R v Tapara-Taipari
[2023] NZHC 1812
•13 July 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-072-00048
[2023] NZHC 1812
THE KING v
ARLEYE MICHAEL TAPARA-TAIPARI
Hearing: 13 July 2023 Appearances:
R L Mann for Crown
H Roose for Defendant (via VMR)
Sentence:
13 July 2023
SENTENCING REMARKS OF LANG J
Solicitors/counsel:
Hamilton Legal, Tauranga H Roose, Hamilton
R v TAPARA-TAIPARI [2023] NZHC 1812 [13 July 2023]
[1] Tapara-Taipari, you appear for sentence today having pleaded guilty to one representative charge each of causing riotous damage,1 arson2 and assault with a weapon.3 You entered your pleas following a sentence indication I gave you on 2 December 2022.4 In the sentence indication, I selected a starting point for your offending and indicated the extent to which I would provide a discount to reflect guilty pleas. It now remains for me to determine whether, and if so to what extent, to reduce the sentence further to reflect other mitigating factors identified in material provided prior to sentencing.
Background
[2] You pleaded guilty on the basis of a summary of facts that was used to provide the sentence indication. This records that you were a remand prisoner in Waikeria Prison at the time that a riot occurred between 29 December 2020 and 3 January 2021. The charges were laid against you as a result of your involvement in that riot.
[3] I do not propose to set out the factual background in full because this is contained in the sentence indication which will be annexed to the transcript of these remarks and will form part of them. In short, however, you were one of nine prisoners who ripped doors off their hinges in an exercise yard and then climbed onto the roof of the Waikeria Prison complex. The efforts of the group to persuade the remaining 12 prisoners in the yard to join them were unsuccessful. You and your associates on the roof then used an iron bar to smash through cell windows and liberate prisoners housed in the upper levels of the high security block. Eight of the inmates in those cells chose to join your group on the roof.
[4] Over the following days, you and other members of the group lit fires in various areas of the prison and damaged prison property in other ways. Attempts by Corrections staff to enter the prison were rebuffed by hurling objects at them.
1 Crimes Act 1961, s 90 – maximum penalty seven years’ imprisonment.
2 Sections 267(1) – maximum penalty 14 years’ imprisonment.
3 Sections 202C(1)(a) – maximum penalty five years’ imprisonment.
4 R v Tapara-Taipari [2022] NZHC 3219.
Eventually, fires swept throughout the facility and Corrections staff had no option but to withdraw. The fires caused the near complete destruction of the complex.
[5]You and your associates ultimately surrendered on 3 January 2021.
The sentence indication
[6] In selecting a starting point for your offending, I had regard to the starting points selected for three other persons involved in the riot – Mr Cuff, Mr Taite and Mr Lote-Telea.5 I considered your offending warranted a starting point of 11 years three months imprisonment.
[7] Although you have previous convictions for offending involving violence, these are different in nature to the conduct that led to the present charges. I therefore did not apply any uplift to the sentence to reflect aggravating factors personal to you.6
[8] I applied a discount of 25 per cent to reflect guilty pleas.7 This was the same as the discounts selected for Messrs Taite, Cuff and Lote-Telea. This resulted in a reduction of two years and 10 months. The indicated sentence was therefore one of eight years five months imprisonment subject to any other mitigating factors that might be identified at sentencing.
Other mitigating factors
[9] I now have the benefit of a pre-sentence report, as well as a cultural report prepared on your behalf on 8 July 2020. You sought an adjournment of your sentencing so you could obtain an updated cultural report. I declined this request on the basis that your circumstances are unlikely to have changed in any material respect since the cultural report was prepared in July 2020. The value in a cultural report lies in the fact that it provides the Court with an understanding of the circumstances in which an offender grew up and the extent to which these can be linked to the index
5 At [11].
6 At [13].
7 At [14].
offending. I saw no value in obtaining any updated cultural report, particularly as you have been in prison for much of the period since the previous report was prepared.
[10] Both the pre-sentence report and the cultural report provide significant detail of the appalling conditions in which you grew up. Your family were steeped in gang culture with both your father and grandfather being members of gangs. Criminal activity led to your father being absent from home for large periods of time whilst either evading police or serving prison sentences. During these periods, you were physically abused by your mother and by male associates whom she invited to the house. You were also surrounded by different forms of gang-related activity, including drug taking and the abuse of alcohol.
[11] Your father returned to the home when you were approximately 11 years of age and at this point you were physically assaulted by him as well as by other members of your whanau. At or about the same time, your kuia, (great grandmother), passed away and this had a profound effect on you because she had been the person to whom you turned in times of trouble. At or about this time, you began consuming cannabis to block out the trauma caused by the events swirling around you. This in turn led you to a life of criminal activity including burglary, aggravated robbery, car conversion and kidnapping. You were consuming methamphetamine as well as cannabis on a regular basis.
