R v Tarau

[2023] NZHC 2564

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000026

[2023] NZHC 2564

THE KING

v

TE RENETI TARAU

Hearing:	14 September 2023
Appearances:	R Mann for the Crown S Mills for Mr Tarau
Sentencing:	14 September 2023

SENTENCING NOTES OF GORDON J

Solicitors: Hamilton Legal, Hamilton Counsel:                 S Mills, Barrister, Rotorua

R v TARAU [2023] NZHC 2564 [14 September 2023]

[1]    Mr Tarau, 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.

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 Leon Huritu,4 one of your co-offenders.

[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.

[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 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 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 they 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 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.

Approach to sentencing

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

[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

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

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 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

[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.

Crown submissions

[31]   Ms Mann, for the Crown, submits the aggravating features of your offending are: 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.

[32]   Ms Mann submits that having regard to the magnitude of the offending and risk to life as a result, the aggravating features present and your role in the offending together with parity considerations, the appropriate global starting point for your offending is nine years and six months’ imprisonment consistent with the approach taken, for example, for Mr Huritu and Mr Paul.

[33]   Ms Mann also refers to other cases which I will reference in a footnote when my decision is typed up.6

Defendant’s submissions

[34]   As regards the aggravating features identified by the Crown, Mr Mills submits: a degree of violence is present, although not at a significant level; the extent of loss and damage needs to be seen in the context of a number of arsons for which you were not convicted; the scale of offending and associated threat to life must be confined to the arson on 2 January 2021; it is accepted that the victims were prison officers acting in the course of their duty but this a natural consequence of the location and imprisonment of the rioters; it is accepted that a risk of injury was present but not to the same degree as the fires on 29 December 2020; and it is accepted that the offending would have had an impact on the victims but it does not have the same impact, for example, as interfamilial sexual offending.

[35]   In making his submissions Mr Mills recognises that you are one of the last of the offenders to be sentenced and that carries some obvious practical realities in terms of parity with your co-offenders. He submits that the sentencing decisions of Leon Huritu7 and Beau-James Paul8 are the most helpful for comparison purposes.

[36]   Nevertheless, while noting the global starting point of nine and a half years for those two co-offenders, carrying out his duty as your counsel Mr Mills submits that the appropriate global starting point should be lower, in the range of eight to nine years’ imprisonment.

Discussion

[37]   I accept the Crown’s submission regarding aggravating features but acknowledge that the damage to property and danger to life needs to be seen in the context of the arson charge on which you were convicted. It does not cover the entire

6      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.

7      R v Huritu, above n 4.

8      R v Paul [2023] NZHC 1985.

period you were on the roof but is restricted to the fires on 2 January 2021. I took that into account when I set the starting point for both Mr Huritu and Mr Paul.

[38]   I do not consider any distinction can be made between you and those two co- offenders as far as the initial starting point. In other words, I adopt a starting point for the lead charge of arson of nine years’ imprisonment for all the reasons I gave when sentencing those two co-offenders. Similarly, I do not see a distinction on the other two charges. An uplift of six months appropriately reflects your involvement in the conduct that gave rise to the charge of riotous damage and the charge of assault with a weapon.

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

Personal aggravating features – previous convictions

[40]   The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.9 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.10

[41]   Ms Mann submits that having regard to both your criminal history and the fact that you were remanded in custody at the time of the offending, a modest uplift is warranted. Having made that submission, Ms Mann acknowledges that in the case of some co-defendants I have determined that no uplift is warranted in circumstances not dissimilar to you.

[42]   Mr Mills, while acknowledging that you have previous convictions, submits that no uplift is necessary.

[43]   Your remand in custody at the time of the offending is referred to by the Crown as relevant to the starting point. I put it aside here. Your criminal history commenced

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

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

with offending in December 2014. While it is relatively lengthy and contains convictions for offending up to June 2019, and some of the offences involve violence, I accept Mr Mills’ submission that your current offending is fact-specific. I accept it does not amount to a continuation of past criminal behaviour and is of a different nature to the present offending. I, therefore, do not add an uplift for your prior convictions.

