R v Paul

[2023] NZHC 1985

ORDER PROHIBITING PUBLICATION OF SENTENCE INDICATION

GIVEN TO CO-DEFENDANT MATANGIRAU CUFF IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL CO-DEFENDANT CUFF HAS BEEN SENTENCED. REFER FOOTNOTE 8.

PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-072-000048

[2023] NZHC 1985

THE KING

v

BEAU-JAMES PAUL

Hearing:	27 July 2023
Appearances:	R Mann for the Crown H Redwood for Mr Paul
Sentencing:	27 July 2023

SENTENCING NOTES OF GORDON J

Solicitors: Hamilton Legal, Hamilton Counsel:           H Redwood, Barrister, Auckland

R v PAUL [2023] NZHC 1985 [27 July 2023]

[1]    Mr Paul, you were one of 11 defendants who went to trial on charges arising out of rioting at Waikeria Prison over the New Year 2020/2021 period. Six of your co- defendants pleaded guilty to amalgamated charges prior to trial.

[2]    Four weeks into the trial you and six other defendants pleaded guilty to three representative charges: arson (with a danger to life),1 riotous damage,2 and assault with a weapon.3 The three charges are an amalgamation of charges in the Crown Charge Notice dated 28 June 2022. At the time you pleaded guilty you accepted the contents of a summary of facts dated 13 March 2023.

Factual background

[3]    Although you are familiar with the facts it is necessary for me to summarise them in my decision. I repeat the summary from my sentencing decision of Leon Huritu,4 one of your co-offenders.

[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 an incident occurred in one of the exercise yards, yard 116, when a prisoner refused to return a disposable razor (or razors) to a Corrections officer. Several other prisoners offered that prisoner their support. You were not one of those prisoners. You were not, in fact, in yard 116 at the time. When a Corrections officer told those in the yard they would all be returned to their cells early if the razors were not surrendered, a number of prisoners in the yard told the Corrections officer they were not going anywhere and were ready for a fight. Eventually one razor was handed in, the situation was defused and tensions eased. The prisoners in yard 116 were then permitted to remain in the yard for the usual period.

[6]    By around 1.00 pm a significantly more hostile atmosphere had developed in yard 116. Nine of the prisoners (the group) set in train the events that led to the riot.

1      Crimes Act 1961, ss 267(1)(a) and 66. Maximum penalty: 14 years’ imprisonment.

2      Section 90. Maximum penalty: 7 years’ imprisonment.

3      Sections 202C(1)(a) and 66. Maximum penalty: 5 years’ imprisonment.

4      R v Huritu [2023] NZHC 1960.

They damaged property in the yard. They lit fires on top of the wooden seats and structures inside the yard. Efforts made by Corrections officers and firefighters to extinguish the fires were thwarted by members of the group of nine shielding the fires with their bodies and various items. They also covered security cameras with wet toilet paper and threatened Corrections officers with assault if they attempted to enter the yard. Cups filled with urine were thrown at Corrections officers who approached the grille door.

[7]    The group of nine then escaped the yard. They did so through a hole in the mesh roofing that had been created by two of the group. Members of the group then smashed windows on the overbridge and set it, and a small guardroom, on fire. The group attempted to persuade the remaining 12 prisoners in the yard to join them but this was unsuccessful.

[8]    The nine prisoners then used a large metal battering ram to smash through cell windows and thereby liberate prisoners housed in the upper level of the East North Wing. The windows of the cells of 12 inmates were smashed in this way. Eight of the inmates in those cells chose to join the group on the roof. You were one of the eight.

[9]    The group of prisoners, now numbering 17, spread out and began making their way across rooftops that linked many buildings together, smashing property, breaking off padlocks to allow access to other areas of the roof, throwing objects towards the officers on the ground, with some lighting a number of fires in various places as they did so. I make it clear at this stage that in terms of the arson charge to which you pleaded guilty, the date for that  charge is limited to the last full day  of the riot,       2 January 2021.

[10]   As the situation escalated, specialist trained Corrections officers (referred to as the Advance, Control and Restraint (ACR) Team) were required to enter the East and West Wings for the purpose of freeing hundreds of prisoners locked inside their cells and other secure areas. By this time the areas were filled with smoke meaning prisoners were not visible to the officers in their cells. Many of the inmates were unresponsive, requiring the officers to drag, and in some instances carry them, to get out to safety.

