R v Thomas
[2015] NZHC 1783
•28 July 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-004-13119 [2015] NZHC 1783
THE QUEEN
v
EDWARD ZBEDO THOMAS
Hearing: 28 July 2015 Counsel:
MJ Hammer for Crown
MN Pecotic for defendantJudgment:
28 July 2015
SENTENCING NOTES OF FAIRE J
Solicitors: Meredith Connell, Auckland
To: MN Pecotic, Auckland
R v Thomas [2015] NZHC 1783 [28 July 2015]
Contents
Introduction ............................................................................................................[1] Facts .......................................................................................................................[4] Purposes and principles of sentencing (ss 7 and 8 of the Sentencing Act 2002) .[14] Sentencing approach ............................................................................................[17] Submissions for the Crown ..................................................................................[19] Submissions for the defendant .............................................................................[21]
Starting point ..............................................................................................................
Aggravating factors relevant to the offence [25]
Comparable cases .................................................................................................[26]
Analysis and setting the starting point [35]
Adjusting the starting point ........................................................................................
Riotous damage [37] Previous convictions ............................................................................................[38]
Mitigating factors .......................................................................................................
Personal circumstances [44] Pre-sentence report [47] Letter from your partner [50] Cost saving to the Court [51] Efforts at rehabilitation [52] Time spent in custody [53] Remorse [55] Guilty plea [56] Totality [58]
Result....................................................................................................................[63]
Introduction
[1] Mr Thomas, you appear for sentencing having pleaded guilty to one charge of arson and one representative charge of riotous damage arising out of a riot that occurred at the Spring Hill Corrections Facility on 1 June 2013. You are one of over
20 defendants to be sentenced in relation to the events that took place that day.
[2] Arson is an offence against s 267 of the Crimes Act 1961 and carries a
maximum penalty of 14 years’ imprisonment. Riotous damage is an offence against s
90 of the Act and has a maximum penalty of seven years’ imprisonment.
[3] You were charged with both offences on 27 August 2013. You pleaded guilty to the charge of riotous damage charge on 5 August 2014. In 2014, you applied for a discharge of the arson charge pursuant to s 147 of the Criminal Procedure Act 2011. That application was dismissed by Lang J on 2 October 2014. You pleaded guilty to the arson charge on 14 May 2015. Justice Asher noted in a minute of the same date that your counsel was scheduled to meet with you in March 2015, but that meeting did not eventuate. Counsel advised that if that meeting did go ahead, the guilty plea would have been entered earlier.
Facts
[4] On the morning of 1 June 2013, a riot broke out at Spring Hill Corrections Facility. The riot occurred in unit 16B, a medium security unit containing two pods. Each pod held 45 prisoners. The riot resulted in damage that required this unit to be demolished and rebuilt at a cost of $5,000,000. The riot lasted over six hours.
[5] The riot began when two fights broke out between several of the prisoners. The senior corrections officer and three other corrections officers assigned to unit
16B intervened and attempted to diffuse the situation. When the senior corrections officer returned to the staff base, a number of prisoners punched and kicked the remaining three corrections officers as they tried to return to the staff base. You were not involved in this assault.
[6] The assaults developed into a full-scale riot during which prisoners caused extensive damage to the facility. They fashioned weapons by breaking existing furniture or from material removed from locked store rooms, open cells, and from the dining room. These weapons were used to smash the building and other property within the pods.
[7] The summary of facts includes an extensive list of riotous actions, including setting fire to property and breaking doors and windows. Various items such as furniture, toilet paper, clothing and bedding were used to fuel the fires.
[8] Matters became extremely serious when the rioters forced through the glass door to the staff base using a volleyball pole. Further, the spread of the fire and smoke placed prisoners and staff at risk, especially the prisoners that were still detained in their cells.
[9] There are certain acts attributed to you specifically. During this time:
(a) You, together with others, supplied a group of prisoners smashing through windows and unlocked doors with weapons by breaking up chairs, tables and benches;
(b)You, together with others, broke into an interview room and removed property, destroying it by smashing it against the windows and walls;
(c) You, together with others, uplifted various items from the kitchen and dining room and threw them against the staff base doors and windows. These items were destroyed in this process and were eventually consumed by the fire;
(d)You, together with others, climbed in and out of a window carrying televisions and keyboards and throwing them. They also took files and read them; and
(e) You broke into the interview room and walked out carrying computers, a desk, a table and a box containing interview files. You and others smashed these on the ground. You also smashed glass to the grills in the doors.
