R v Te Hau

[2023] NZHC 2553

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000026

[2023] NZHC 2553

THE KING

v

PETER TE HAU

Hearing:	13 September 2023
Appearances:	J Hamilton for the Crown S Lack for Mr Te Hau
Sentencing:	13 September 2023

SENTENCING NOTES OF GORDON J

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

R v TE HAU [2023] NZHC 2553 [13 September 2023]

[1]    Mr Te Hau, 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 decisions of some of your co-offenders who, like you, pleaded guilty to the same three charges during the trial.4

[4]    You were in custody in the High Security Facility at Waikeria Prison at the time of the riot.

[5]    On the morning of 29 December 2020 an incident occurred in one of the exercise yards, yard 116, when a prisoner refused to return a disposable razor (or razors) to a Corrections officer. Several other prisoners offered that prisoner their support. You were not one of those prisoners. You were not, in fact, in yard 116 at the time. When a Corrections officer told those in the yard they would all be returned to their cells early if the razors were not surrendered, a number of prisoners in the yard told the Corrections officer they were not going anywhere and were ready for a fight. Eventually one razor was handed in, the situation was defused and tensions eased. The prisoners in yard 116 were then permitted to remain in the yard for the usual period.

1      Crimes Act 1961, ss 267(1)(a) and 66. Maximum penalty: 14 years’ imprisonment.

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

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

4      R v Huritu [2023] NZHC 1960; R v Paul [2023] NZHC 1985; and R v Larkins [2023] NZHC 2545.

[6]    By around 1.00 pm a significantly more hostile atmosphere had developed in yard 116. Nine of the prisoners (the group) set in train the events that led to the riot. They damaged property in the yard. They lit fires on top of the wooden seats and structures inside the yard. Efforts made by Corrections officers and firefighters to extinguish the fires were thwarted by members of the group of nine shielding the fires with their bodies and various items. They also covered security cameras with wet toilet paper and threatened Corrections officers with assault if they attempted to enter the yard. Cups filled with urine were thrown at Corrections officers who approached the grille door.

[7]    The group of nine then escaped the yard. They did so through a hole in the mesh roofing that had been created by two of the group. Members of the group then smashed windows on the overbridge and set it, and a small guardroom, on fire. The group attempted to persuade the remaining 12 prisoners in the yard to join them but this was unsuccessful.

[8]    The nine prisoners then used a large metal battering ram to smash through cell windows and thereby liberate prisoners housed in the upper level of the East North Wing. The windows of the cells of 12 inmates were smashed in this way. Eight of the inmates in those cells chose to join the group on the roof. You were one of the eight.

[9]    The group of prisoners, now numbering 17, spread out and began making their way across the 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 used as they carried out their patrols.

[15]   As the days continued the prisoners began to fortify an area behind the prison chapel on the roof of the Master Control building. Furniture was stacked in the stairwell leading up to the chapel as a barricade to prevent entry to the chapel roof. The chapel was a location the prisoners had taken as their sleeping quarters and was effectively a base from which they made patrols on to the roof.

[16]   On the evening of 1 January 2021 all but one of the prisoners on the roof, armed with various makeshift weapons, made their way off the roof and charged at Police and Corrections staff on the ground. It is not suggested on your behalf that you did

not come off the roof. It was only as a consequence of members of the Police Armed Offenders Squad (AOS) deploying a taser and rubber bullets that the prisoners retreated back up on to the roof. Further fires were then lit.

[17]   I come to the date of 2 January 2021, which is particularly relevant in relation to the arson charge to which you pleaded guilty.

[18]   On the evening of 2 January 2021, two teams of Corrections officers and the Police AOS entered the prison with the intention of going up the stairwell to access the chapel and the roof. As they were attempting to do so, the barricade of furniture on the stairwell was lit from above by prisoners and the two teams were forced to withdraw. An order was made for all staff members to evacuate in order to prevent their death or injury as fire began to sweep through the chapel in the High Security Facility.

[19]   Within a short time of the officers getting out of the building, flames were observed to be coming out of the windows and the building was fully alight. Upon the evacuation of the officers, prisoners on the roof pelted them with debris 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.