[11]   While ACR officers, together with further Corrections officers, were attempting to rescue inmates from inside the prison, they periodically came under attack from the prisoners on the roof, who used metal bars and pieces of wood to smash skylights, causing glass to fall upon the ACR officers and the prisoners they were in the process of evacuating.

[12]   As part of this phase the receiving office was set on fire with significant numbers of Corrections officers and prisoners inside, who were showered with bits of wood and glass from the roof. The nearby paint shop was also set alight.

[13]   From the early hours of 30 December 2020 and for much of the two days that followed, the group of prisoners on the roof were observed to conduct rooftop patrols, during the course of which they would occasionally throw objects at Corrections officers below. These included rocks, glass louvers and shards, fire extinguishers, bottles, metal bars and pieces of furniture.

[14]   During the period on the roof the prisoners used a battering ram to break down walls to obtain access to secure areas. The armoury was one of those areas accessed and the prisoners were able to seize protective body armour, shields and other equipment. The prisoners were observed to communicate using radios they had retrieved along with binoculars used as they carried out their patrols.

[15]   As the days continued the prisoners began to fortify an area behind the prison chapel on the roof of the Master Control building. Furniture was stacked in the stairwell leading up to the chapel as a barricade to prevent entry to the chapel roof. The chapel was a location the prisoners had taken as their sleeping quarters and was effectively a base from which they made patrols on to the roof.

[16]   On the evening of 1 January 2021 all but one of the prisoners on the roof, armed with various makeshift weapons, made their way off the roof and charged at Police and Corrections staff on the ground. It is not suggested on your behalf that you did not come off the roof. It was only as a consequence of members of the Police Armed Offenders Squad (AOS) deploying a taser and rubber bullets that the prisoners retreated back up on to the roof. Further fires were then lit.

[17]   I come to the date of 2 January 2021, which is particularly relevant in relation to the arson charge to which you pleaded guilty.

[18]   On the evening of 2 January 2021, two teams of Corrections officers and the Police AOS entered the prison with the intention of going up the stairwell to access the chapel and the roof. As they were attempting to do so, the barricade of furniture on the stairwell was lit from above by prisoners and the two teams were forced to withdraw. An order was made for all staff members to evacuate in order to prevent their death or injury as fire began to sweep through the chapel in the High Security Facility.

[19]   Within a short time of the officers getting out of the building, flames were observed to be coming out of the windows and the building was fully alight. Upon the evacuation of the officers, prisoners on the roof pelted them with debris from piles collected earlier by them, including stones, plates and chunks of concrete, some of which struck the officers.

[20]   Some of the group used Corrections’ riot shields to approach the edge of the roof for this purpose, providing cover for other members of the group to throw items down on the retreating officers. Members of the group were observed to be wearing riot helmets, stab-resistant vests and other items of Corrections’ uniform.

[21]   These fires continued burning until the following morning and caused the complete destruction of the High Security Facility.

[22]   On the morning of 3 January 2021 the group of prisoners advised they were ready to surrender.

[23]   As a result of the offending several Corrections and Police staff sustained injuries and continue to be on stress leave. Currently, the Department of Corrections estimates the financial cost of the damage to be in the vicinity of $50 million.

[24]   I proceed with your sentencing on the charge of assault with a weapon on the basis that you were part of a common plan or shared understanding with all the other

defendants to intentionally damage prison property and/or engage in acts of violence towards Corrections officers. That makes you liable for criminal conduct of your co- defendants. The Court is told in relation to the charge of arson that in correspondence with the Crown the position was that the guilty plea would be accepted on the basis of s 66(1) of the Crimes Act 1961, but on the basis that you were a secondary party and not a principal offender. On the charge of riotous damage you are liable as a principal offender. That is that you committed damage yourself. That was the Crown’s case at trial on that charge.

Approach to sentencing

[25]   Sentencing is a two-stage process.5 First, I must determine a starting point. In doing so, I will take into account any aggravating and mitigating features of your offending. Then I will consider factors personal to you that may operate so as to adjust the starting point. This will include your personal background, your conviction history, the information in the Provision of Advice to Courts (PAC) Report and the report under s 27 of the Sentencing Act 2002 (the Act) which you commissioned.

