R v Taiaroa

[2015] NZHC 2782

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-004-13119 [2015] NZHC 2782

THE QUEEN

v

LEWIS HAPI TAIAROA

Hearing:	10 November 2015
Counsel:	D G Johnstone for Crown K W Burroughs for Defendant
Judgment:	10 November 2015

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Auckland

Counsel:

K W Burroughs, Hamilton

R v TAIAROA [2015] NZHC 2782 [10 November 2015]

[1]      Lewis Hapi Taiaroa, you appear for sentence today on one count of arson.  I found you guilty on that charge on 2 October 2015, following a Judge-alone trial in September. You were found not guilty on one charge of riotous behaviour and one of assault with a weapon.

[2]      The offence was committed during a riot at Spring Hill Correctional Facility on 1 June 2013.  My reasons for verdicts1  set out in some detail the events of that day.  In short,

(a)      You were found not guilty on the charge of riotous behaviour on the grounds that there was a reasonable possibility that you participated in the riot under compulsion.

(b)So far as the assault with a weapon charge was concerned, I found you not guilty because I could not exclude the reasonable possibility that Officer Z was mistaken in identifying you as the perpetrator of that particular assault.

(c)      You were found guilty on the arson charge because the defence of compulsion is not available for an offence of that type.  If the defence had been available, I would have acquitted you on that charge also.

[3]      I do not intend to say much about what happened on the day.  The following short summary is taken from my reasons for verdicts.

[4]      Because of the large number of security cameras in a prison facility, CCTV footage was available to identify those parts of the riot in which you were said to have participated.  With one exception, (the assault with a weapon charge, in respect of which there was no CCTV footage) no question of identification arose.

[5]      In the period between your return from the medical office to the yard (at about  10.14am)  and  1.00pm  there  are  a  number  of  images  that  show  your

involvement in the riot:

1      R v Taiaroa [2015] NZHC 2401.

(a)      At about 11.10am you were seen as one of three prisoners who place the metal volleyball pole against the staff base window.  It is used as a “battering ram”.  Two prisoners appear to be wielding the pole, one of whom was you.

(b)Between 11.11am and 11.59am you were seen at various times (but not continuously) striking the staff base window and surrounds with lengths of wood and a metal object.

(c)      You were seen carrying property from rooms in the staff base into the prison yard.

(d)You were seen picking up toilet rolls and carrying them towards a fellow prisoner, who is in the process of fuelling a fire in a room identified as the seat of the fire.

(e)      You were seen using a telephone in close proximity to a prisoner who was lighting or fanning the fire.

[6]      There are few occasions on which you could be observed to be acting alone, or without another prisoner in close proximity to you.   I have some difficulties in reaching conclusions about the continuous nature of your behaviour due to the jerky images that were projected from the CCTV and the lack of any audio record of what was being said to you (or more generally) at the time various actions were recorded.

[7]      There  was  some  debate  about  the  extent  to  which  you  may  have  been compelled to participate.   I was satisfied that you genuinely believed threats of immediate grievous bodily harm were being made against you and would be carried out.

[8]      The maximum penalty for the offence of arson is 14 years imprisonment. Ordinarily, a prison sentence would be imposed for offending of that type.  However, I say immediately that I do not intend to send you back to prison.  I am satisfied it would not be in your or the community’s best interests to do so.  You are plainly in

need  of  medical  care  for  mental  health  problems,  and  are  unlikely  to  have  an adequate opportunity to reintegrate into the community were you to return to jail.  I am satisfied that your safety could be at risk in prison.  In particular, the possibility of retribution in respect of your efforts to extract yourself from a gang.

[9]      I summarised the essence of your involvement with the fire in my reasons for verdicts.  I prepared my summary from CCTV footage that showed the fire was lit and fuelled near the sterile zone grill to Pod D.  The entire time of your involvement spanned the period between about 12.45pm and 12.47pm; in fact, a little less than one minute 30 seconds.  After you left the sterile zone the person who lit the fire remained at the grill fuelling it for some 30 seconds or so.

[10]     I was not satisfied beyond reasonable doubt that you believed that danger to life was likely to ensue once the fire was lit, but did find that an ordinary prudent person in your position ought to have known that when the fire took hold there was likely to be danger to life.   That was the basis on which the guilty verdict was returned.

[11]     Having regard to the circumstances in which your offending occurred, your very limited involvement and the fact that the conviction was entered on the “ought to  have  known”  limb,  I  take  a  starting  point  for  sentence  of  three  years imprisonment.  I recognise that is well below that chosen for sentencings involving co-offenders, but I consider that the factors to which I have referred justify that difference  in  approach.    I  agree  with  counsel  for  the  Crown  that  despite  your extensive criminal history, no uplift is required for personal aggravating factors.

[12]     By way of mitigating factors, I point to your mental health concerns, the degree  of  compulsion  that  led  to  your  acts,  your  genuine  and  real  attempts  to extricate yourself from previous gang involvement, and your personal circumstances, particularly those to which Dr Dean refers at pages 3 and 4 of his report of 13

October 2015.

[13]     Because the charge was defended, you are not entitled to any credit for a guilty plea.  However, I understand why the charges were defended given the degree of compulsion under which you were acting.

[14]     I am prepared to give a generous credit for the mitigating factors I have identified.  I allow a credit of one year and six months for that purpose.  That would ordinarily bring the end sentence down to one of one year and six months imprisonment.

[15]     As you would be eligible for a sentence of under two years imprisonment I am required to look at other options for sentencing purposes.   I am required to impose the least restrictive sentence in the circumstances.   A sentence of home detention is usually the most appropriate in this situation.

[16]     I have considered the possibility of a purely community based sentence.  That would have involved a mixture of community work and intensive supervision.  On reflection, I consider that home detention is necessary to respond to the seriousness of the offending and must be regarded as the least restrictive outcome available in the circumstances.

[17]     In my view, your ability to rehabilitate and reintegrate into society will best be served by a sentence of that type coupled with special conditions requiring you to undergo programmes for mental health and other purposes as a probation officer may direct.

[18]     I  consider  that  a  sentence  of  12  months  home  detention  is  appropriate. Although a prison sentence would have been 18 months and no more than one-half is usually reflected in a home detention sentence, I consider that a term of 12 months will be more beneficial  both to society and to  you.   A sentence of that length provides more time for treatment and counselling programmes to assist your rehabilitation.

[19]     I am satisfied from the assessment that the proposed address is suitable for electronic monitoring. There is no objection to you residing at the address in issue.

[20]     On the one charge of arson on which you were convicted you are sentenced to a term of home detention of 12 months.  That will be on standard conditions and the following special conditions:

(a)       You shall serve that sentence at [address redacted].

(b)You shall not possess, consume or use alcohol or non-prescription drugs.

(c)      You shall attend a psychological assessment with a psychologist from the Department of Corrections as directed by a probation officer, and complete any treatment and/or counselling as recommended and to the satisfaction of a probation officer.

(d)You  shall  attend  and  complete  any  programme,  treatment  and counselling to the satisfaction of a probation officer, with appropriate programmes being determined by the probation officer.

(e)      You shall continue to engage with Dr Dean, as your mental health provider, and attend all scheduled appointments and follow his advice.

(f)      You shall not communicate or associate with any other persons who participated in the riot without prior written approval of a probation officer.

[21]     Mr Taiaroa, I have the sense that you have finally understood the need to turn your life around and to leave behind you your criminal links of the past.  I hope that with the assistance of Dr Dean and the probation officer you can achieve that goal. This is likely to be your last chance to do so.  I wish you well.

[22]     Stand down.

P R Heath J