. This is an indication of the sentence the Court would impose in the event that Mr Pani-Marsden was to enter guilty pleas within a reasonably short period from today. The charges in question carry maximum penalties of between 14 and two years imprisonment. The facts [3] All of the charges were laid as a result of an incident that occurred at Auckland Prison on the afternoon of 19 October 2016. The summary of facts that has been prepared for today’s hearing records that, at about 1.45 pm on that date, prisoners in Mr Pani-Marsden’s block were associating with each other outside their cells in a landing area. One of these, Mr Waru, went up to a grille behind which the prison officers looking after the block were stationed and asked for a bucket and mop. This was apparently not unusual, because prisoners use “landing time” to clean out their cells and surrounding areas. Mr Waru’s request distracted the two prison officers who were on duty in the block, and four inmates then attacked them. One of them was Mr Pani-Marsden. [4] Mr Waru was armed with two handmade implements, commonly known as shanks. He was using these to attempt to stab the two prison officers. Mr Pani-Marsden also had a homemade implement in his hand. He endeavoured to strike one of the prison officers in the head with this but did not cause more than a relatively superficial wound. The incident attracted the attention of four other prison officers who came to the aid of their colleagues. A reasonably prolonged altercation then ensued with kicking and punching by all concerned. [5] The end result of this was that five of the six prison officers sustained injuries, some of which were significant. The nature of the injuries would undoubtedly have been worse but for the fact that most if not all of the prison officers were wearing chest protectors to guard against violence of the sort that ensued on this day. Starting point [6] This is the second occasion on which this Court has been required to consider the starting point for the sentence to be imposed in respect of this offending. Mr Waru has pleaded guilty, and was sentenced by Wylie J on 9 June 2017.[3] That sentence informs, to a large degree, the indication I am required to give today. [7] Wylie J took a starting point of eight years six months imprisonment in respect of a lead charge of wounding with intent to cause grievous bodily harm. He then applied an uplift of two years to reflect the balance of Mr Waru’s offending. [8] The Crown has followed the same approach in the present case. It has selected charge 3, which is a charge of wounding with intent to cause grievous bodily harm. That charge relates to the injury that Mr Pani-Marsden inflicted on a prison officer with his implement. The Crown submits that this should attract a starting point of around seven and a half years imprisonment. It submits that an uplift of 18 months to two years should be applied to reflect the balance of his offending. [9] Ms Priest, on Mr Pani-Marsden’s behalf, challenges the Crown’s approach. She submits that, standing alone, the offending encompassed by charge 3 would warrant a starting point of no more than three to three and a half years imprisonment. She submits that an uplift of no more than 18 months should be applied to reflect the balance of the offending. This would result in an end starting point of around five years imprisonment before taking into account aggravating and mitigating factors. [10] I consider the correct approach in the present case is to select a starting point that reflects the overall culpability of Mr Pani-Marsden’s offending. This needs to take into account all relevant factors, and does not depend on the selection of a particular charge as a lead charge. Indeed in the context of the present case, it is difficult to discern what would be an appropriate lead charge so far as Mr Pani-Marsden is concerned. [11] The offending has obvious aggravating factors. The first is that it was clearly premeditated, because Mr Pani-Marsden and Mr Waru armed themselves with implements in anticipation of the attack on the two prison officers. They then used the ruse of asking for a mop and bucket to distract the prison officers and gain access to their area. At that point all four defendants then immediately attacked the two officers. Clearly there was a degree of planning and premeditation involved. [12] The second is that this was a group attack by four men who confronted two men. Sheer force of numbers meant that the two prison officers were likely to be overwhelmed in short order. [13] Thirdly, the attack would inevitably draw the attention of other prison officers. It was therefore highly likely that the initial attack would quickly lead to an escalation of violence in which further prison officers became involved. This led to the prospect of those officers being injured, and that is what occurred. [14] Next, there is the fact that weapons were used. Mr Pani-Marsden must share some of the responsibility for that. There was then punching to the head of various prison officers. [15] The final important factor in this context is that the offending occurred within a prison environment. This is a recognised aggravating factor. The Court of Appeal has recently said, albeit in a different context, that when actual violence is inflicted on prison officers within the prison environment, the courts must respond appropriately.