[12] You became a prospect of the Black Power gang at the age of 14 years. Your father had been a long-standing member of that gang. You describe the gang as providing a family environment which was not available to you elsewhere. To your credit, however, you also began to protect your mother from beatings by your father. Your size and your willingness to confront your father operated as a shield for your mother. Sadly, you have spent more time in custody than out in the community since you were 18 years of age.
[13] It is really no surprise given your background that you were willing to become involved in the prison riot. You would have seen it as a logical thing to do in the circumstances you then confronted. As you observed to the writer of the pre-sentence report, you were surrounded by violence in prison. That is the means by which you
chose to deal with issues that confronted you whilst in custody. I therefore see a link between your upbringing and background and the circumstances that led to the present offending.
[14] There are also glimmers of hope in both reports for your rehabilitation. Members of your family speak highly of you, as does a person who operated a facility to which you were remanded on EM bail. Unfortunately, however, you breached the terms of your EM bail and have been in custody since May 2022.
[15] Throughout my dealings with you during the period leading up to and following the sentence indication I have found you to be a relatively straightforward person, as well as being a person who wants to do the right thing. I note also that you now want to obtain a driving licence so you can obtain meaningful employment once you are released from prison. In addition, you have a job available to you on your release as a steel fixer. All of these factors means that you have rehabilitative prospects, notwithstanding your background.
[16] In addition, you have expressed remorse for what happened during the riot and the effect this has had on the Corrections officers who were required to deal with it. Sentencing was delayed whilst attempts were made to arrange a restorative justice conference at your request. Ultimately this proved not to be possible for a variety of reasons, none of which are attributable to you. You are entitled to credit however for offering to engage in the restorative justice process.
[17] I propose to provide an additional discount of 20 months, or 15 per cent, to reflect the factors identified in the s 27 and pre-sentence reports. These include your rehabilitative prospects and expressions of remorse. I apply an additional discount of six months, or five per cent, to reflect your desire to engage in the restorative justice process.
[18] I have therefore identified mitigating factors that justify a total discount of five years. This reduces the sentence to one of six years three months imprisonment.
Minimum term of imprisonment
[19] The Crown seeks a minimum term of imprisonment. It says you were one of the instigators of the offences and that as such a minimum term of imprisonment is required.
[20] The Court has the power under s 86 of the Sentencing Act 2002 to impose a minimum term of imprisonment when it imposes a sentence of two years or more on an offender. The Court may only do so where the normal parole provisions, which require an offender to serve one-third of the sentence before being eligible to apply for parole, would be insufficient to reflect issues relating to denunciation, the need to hold the offender accountable and the need to protect the community.
[21] I have been unable from the summary of facts, to discern sufficient material to justify me imposing a minimum term of imprisonment. The position may well be different for those who went to trial and defended the charges because the trial Judge may well have identified conduct on their part to justify the imposition of the minimum term. I therefore impose no minimum term of imprisonment in your case.
Sentence
[22] Mr Tapara-Taipari, on each of the charges you are sentenced to six years three months imprisonment. You will serve those sentences concurrently.
[23] I record that I have discharged you under s 147 of the Criminal Procedure Act 2011 on the remaining charges that you faced arising out of the prison riot.
Lang J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-072-000048
[2022] NZHC 3219
THE KING v
ARLEYE MICHAEL TAPARA-TAIPARI
Hearing: 2 December 2022 Appearances:
R L Mann for Crown Defendant in person
Indication:
2 December 2022
SENTENCE INDICATION OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v TAPARA-TAIPARI [2022] NZHC 3219 [2 December 2022]
[1] Mr Tapara-Taipari faces a number of charges arising out of the riot that occurred at the Waikeria Prison between 29 December 2020 and 3 January 2021. His trial is due to commence in this Court on 13 February 2023.
[2] Mr Tapara-Taipari seeks a sentence indication. This is an indication of the sentence he would receive if he entered guilty pleas in the near future. If he declines the indication and is convicted at trial, he will be sentenced on the facts as the trial Judge finds them to be.
[3] To facilitate the sentence indication being given the Crown has offered to accept guilty pleas on one representative charge each of causing riotous damage, arson and assault with a weapon.
Background
[4] The sentence indication is given on the basis of a summary of facts that is accepted for present purposes. Mr Tapara-Taipari was a remand prisoner in Waikeria Prison at the time of the riot. It transpires that the charges on which he was spending time in custody on remand have now been resolved and he was acquitted on them.
[5] On the morning of 20 December 2020 an incident occurred in the exercise yard of the prison when another prisoner, Mr Cuff, was giving Mr Tapara-Taipari a haircut using disposable razors. He refused to give them to a Corrections Officer who demanded that he hand them over. Several other prisoners offered Mr Cuff their support. Mr Tapara-Taipari was one of those prisoners. When the Corrections Officer told the group they would all be returned to their cells early if the razors were not surrendered, the group told him they were not going anywhere and were ready for a fight. Eventually one razor was handed in and the situation was defused. The prisoners were then permitted to remain in the exercise yard for the allotted period.
