R v Soames

[2023] NZHC 1969

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 [40] AND

FOOTNOTE 12. 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 1969

THE KING

v

TAIMANA SOAMES

Hearing:	26 July 2023
Appearances:	J Hamilton for the Crown S Cassidy for Mr Soames
Sentencing:	26 July 2023

(REDACTED) SENTENCING NOTES OF GORDON J

Solicitors: Hamilton Legal, Hamilton Counsel:           S Cassidy, Barrister, Auckland

R v SOAMES [2023] NZHC 1969 [26 July 2023]

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

[2]    During the trial seven defendants pleaded guilty to amalgamated charges and counsel for a further defendant sought and was granted leave to withdraw. That left three of you who defended the charges through to verdict.

[3]    You were found guilty of 16 out of 21 charges for offending that spanned a period from 29 December 2020 to 2 January 2021 as follows:

(a)arson (x 2);1

(b)arson (with a danger to life) (x 3);2

(c)burglary (x 7);3

(d)assault with a weapon (x 2);4

(e)riotous damage;5 and

(f)rioting.6

Factual background

[4]    You were in custody on remand (because of the absence of a suitable bail address) in the High Security Facility at Waikeria Prison at the time of the riot.

[5]    On the morning of 29 December 2020 you were in a group of 21 prisoners in one of the exercise yards, yard 116. An incident occurred in that yard when one of the prisoners refused to return a disposable razor (or razors) to a Corrections officer.

1      Crimes Act 1961, ss 267(2) and 66. Maximum penalty: 7 years’ imprisonment.

2      Sections 267(1)(a) and 66.  Maximum penalty: 14 years’ imprisonment.

3      Sections 231(1)(a) and 66.  Maximum penalty: 10 years’ imprisonment.

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

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

6      Section 87.  Maximum penalty: 2 years’ imprisonment.

Several other prisoners offered that prisoner their support. You were not one of those prisoners. When the Corrections officer told those in the yard they would all be returned to their cells early if the razors were not surrendered, the Corrections officer was told by some that they were not going anywhere and were ready for a fight. Eventually one razor was handed in, the situation was defused, and tensions settled. You and the other prisoners in the yard were then permitted to remain there for the usual period.

[6]    The Crown case was  that  later  in  the  morning  a  group  of  nine  of  the  21 prisoners set in train the events that led to the riot which proceeded over a period of five days. You were alleged to be part of that group of nine.

[7]    Structures in the yard were destroyed, security cameras were covered with wet toilet paper, cups of urine were thrown at Corrections officers through the grille door and Corrections officers were threatened with assault. Wooden seats and structures in the yard were set on fire. Corrections officers were impeded in their attempts to extinguish the fires.

[8]    You were found not guilty by the jury on one of the two charges relating to the events in the exercise yard, namely Charge 1: riotous damage. On that charge the Crown case was that all nine of you were principal offenders. I consider the not guilty verdict on that charge was explicable having regard to a question from the jury, namely whether they could find a defendant guilty on Charge 1 for assisting or encouraging the causing of damage. Arguably the jury considered there was involvement by you in a common plan as alleged by the Crown, but because the Crown case was that liability for Charge 1 was as a principal offender, the jury found insufficient evidence for guilt as a principal.

[9]    The Crown case overall was that you and all the other defendants (the group) were part of a shared understanding or agreement or common plan to intentionally damage prison property and/or engage in acts of violence towards Corrections officers and that the offences committed were a known probable consequence of the common plan. On some of your charges the Crown relied on s 66(1) of the Crimes Act 1961

on the basis that you were either a principal offender or a party by assisting and/or encouraging.

[10]   The jury, by its verdict, finding you guilty on Charge 2, the charge of arson relating to fires lit in yard 116, must have found that you were part of the common plan at that early point in time.

[11]   Further, by its guilty verdicts on other charges, the jury clearly did not accept the submission made on your behalf that it was not foreseeable by anybody, from the events that were going on in the yard, that there would later be fires lit on the roof and a significant part of the prison would be burned to the ground, and that once up on the roof each of the prisoners had their own agenda and were doing their own thing. The jury was patently correct not to accept that position advanced on your behalf. While there were four further charges on which you were found not guilty, they were discrete charges and the not guilty verdicts were explicable for reasons pertaining to each charge. But that did not affect your overall culpability.