[10] The arson charge relates to the following actions done by you personally: (a) taking a red wheelie bin and placing it on the fire;
(b)gathering various items with other prisoners and using them to fuel one of the fires another prisoner had started;
(c) throwing a barbecue onto the fire together with one other prisoner;
and
(d) entering the staff base where a small fire had been started and using
prisoners’ files and other paperwork to fuel and maintain the fire.
[11] You were not involved in the breaking of the staff base door with a volleyball pole, and you were not charged with assault. However, it is obvious that you played an active role in the riot as a whole.
[12] When the situation was eventually controlled, you refused to be spoken to and demanded to be taken back to your cell.
[13] At the time of the riot, you were serving a five and a half year sentence for arson, aggravated burglary and assault with a weapon. Those offences were committed in 2010 and you were sentenced on those charges on 7 May 2013.
Purposes and principles of sentencing (ss 7 and 8 of the Sentencing Act 2002)
[14] I keep in mind the purposes and principles of sentencing relevant to this case. These include: the need to hold you accountable for the harm done to the community by your offending; to promote in you a sense of responsibility for, and an acknowledgement of, the harm of the offending; to denounce and deter the conduct and to protect the community, namely the prison staff and other prisoners.
[15] The Court of Appeal has noted that where actual violence occurs in a prison context, prison officers must be entitled to the fullest measure of protection from the courts. Accordingly, issues of deterrence and denunciation will be at the forefront of the principles applied by the Court.1
[16] Regarding principles of sentencing, I must take into account the gravity of the offending, the seriousness of the type of offence, consistency with appropriate sentencing levels and similar offenders who have committed similar offences, and the need to impose the least restrictive outcome appropriate in the circumstances.
Sentencing approach
[17] I will follow the sentencing approach set out in R v Clifford.2 I will first identify a starting point for the lead offence. I will then adjust the starting point to reflect the lesser charge and factors relating to you personally. Lastly, I will apply a discount for the guilty plea.
[18] Counsel are in agreement that today’s sentence will be served cumulatively to
the sentence you are currently serving.
Submissions for the Crown
[19] The Crown submits that the sentence should be based on the relevant aggravating factors and parity with your co-offenders. In particular, the Crown points to the sentences of Messrs Waru, Vakapuna and Hohaia, and submits that your offending is most comparable to Mr Hohaia’s, and less serious than that of Messrs Waru and Vakapuna. The Crown recognises that you were not solely responsible for the damage, the duration of the riot, the risk of injury, the use of actual and threatened violence, but that you must share the consequences with your co-offenders.
[20] The Crown submits that the charge of arson should be adopted as the lead offence with a starting point of approximately six years’ imprisonment. The Crown submits that an uplift of one year for the riotous damage charge should be imposed, and then a further four months for your previous convictions. The Crown does not oppose a guilty plea discount of up to 20 per cent.
Submissions for the defendant
[21] Your counsel submits that your offending is less serious than that of your co- offenders, namely, Messer Waru, Taiaroa and Vakapuna, who went through the compound with torches which they used to start fires. Your counsel accepts that parity with Mr Hohaia would be appropriate.
[22] Counsel submits that a five to five and a half year’s starting point should be adopted, with up to 12-month’s uplift for the riotous damage. Your counsel submits that an uplift for your previous convictions is not appropriate for the following reasons:
(a) the offence occurred within a prison environment is reflected in the starting point;
(b)the charges have meant that you became ineligible for parole on the sentence you were serving when the riot occurred;
(c) as a result of the offending, your security rating was increased from medium to maximum security. That means that you have to spend 21 and a quarter hours a day locked in your cell.
[23] Your counsel submits that in addition to receiving a guilty plea discount, you should also receive a discount for saving costs to the State, remorse, efforts at rehabilitation and for particularly harsh time spent in custody.