Personal mitigating factors

[44]   Mr Mills submits the Court should apply the following discounts: 10 per cent for your guilty plea; 15 to 20 per cent for the factors referred to in the s 27 report; five per cent for your remorse and five per cent for your prospects of rehabilitation.

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

Guilty plea

[46]   While he is aware that a five per cent discount was given for guilty pleas to other defendants who are in the same position as you (having pleaded guilty during the trial), Mr Mills nevertheless submits a discount of 10 per cent is appropriate. He submits active attempts at resolution were made prior to the trial but the basis upon which you pleaded guilty was never before made available by the Crown.

[47]   Ms Mann, on the other hand, submits that there was never any suggestion on your behalf prior to trial that there would be a guilty plea involving arson. Arson was said to be the “sticking point”.

[48]   Ms Mann acknowledges that I gave a guilty plea discount to Mr Huritu,     Mr Paul and others who were in the same position as you, pleading guilty part way through the trial. She submits the appropriate level of discount should be the same, namely five per cent.

[49]   I accept that some credit should be given and I adopt the approach I took when sentencing both Mr Huritu and Mr Paul. For reasons of parity I adopt the same level of discount as I did for your co-offenders. In sentencing Mr Huritu I said:11

[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.12 Second, your guilty plea resulted in a saving of the cost of the trial to the State, albeit a relatively small reduction in cost.13 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.

[50]Accordingly, I give you a five per cent discount for your guilty plea.

Personal circumstances

[51]   You have provided the Court with a report prepared by Vanessa Moodie and Rachel Cade (the writers) under s 27 of the Act. You were interviewed by the writers for the purposes of preparing the report. They were not able to interview any other family members.

[52]The Court also has the benefit of the usual PAC report.

[53]   You are 27 years of age and of Māori descent (Ngāti Awa) through your paternal family. Your mother is of New Zealand European descent. Your family moved around on a regular basis.

11 R v Huritu, above n 4.

12 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.

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

[54]   Your parents struggled to be financially stable due to their lack of education and limited employment prospects. They provided the necessities for you and your siblings but generally their situation and circumstances were impoverished.

[55]   You can remember being in the Women’s Refuge with your mother and siblings when you were about four years of age. That was as a consequence of your father’s violence to your mother. You were reluctant to provide the details or nature of your father’s physical conduct towards you but admitted that his discipline went well beyond what was safe or reasonable. You were resigned to that treatment but when you were not able to cope you ran away or stayed with your grandparents who lived in Whakatāne.

[56]   You report that school was never a priority for your family and you assume this was because they moved on a regular basis including a move to Perth, Australia for a period of about 18 months when you were 10 years old.

[57]   When you were 15 you were excluded from Whakatāne High School for fighting. You then went to live with your paternal uncle in Melbourne for a short while but returned to New Zealand when you were aged 16 and you have lived in Whakatāne since then. You do not have a solid work history.

[58]   One of the themes of your background is your familiarity and affiliation with gang culture. You were raised in a home where having gang members in the house was very normal. Your father was a founding member of Mangu Kaha (Black Power). You were later made a patched member of that gang.

[59]   When you were around eight years old the behaviour of an older woman, which continued intermittently up until you were about 13, has had a significant impact on you, including an impact on the relationships you sought to form as an older person.

[60]   You were exposed to substance use since childhood. Your father and his friends would smoke cannabis in the home. You recall when you were six years old stealing the roaches out of ash trays and you and your friends would try to copy what you had seen the adults doing. When you were 13 you began using cannabis heavily.

When you were in the community you say you smoked it almost every night as it assisted you to sleep, relax and slow your thoughts down. You do not smoke cannabis during the day because you find it demotivates you and you prefer to be able to work and to get up and be moving.