[4] [16] I acknowledge that Mr Waru’s offending was more serious than that of Mr Pani-Marsden. He was the instigator, he led the attack and he was armed with two implements. As I have already recorded, Wylie J selected an overall starting point in Mr Waru’s case of ten years six months imprisonment. In Mr Pani- Marsden’s case, I consider that an appropriate starting point is one of seven years imprisonment. This is approximately two-thirds of the overall starting point selected in respect of Mr Waru. Uplift for previous convictions [17] It is now necessary to consider where there should be an uplift to reflect previous convictions for offending involving violence. The concerning aspect about this in the present case is that Mr Pani-Marsden has now accumulated four separate sets of convictions for offending within the prison environment. These began with an assault on a prison officer in March 2014. He was then convicted on two further occasions on charges of assault with intent to injure. These related to incidents that occurred on 26 March 2014 and 7 January 2015. The former related to the same incident as the charge of assault on a prison officer. Mr Pani-Marsden was then convicted again on a charge of assault with intent to injure in respect of an offence that occurred on 25 December 2015. [18] Each of these incidents has led to Mr Pani-Marsden receiving a cumulative sentence of imprisonment. The last two sets of offences each led to the imposition of cumulative sentences of one year three months imprisonment. [19] The Crown submits that an uplift of three months is necessary to reflect previous convictions. I consider that to be a very generous concession. An uplift in this context is not designed to punish an offender again for earlier offending. Rather, it reflects the fact that an offender has not learnt the lesson that ought to have been learned from a previous sentence that has been imposed. In other words, it makes current offending that much more serious. I am prepared to apply the uplift for which the Crown contends even though I consider the uplift could have been significantly greater. Mitigating factors [20] This produces a sentence of seven years three months imprisonment before taking into account mitigating factors. [21] The only mitigating factor I am prepared to take into account at this stage is that relating to guilty pleas. The Crown accepts that a discount of 25 per cent is appropriate to reflect guilty pleas even though the trial is not far away. I therefore apply a discount of one year ten months to reflect guilty pleas. This leaves an end sentence of five years five months imprisonment. [22] Ms Priest urges me to apply a further discount to reflect Mr Pani-Marsden’s youth. He is now 21 years of age. I decline to apply an uplift for youth at this stage given the extent to which Mr Pani-Marsden has offended whilst serving sentences of imprisonment. I am prepared, however, to revisit that issue once I know more about the earlier offending, together with information contained in any pre-sentence report that may be prepared. I therefore regard that issue as remaining open. Any other mitigating factors that might be disclosed by a pre-sentence report would also be taken into account at sentencing. [23] Mr Pani-Marsden requires some time to consider whether or not to accept the sentence indication. He will have until the criminal callover 9 am on Wednesday 2 August 2017 to decide whether or not to accept it. I direct that Mr Pani-Marsden is to be brought to Court on that date so that he can provide Ms Priest with his instructions. [24] If Mr Pani-Marsden does not accept the indication it will expire and be of no further force or effect. In that event Mr Pani-Marsden would, if found guilty at trial, be sentenced on the basis of the facts as the presiding Judge finds them to be. Lang J NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. |
| IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA |
| CRI-2016-044-3943 [2017] NZHC 2402 |
[3]R v Waru [2017] NZHC 1265.
[4]Kepu v R [2011] NZCA 104 at .
| THE QUEEN |
| v |
| DICKIE PANI-MARSDEN |
| Hearing: | 2 October 2017 |
Appearances: | S McColgan for Crown |
Judgment: | 2 October 2017 |
SENTENCE INDICATION (No. 2) OF LANG J
Mr Pani-Marsden faces 13 charges of wounding, injuring and assaulting prison officers with different forms of intent. He has pleaded not guilty and his trial is due to commence next month. Mr Pani-Marsden now seeks a sentence indication.
