R v Ranapia

[2023] NZHC 2561

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000026

[2023] NZHC 2561

THE KING

v

CHRISTOPHER RANAPIA

Hearing:

13 September 2023

Appearances:

R Mann for the Crown

G Prentice and R Brown for Mr Ranapia

Sentencing:

13 September 2023

SENTENCING NOTES OF GORDON J

Solicitors: Hamilton Legal, Hamilton Counsel:           G Prentice, Barrister, Hamilton

R Brown, Barrister, Hamilton

R v RANAPIA [2023] NZHC 2561 [13 September 2023]

[1]    Mr Ranapia, 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 in part an amalgamation of charges in the Crown Charge Notice dated 28 June 2022.

Factual background

[3]    At the time you pleaded guilty you accepted the contents of a Summary of Facts dated 13 March 2023. 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 Beau-James Paul who, like you, pleaded guilty to the same three charges during the trial.4

[4]    You were in custody 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.

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 Paul [2023] NZHC 1985.

[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. 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 to make 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 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 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.

Approach to sentencing

[24]   Sentencing is a two-stage process.5 First, I must determine a starting point. In doing so, I take into account any aggravating and mitigating features of your offending. I then 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 the Courts (PAC) Report and the psychological report, and the report under s 27 of the Sentencing Act 2002 (the Act) which you commissioned.

[25]   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

[26]   I have received a victim impact statement. I have referred to it in my other sentencing decisions for your co-offenders but it is necessary for me 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 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.

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

[27]   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.

[28]   The destruction of the High Security Facility has also meant 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

[29]   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.

[30]   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.

[31]   Ms Mann, for the Crown, submits that a global starting point of nine years and six months, which I adopted for your co-offenders, Leon Huritu and Beau-James Paul, should be adopted in your case.6 That is, nine years for the lead charge of arson with an uplift of six months for the other two charges. Mr Prentice, on your behalf, agrees.

[32]That is what I propose to do. No further discussion is required.

6      R v Huritu [2023] NZHC 1960 and R v Paul, above n 4.

Personal aggravating features – previous convictions

[33]   The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.7 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.8

[34]   Your criminal history includes violent offending in 2019 in a domestic context. There are convictions at earlier dates for contravening a protection order, common assault in a domestic context and threatening to kill. However, as Mr Prentice points out, you have only previously served one sentence of imprisonment for violence and that was a sentence of one year imposed in 2019 which you were serving, and had almost completed serving, at the time of the riot. Mr Prentice accordingly submits that no uplift is warranted for your previous convictions.

[35]   Ms Mann submits in light of your offending and the fact that you were a sentenced prisoner at the time, a modest uplift is appropriate.

[36]   You are not someone who has appeared regularly before the courts on violence matters where it can be said you have failed to be deterred by previous sentences. I put to one side the fact that you were a sentenced prisoner at the time. I have taken the fact that the offending occurred in a prison environment in setting the starting point. Accordingly, I do not make an uplift for your previous convictions.

Personal mitigating factors

[37]   Mr Prentice submits the Court should apply the following discounts: five per cent for your guilty plea; 20 per cent for matters raised in the psychological and cultural reports; five per cent for remorse and insight; five per cent for prospects of rehabilitation; and nine months for time spent on EM bail.

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

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

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

Guilty plea

[39]   I gave a five per cent discount to other defendants who resolved the charges as you did during the trial.

[40]   Ms Mann and Mr Prentice both submit the same credit should be given in your case.

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

Personal circumstances

[42]   The Court has been provided with a psychological report which you commissioned from clinical psychologist, Nick Lascelles. For the report Mr Lascelles spoke to you, your partner, your mother and a support person. As well, he had access to various documents. The Court has also received a report prepared under s 27 of the Act by Shelley Turner, who spoke to you and an aunt. Additionally, there is a PAC report.