[26]   In sentencing you I must have regard to the purposes of sentencing set out in s 7 of the Act. In this case, the relevant purposes are accountability, denunciation, deterrence, protection of the community and rehabilitation.

Victim impact statement

[27]   I have received a victim impact statement. I have referred to it in my other sentencing decisions but it is necessary to set it out again here. Because there were so many Corrections officers involved who were affected by your offending, the victim impact statement was prepared on a global basis by Terry Buffery, the Regional Commissioner for the Central Region of the Department of Corrections. He says many officers were exposed to smoke inhalation as they had to enter a burning building in order to save the lives of the 200-plus men who were locked in their cells. Mr Buffery says if the prisoners had not been evacuated when they were, there is no doubt that lives would have been lost. Having heard the evidence at trial, I agree with

5      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

Mr Buffery’s assessment. What he says is not an overstatement. Having said that, I accept the arson charge to which you pleaded guilty was for fires on 2 January 2021.

[28]   Additionally, the immediate response to the incident required resources to be mobilised from around the country. Due to the timing of the events, many staff and their families had holiday plans severely interrupted. Mr Buffery further reports the many physical and psychological injuries suffered by Corrections officers from the incident. Some staff lost personal property that was on the site. Welfare support for staff continues. Hundreds of prisoners also lost personal property in the fire including family photographs and in one case his daughter’s ashes.

[29]   The destruction of the High Security Facility has also meant that the prison is no longer able to receive remand prisoners from the Bay of Plenty and South Waikato. As a consequence, remand prisoners are housed further away from the courts in which they appear and their families. This continues to affect those prisoners. A similar impact continues for hundreds of Corrections staff who have had to be relocated from their normal place of work.

Starting point

[30]   The charge of arson (with a danger to life) is the lead, or the most serious offence. I will set a starting point for the arson charge and then apply an uplift for the other charges.

[31]   There is no tariff or guideline judgment for arson. The appropriate starting point is set having regard to the aggravating features of the offending and by comparison with similar cases. In sentencing you, the Court has the benefit of sentences passed on some of your co-offenders. I will have regard to those sentences to ensure parity as between co-offenders when setting the starting point.

Crown submissions

[32]   In the written submissions for the Crown, Ms Mann submitted that the appropriate global starting point for all charges is 10 years’ imprisonment. However, in oral submissions today, recognising the starting point of nine years and six months

I adopted when sentencing Leon Huritu,6 Ms Mann submits the starting point for you should be the same.

[33]   She supports that submission by reference to what the Crown says are aggravating features of your offending. They are submitted to be: the use of actual and threatened violence; the extent of loss and damage; the scale of the offending; that the victims were prison officers acting in the course of their duty; the risk of injury, particularly during the chapel fire on 2 January 2021; and the impact on the victims.

[34]   Ms Mann also refers to other cases which I will reference in a footnote when my decision is typed up.7

Defendant’s submissions

[35]   Mr Redwood submits that the global starting point of 10 years’ imprisonment identified by the Crown in written submissions is too high. He also submits the slightly lower starting point of nine years and six months I adopted for Mr Huritu is similarly too high. Mr Redwood submits that the starting point for all three charges should be seven to seven and a half years’ imprisonment.

[36]   In support of that submission Mr Redwood notes that other co-offenders (apart from Mr Naua-Tuilotolava and Mr Huritu) who have been sentenced were in yard 116 when the offending began. Further, in relation to Mr Naua-Tuilotolava, Mr Redwood says his arson charge covered  the  entire  period  of  the  offending,  namely  from 29 December 2020 to 2 January 2021.  By contrast, your arson charge was only for  2 January 2021.