This is the second occasion on which he has sought a sentence indication. I gave a sentence indication on 25 July 2017 in which I adopted a starting point of seven years imprisonment, and then indicated I would apply a discount of 25 per cent to reflect guilty pleas[5]. This would leave an end sentence of five years five months imprisonment.
[5]R v Pani-Marsden [2017] NZHC 1736.
Mr Pani-Marsden did not accept that indication. It transpires that he has never accepted he was carrying a weapon on the day of the attack on the prison officers that led to the charges being laid. The Crown has now reviewed the evidence, and has provided an amended summary of facts acknowledging that Mr Pani-Marsden was not armed at the time of the attack. That is a material difference to the summary that was before me on 25 July 2017. It follows that I have jurisdiction under s 62(4) of the Criminal Procedure Act 2011 to provide a second indication in respect of the same set of charges.
I record also that the Crown has amended charge 3 in the draft Crown charge notice to reflect the fact that Mr Pani-Marsden was a party to an attack on Corrections Officer Devassey rather than the principal.
I do not propose to set out the factual background again. This is set out in my earlier sentence indication.[6] The only fact that has changed is that the Crown now accepts Mr Pani-Marsden was not armed with an implement during the course of the attack. Nevertheless, all of the other aggravating features that I identified in my earlier sentence indication are still present. The only issue is the extent to which I should reduce the starting point to reflect the lack of a weapon. The Crown submits that the aggravating factors of the offending mean that a starting point of six years should be adopted. Ms Priest submits that a starting point of five years imprisonment should be adopted.
[6]At [3]-[5].
I accept Ms Priest’s submission because I consider the absence of a weapon is a factor that significantly lessens the seriousness of the offending. I therefore take a starting point of five years imprisonment to reflect Mr Pani-Marsden’s overall culpability on all charges. I would then apply an uplift of three months to reflect convictions for the reasons set out in my earlier indication.
The existing discount of 25 per cent, or 16 months, would remain available. On my calculations this would take the sentence to one of three years 11 months imprisonment without taking account of any further mitigating circumstances that might be disclosed by a pre-sentence report.
I therefore give a further sentence indication of three years 11 months imprisonment.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
E Priest, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CRI-2016-044-3943
[2017] NZHC 2423
THE QUEEN
v
STEAD NUKU
Hearing: 3 October 2017
Appearances: S McColgan for Crown
I Tucker for Defendant
Judgment: 3 October 2017
SENTENCE INDICATION OF LANG J
Mr Nuku faces 13 charges and is due to stand trial in this Court on 20 November 2017. All of the charges relate to the wounding, injuring and assaulting of prison officers who were charged with the custody of Mr Nuku whilst he is serving sentence of five years nine months imprisonment.
Mr Nuku seeks a sentence indication. This is an indication of the sentence the Court would impose in the event that Mr Nuku was to enter guilty pleas within a relatively short period from today. All of the charges carry maximum sentences of between three and 14 years imprisonment.
Background
The charges were laid as a result of an incident that occurred suddenly at Auckland Prison on the afternoon of 19 October 2016. At about 1.45 pm on that date, several prisoners in Mr Nuku’s block were associating with each other outside their cells in a landing area. One of these, Mr Waru, went up to a grill behind which the prison officers looking after the block were stationed. He asked for a bucket and mop. This was not unusual, because prisoners apparently use landing time to clean out their cells and surrounding areas. Mr Waru’s request distracted the two prison officers who were on duty in the block, and four inmates then attacked those officers. One of them was Mr Nuku.
The most serious offending was perpetrated by Mr Waru, who was armed with two handmade implements. These were strapped to his hands. He used these in an attempt to stab the two prison officers. None of the other prisoners was armed with an implement, but all of them quickly joined into the fray. The four prisoners were punching, kicking and generally assaulting the two prison officers. Not surprisingly, the incident quickly attracted the attention of other prison officers in the area. Four prison officers came to the aid of their colleagues. A reasonably lengthy altercation then ensued, with kicking and punching by all concerned.