[43]   You are 42 years of age and are of Māori descent although you say you feel as though you do not have a cultural identity as a consequence of your upbringing. You were born in Rotorua and were raised by your mother and stepfather. You never knew your birth father as a child. You described your stepfather as a “villain” who inflicted “beatings upon beatings”. You told Mr Lascelles that the beatings were intense and recalled being chained in a shed and being hit with a piece of wood resulting in black eyes. That physical violence by your stepfather continued until you were aged 16 or 17 and you began to stand up for yourself and fight back. Your stepfather mentally abused you as well. Your mother was also assaulted by your stepfather.

[44]   You recall regular “boozy parties” during your childhood where excess amounts of alcohol were consumed and that people would then “bash women and bash each other”.

[45]   You recall particular traumatic events occurring with one of your aunt’s boyfriends when you were aged seven or eight and there were also separate incidents with two women occurring over a three or four year period.

[46]   You ran away from home when you were 15. You first became involved in gangs when you were a child, having been involved in a youth street gang. In your later teen years you became associated with the Mongrel Mob. In 2017 you prospected for the Head Hunters but you fell out with members and were ejected from the gang. You became involved with  the  Mongols  when  you  were  imprisoned.  You  told Mr Lascelles you no longer wanted to actively associate with a gang lifestyle.

[47]   You first consumed alcohol at the age of eight or nine years old and as an adult you would regularly binge drink heavily three or four nights a week. You first smoked cannabis at the age of 10. You first experimented with methamphetamine in 2004/2005 using it “off and on” over the years. Your usage increased and you reported using methamphetamine every week. You also reported regular cocaine and MDMA use. However, you told Mr Lascelles that in the future, illicit substances were a “full- stop, no go”.

[48]   You were regularly stood down from schools or excluded for fighting, aggression and non-compliance. You were excluded from Rotorua Boys High at the beginning of the fifth form year and did not return to the education system. However, at approximately aged 20 years you attended a polytechnic and qualified as a chef. You have since completed business courses through Open Polytechnic in 2022.

[49]   You have had regular periods of employment both in New Zealand and in Australia, where you lived from 2005 or 2006. But you could not maintain employment because of issues with authority and effective communication. On returning to New Zealand you and your partner opened a couple of gyms in Auckland which were initially successful.

[50]You have an established diagnosis of bipolar affective disorder from 2005.

[51]   You were three months away from your sentence end date when this offending occurred. You say your loyalty to the gang meant you felt you had to comply with senior gang members and participate in the riot.

[52]   You completed  the  Corrections  “Short  Rehabilitative  Programme”  over  25 sessions (via telephone due to COVID-19 restrictions) between 1 March and     21 April 2022. Mr Lascelles said you received a very positive appraisal of your engagement. You were described as appearing very committed and completed tasks to a high standard. You were said to be open to feedback, willing to practice new skills and behaviours and reflect on your past behaviour.

[53]   Mr Lascelles offers the opinion that a custodial sentence will not serve the purpose of personal deterrence for you and he says ongoing incarceration will continue to force association with criminal peers in circumstances where violence is more likely. He says that your rehabilitative process is stalled by incarceration and he promotes a sentence of home detention.

[54]Realistically, Mr Prentice does not adopt that suggestion as a submission.

[55]   However, Mr Lascelles’ report (as well as Ms Turner’s report) does provide an evidential foundation for a discount for your personal circumstances. I am satisfied that there is at least a causative connection between your background and your current offending. There has been deprivation and violence in your upbringing along with other factors that I have referred to that have constrained your individual choice, including the choice not to offend.9

[56]   I consider that a 15 per cent discount is appropriate for your personal background.

Remorse

[57]   Mr Prentice submits that the Court should give a five per cent discount for your remorse and insight.

9      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [115].

[58]   In his report Mr Lascelles said that you expressed regret for your participation but  he says this was more focused on the impact  of your decision on yourself.     Mr Lascelles, though, did say that you acknowledged without prompting, that other prisoners trapped in their cells while fires were set were very affected.   Further,    Mr Lascelles does go on to report that you said you were “disgusted in myself”, “that I was part of it … harm done”.