[37]   Mr Redwood also submits that you were the last of those in the East North Wing to be released from your cell by those who had escaped from yard 116 (in other words it is said you did not assist in breaking out others who were in cells in the East North Wing). Mr Redwood also says, as far as throwing objects at Corrections

6      R v Huritu, above n 4.

7      Howarth v R [2010] NZCA 523; Mouat v Police HC Gisborne CRI-2006-416-20, 11 December 2006 at [8]; R v Z CA138/00, 27 June 2000; R v Honan (1988) 3 CRNZ 532 (CA); R v Lucas- Edmonds [2009] NZCA 193, [2009] 3 NZLR 493; Tryselaar v R [2012] NZCA 353 at [18]; Kepu v R [2011] NZCA 104 at [19] and Ratu v R [2016] NZCA 97.

officers, that this was on the basis of s 66(2). That is that you were liable for the acts of others. Although you accept liability on the arson charge under s 66(1), it is on the basis that you did not light any fires personally.

[38]   Mr Redwood says you accept the following aggravating factors identified by the Crown were present: use of violence; extent of loss; the scale of the offending; the risk of injury; and impact on the victims. In relation to the use of violence, while it is said on your behalf that your liability was under s 66(2), in other words you are liable for the acts of others, you accept through your involvement in the group it cannot be argued that there was not an undertone of violent behaviour.

Discussion

[39]   For my part, I accept that all the aggravating features of the offending identified by the Crown are present. That is though with the caveat that the property damage by fire and risk to life by fire is restricted, in your case, to 2 January 2021. However, the scale of the offending, of which you were part, is unprecedented in New Zealand. Lives were put at risk.

[40]   Some of your co-offenders have been sentenced by other Judges and I will reference those decisions in a footnote when this decision is typed up.8

[41]This week I sentenced four of your co-offenders as follows:

(a)Grayson Haere, who pleaded guilty prior to trial;9

(b)Siaumau Lote-Telea10 and Taimana Soames,11 both of whom went to trial; and

8      R v Taite [2023] NZHC 975; R v Kameta [2023] NZHC 965; R v Naua-Tuilotolava [2023] NZHC 1105; and R v Tapara-Taipari [2023] NZHC 1812. There is also the sentence indication which has been accepted by Matangirau Cuff: R v Cuff [2022] NZHC 2545. Mr Cuff has not yet been sentenced. Although a sentence indication is given in open court (Criminal Procedure Act 2011, s 62(2)), it is an offence to knowingly publish any information about a sentence indication that has been given, before the defendant has been sentenced: Criminal Procedure Act 2011, (s 63(1)).

9      R v Haere [2023] NZHC 1957.

10 R v Lote-Telea [2023] NZHC 1959.

11 R v Soames [2023] NZHC 1969.

(c)most relevantly in relation to the starting point for you, Leon Huritu.12

[42]   When I set the starting point for Mr Huritu, I took into account that he was not present in yard 116 when the riot began and also the fact that the charge of arson that he faced was only for 2 January 2021. Both of those points apply to you. For that reason, rather than adopting a starting point for the arson charges of 11 years’ imprisonment (as adopted for other co-offenders) I adopted a starting point of nine years’ imprisonment. The lives of members of the Corrections Advanced Control and Restraint team and members of the AOS squad, who had entered the High Security Facility on 2 January 2021, were put at risk. Further, the fire damage to the High Security Facility on that day was significant. It was completely destroyed. I took into account all of those matters when I passed sentence on Mr Huritu. I said:13

[50]      Ms Mann was correct to acknowledge the distinction between the arson charge that you pleaded guilty to and the arson charge for other defendants who pleaded guilty prior to the trial commencing.

[51]      I consider the global starting  point  of  eight  years  suggested  by Mr Nabney is too low. The scale of the offending in this case is far greater than in Ratu.

[52]      The best comparator for parity purposes is Mr Naua-Tuilotolava. Like you, he was not present at the outset in yard 116 and was released from his cell, as you were, by the prisoners who had escaped from yard 116.

[53]      The distinction between you and Mr Naua-Tuilotolava, who pleaded guilty on the first morning of the trial before the jury was empanelled, is that his arson charge covered the period from 29 December 2020 to 2 January 2021; whereas (as I have already said) the arson charge in your case was just for 2 January 2021.

[54]      Having accepted that there is that distinction, I nevertheless note that the fires on 2 January 2021 caused significant damage to the High Security Facility. It was completely destroyed.

[55]      I adopt a starting point for the arson charge of nine years’ imprisonment. I uplift that starting point by six months for the other two charges. That results in a global starting point for the three charges of nine years and six months’ imprisonment (one year less than the starting point the Judge would have adopted for Mr Naua-Tuilotolava had there not been totality issues which required a lesser starting point).