Basis for liability

[24]   Counsel are agreed on the party basis for liability on the three charges. That is: on the arson charge as a secondary party under s 66(2) of the Crimes Act 1961; on the riotous damage charge, as a principal party under s 66(1) of the Crimes Act and on the assault with a weapon charge, as a secondary party under s 66(2) of the Crimes Act.

Approach to sentencing

[25]   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. Then I will consider factors personal to you that may operate so as to adjust the starting point. This will include your personal background, your conviction history, the information in the Provision of Advice to the Courts (PAC) Report and the report under s 27 of the Sentencing Act 2002 (the Act) which you commissioned.

[26]   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

[27]   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

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

says if the prisoners had not been evacuated when they were, there is no doubt that lives would have  been  lost.  Having  heard  the  evidence  at  trial,  I  agree  with  Mr Buffery’s assessment. What he says is not an overstatement. Having said that, I accept the arson charge to which you pleaded guilty was for fires on 2 January 2021.

[28]   Additionally, the immediate response to the incident required resources to be mobilised from around the country. Due to the timing of the events, many staff and their families had holiday plans severely interrupted. Mr Buffery further reports the many physical and psychological injuries suffered by Corrections officers from the incident. Some staff lost personal property that was on the site. Welfare support for staff continues. Hundreds of prisoners also lost personal property in the fire including family photographs and in one case his daughter’s ashes.

[29]   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

[30]   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.

[31]   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

[32]   Ms Hamilton, 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.

[33]   Ms Hamilton 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 Mr Huritu, Mr Paul and more recently, for Mr Larkins.

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

Defendant’s submissions

[35]   Mr Lack, on your behalf, acknowledges the starting point of nine years’ imprisonment on the arson charge that I adopted for your co-offenders Beau-James Paul and Leon Huritu, but says in your case a starting point on that charge of no more than eight years’ imprisonment is appropriate. He says: there was no evidence that you lit the fire in the chapel area on 2 January 2021; he notes the damage already caused by fires lit by others prior to 2 January 2021; there was no evidence that you personally threw items from the roof at Corrections officers below; he says you were engaged with negotiators to bring an end to the offending; and you were the first to come down off the prison roof.

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.

Discussion

[36]   I accept the aggravating features identified by the Crown but note that in terms of the arson charge, that is limited to 2 January 2021.

[37]   As I said yesterday in sentencing your co-offender Ian Larkins, when I set the starting point for both Mr Huritu and Mr Paul I took into account they were not present in yard 116 when the riot began and also the fact that the charge of arson they faced was only for 2 January 2021. Both of those points apply to you. For that reason, rather than adopting a starting point for the arson charge of 11 years’ imprisonment (as I adopted for other co-offenders) I adopted a starting point of nine years’ imprisonment. As I also said when sentencing Mr Huritu and Mr Paul, the lives of members of the Corrections ACR Team and members of the AOS squad who had entered the High Security Facility on 2 January 2021, were put at risk. Further, the fire damage to the High Security Facility on that day was significant. It was completely destroyed.

[38]   I do not see any distinction  between  you  and  Mr  Huritu,  Mr  Paul  and  Mr Larkins as far as the initial starting point on the charge of arson. You pleaded guilty in relation to the arson charge, on the basis that you were guilty as a secondary party. There is accordingly no difference between you and Mr Huritu and Mr Paul on this issue.

[39]   The Crown position on the riotous damage for all of those who pleaded guilty during the trial, was that you were all principals. There seems to have been some variation between co-offenders as to the basis of the assault with a weapon charge. For example, Mr Larkins accepted he was guilty as a principal on that charge under  s 66(1). But I consider that is a distinction without a difference.

[40]   The fact that you were engaged with negotiators to bring an end to the offending and were the first to surrender, does not in my view create a distinction between you and Mr Huritu, Mr Paul and Mr Larkins. The surrender was not until the sixth day, by which time there were really no effective areas available to you and the other prisoners on the roof because of the damage that had been done by fire. Although you may have been the first to come down off the roof, all of the offenders were

grouped together on the roof ready to come down and did so one after the other. You were all operating together as a group.