[6] At about midday one member of the group in the yard contacted a news media outlet to announce the collective intention of the group to riot in protest against inhumane prison conditions. Nine of the prisoners present in the exercise yard then set in train the events that led to the riot. First, they set fire to wooden seats and structures in the exercise yard. They prevented Corrections staff from extinguishing
these. They also covered security cameras with toilet paper and threatened to assault Corrections Officers if they attempted to enter the exercise yard. At 2.19 pm a prisoner made a second phone call to the same news media outlet declaring that the inmates were prepared to “go to war”.
[7] Shortly after this call, nine of the prisoners in the yard used doors that had been ripped off their hinges to climb onto the roof of the complex. Mr Tapara-Taipari was one of these prisoners. The group then attempted to persuade the remaining 12 prisoners in the yard to join them, but this was unsuccessful. The nine prisoners on the roof then used an iron bar to smash through cell windows and thereby liberate prisoners housed in the upper levels of the high security block. 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. The remaining prisoners who were not involved in the riot were then evacuated from the prison.
[8] Over the next three days the group on the roof lit multiple fires and damaged the building in other ways. They also accessed the facility’s armoury, where they were able to seize protective body armour, shields and other equipment. They fortified an area behind the prison chapel to use as sleeping quarters.
[9] Following a series of earlier incidents, teams of Corrections Officers entered the prison on the evening of 2 January 2021. At this point fires were lit behind the barricade in the prison chapel. Fires swept through the facility and the Corrections Officers were forced to withdraw. These fires caused near complete destruction of the building.
[10] One prisoner had surrendered on 30 December 2020. The remaining prisoners on the roof of the prison surrendered on 3 January 2021. The summary of facts records that the total damage caused by the riot is estimated to be at least $50 million.
Starting point
[11] Recent sentence indications given to three defendants facing the same charges as Mr Tapara-Taipari. On 4 October 2022, Woolford J gave Mr Cuff, who appears to have been one of the ringleaders in the riot, a sentence indication in which he adopted
an overall starting point of 11 years three months imprisonment.8 In a sentence indication given on 9 November 2022 to Mr Taite, Campbell J noted that he considered the approach taken by Woolford J to have been lenient.9 After making an adjustment for parity purposes Campbell J selected a starting point of 12 years imprisonment for Mr Taite. On 1 December 2022 I adopted a starting point of ten years nine months imprisonment for Mr Lote-Telea, who was not part of the group involved in the initial argument with the Correction Officer in the exercise yard.10
[12] Mr Tapara-Taipari was involved throughout the incident and his culpability is comparable with that of Mr Cuff. I therefore select a starting point of 11 years three months imprisonment.
Aggravating factors
[13] The Crown seeks an uplift to reflect the fact that the offending occurred in a prison environment and that Mr Tapara-Taipari has previous convictions for offending involving violence. Given the level of starting point I have adopted, I do not consider it appropriate to uplift the starting point to reflect the fact that the offending occurred whilst Mr Tapara-Taipari was in custody. That factor is already encompassed within the starting point I have selected. Furthermore, although Mr Tapara-Taipari has previous convictions for offending involving violence, he does not have previous convictions for offending of a similar type to those comprising the charges he currently faces. It follows that the sentence remains one of eleven years three months imprisonment before taking into account mitigating factors.
Mitigating factors
[14] The only mitigating factor for which I would be prepared to give credit at this stage is guilty pleas. The Crown accepted that a credit of 25 per cent was appropriate in the cases of both Mr Taite and Mr Cuff. I applied the same discount to the starting point selected for Mr Lote-Telea. Those sentence indications were only given a short time ago. I also acknowledge that it has only been recently that the defendants have
8 R v Cuff [2022] NZHC 2545 at [35].
9 R v Taite [2022] NZHC 2935 at [21].
10 R v Lote-Telea [2022] NZHC 3204 at [12].
been able to properly understand the nature of the evidence on which the Crown relies. Furthermore, any saving in terms of time taken in prosecuting the trial will be valuable. I would therefore apply a discount of two years ten months to reflect guilty pleas.
[15] Mr Tapara-Taipari may also be entitled to credit for other mitigating factors identified at sentence. For present purposes, however, the indicated sentence is one of eight years five months imprisonment.
[16] I note that the Crown has indicated it may seek a minimum term of imprisonment. That issue would need to be determined at sentencing based on the information available at that time.
Time for acceptance
[17] The proceeding is to be listed for mention in the criminal callover at Hamilton on Tuesday 13 December 2022 at 9 am for Mr Tapara-Taipari to advise the Court whether he accepts the indication. Mr Tapara-Taipari is to be present in person at that time.
Lang J