12     R v Huritu, above n 4.

13     R v Huritu, above n 4.

[43]   I do not see any distinction between you and Mr Huritu as far as the initial starting point and the uplift for the other two charges. I note that I proceed on the basis that the arson charge for you was to be under s 66(1). I do not see a distinction between you and Mr Huritu on that issue. That you were the last of those in the East North Wing to be released from your cell is not a material consideration in my view. I adopt a starting point of nine years’ imprisonment on the arson charge. I do not see a distinction between you and Mr Huritu on the assault with a weapon charge. The uplift of six months appropriately reflects your involvement in the conduct that gave rise to the charge of riotous damage as a principal offender and the charge of assault with a weapon.

[44]I adopt a global starting point of nine years and six months’ imprisonment.

[45]There are no mitigating features of the offending.

Application to adjourn sentencing

[46]   Before I address factors personal to you I record that Mr Redwood made an application on your behalf at the commencement of the hearing that your sentencing be adjourned under s 25(1)(d) of the Act so that you could take part in a residential programme, the Pūwhakamua Cultural Immersion Programme run by the Tikanga Aroro Charitable Trust. The application was supported by a letter from Billy Macfarlane, the General Manager of the Trust, advising there is a place available for you. Details of the programme were provided in an annexure to Mr Macfarlane’s letter.

[47]   The Court has also received a letter from your partner, asking the Court to consider a sentence of home detention, or in the alternative, to make an order enabling you to attend the programme I have referred to.

[48]   The Crown opposed the application to adjourn the sentencing and I refused the application.

[49]   It appears that the programme is designed for those individuals “who have either previously been incarcerated or are deemed to be at a high risk of offending”.

The supporting material also says the programme is designed to “reduce reoffending in former prisoners recently released from prison”. The document states that “we ask to have them come to our residential facility at the stage where they are considered parole eligible …”.

[50]In refusing the application to adjourn the sentencing:

(a)I took into account the seriousness of your offending. A sentence of imprisonment is inevitable.

(b)I was prepared to accept that you are amenable to rehabilitation when it comes to considering factors personal to you.

(c)I could see no reason why you could not complete the programme when you are eligible for parole. That seems to be the way the programme is constructed and designed.

[51]I turn then to factors personal to you. First of all previous convictions.

Personal aggravating features – previous convictions

[52]   The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.14 Prior convictions may be taken into account in three ways: as an indicator of character and culpability; as showing the need for a greater deterrent response from the court; and as an indicator of the risk of re-offending.15

[53]   Your criminal history in New Zealand records some historical offences and more recent methamphetamine and firearms-related offending from 2020. In the intervening period in Australia there are no recorded convictions.

14     Sentencing Act 2002, s 9(1)(j).

15     R v Casey [1931] NZLR 594 (CA) at [597]; Kushell v Police [2012] NZHC 2380 at [10].

[54]   Ms Mann submits that having regard to your criminal history and the fact that you were remanded in custody at the time of the offending, an uplift of three to four months’ imprisonment (or perhaps slightly less) is appropriate.

[55]   Mr Redwood submits that no uplift for previous convictions is warranted. He submits this would align with the majority of the sentencing decisions for your co- defendants.

[56]   Of course, whether or not an uplift is warranted for previous convictions is a matter of assessment for an individual defendant as opposed to the position a court has adopted for co-defendants. In your case, I do not consider that your previous convictions are of sufficient relevance to your current offending, nor of sufficient seriousness, for the Court to take them into account by way of an uplift. I do not do so.

Personal mitigating factors

[57]   Mr Redwood submits the Court should apply the following discounts: 10 per cent for your guilty plea; five per cent for remorse; and 15 per cent for your personal background as detailed  in the cultural report.   This morning in oral submissions   Mr Redwood also submits that a separate and discrete discount of five per cent for your prospects of rehabilitation would be warranted. Mr Redwood further submits that a discount of five months is available for the time you spent on EM bail.

[58]I address each of those matters in turn.

Guilty plea

[59]   Mr Redwood submits that although your guilty plea came part way through the trial, it is nevertheless an acceptance of your responsibility and, he submits, it came before the evidence relating to the arson charge on 2 January 2021 had been led at trial.

