R v Tie

[2015] NZHC 802

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-13119 [2015] NZHC 802

THE QUEEN

v

JOSEPH TIE

Hearing:	23 April 2015
Appearances:	M J Hammer for Crown M Scally for Defendant
Sentence:	23 April 2015

SENTENCING REMARKS OF LANG J

R v TIE [2015] NZHC 802 [23 April 2015]

[1]      Mr Tie, you appear for sentence today having pleaded guilty to one charge of being a member of a riot.   That charge carries a maximum sentence of two years imprisonment.  That charge was presented for the first time today.  Up until then you had faced a charge of riotous damage, which carries a maximum sentence of seven years imprisonment.  By presenting the new charge the Crown obviously accepts that your culpability in relation to the offending to which you have now pleaded guilty is less than it previously thought.

Background

[2]      The charge to which you pleaded guilty arises out of a riot that occurred at the Spring Hill Corrections Facility on the weekend of 1 June 2013.  This caused significant damage to the facility that required repairs costing about $5 million.

[3]      The riot occurred in a medium security unit containing two pods, each of which held approximately 45 prisoners. You were being held in one of those pods.

[4]      The riot began when prisoners were released from their pods for morning exercise. At that point corrections officers noted that a number of prisoners appeared to  be  drunk.    Fights  broke  out,  and  prison  officers  endeavoured  to  defuse  the situation.  From that point on a large number of prisoners joined in what became a riot.  They smashed furniture and equipment and also caused significant concern to prison officers who were effectively held hostage in various areas of the unit.   A number of fires were also lit, and this caused significant damage to the unit and its surrounds.

[5]      At the end of the riot, 22 prisoners were charged with being involved in it. Your involvement was that you placed pieces of wood on a fire that had been lit in the yard by others.   I therefore take your culpability to be significantly less than other persons who have appeared for sentence because you were not a ringleader, you did not start any fires and you played a relatively small part.  You did, however, throw chairs and pieces of wood at windows in the staff base in an effort to smash them.

Starting point

[6]      In fixing the starting point, I am guided to a large extent by other cases arising out of this incident.  To the best of my knowledge, however, none of the other persons who have appeared before the courts for sentence have faced this particular charge.  Others have faced charges of arson and riotous damage.

[7]      The courts have selected starting points of around six years imprisonment for ringleaders and those who were involved in starting the fires.  Those who have been involved in riotous damage have generally received starting points of around three years imprisonment.

[8]      I must select a starting point less than that because the maximum penalty for the charge that you have now admitted is one of two years imprisonment.  I consider that an appropriate starting point would have been 18 months imprisonment, but for one factor.   This is that you instruct your counsel, and the Crown is prepared to accept, that towards the end of the riot you endeavoured to put out a fire that had been lit by other prisoners against the wall of the unit.  This was apparently causing consternation for the inmate who was confined in the cell on the other side of the wall.  You are entitled to credit for that action, and I propose to reduce the starting point that I would otherwise have selected by two months to reflect that fact.

[9]      I therefore select a starting point of 16 months imprisonment to reflect your overall culpability.

Aggravating factors

[10]     You have a significant number of previous convictions many of which are for breaching Court-imposed orders or conditions.  The Crown submits that you should receive an uplift to reflect these factors.  In a broad sense, the activities in which you became involved can be seen as anti-authoritarian, and in defiance of the lawful prison authorities.   I do not consider, however, that your previous convictions are sufficiently relevant to your present offending to warrant an uplift.  The only similar charge that you have faced was one of wilful damage, but that charge related to an

incident that occurred in 2001.   It is now of historic interest only, and I do not propose to apply an uplift to reflect that factor.

Mitigating factors

[11]     I now need to consider the extent to which to reduce the sentence to reflect your guilty plea.   It came at a relatively late stage, because your trial was due to commence in June 2015.  Having said that, you have not had an opportunity until today to enter a guilty plea to a reduced charge.

[12]     Your counsel submits that you should receive a full discount of 25 per cent to reflect your guilty plea.  I am not prepared to go that far because I consider that, to some extent, you have been fortunate that the Crown has been prepared to reduce the charge to one of participating in a riot.  Nevertheless, I accept that you have not had the opportunity to plead guilty to this charge until now.  I propose to allow a discount of four months, or just over 20 per cent, to reflect that factor.   This produces an end sentence of 12 months imprisonment.

Cumulative sentence: totality

[13]     The Crown urges me to impose a cumulative sentence.   Indeed, that is the only form of sentence that would be fair to you because a concurrent sentence at this stage would mean that you would be required to serve six further months before being eligible for release.

[14]     The present offending has meant that you have served virtually the whole of the sentence of three and a half years imprisonment you are currently serving.  On my understanding of the position, a cumulative sentence of 12 months imprisonment will mean that you are now immediately eligible for parole.   I understand that the parole authorities have been waiting for this charge to be determined before considering your application for release.

[15]     It is therefore only fair to you that I impose a cumulative sentence.  I do not consider,  however,  that  I  need  to  make  any  further  adjustment  for  totality.    A

cumulative sentence of 12 months imprisonment adequately reflects your overall culpability.

Sentence

[16]     On  the  charge  to  which  you  have  pleaded  guilty,  you  are  sentenced  to

12 months  imprisonment.    You  are  to  serve  that  sentence  cumulatively  on  the existing sentence of three and a half  years imprisonment that you are currently serving.

[17]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

M Scally