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R v Te Hau

R v Te Hau

Case [2023] NZHC 2553 13 September 2023

Breach of Contract

Unconscionable Conduct

Criminal Liability

Compensatory Damages

Aggravated & Exemplary Damages

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Te Hau

Details

AGLC: R v Te Hau [2023] NZHC 2553
Case: [2023] NZHC 2553
Decision Date: 13 September 2023

CaseChat Overview and Summary

The defendant, Peter Te Hau, was one of eleven defendants who went to trial on charges arising out of a riot at Waikeria Prison over the New Year 2020/2021 period. Te Hau and six other defendants pleaded guilty to three charges: arson (with a danger to life), riotous damage, and assault with a weapon. The court was required to determine the appropriate sentence for Te Hau, taking into account the nature and severity of the offences, as well as any mitigating or aggravating factors.

The court considered the aggravating factors of the case, including the use of violence, the extent of loss and damage, the scale of the offending, and the impact on the victims. The court also considered Te Hau's personal circumstances, including his criminal history and his guilty plea. The court ultimately determined that a global starting point of nine years and six months' imprisonment was appropriate, with a reduction of 15% for Te Hau's guilty plea and personal circumstances. The court also considered the principle of totality, which requires that cumulative sentences of imprisonment must not be out of proportion to the gravity of the overall offending. The court determined that a reduction for totality reasons would not be appropriate in this case.

The final sentence imposed on Te Hau was eight years' imprisonment for the charge of arson, to be served cumulatively with the sentence he was already serving, and five years' imprisonment for each of the other two charges, to be served concurrently with each other and with the sentence for arson. Te Hau was also discharged under section 147 of the Criminal Procedure Act 2011 on the remaining charges that he faced arising out of the riot at Waikeria Prison.

Orders