[41]   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 as a principal offender and the charge of assault with a weapon. Mr Lack accepts a six month uplift is appropriate.

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

Personal aggravating features – previous convictions

[43]   The Court is required to take into account the number, seriousness, date, relevance and nature of any previous convictions.7 Prior convictions may be taken into account in three ways: as an indicator of character and culpability; as showing the need for a greater deterrent response from the court; and as an indicator of the risk of re-offending.8

[44]   Your New Zealand criminal history includes eight offences in 2019 and 2020. Of those, seven are of a violent nature, primarily involving violence in a domestic context. At the time of this offending you were serving a sentence of imprisonment for violent offending committed against your partner. Your Australian criminal history from 2006 to 2016 includes drug offending, fraud, and assault in 2012. You were sentenced to imprisonment on each of those charges.

[45]   Ms Hamilton submits that having regard to your criminal history and the fact that you were a sentenced prisoner at the time of your offending, a modest uplift is appropriate.

[46]   Mr Lack submits that given the age and what he says is a lack of relevance of your previous convictions to your present offending, no uplift is required.

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

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

[47]   While some of your convictions are recent and do involve violence, they are in a domestic context and are therefore different in nature to your present offending. Your Australian convictions do not have sufficient relevance to your current offending.

[48]   I, therefore, accept Mr Lack’s submission that no uplift is required for your previous conviction history.

Personal mitigating factors

[49]   Mr Lack  submits the Court should apply the following discounts: at least    10 per cent for your guilty plea; at least 20 per cent for your personal circumstances; and a reduction of at least one year having regard to the sentence you are currently serving.

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

Guilty plea

[51]   Mr Lack submits that although your guilty plea came after four weeks of trial, a discount of 10 per cent should nevertheless be given. He says that prior to trial the Crown did not agree to withdraw any of the charges of arson but proposed that they were all amalgamated into a representative charge.

[52]   Mr Lack says the position changed during the trial when the Crown agreed to an arson charge which was confined to fires lit on 2 January 2021.

[53]   Ms Hamilton submits that the defence position prior to trial was that there would be no plea entered in relation to any arson charge. She says there is no correspondence pre-trial where it is indicated that you would plead guilty on the basis similar to the resolution that was finally reached during the trial. Ms Hamilton acknowledges that I gave a guilty plea discount to Mr Huritu and Mr Paul. She submits that the appropriate level of discount should be the same, namely five per cent.

[54]   I accept that some credit should be given and for parity reasons I adopt the approach I took when sentencing Mr Huritu, Mr Paul and more recently, Mr Larkins.

In sentencing Mr Huritu I said:9

[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.10 Second, your guilty plea resulted in a saving of the cost of the trial to the State, albeit a relatively small reduction in cost.11 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.

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

Personal circumstances

[56]   You have filed a report prepared by Dr Jarrod Gilbert and others (the writers) under s 27 of the Act. The report is prepared primarily on the basis of an interview with you but your mother was also spoken to.

[57]As well, the Court has the usual PAC report.

[58]   The s 27 report does not convey the extent of deprivation and violence that is sadly so often revealed in the lives of offenders who rely on s 27 reports. I accept there have been times of real hardship in your life and deprivation but not to the extent that is all too commonly seen.

9      R v Huritu, above n 4.

10 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.

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

[59]   You are now aged 37 years. You were born in Te Puke. Your iwi is Tapuika and you report feeling culturally disconnected. However, your mother reports that cultural connection was important to your whānau during childhood.

[60]   You are the youngest in your immediate whānau with three brothers who are significantly older than you. Your father was born deaf and unable to speak so your family communicated with him using sign language. Your whānau moved to Brisbane when you were eight or nine years old where members of your extended family lived. You report that initially you lived in a home along with five or six other families.

[61]   You refer to financial instability during your childhood and you recall often going to school without any lunch. You thought of this as normal as your cousins were in the same situation. You grew up around frequent parties and intoxication.