[59]   Additionally, in the PAC report which is at an earlier date than Mr Lascelles’ report, the writer records that you accepted responsibility for the magnitude of the events that occurred, that you said you were remorseful and you were able to reflect on how your actions significantly impacted on all parties involved, including yourself. The writer said you displayed insight into your offending.

[60]   Also, you have written a letter dated 14 February 2023 (which was, in fact, the second day of the trial). Mr Prentice advises the Court from the bar that the letter was in fact written by you in January but dated 14 February 2023. Your letter is addressed to the Court and the Department of Corrections. You say, reflecting on the riots, this is one of the most irresponsible acts you have ever done. You say you are disgusted in yourself and the actions you were found guilty of. You apologise to the Court and the Department of Corrections and say you are truly remorseful to all who were affected, including yourself and your whānau, who you say must carry this burden of guilt also.

[61]   Evidence of remorse can warrant recognition over and above the recognition the Court gives for a guilty plea. In this case, I accept Mr Prentice’s submission that a discount of five per cent for remorse and insight into your offending is appropriate.

Prospects for rehabilitation

[62]   Mr Prentice submits that a further five per cent reduction should be given for your prospects of rehabilitation. In support of that submission Mr Prentice refers to Mr Lascelles’ report where he notes that you have engaged positively in rehabilitative programmes. Mr Prentice also refers to the book of poetry you have written, a copy of which has been provided to the Court. Mr Prentice says that its contents indicate

that you are an intelligent, articulate and insightful person and there is every reason to be hopeful that you can be a productive member of society on your release.

[63]   Ms Mann submits that the discount for remorse and rehabilitation might properly be combined into a total discount for the two factors of five percent. Having made that submission she acknowledges that I gave separate discounts of five per cent each to your co-offender Mr Paul for remorse and his prospects for rehabilitation.

[64]   I accept that you are amenable to rehabilitation. I have read the detailed Rehabilitation Programme Intervention Report compiled by the Department of Corrections which supports the various certificates you have included in the materials provided to the Court. I accept that you are motivated to live a balanced and offence- free lifestyle in the community upon your release.

[65]I will add a five per cent discount for your prospects for rehabilitation.

End sentence

[66]   Mr Ranapia 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; 15 per cent for the matters raised in the psychological report and the cultural report; five per cent for your remorse and insight; and five per cent for your prospects of rehabilitation. That is a total of 30 per cent. Calculated in months from the global starting point of nine years and six months’ imprisonment, that is a reduction of 34.2 months (rounded up in your favour to 35 months/two years and 11 months). The end sentence is therefore six years and seven months.

[67]   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 29 November 2021. You remained on EM bail until 13 March 2023 when you entered your guilty plea and were remanded in custody. This equates to 15.5 months spent on EM bail. Mr Prentice notes there are no recorded breaches of EM bail during that period. He submits you should be afforded a nine month reduction to reflect the time spent on EM bail. He submits this would be consistent with the reduction I gave to your co- offender Mr Paul.

[68]   For the Crown, Ms Mann acknowledges that this is not purely a mathematical exercise and she notes the reduction I gave to Mr Paul.

[69]   The Court is required to recognise time spent on EM bail.10 But a reduction is not to be the equivalent of time spent on EM bail.11 An evaluative assessment is required.12 Sentencing credit is derived through compliance with bail conditions.

[70]   In your case, as Mr Prentice notes, you have complied with the conditions. While there have been some variations for approved absences, they were not to such an extent that, for example, you might undertake employment.

[71]   I accept the submission that a nine month reduction should be made. It is consistent on a percentage basis with the deduction that I gave to Mr Paul for time he spent on EM bail. That brings the end sentence down to five years and 10 months’ imprisonment.

Minimum period of imprisonment

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

Sentence

[73]   Mr Ranapia would you please stand. On the charge of arson (with a danger to life) you are sentenced to five years and 10 months’ imprisonment. On each of the other two charges you are sentenced to five years’ imprisonment. You will serve all those sentences concurrently.

[74]   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

10     Sentencing Act, s 9(2)(h).

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

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