[61]   You have not used methamphetamine for seven years. Although it is said you have a previous severe methamphetamine use disorder, you have been in remission for a number of years. Your alcohol consumption is limited and your use of other substances has also been limited.

[62]   The writers offer the opinion that there is evidence to suggest there is a causative link between the deprivation and disadvantage in your cultural background and your recent (and previous) criminal offending.

[63]   Ms Mann submits the appropriate range for a discount would be between    10 and 15 per cent, with 15 per cent as a maximum.

[64]   I accept Mr Mills’ submission that a 15 per cent discount is appropriate for your personal background. 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 and other factors that I have referred to that have constrained your individual choice, including a choice not to offend.14

Remorse

[65]   Mr Mills submits you have demonstrated genuine remorse and shame. He says a further five per cent discount is appropriate for this factor.

[66]   Ms Mann acknowledges on the basis of similar material filed for other defendants I gave a five per cent discount.

[67]   Evidence of remorse can warrant recognition over and above the recognition for a guilty plea. It need not be exceptional, but it must be actually experienced.15

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

15     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [22].

[68]The writer of the PAC report dated 11 April 2023 said this:

Mr Tarau displayed little remorse regarding the risk to life for all staff involved by his actions and when asked directly, he stated his remorse is centred around his own prolonged remand in custody as a consequence.

[69]   Mr Mills draws attention to this passage and submits that where a defendant endeavours to give contextual background to the offending, that should not be seen as an absence of remorse.

[70]   There is evidence at a prior date in the form of a discussion you had with one of the Corrections officers on the first day of the riot when you were up on the roof, as recorded in her formal written statement. She describes you as being somewhat sheepish and almost embarrassed. She said you looked like you would come down if you could. She said she talked to you about your family and that you were now part of it. She said you nodded your head and looked ashamed.

[71]   More recently you have written a detailed letter which was filed with your counsel’s submissions for sentencing. I have read it carefully. You say you wish to say sorry and deeply apologise to everyone that this case has affected: Corrections staff and their families, inmates and their families, the Crown, the Police, the Fire Department and the Courts. You say you have now had a lot of time to reflect on your actions and the decisions you made. You set out some explanations as to why you did what you did but you go on to say that in saying all of that you should not have reacted in the way you did and you are very sorry and genuinely remorseful for what you have done. You say if you could apologise to everyone that this case has affected in person you would.

[72]   I accept your letter is genuine and what you say in it is genuine. I add a five per cent discount for your remorse.

Rehabilitation

[73]   Mr Mills has filed a number of certificates recording completion of various courses while you have been in custody. Mr Mills submits that you have clearly used the significant time you have spent in custody well and have applied yourself at

making efforts at rehabilitation. He notes that the prospect of ACC counselling has been discussed with you and considered by you. Also filed are references from your mother and your sister. They describe you as a loving man with a big heart.

[74]   Ms Mann acknowledges I gave a discount to other co-offenders for their rehabilitative efforts.

[75]   I take into account all the material that Mr Mills has referred to. I also note from your own letter that you say that since the event at Waikeria you have realised this is not the path you wish to follow and the company you keep is no longer for you. You have a goal to start your own youth programme and lead younger people down the right path, helping them not to make the same decisions that you have made and pull them away from gangs.

[76]   I accept Mr Mills’ submission that your prospects for rehabilitation warrant a further discount of five percent.

End Sentence

[77]   Mr Tarau, I have adopted a global starting point of nine years and six months’ imprisonment. I have made the following allowances: five per cent for your guilty plea; 15 per cent for personal factors referred to in the s 27 report; five per cent for your remorse; and five per cent for your prospects of rehabilitation. The total discount for your personal factors is therefore 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, that is 35 months or 2 years and 11 months). The end sentence is therefore six years and seven months’ imprisonment.

Minimum period of imprisonment

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

Sentence

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

[80]   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