[24] Your counsel agrees that the sentence should be cumulative on the five and a half year sentence you are already serving, which will terminate on 5 November
2015. She submits that an adjustment should be made for totality.
Starting point
Aggravating factors relevant to the offence
[25] I accept the Crown’s submissions that the following aggravating factors are applicable in this case:
(a) the use of actual or threatened violence: the acts of riotous damage were inherently violent. You supplied others with weapons that they could use to smash into the staff base, where prison guards were hiding. You threw items against the staff base doors and windows, trying to break your way in. Your other actions, which were directed toward property damage, fed the atmosphere of the riot and encouraged further violence.
(b)the extent of loss and damage resulting from the offence: I recognise that you yourself are not responsible for the entire extent of the damage caused. However, it cannot be ignored that your actions contributed to the damage that will cost some $5,000,000 to rebuild. Additionally, 89 prisoners had to be relocated to other facilities, adding to the cost.
(c) the victims were prison guards acting in the course of their duty: the riot started off as a fight between prisoners but quickly escalated into prolonged and violent offending against the prison guards. Victim impact statements were not provided to the Court on this occasion, but
from the Judges’ comments in R v Waru,3 R v Vakapuna,4 R v Lakau
and others5 it is evident that the events had a serious impact on the prison staff involved, including some permanent effects and loss of employment. While you did not cause these injuries by yourself, your actions were directed against the prison staff and were intended to cause them either physical injury or to cause them to fear for their safety.
(d)the duration of the offending and the number of persons involved: the riot lasted six and a half hours. It involved 20 prisoners and multiple
prison staff.
3 R v Waru DC Auckland CRI-2013-004-013119, 21 March 2014;
4 R v Vakapuna DC Auckland CRI-2014-004-007234, 29 August 2014;
5 R v Lakau, Nathan, Ratu Tou and Waru DC Auckland CRI-2013-004-013119, 13 March 2014.
(e) the risk of injury: the fire started by others but fuelled by you posed a serious risk of injury both to prison staff and to prisoners, particularly those who were still locked in their cells. The fire service was prevented from entering the premises until the rioters were restrained. The prisoners locked in their cells were in mortal danger as they could not be safely evacuated. Their health and safety were also violated on another level, namely that the state, when taking them into custody, did so on an implied and essential undertaking that their safety will
not be endangered.6 The prison staff and the rioting prisoners were
also at risk of death or injury by fire.
Comparable cases
[26] Sentences for arson vary greatly because of the differences in circumstances and motives behind the particular offending.7 As the Court of Appeal said in R v Z:8
Each case will depend upon its own facts, which will involve a consideration of the property damaged, danger to life of both occupants and fire-fighters, and often the mental state of the offender will be of significance. Sentences vary from substantial prison terms to non-custodial sentences with an emphasis on rehabilitation.
[27] In Mouat v Police Baragwanath J noted that arson in a prison environment:9
… causes obvious difficulties for the authorities who cannot simply unlock the cell doors and permit others who may be violent offenders simply to escape onto the street. Even more important is that the state which takes suspects into custody removes their liberty on an implied and essential undertaking that their safety will be assured.
[28] In the present case the offenders involved in the riot can be divided into two categories – the ringleaders and those who participated in starting and keeping alight
the fires, and those who were only charged with riotous damage.
6 Mouat v Police HC Gisborne CRI-2006-416-20, 11 December 2006.
7 R v Gilchrist CA429/90, 15 April 1991.
8 R v Z CA138/00, 27 June 2000.
9 Mouat v Police, above n 6, at [8]. In that case the offender had set fire to some paper and two blankets while he was in his cell with two other prisoners, both of whom were asleep. The fire burned for five minutes before the alarm was activated. On appeal, a starting point of three years was adopted.
[29] You were not a ringleader but you fuelled the fires. I therefore refer to the sentences received by your co-offenders who were charged with participation in the arson.