[12]   You made the choice to leave the yard, escaping through the roof with eight others. At the time you left the yard, escaping through the roof, you knew: first that members of the group had damaged prison property and had lit fires in yard 116; that those fires had caused damage; that the fires were lit by people who you were engaged with on the prison roof; and that members of the group were threatening to burn the prison down. In particular, Matangirau Cuff had said, while in yard 116, “this prison is going to burn down because of you [naming a prison officer]” and that [redacted] had also said “burn it up”.

[13]   With that knowledge you were fully involved with the group until surrender on 3 January 2021.

[14]   After climbing out of yard 116 through the roof, the group attempted to persuade the remaining 12 prisoners in the yard to join them but this was unsuccessful.

[15]   The group of nine prisoners, of which you were part, then used an iron bar to smash through cell windows and thereby liberate other prisoners who were housed in

the upper levels of the East North Wing. The windows of the cells of 12 prisoners were smashed in this way. Eight of the inmates in those cells chose to join the group on the roof. There was by that time, a group of 17 of you on the prison roof.

[16]   The Crown case on the charge relating to the breaking into the cells (Charge 5) was that you were liable under s 66(1) either as a principal offender or as a party assisting and/or encouraging a principal offender. I accept the evidence of one of the Corrections officers that he saw you using your hands inside the metal bars of the window disassembling or breaking the metal sheeting on the outside of the window. He described you lifting the reinforcing mesh off the window, wedging it off with a battering ram and placing it between the metal in the window. There was also evidence from another Corrections officer which I accept. He said he recognised you working with Mr Tapara-Taipari and Mr Cuff holding a big iron bar and using it to break into the windows. You were an active participant in trying to gain access to the cells. In other words, you were a principal offender on this charge.

[17]   As part of this early phase on 29 December 2020, the receiving office for the prison was set on fire when there were a significant number of Corrections officers and prisoners inside that area. They were showered with bits of wood and glass from the roof. The paint store which was located near the receiving office was also set on fire and smoke began to fill the buildings. Multiple objects were torn off the building structure and thrown at Corrections staff who were on the ground.

[18]   On that first evening members of the group lit at least 26 fires on the prison rooftops. Below, hundreds of prisoners were locked inside their cells and other secure areas. Those areas were burning and filled with smoke. Corrections officers had to enter those areas to free those prisoners. A number of prisoners were unresponsive and had to be either dragged or carried out by Corrections officers. Meanwhile, members of the group continued to attack the officers and prisoners from above. Those other prisoners were rescued with little time to spare. It was only through the efforts of Corrections officers that no lives were lost.

[19]   From the early hours of the morning on the second day, 30 December 2020, and over the days that followed, members of the group were seen to conduct rooftop

patrols, during the course of which objects would be thrown at Corrections officers, firefighters and Police officers below. These included rocks, glass louvers and shards, fire extinguishers and bottles, metal jars and bits of furniture.

[20]   Over the next four days to 2 January 2021, secure areas of the prison were accessed including the armoury, where you and others were able to seize protective body armour, shields and other equipment. That gave you access to phonelines, prisoner and staff property and the prisoners also accessed the secure medical area. Accessing of the secure areas gave rise to a number of charges of burglary, and your liability on those charges was on the basis of s 66(2) of the Crimes Act, namely that you were part of the common plan or agreement.

[21]   Throughout the period you were on the prison roof, you and others threw objects including concrete pieces, glass, wood, pipes and metal at Corrections officers, firefighters and Police officers (as I have already mentioned). In one of the two charges of assault with a weapon, your liability was on the basis of s 66(2). In other words, you were part of a common plan with others. On the other charge, liability was on the basis of s 66(1) either as a principal offender or as a person encouraging and/or assisting the principal offenders. While caution is required for some of the identification evidence on this charge, there was sufficient evidence to satisfy me that you were involved as a principal offender on this charge. In other words, you threw objects at Corrections officers.

[22]   On the evening of 1 January 2021 you and the other prisoners on the roof,7 armed with various weapons (makeshift weapons), made your way off the roof and charged at Police and Corrections staff on the ground. It was only as a consequence of members of the Police Armed Offenders Squad (AOS) deploying a taser and rubber bullets that you all retreated back up on the prison roof. That was just one example of repeat occasions over the course of the period when you were on the roof when large numbers of Police and Corrections staff put themselves in harm’s way in order to try and manage the offending.

