R v Thomas - [2015] NZHC 1783

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 defendant

Judgment:

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.…

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 Thomas

Details

AGLC: R v Thomas [2015] NZHC 1783
Case: [2015] NZHC 1783
Decision Date: 28 July 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of The Queen v Edward Zbedo Thomas, CRI-2013-004-13119, was heard on 28 July 2015. Thomas was sentenced for charges of arson and riotous damage stemming from a riot at Spring Hill Corrections Facility on 1 June 2013. The legal issues before the court involved determining the appropriate sentence, considering both aggravating and mitigating factors, and ensuring consistency with the sentences of co-offenders. The court was required to balance the purposes and principles of sentencing, such as accountability, deterrence, and denunciation, with the specific circumstances of the case and the offender's background.

The court began by identifying a starting point for the lead offence of arson, taking into account the gravity of the offending, the extent of damage, and the risk of injury to prison staff and other prisoners. Aggravating factors included the use of actual or threatened violence, the significant extent of loss and damage, the targeting of prison guards, the duration of the riot, and the number of participants. After comparing Thomas's actions with those of co-offenders, the court found that Thomas's role in fuelling the fires was most comparable to that of Mr Hohaia. The court then adjusted the starting point for riotous damage and considered whether an uplift for previous convictions was warranted. It was decided that an uplift of three months was appropriate, leading to a total starting point of seven years and three months’ imprisonment.

Mitigating factors such as Thomas's personal circumstances, efforts at rehabilitation, and time spent in custody were considered. The court acknowledged Thomas's educational achievements and efforts to improve himself while in prison but found that these did not warrant a significant discount. Remorse was not deemed genuine as it was primarily focused on the offender's own predicament. A discount of 20 per cent for the guilty plea was granted. The court also considered the principle of totality but decided against making an adjustment for the existing sentence Thomas was serving, given the gravity of the current offending.

Ultimately, the court sentenced Thomas to five years and two months’ imprisonment for arson and 12 months for riotous damage, to be served concurrently and cumulatively with his existing sentence. The court emphasised the need for a stern response to maintain prison discipline and ensure the safety of prison staff and other prisoners.

Orders