[30] Mr Waru pleaded guilty to charges of riotous damage, arson, assault with a weapon and threatening to kill. The arson charge arose from him piling furniture against a grill outside and setting it alight. He then fuelled the fire by throwing in tables and cleaning chemicals. The Judge adopted a starting point on a totality basis of six and a half years’ imprisonment on the arson charge. The Judge then uplifted by two years for the other charges and uplifted by a further five months for previous convictions. A discount of nine months was given for Mr Waru’s assistance to a corrections officer, and a 30 per cent discount given for the guilty plea. A discount for totality was refused. The end sentence was five years and eight months for arson and 18 months on other charges to be served concurrently.
[31] Mr Vakapuna was charged with arson and riotous damage. Mr Vakapuna walked around the compound with a metal bar on the end of which he carried an ignited toilet paper roll. He carried it into the staff base and into the dining room. There he set fire to an object which he placed on the floor. He then placed a plastic chair on top, but after seeing that it did not catch fire, he brought a chair covered in fabric, which he placed onto the fire. The flames spread more rapidly, and he added paper and other items of furniture to the fire. As a result, the room was engulfed in flames and black smoke. The Judge took a starting point of six and a half years’ imprisonment for the arson charge. That was uplifted by a year for the riotous damage charge, and by a further three months for previous convictions. A discount of
30 per cent for the guilty plea and rehabilitative efforts was applied. The end sentence was five years for the arson and 12 months for riotous damage to be served concurrently.
[32] Mr Hohaia faced one charge each of arson and riotous damage. He collected various items, including 48 toilet paper rolls, and used them to fuel the fire started by Mr Waru. He returned to the fire on multiple occasions and added items of furniture to the fire. He also used other items of furniture to construct a pile a metre high to obstruct entry into the area. A starting point of six years’ imprisonment was taken,
and an uplift of one year was imposed for the riotous damage charge. The sentence was reduced by nine months to recognise the assistance Mr Hohaia showed a corrections officer. A further discount of 25 per cent was given for the guilty plea together with the cost savings to the State. A discount of two months was given for remorse, difficult upbringing and willingness to change. Totality issues did not arise because by the time of sentencing, Mr Hohaia had already finished his initial sentence. The end sentence was four and a half years for arson and one year for riotous damage to be served concurrently.
[33] Mr Hayes was charged with arson, riotous damage, assault with a weapon, aggravated assault and common assault. His role in arson was limited to placing a stick and a piece of wood on the fire. The Judge took a starting point of four and a half years’ imprisonment for the arson, uplifted by nine months for riotous damage, by another nine months for the assault charges, and three months for previous convictions. A discount of 25 per cent was given for the guilty plea. Totality issues did not arise. The end sentence was four years and seven months for arson and nine months for riotous damage to be served concurrently.
[34] Mr Fruean was charged with arson, riotous damage, and assault with intent to injure. His involvement in the arson was limited to adding chairs and mattresses to the fire. The starting point was five years’ imprisonment for the arson, followed by an uplift of six months on each of the other charges, and two months for previous convictions. A discount of 25 per cent was given for the guilty plea and costs savings to the State. A discount for totality was refused on the grounds that totality would undermine the sentence Mr Fruean was serving without parole under the “three strikes” legislation. The end sentence was four years and two months for arson and six months on each of the other charges to be served concurrently.
Analysis and setting the starting point
[35] In comparison to your co-offenders, it is apparent that you were not a ringleader who was responsible for lighting the fires. You were however one of the persons responsible for fuelling those fires, thus enabling them to spread and
increase the amount of damage and risk of death or injury to your fellow inmates and prison staff.
[36] You added more items to the fire than Messrs Hayes and Fruean. Your offending is most comparable to Mr Hohaia’s and I do not see any basis for distinguishing your offending from his. I therefore reject your counsel’s submission that a lower starting point than Mr Hohaia’s is appropriate. Accordingly, I take a starting point of six years’ imprisonment to reflect the parity considerations.
Adjusting the starting point
Riotous damage
[37] Both counsel agreed that an uplift of 12 months for the riotous damage charge is appropriate. I recognise that your counsel referred to “up to 12 months” but I intend to impose a 12-month uplift.
Previous convictions
[38] Counsel disagree on whether an uplift for previous convictions should be imposed. Your counsel submits that due to the present charges barring you from being considered for parole, you have effectively served the entirety of your past sentence.