7      Numbering 16 by this time as one had surrendered.

[23]   Following that event on the evening of 1 January 2021 when you went back up on to the roof after charging at Corrections officers and Police officers, fires erupted on the top of several buildings. On the night of 1 January 2021 at least seven fires were lit with discrete points of origin. By the early hours of the morning all fires were extinguished. Although the fires caused extensive damage, the main High Security Facility structure remained safely accessible to you and the other prisoners on the roof.

[24]   As the days continued the prisoners on the roof began to fortify an area behind the prison chapel on the roof of the Master Control building. Members of the group piled furniture into stairwells which gave access up to the chapel, preventing Police and Corrections staff from accessing the roof. The chapel itself was used by the group as a base and sleeping quarters.

[25]   On the evening of 2 January 2021 two teams of Corrections officers and the Police AOS entered the prison. As they were attempting to do so the barricade in the stairwell was lit from above by the 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.

[26]   As the officers evacuated, prisoners on the roof pelted them with debris from piles earlier collected by them, including stones, plates and chunks of concrete, some of which struck the officers. 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.

[27]   The fires continued burning until the following morning and caused the near complete destruction of the High Security Facility.

[28]   On 3 January 2021 all 16 of you surrendered. The entire High Security Facility which used to house 260 prisoners was destroyed. The total damage caused by the riot is estimated to be in excess of $50 million.

Approach to sentencing

[29]   Sentencing is a two-stage process.8 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 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 report under s 27 of the Sentencing Act 2002 (the Act) which you commissioned.

[30]   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

[31]   I have received a victim impact statement. 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 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.

[32]   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 reports the many physical and psychological injuries suffered by the 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.

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

[33]   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

[34]   The three charges of arson with a danger to life are the lead, or the most serious offences. I propose to set a starting point for those three arson charges and then apply an uplift for the other charges.

[35]   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 to 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

[36]   Ms Hamilton, for the Crown, acknowledges the global starting point I adopted when sentencing Mr Lote-Telea yesterday. That was a global starting point of 11 years and nine months’ imprisonment. Ms Hamilton submits that a starting point in that region should be adopted in your case.

[37]   Ms Hamilton also, in support of that submission, says the following aggravating features of your offending are present:

(a)Use of actual and threatened violence: the acts the subject of the charges are inherently violent.

(b)Extent of loss and damage: while the Crown accepts that you are not solely responsible for the entirety of the damage caused, your actions

contributed in a significant way to damage estimated to exceed

$50 million.

(c)Scale of the offending: the offending is of an unprecedented scale within New Zealand and is arguably the most serious of its kind. Seventeen prisoners were involved and 16 of you did not surrender until the sixth day. The lives of hundreds of prisoners were put in jeopardy and multiple prison staff, Police and firefighters were involved as a consequence.

(d)The victims were prison officers acting in the course of their duty: within the course of an afternoon the offending quickly escalated to prolonged and violent offending against the prison officers.

(e)Risk of injury: the fires that were lit posed a serious risk of injury both to prison staff and prisoners, particularly those still locked in their cells. The risk to Police and Corrections officers during the course of the chapel fire on 2 January 2021 was extreme and each of the offenders involved knew and understood the potential for real danger given the earlier stacking of flammable material on the stairs and the deliberate lighting of fires in that location.

(f)Impact on victims: a substantial number of victims were impacted by the offending.

[38]   In terms of parity considerations Ms Hamilton refers to your co-offenders who have been sentenced by other Judges.9 Ms Hamilton notes that as a result of resolution being achieved pre-trial, those defendants who pleaded guilty entered guilty pleas to three representative charges: riotous damage; arson with a danger to life and assault with a weapon. I briefly summarise the sentences for your co-offenders.

9      Paragraphs [38] to [48] were not read out when giving my sentencing decision. I indicated to counsel my written decision would include a reference to co-offenders’ sentences and other cases referred to by the Crown.

[39]   Following a guilty plea, Parata Taite was sentenced by Campbell J on 28 April 2023 on three representative charges: riotous damage; arson (with a danger to life); and assault with a weapon.10   The Judge adopted a starting point of 11  years and    six months’ imprisonment for the arson charge with an uplift of one year’s imprisonment for the other two charges.  This produced a  global starting point of   12 years and six months’ imprisonment, which was one year and three months higher than that indicated for Mr Cuff. While expressing the view that the starting point for Mr Cuff was lenient,11 Campbell J reduced the global starting point by six months to temper disparity resulting in 12 years’ imprisonment.