[62]   You told the writers that you found schooling difficult. In hindsight you consider you had learning difficulties that were not diagnosed at the time. You have taught yourself to read and write as an adult.

[63]   You told the writers that you were suspended from school for smoking cigarettes and fighting. You say that your brothers would physically discipline you behind your parents’ back. You also recall your father using physical abuse to discipline you for stealing cars and also for stealing cannabis from him.

[64]   Your mother reports that there were a lot of positive aspects to your childhood growing up within a close extended whānau. She says the family would attend sports games together and formed a kapa haka group which performed around Brisbane.

[65]   As far as your substance use is concerned, you say you first used alcohol and cannabis at the age of 12 or 13 and first used methamphetamine at the age of 14 or 15. Your offending began at around that time when you started fighting and stealing cars. You say all your offending in Australia was connected to substance use and that methamphetamine has caused the most problems for you.

[66]   You were deported to New Zealand in 2017 and joined the Mongols Motorcycle Club in 2019. You say this was due to the absence of family connections in New Zealand.

[67]   You told the writers you were diagnosed with anxiety, depression and post- traumatic stress disorder and that these symptoms emerged after your deportation.

[68]   You have four children, all of whom live in Australia. You are in phone contact with them. Your goal is to obtain employment and earn enough money to have the necessary stability so that they can come to New Zealand.

[69]   As already noted, Mr Lack submits your background would warrant a 20 per cent discount.

[70]   While your background is not as distressing as seen in some s 27 reports, I nevertheless accept that the deprivation you have experienced provides a sufficient causal contribution to this offending. Added to that, there is your drug usage and then drug offending, which resulted in your being returned to New Zealand without immediate family support. That also had a causal contribution in my view.

[71]   I consider that a 10 per cent discount is appropriate for your personal background.

End sentence

[72]   Mr Te Hau I have adopted a global starting point of nine years and six months’ imprisonment.   I have made allowances of: five per cent for your guilty plea and    10 per cent for your personal circumstances. That is a total of 15 per cent. Calculated in months from a global starting point of nine years and six months’ imprisonment, that is a reduction of 17.1 months (rounded up in your favour to 18 months/one year and six months). The end sentence is, therefore, eight years’ imprisonment.

Totality

[73]   You are a sentenced prisoner currently serving a sentence of three years and 10 months’ imprisonment which commenced on 22 December 2020.

[74]   Mr Lack acknowledges that a cumulative sentence will be imposed but submits that the totality principle requires a 20 per cent adjustment. On the basis of his submissions the end sentence prior to that adjustment would be a sentence of six years. Based on that figure he submits a reduction of one year should be made.

[75]Section 85(2) of the Act provides:

If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[76]   This principle applies both to sentencing for proximate offending and also to crimes committed while already in custody for other offences.12

[77]   The issue, accordingly, is whether the sentence I impose is wholly out of proportion to the gravity of the overall offending. The Court does not have a copy of the summary of facts for the sentence you are presently serving but the charges are serious: strangulation; injuring with intent to injure/reckless disregard and common assault. As I have already noted, these offences were committed in a domestic context. They were committed across two occasions in January and February of 2020.

[78]   The subsequent offences for which you are being sentenced are serious. They are similarly for violent offending but of a much greater scale. I consider a reduction would be contrary to the accepted principle that violent offending committed while in prison should attract a stern response.13 I do not consider a sentence of 11 years and 10 months (that is, adding the two sentences together) is out of proportion to the gravity overall of the two sets of offending.

12     Ngamoki v R [2022] NZCA 171 at [25].

13     At [31] citing Waru v R [2019] NZCA 347 at [31]. See also Tryselaar v R, above n 6, at [18] and

R v Connelly [2010] NZCA 52 at [31].

[79]Accordingly, I do not make a reduction for totality reasons.

Minimum period of imprisonment

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

Sentence

[81]   Mr Te Hau would you please stand. On the charge of arson (with a danger to life) you are sentenced to eight years’ imprisonment. That sentence is cumulative on the sentence you are presently serving. On each of the other two charges you are sentenced to five years’ imprisonment. You will serve those sentences concurrently with each other and with the sentence for arson.

[82]   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