[60]   Ms Mann acknowledges that I gave a guilty plea discount to Mr Huritu and she submits that the appropriate level of discount would be the same, namely five per cent.

[61]   I accept that some credit should be given but 10 per cent is too high. I adopt the approach I took when sentencing Mr Huritu yesterday. At that time I said:16

[66]      You pleaded guilty (along with six other co-defendants from the Mongols gang) on 13 March 2023. That was after four weeks of trial (the trial had commenced on 13 February 2023). After your guilty plea the trial continued with four co-defendants.

[67]      I am prepared to give you a five per cent discount for your guilty plea for two reasons. First, although the guilty plea was entered after the trial commenced, it was nevertheless an acknowledgement of your guilt.17 Second, your guilty plea resulted in a saving of the cost of the trial to the State, albeit a relatively small reduction in cost.18 The trial continued after your plea for a further period of almost eight weeks. Guilty verdicts were delivered by the jury on 4 May 2023. Your guilty plea did not result in a reduction in the evidence called by the Crown as much of the evidence applied to all defendants. However, I accept that cross-examination, possible applications at the end of the Crown case, and counsel’s addresses would have extended the trial had you not pleaded guilty.

[62]I give you a five per cent discount for your guilty plea.

Remorse

[63]   Mr Redwood refers to the statement by  the writer of the PAC  report that  “Mr Paul did not articulate remorse, but he presented as genuinely sorry”. The writer says you also expressed regret for the violence and your part in it.

[64]   This morning Mr Redwood has handed me a letter that you have written. It is in fact addressed to the Department of Corrections. In your letter you apologise for your offending and the impact of your offending on Corrections staff. I accept your letter is genuine and the remorse you express is genuine. Mr Redwood submits that in the circumstances, a small discount of around five per cent may be appropriate to reflect your remorse.

[65]   For the Crown, Ms Mann submits a modest discount consistent with the discount I gave to another of your co-offenders would be appropriate.

16 R v Huritu, above n 4.

17 In Botha v R [2015] NZCA 196 a discount of six months was given for a guilty plea mid-trial after the complainant had been cross-examined. The basis for the discount was “extraordinary remorse”. The discount was not challenged on appeal. Compare R v Haine [2013] NZHC 66, where a discount was refused for a guilty plea mid-trial.

18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].

[66]   Evidence of remorse can warrant recognition over and above the recognition for a guilty plea. In this case, I accept Mr Redwood’s submission that a discount of five per cent for remorse is appropriate.

Personal circumstances

[67]   You have provided the Court with a report prepared under s 27 of the Act by Professor Chris Gallavin. The report is based primarily on an interview with you. The report is a thorough one. I have read it carefully but in these sentencing remarks I can only briefly capture the essential details.

[68]   The Court also has the benefit of a PAC report which I have already referred to. The writer of that report spoke to your mother as well as to you.

[69]   You are 35 years of age, Māori and you identify your iwi as Tapuika in the Bay of Plenty.

[70]   You were born in Tauranga and spent your childhood in Te Puke. You were largely raised by your maternal great-grandparents who were steeped in Te Ao Māori. At the time you were not interested in learning from your great-grandmother. You have now started reading and researching your whakapaka, which you say is very important to you.

[71]   Whenever you were with your parents, there was always a lot of alcohol consumed. You describe your parents as alcoholics. Although your parents did not smoke cannabis, members of your family did. That was a very normal occurrence.

[72]   Your father would beat your mother regularly when they were both sober as well as when they were both drunk. This occurred in front of you and your siblings. Your mother often went to Women’s Refuge.

[73]   Your mother developed a serious gambling problem, regularly spending all your father’s pay on gambling. Your father’s beatings of your mother became more frequent.

[74]   From the age of 10 you started smoking marijuana. By the age of 13 you smoked marijuana every other day.

[75]   You started at Te Puke High School but effectively dropped out by the end of that first academic year.

[76]   Your engagement with crime started in your mid-teens. Your younger uncles were all gangsters and they were role models for you.

[77]   At 16 you were introduced to methamphetamine. That was the start of your addiction that continues to this day. You would drink alcohol, and smoke marijuana and methamphetamine as often as you could. From the age of 19 your life revolved around methamphetamine addiction and committing crime to pay for it.