As a result of the incident five of the six prison officers sustained injuries, some of which were significant. Fortunately, all of the prison officers were wearing chest protectors and this prevented any of them from receiving serious injuries. Nevertheless, the victim impact statements on the file make it clear that this was a significant event for all of the prison officers and left them shaken and concerned for their future safety.
Starting point
This is now the third occasion on which this Court has been required to consider the starting point for the sentence to be imposed in respect of offending arising out of this incident. Mr Waru, the principal offender, pleaded guilty and was sentenced by Wylie J on 9 June 2017.[7] Wylie J took a starting point of eight years six months in respect of the lead charge, which he took to be wounding with intent to cause grievous bodily harm. He then applied an uplift of two years to reflect the balance of Mr Waru’s offending.
[7]R vWaru [2017] NZHC 1265.
In the second case, I provided a sentence indication to another defendant by the name of Dickie Pani-Marsden.[8] He has now accepted the indication and has pleaded guilty to the charges against him. He will be sentenced on those charges shortly. I took a starting point of five years imprisonment for Mr Pani-Marsden. I see no reason to depart from that in the case of Mr Nuku. To all intents and purposes, Mr Nuku and Mr Pani-Marsden offended in exactly the same way.
[8]R v Pani-Marsden [2017] NZHC 2402.
First, they were part of a premeditated plan to assault the prison officers using the element of surprise. The next factor is that this was a group attack by four men who confronted two prison officers. As a result, sheer force of numbers meant that the prison officers were likely to be overwhelmed in short order. The attack would also inevitably draw the attention of other prison officers. For that reason it was virtually inevitable that the initial attack would quickly lead to an escalation of violence in which further prison officers became involved. This led to the risk of those officers being injured, and that is what eventuated.
In addition, Mr Waru was armed with implements that had the capacity to inflict significant wounds. I consider all of those involved in this attack would have known that Mr Waru was armed, and that they would therefore have anticipated that the prison officers were likely to be injured.
Furthermore, Mr Nuku was part of a group that participated in a sustained assault on the six prison officers. Many of the punches and other blows were directed towards the heads of the prison officers.
Finally, the Court needs to recognise that the offending occurred within a prison environment. That is a recognised aggravating factor.
As I have said, however, I see no need to distinguish between Mr Pani-Marsden and Mr Nuku so far as the question of starting point is concerned.
Aggravating factors
It is now necessary to consider the extent to which I should uplift the starting point to reflect any previous convictions for offending involving violence. The most significant of these, so far as Mr Nuku is concerned, is a charge of wounding with intent to cause grievous bodily harm. That offending occurred on 14 July 2015. On 24 February 2016, Mr Nuku was sentenced to five years nine months imprisonment on that charge. He was serving that sentence at the time of the incident giving rise to the present charges.
The existence of this previous conviction is obviously an aggravating factor. It shows that the previous conviction, which also related to violence within the prison environment although on that occasion in relation to another inmate, has not taught Mr Nuku the error of his ways. It makes the present offending that much more serious.
Ordinarily, an earlier conviction for wounding with intent to cause grievous bodily harm would warrant an uplift of at least six months. In Mr Pani-Marsden’s case, however, I applied an uplift of three months at the Crown’s suggestion. I commented that this was generous and that a greater uplift could easily be justified. Mr Pani-Marsden also had convictions for violent offending committed whilst in prison. I propose to apply principles of parity, and to uplift the starting point by just three months to reflect this factor.
Mitigating factors
This leads to a sentence of five years three months imprisonment before taking into account mitigating factors.
The only mitigating factor I take into account at this stage is that relating to guilty pleas if they were to be entered within a short space of time. The Crown accepts that a discount of 25 per cent is appropriate to reflect this factor even though the trial is not far away. I therefore apply a discount of one year four months to reflect that factor. This produces an end sentence of three years 11 months imprisonment.