[40]   Matangirau Cuff entered a guilty plea after accepting a sentence indication provided by Woolford J on the same representative charges.12 Justice Woolford adopted a starting point of nine years and six months for the arson charge with an uplift of one year and nine months for the other two charges resulting in an overall starting point of 11 years and three months’ imprisonment. Mr Cuff has yet to be sentenced.

[41]   Manutaki Kameta was sentenced by Lang J on 28 April 2023 on the same representative charges,13 having accepted an earlier sentence indication.14 Justice Lang adopted a starting point of eight years and four months’ imprisonment on all charges.   The lower starting point was  explained by the Judge on the  basis that    Mr Kameta was not a ringleader and because Mr Kameta surrendered on 30 December 2021 before most of the major damage occurred to the prison complex.15

[42]   Malachi Naua-Tuilotolava pleaded guilty to the same representative charges on the first morning of the trial before the trial commenced. He was sentenced by Downs J on 10 May 2023.16 Counsel for Mr Naua-Tuilotolava acknowledged that if he were to be sentenced in isolation, a starting point of 10 and a half years’

10 R v Taite [2023] NZHC 975.

11 R v Taite [2022] NZHC 2935 at [21].

12   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)).

13 R v Kameta [2023] NZHC 965.

14 R v Kameta [2022] NZHC 3629.

15 At [15].

16 R v Naua-Tuilotolava [2023] NZHC 1105.

imprisonment would be appropriate.17 However, given that Mr Naua-Tuilotolava was already serving a 24 year sentence of imprisonment for importing a very large amount of methamphetamine, in accordance with the totality principle, Downs J imposed a sentence of six years’ imprisonment cumulative on the 24 year sentence Mr Naua- Tuilotolava was serving.

[43]   Arleye Tapara-Taipari also pleaded guilty following a sentence indication given by Lang J.18 The Judge indicated an overall starting point of 11 years and three months’ imprisonment which was adopted in  Mr  Tapara-Taipari’s  sentencing  on 13 July 2023.19

[44]   Yesterday, when sentencing another co-offender who pleaded guilty prior to trial, Grayson Haere, I adopted a global starting point of 11 years and six months’ imprisonment.20 Mr Haere was present in yard 116. I found him to be a principal offender and instigator of the offending.

[45]   I also passed sentence on another co-offender, Siaumau Lote-Telea, yesterday.21 Mr Lote-Telea defended the charges through to verdict and was found guilty of 15 out of 21 charges by the jury.

[46]   Ms Hamilton acknowledges that the sentencing decisions for your co- defendants will be of most assistance to the Court, but for completeness the Crown refers to other cases involving sentencing for arson.22 Ms Hamilton also refers to other cases where the courts have affirmed the proposition that offending in the prison environment demands a stern response, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution.23 More particularly in the case of arson in a prison environment, Ms Hamilton refers to Mouat v Police where Baragwanath J observed that such offending:24

17 At [4].

18     R v Tapara-Taipari [2022] NZHC 3219.

19     R v Tapara-Taipari [2023] NZHC 1812.

20     R v Haere [2023] NZHC 1957.

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

22 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); and R v Lucas- Edmonds [2009] NZCA 193, [2009] 3 NZLR 493.

23 Tryselaar v R [2012] NZCA 353 at [18] and Kepu v R [2011] NZCA 104 at [19].

24 Mouat v Police, above n 22, at [8].

… causes obvious difficulties for the authorities who cannot simply unlock the cell doors and permit others who may be violent offenders simply to escape onto the street. Even more important is that the state which takes suspects into custody removes their liberty on an implied and essential undertaking that their safety will be assured. …

[47]   There is also the case of Ratu v R25 which concerned arsons in the context of rioting within a prison, albeit on a smaller scale than the offending in this case. The two appellants faced charges arising out of their participation in the 2013 riots at Spring Hill Corrections Facility. The Court of Appeal described those riots as “the worst in New Zealand’s history” as matters then stood.26 The rioting began when two prison officers were assaulted. The assaults developed into a riot lasting over six hours. The rioters lit several fires which spread and endangered the lives of other prisoners and staff. The cost of repairs to the damage caused was estimated at

$5 million.

[48]   The two appellants were not involved in the initial assaults on prison officers but were actively involved in a number of events during the riot. The starting point of six years’ imprisonment for Mr Thomas for the lead offence of arson and a 12 month uplift to account for the charge of riotous damage were undisturbed on appeal.