[78]   At the age of 25 you joined the Mongrel Mob. In 2019 you patched over to the Mongols. All of your extended family are with that gang.

[79]   Professor Gallavin offers the opinion that your severe drug and alcohol dependency form an “operative” and “proximate” connection to your offending.19 Professor Gallavin suggests you were a highly impressionable child and young person and now as an adult. You have no clear positive role models in your life. He suggests your historical wrestle with drugs cannot be separated from the underlying lack of structural support, discipline, welfare, and nurturing you failed to receive as a child and adolescent. He says your drug offending is also indelibly linked to a life structured around family dislocation, your exposure to violence, gambling, and drug abuse. Gang membership for you has been a place of refuge and brotherhood.

[80]   Professor Gallavin also refers to your near-lifelong wrestle with emotional wellbeing and historical trauma, the latter arising from an event that occurred between eight and 10 years of age. You have also suffered from extreme anxiety throughout your life and you are taking antidepressant medication for depression. You have not been diagnosed with a mental health condition but suspect you should have been.

19     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107].

[81]   On a positive note, Professor Gallavin says you have resolved to take the action necessary to get clean from your methamphetamine use. He describes you as being in the very early stages of recovery from drugs and that you appreciate that this will be a difficult and lifelong effort.

[82]   I accept that you are amenable to rehabilitation. That is apparent not only from what Professor Gallavin says in the s 27 report but also what you have expressed in your letter that I have already referred to.

[83]   On a further positive note, you are strongly supported by your partner, who is here today and who lives in a house on your family’s land. She has a good relationship with your family members.

[84]   I am satisfied that there is at least a causative connection between your background and your current offending. There has been deprivation in your life that has constrained your individual choice including the choice not to offend.20

[85]   I accept Mr Redwood’s submission that a 15 per cent discount is appropriate for your personal background. As well, I will add a separate five per cent discount for your prospects for rehabilitation.

End sentence

[86]   Mr Paul, I have adopted a global starting point of nine years and six months’ imprisonment. I have made allowances of: five per cent for your guilty plea; five per cent for remorse; 15 per cent for your personal circumstances; and a separate five per cent for your rehabilitative prospects. The total discount for your personal factors is therefore 30 per cent. Calculated in months against the starting point of nine years and six months that is 34.2 months (or two years and 11 months rounded up in your favour). The end sentence is therefore six years and seven months’ imprisonment.

[87]   A deduction needs to be made to your end sentence for the time you have spent on electronically monitored (EM) bail.  You  were granted EM bail on 21 June  2022.

20     Berkland v R, above n 19, at [115].

You remained on EM bail until you entered your guilty plea on 13 March 2023. This equates to around eight and a half months spent on EM bail. Mr Redwood notes there are no recorded breaches of EM bail during that period. Mr Redwood submits that you should be afforded a five month reduction to reflect the time spent on EM bail.

[88]   For the Crown, Ms Mann submits that a five month reduction would be at the upper end of the range.

[89]   The Court is required to recognise time spent on EM bail.21 But a reduction is not to be the equivalent of time spent on EM bail.22 An evaluative assessment is required.23 Sentencing credit is derived through compliance with bail conditions.

[90]   In your case, as Mr Redwood notes, you have complied with the conditions. While there have been some variations for approved absences, they were not, for example, so you could undertake employment.

[91]   I accept the submission that a five month reduction should be made. That brings the end sentence down to six years and two months’ imprisonment.

Minimum period of imprisonment

[92]   The Crown does not seek a minimum period of imprisonment in your case. I agree that a minimum period is not required.

Sentence

[93]   Mr Paul would you now please stand. On the charge of arson (with a danger to life) you are sentenced to six years and two months’ imprisonment. On each of the other two charges you are sentenced to five years’ imprisonment. You will serve those sentences concurrently.

21     Sentencing Act, s 9(2)(h).

22     Parata v R [2017] NZCA 48 at [12].

23     R v Tamou [2008] NZCA 88 at [19].

[94]   I discharge you under s 147 of the Criminal Procedure Act 2011 on the remaining charges that you faced arising out of the riot at Waikeria Prison.

Gordon J