[39] I keep in mind the comments made by the Court of Appeal in O’Connor v
R:10
It is important that uplifts not be imposed as a matter of course but rather are a considered response to specific aspects of an offender's previous criminal history. It is also important with multiple defendants to have regard to parity.
[40] You have quite a lengthy criminal history, the majority of which involves property offences. However, your most recent offending, for which you were serving a sentence at the time of the riot, was for arson, aggravated burglary, and assault with
a weapon. You were sentenced on those charges on 7 May 2013. The present
10 O’Connor v R [2014] NZCA 328 at [41].
offending occurred just under a month into your sentence. Undoubtedly, the fact that you committed arson while serving a sentence for the same offence goes to the question of your character.
[41] I note that no uplift for previous convictions was imposed in Mr Hohaia’s sentence, but I am also not aware of Mr Hohaia’s criminal history. It appears that Mr Hohaia was the exception, as Messrs Waru, Vakapuna, Hayes and Fruean all received uplifts for previous convictions, ranging from five months to two months.
[42] I consider that an uplift of three months’ imprisonment will be appropriate.
[43] That brings a total starting point to seven years and three months’
imprisonment.
Mitigating factors
Personal circumstances
[44] Mr Thomas, you are 27 years old. You are of mixed Maori, Fijian and Welsh descent. You have spent the majority of your late teenage years and your adult life imprisoned or on home detention. You have a four year old daughter, and you are still in a relationship with her mother. They visit you frequently.
[45] While in prison, you have taken steps to complete your education. You were expelled from school at the age of 13. You have now completed NCEA Level 1 and are working on getting Level 2.
[46] When you were six years old, you were involved in a collision with a bus, in which you suffered a serious head injury that has had an ongoing effect on you. A neurological assessment and report were ordered and were completed on 24 June
2014. A copy has been provided to the Court. The report shows that you experienced academic and attention difficulties as a child prior to your injury, and that these were exacerbated after the injury. Following various testing conducted by the report writer with you, the report writer concluded that your cognitive functioning levels are consistent with pre-injury levels. The report writer did not consider the head injury to be solely responsible for your offending, rather being of the opinion that your
upbringing, cognitive abilities and drug and alcohol abuse all played an important part. Overall, the report writer was of the opinion that the impact of the head injury was not as severe or long-lasting as initially anticipated.
Pre-sentence report
[47] In your interview with the pre-sentence report writer, you explained that you became involved in the riot because you were “sucked into it”. You expressed some remorse for your actions, although it related mainly to your extended loss of freedom. You also expressed frustration at the prison staff for the way you and other prisoners had been treated. Reportedly you saw no other option other than to participate in the riot.
[48] You expressed an intention to complete the Drug Treatment Unit and the Special treatment Unit Rehabilitation Programme (STURP). The report writer strongly advises you to participate in the latter. The report writer assessed that you were motivated to improve yourself but it is questionable if you will be able to stay motivated in the long term.
[49] You have been assessed as posing a medium risk of harm to others and a medium likelihood of re-offending. There is a low likelihood of you complying with any sentence imposed.
Letter from your partner
[50] Your partner wrote a letter to the Court expressing her support for you. In it she says that she is confident you will take positive steps to look after your family once you are released. She says you are a good father and a positive influence on your daughter. She says she is very proud of you for completing NCEA Level 1 and continuing to work to attain Level 2.
Cost saving to the Court
[51] Your counsel submits that you should receive a separate discount for saving the Court and the Crown the cost and time of a trial. However, these are the primary
policy reasons behind discounts for guilty pleas.11 Cost saving to the Court and the State is not an additional mitigating factor for which I am prepared to give a discount.
Efforts at rehabilitation
[52] You were expelled from school at the age of 13, but even prior to that you exhibited behavioural, attention and academic difficulties. You became known to the authorities for stealing and shoplifting at a young age, and have been imprisoned on and off since you were 17. Effectively, Mr Thomas, you never received even a basic education. It is for this reason that your achievement of attaining NCEA Level 1 as an adult while in prison should be commended. I am prepared to give a discount for your efforts at rehabilitation of 10 per cent and I encourage you to continue to work to attain NCEA Level 2.