Defendant’s submissions

[49]   Mr Cassidy submits that in the interests of parity there is no proper basis to distinguish between the starting points for those who accepted a sentence indication prior to trial and who have been sentenced, and those who went to trial and were found guilty by the jury.

[50]   Mr Cassidy submits that an appropriate global starting point for the offending viewed  as a whole is one between  11  years and three months’ imprisonment and  12 years’ imprisonment.

25     Ratu v R [2016] NZCA 97.

26 At [24].

Discussion

[51]Yesterday when I sentenced Mr Lote-Telea I said:27

[55]      This morning I passed sentence on Grayson Haere who pleaded guilty prior to trial.28 He was present in yard 116, as you were. I found Mr Haere to be a principal offender and an instigator of the offending. I also saw no reason to distinguish between him and Mr Taite, Mr Cuff and Mr Tapara-Taipari in terms of his role. They were also in yard 116 when the events began.

[56]      You were not an instigator, the jury having found you not guilty of the two charges for the events that occurred in yard 116. In that respect only, your culpability is less than that of Mr Haere. On the other hand, you were found guilty of seven charges of burglary and a charge of rioting, neither of which were faced by those who pleaded guilty. I do not entirely accept the Crown submission that the summary of facts for those defendants who resolved the prosecution was relatively benign. It was a detailed document running to around nine pages. But nevertheless, the convictions on those other charges not faced by those who pleaded guilty elevates your offending above that of Mr Haere.

[57]      I adopt a starting point for the arson (with a danger to life) charges of 11 years’ imprisonment. I would have uplifted that starting point by one year and three months for the other charges, but I reduce the uplift for parity reasons in relation to your co-offenders who pleaded guilty, to reach a global starting point of 11 years and nine months’ imprisonment. The additional three months more than Mr Haere’s global starting point creates the required distinction between the global starting points for each of you.

[52]   You are in a slightly different position from Mr Lote-Telea in that you were found guilty by the jury of the arson charge in relation to fires lit in yard 116.29 There was evidence that you were one of the people in the yard using items to shield fires that had been lit or using your body to do the same thing. So, in that respect, by finding you guilty of that arson charge, the jury considered you were involved at a slightly earlier point in time than Mr Lote-Telea. The first charge on which he was found guilty was Charge 3, a charge of arson, which related to the fire lit at the North Bridge guard room very shortly after the escape from yard 116.

[53]   Otherwise, I consider your culpability is the same as his. Accordingly, I adopt a starting point of 11 years’ imprisonment for the three arson with a danger to life

27 R v Lote-Telea, above n 21. When giving my sentencing decision in Court I did not read out the paragraphs from the sentencing decision for Mr Lote-Telea but indicated they would be included in my written decision.

28     R v Haere, above n 20.

29 This was not an arson (with a danger to life) charge but a charge under s 267(2) of the Crimes Act.

charges. Because of the additional charge on which you were found guilty, I consider the global starting point for you should be slightly higher than the global starting point of 11 years and nine months I adopted for Mr Lote-Telea. Accordingly, I set the global starting point for you at 11 years and 10 months’ imprisonment. (The uplift would have been one year and four months but as with Mr Lote-Telea, I reduce it by       six months for parity reasons in relation to other co-offenders who have been sentenced).

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

Personal aggravating features – previous convictions

[55]   The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.30 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.31

[56]   Your criminal history records 19 convictions for offences including theft and assault.

[57]   Mr Cassidy acknowledges that you have criminal convictions but says none are for offending of the magnitude of the present offending. He accordingly submits that no uplift is required.

[58]   For the Crown, Ms Hamilton does not submit that an uplift is required in this case.

[59]   I accept counsel’s submissions. In your case I do not consider that your previous convictions are of sufficient relevance or seriousness to your current offending for the Court to take them into account by way of an uplift. None of your offences attracted a sentence of imprisonment. I, therefore, do not add an uplift for your prior offending.

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

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

Personal mitigating factors

[60]   Mr Cassidy submits the Court should apply a discount between 25 to 30 per cent for your personal circumstances. He refers the Court to R v Heta32 in support of that submission.

[61]   You have commissioned a report under s 27 of the Act from Ms Karren Taylor. In order to prepare her report Ms Taylor spoke to you on two occasions and to your older sister. It is a detailed report. I have read it carefully.