Totality principles
Ordinarily, because the sentence would necessarily be cumulative, I would need to have regard to totality principles. Care must be taken in this context, because the Court of Appeal has made it plain that significant discounts to reflect totality principles may be counterproductive where offending occurs within a prison environment.[9] In other words, if prisoners know that their sentence is likely to be reduced significantly if they offend whilst in prison, they have little incentive not to offend.
[9]Tryselaar v R [2012] NZCA 353 at [18.
I do not consider in any event that a cumulative sentence of three years 11 months imprisonment on offending of this scale is untoward or disproportionate.
Other issues
In the event that Mr Nuku was to enter guilty pleas he would be subject to a second strike warning under the so-called “three strikes” legislation. This would mean that he would be required to serve the whole of the sentence without parole. That is not, however, a factor that the Court can take into account for present purposes.[10]
[10]Palalagi v New Zealand Police [2015] NZHC 1832 at [57].
Mr Nuku is 25 years of age. I do not consider he would qualify for a further discount on the basis of youth. I do not rule out the possibility of other small discounts that may be needed to reflect issues that are raised in the pre-sentence report. I would leave those factors open until sentencing.
At the present time the indicated sentence is one of three years 11 months imprisonment. This would be given effect by imposing that sentence on one charge, and then imposing concurrent sentences on the other charges.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
Tucker & Co, Auckland
| NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. |
| IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY |
| CRI-2016-044-3943 [2017] NZHC 2690 |
| THE QUEEN |
| v |
| ARTHUR BRIGGS |
| Hearing: | 2 November 2017 |
Appearances: | S L McColgan for Crown |
| 2 November 2017 |
SENTENCE INDICATION OF LANG J
Mr Briggs faces 13 charges of wounding, injuring and assaulting prison officers with different forms of intent. His trial is due to commence in approximately ten days time. At this late stage he seeks a sentence indication.
The charges
The charges were all laid as a result of an incident that occurred at Auckland Prison on the afternoon of 19 October 2016. Mr Briggs is currently serving a sentence of ten years six months imprisonment imposed on 10 May 2016 on a charge of wounding with intent to cause grievous bodily harm.
At about 1.45 pm on 19 October 2016, Mr Briggs and other prisoners in his block were associating with each other on a landing area outside their cells. One of the group, Mr Waru, went up to a grille behind which two prison officers were stationed. He asked for a bucket and mop. Prisoners apparently use landing time to clean out their cells and surrounding areas. As a result, Mr Waru’s request came as no surprise to the officers on duty. The request, however, distracted those officers and four inmates then attacked them. One of these was Mr Briggs.
By far the most serious offending was perpetrated by Mr Waru, who was armed with two implements commonly known as “shanks”. These were strapped to his hands and he used them to attempt to stab the two prison officers. None of the other prisoners was armed with an implement, but each of them immediately joined the struggle. The four prisoners were punching, kicking and generally assaulting the two prison officers. Not surprisingly, the incident attracted the attention of other prison officers in the area. Four other officers came to the aid of their colleagues. A lengthy altercation then ensued with kicking and punching by all involved.
Five of the six prison officers who were involved in the incident sustained injuries. Some of these were significant, but serious injury was averted by the fact that the prison officers were wearing chest protectors. These prevented them from receiving serious injuries. Nevertheless, the victim impact statements that have been prepared by the officers makes it clear that this was an extremely harrowing and frightening experience for all of them.
Starting point
This Court has been required to consider the sentence to be imposed in respect of this offending on three previous occasions. These were the sentencing and sentence indications given in respect of Mr Briggs’ three co-offenders.
Wylie J took a starting point of eight years six months imprisonment in respect of Mr Waru. He then applied an uplift of two years to reflect the balance of Mr Waru’s offending.[11]
[11]R v Waru [2017] NZHC 1265.