Time spent in custody
[53] Your counsel submits that you should receive a discount for a particularly harsh time spent in custody. This refers to the increase of your security rating from medium to maximum. This has meant that you have very little time out of your cell, and that you are unlikely to be considered for parole until your security rating is reduced. Your counsel submits additionally that you had to leave all your belongings behind when being transferred to your current correctional facility.
[54] I am not prepared to apply a discount for the time spent in custody. This is not a case where an analogy can be drawn to a discount for time spent on electronically monitored bail. This is a case of a prisoner’s security rating being increased following his involvement in a violent riot, the biggest in New Zealand’s history. Mr Thomas, your current situation is a direct result of your offending and your conditions are imposed as a way of enforcing prison discipline. In fact, the increase in your security rating could have occurred regardless of whether you also faced the present charges. I do not consider that it is appropriate to give a discount for this factor in the same way that a discount could be given for time spent on
restrictive bail conditions.
11 Hessell v R [2010] NZSC 135 at [45].
Remorse
[55] A discount for remorse can be given where genuine remorse is shown.12 The pre-sentence report indicates that you have shown some remorse, but it appears that it is largely for your own predicament of facing a lengthy sentence. You have not expressed remorse for the damage you have caused or for the victims. You also saw no alternative but to participate in the riot. To me, it shows that you have not properly reflected on your actions. I do not consider that you have shown genuine remorse.
Guilty plea
[56] The Crown has proposed a discount of 20 per cent for your guilty plea. Although you pleaded separately for both charges, and both pleas were rather late, both counsel accept that a plea could have been entered earlier were it not for some logistical difficulties connected to your limited time outside your cell.
[57] Accordingly, I grant a discount of 20 per cent for your guilty plea.
Totality
[58] Pursuant to s 85 of the Sentencing Act, if the Court is considering imposing cumulative sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. It is therefore necessary to assess whether the end sentence should be adjusted to reflect the fact that you are currently serving a prison sentence that is due to finish on 5 November 2015.
[59] Reoffending in a prison environment has been previously discussed by the
Court of Appeal. In R v Connelly the Court said:13
… In a case such as this, where the respondent was subject to a nine- year sentence for previous violent offending, any regard to the totality principle can only be minimal, given the gravity of the overall offending. Re-offending, particularly violent re-offending, while in
12 At [64].
13 R v Connelly [2010] NZCA 52 at [31]. In this case some reduction was given for totality as the appeal was a Solicitor-General’s appeal. However, the Court noted that it was at least arguable that the total sentence, without a discount for totality, was not wholly disproportionate.
prison, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.
[60] In Tryselaar v R [2012] NZCA 353, the Court reiterated:14
[18] We consider that the proper approach in this case is that expressed in Connelly and Kepu. Offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response. That would be seriously undermined if sentences for such offending required adjustment to reflect the fact that the offender is already serving a sentence of imprisonment.
[61] Accordingly, totality principles must be applied carefully in situations like the present. Two of the offenders involved in the riots were given discounts for totality.15
However, in both of the above cases the fact that the offenders had not been charged with arson or violent offending against people was important. Judge Field refused to give a deduction for totality in respect of Mr Waru.16 The issue did not arise in respect of Mr Hohaia, as by the time he was being sentenced for the riot offending, he had already finished serving his previous sentence.
[62] Mr Thomas, you are currently serving a five and a half year sentence imposed on 7 May 2013. The total with this sentence would amount to 10 years and seven months’ imprisonment. I am not prepared to make an adjustment for totality in this case. The offending was effectively against prison discipline and requires a stern response from the Court.
Result
[63] Mr Thomas, please stand.
[64] You are sentenced to five years and two months’ imprisonment for arson and
12 months for riotous damage to be served concurrently. This sentence is to be served cumulatively on your existing sentence.
14 Tryselaar v R [2012] NZCA 353.
15 See R v Nahi DC Auckland CRI-2014-004-7234, 8 August 2014; and R v Rewha [2014] NZHC
2363 at [45].
16 R v Waru, above n 3, at [13].
[65] Mr Thomas, you may stand down.
JA Faire J
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