[62]   Ms Taylor says that you would very much prefer that certain matters you have told her about not be read out in open court. I will respect that wish. The next few paragraphs of my sentencing decision will be included when my decision is typed up but I will not read them out. I will also refer in my written decision to the letter I received this morning from your mother.

[63]   Your father and stepfather were both gang members. A gang presence in and around your family home was prevalent throughout your childhood. At the age of nine months your mother handed you over to the care of your father. But it seems there was no “care”. Your sister reports that at the age of five, when you were returned to your mother and stepfather, you were seriously malnourished, covered in scabs, still wearing a nappy and you were eating food out of the trash.

[64]   On being returned to your mother you were subject to extreme and usually daily violence by your stepfather. You were beaten for the most minor of infractions and often for things that were not your fault. By the time you were 12 to 14 years of age your stepfather’s punches to your head were so severe that you would be knocked unconscious. You also witnessed your stepfather inflicting severe violence on your mother. When you tried to stop that you were beaten yourself.

[65]   You spent your childhood in a state of constant fear within your own home. In turn, you began acting violently towards other students at school. Your school work

32     R v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

was affected and you were eventually expelled, leaving school without having gained any formal qualification.

[66]   In her letter to the Court your mother acknowledges that you did not have the best of upbringings. She says she failed you in so many ways.

[67]   As a teen, your first job was working in the shearing gangs where a culture of methamphetamine use was prevalent. You developed a serious methamphetamine addiction, which has led to your homelessness and engagement in crime to fund your addiction. There was also, but to a lesser degree, your gambling addiction.

[68]   Ms Taylor says, and I accept, that your entire young and early adulthood has been spent trying to avoid the pain of dealing with your childhood trauma. You never fully developed a skill set whereby you were able to utilise positive coping skills in order to manage the fear that you feel. Since birth, it has been instilled in you that your purpose was to listen and do as you were told. You were required to be submissive to and follow a more powerful older male figure without hesitancy or question in order to survive. That assessment comes not just from what you have told Ms Taylor but it is also endorsed by your older sister. I accept that your background provides, at the very least, a causative contribution to your offending with you following what other and more experienced offenders were doing during the riot, first in leaving yard 116 and then remaining on the prison roof.33

[69]   There are, however, some positive notes emerging from the report. You have made your own efforts at rehabilitation. For various reasons, not all of them have been successful. It seems you will need professional advice to develop the skills you need to turn your life around. You have consistent and ongoing support from your older sister who is present in court today with her partner. When living with your sister on EM bail, you assisted her by installing a new bathroom, reading up to teach yourself the necessary skills to do that. The Court is told that when you are released from custody you will live with your sister.

33     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[112].

[70]   You also kept yourself busy while on EM bail by making sure you got physically fit. You appear willing to take whatever steps are necessary to involve yourself in programmes in the prison.

[71]   I accept Mr Cassidy’s submission that you have the potential to change the course of your life.

[72]   I propose to make a discount of 20 per cent for your relevant personal factors together with an additional and separate five per cent for your rehabilitative prospects. That is a total of 25 per cent.

End sentence

[73]   Mr Soames, I have adopted a global starting point of 11 years and 10 months’ imprisonment.

[74]   I have made allowances of: 20 per cent for your personal circumstances and five per cent for your prospects of rehabilitation. The total discount for personal factors is therefore 25 per cent.

[75]   Calculated in months against the starting point of 11 years and 10 months’ imprisonment, that is a reduction of 35.5 months (or three years — rounded up in your favour). The end sentence is therefore eight years and 10 months’ imprisonment.

Minimum period of imprisonment

[76]   Ms Hamilton notes that there was no minimum period of imprisonment imposed when I sentenced Mr Lote-Telea. In those circumstances the Crown accepts that a minimum period of imprisonment should not be imposed in this case and I do not do so.

Sentence

[77]   Mr Soames would you please stand. On each of the three charges of arson with a danger to life you are sentenced to eight years and 10 months’ imprisonment. You

will serve those sentences concurrently. I sentence you to terms of imprisonment on the remaining charges as follows:

(a)Arson (under s 267(2)) (x 2):              Five years (on each charge)

(b)Burglary (x 7):  Five years (on each charge)

(c)Assault with a weapon (x 2)                Five years (on each charge)

(d)Riotous damage:  Five years

(e)Rioting:  One year

[78]The sentences on all charges are to be served concurrently.

Gordon J