In relation to Mr Pani-Marsden and Mr Nuku, I adopted a starting point of five years imprisonment to reflect their culpability on all charges.[12] The lesser starting point reflected the fact that those offenders did not carry weapons.
[12]R v Pani Marsden [2017] NZHC 2402; R v Waru [2017] NZHC 2423.
There are a number of aggravating factors in this offending. The first is that it was obviously premeditated because of the way in which the attack was carried out. Secondly, it involved the use of dangerous weapons by Mr Waru. All of the other members of the group must have been aware of the fact that he was armed and assisted him in that knowledge. Thirdly, this was a group attack by four prisoners who initially confronted two prison officers. The numerical superiority meant that two prison officers were likely to be overwhelmed in short order. Fourthly, an attack such as this would inevitably escalate because all members of Mr Briggs’ group would have known that the two officers who were attacked would seek help from their colleagues. This raised the prospect that further prison officers would be injured. Finally, the offending occurred within the prison environment. This is a recognised aggravating factor.
I see no reason to differ in Mr Briggs’ case from the starting point I adopted in relation to Mr Nuku and Mr Pani-Marsden. I therefore select a starting point of five years imprisonment to reflect his culpability on all charges.
Aggravating factors
Mr Briggs has some serious previous convictions. These begin with a conviction for wounding with intent to cause grievous bodily harm. He was sentenced to nine years imprisonment on that charge on 14 August 2009. Then, on 10 May 2016, he was sentenced to ten years six months imprisonment on a variety of charges involving serious violence. Those charges obviously arose as a result of incidents that occurred within the prison environment. This is therefore the third time within ten years that Mr Briggs will have appeared for sentence on charges involving serious violent offending.
Mr Briggs’ co-offenders also had previous convictions for offending involving violence. In their case the Crown suggested an uplift of three months imprisonment. I described that suggestion as being generous given the nature of the previous convictions, but I acceded to the Crown’s suggestion. I consider, however, that a greater uplift is required in Mr Briggs’ case because his list of previous offending is far more serious than his co-offenders. I therefore propose to apply an uplift of six months to reflect that fact.
This leads to a starting point of five years six months imprisonment before taking into account mitigating factors.
Mitigating factors
At this stage the only mitigating factor that could be taken into account would be the entry of guilty pleas. These come at a very late stage and would ordinarily not attract a discount of more than ten to 15 per cent. Mr Nuku and Mr Pani-Marsden received discounts of 25 per cent, but their guilty pleas were entered some time ago. For that reason I was initially disposed to apply a discount of 20 per cent in Mr Briggs’ case. Although that is generous, it preserves a degree of parity between the discount in his case and that applied in respect of his co-offenders.
Having heard from counsel, however, I am prepared to increase the discount to 25 per cent to reflect the fact that Mr Briggs has had issues with counsel in the past and Ms Gray has moved to resolve matters expeditiously following her appointment as Mr Briggs’ counsel. This means that I would apply a discount of one year four months imprisonment to reflect guilty pleas if they were entered immediately. This would produce an end sentence of four years two months imprisonment.
Totality principles
Given that I would be imposing a cumulative sentence, it would be necessary for me to have regard to totality principles. This means that I would need to stand back and determine whether or not the end sentence to be imposed on Mr Briggs was out of all proportion to the overall culpability of his offending.
Care needs to be taken in this regard in relation to offending that occurs within a prison environment. Where offenders commit offences in prison, the Court of Appeal has said that totality factors may play a lesser role.[13] This is because prisoners may be more inclined to offend in prison if they know they are likely to receive a lesser sentence because they are already serving a sentence of imprisonment. Bearing that factor in mind, I would apply a further discount of four months to reflect totality principles. This would result in an end sentence of three years ten months imprisonment.
[13]Tryselaar v R [2012] NZCA 353 at [18].
Given that this is a “second strike” offence, Mr Briggs would need to serve the whole of that sentence after completing the sentence he is currently serving.
Lang J
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