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R v Haere [2023] NZHC 1957 (25 July 2023)
Last Updated: 2 October 2023
ORDER PROHIBITING PUBLICATION OF SENTENCE
INDICATION
GIVEN TO CO-DEFENDANT MATANGIRAU CUFF IN NEWS MEDIA OR ON
THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL CO-DEFENDANT CUFF
HAS
BEEN SENTENCED. REFER [35] AND
FOOTNOTE 9. PUBLICATION IN LAW REPORT OR LAW DIGEST
PERMITTED.
|
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
|
CRI-021-072-000048 [2023] NZHC 1957
|
Hearing:
|
25 July 2023
|
Appearances:
|
R Mann for the Crown
C Taylor (on instructions from R Mansfield KC) and B Gloyn for Mr
Haere
|
Sentencing:
|
25 July 2023
|
(REDACTED) SENTENCING NOTES OF GORDON J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
R Mansfield KC, Barrister, Auckland C Taylor, Barrister, Ruakaka
B Gloyn, Barrister, Auckland
R v HAERE [2023] NZHC 1957 [25 July 2023]
- [1] Grayson
Haere, you appear before me for sentence having pleaded guilty to three
representative charges: arson (with a danger to
life);1 riotous
damage;2 and assault with a weapon.3
- [2] The three
charges are an amalgamation of charges in the Crown Charge Notice dated 28 June
2022 and arise out of the riot at Waikeria
Prison that lasted six days over the
2020/2021 New Year period.
- [3] You were to
have been sentenced by another Judge in May of this year. However, shortly
before the sentencing date you asked for
the sentencing to be adjourned so that
you could be sentenced by me, the trial Judge for a number of your co-offenders
who proceeded
to trial.
- [4] When you
pleaded guilty, you accepted the contents of a summary of facts. When you sought
the adjournment you said you also wished
to refer to evidence from the trial of
your co-offenders as regards your role.
The offending
- [5] You
were in custody in the High Security Facility at Waikeria Prison on remand at
the time of the offending.
- [6] On the
morning of 29 December 2020 you were part of a group of 21 prisoners in one of
the exercise yards, yard 116. There was
an incident involving one of the
prisoners in the yard (Matangirau Cuff) using a disposable razor (or razors) to
give another prisoner
(Arleye Tapara-Taipari) a haircut. As disposable razors
were prohibited in the exercise yard a Corrections officer, supervising from
the
overbridge, who had seen what was happening, directed that the razor(s) be
handed in. That request was not complied with. A principal
Corrections officer
then said that unless the razor(s) was/were surrendered, you would all be
returned to your cells early. Members
of your group said you were not going
anywhere and were ready to fight. Eventually one razor was handed in and all of
you were permitted
to remain in the
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.
yard in accordance with the usual routine. The situation was defused and the
mood in the yard was seen to improve.
- [7] But then at
midday Mr Haere, you made a telephone call to a Newshub journalist via an
approved contact.4 You expressed the intentions of the group to stage
a riot and assault any Corrections officers who entered the yard. You said that
the purpose of the intended offending was in protest against conditions at the
prison.
- [8] Following
that phone call you were in a group of nine of the 21 prisoners (the group) who
lit fires on top of the wooden seats
and structures in the yard, covered
security cameras with wet toilet paper, prevented Corrections officers from
extinguishing the
fires, threw cups of urine at them and threatened to assault
them if they attempted to enter.
- [9] At
approximately 2.19 pm you made another phone call from yard 116 to a second
Newshub journalist. You stated that the riot at
Waikeria had begun and fires had
been lit. You said the intention of the group was to “go to war”.
You made further statements
along similar lines. I will refer to those
statements later in these sentencing remarks when addressing submissions made on
your
behalf.
- [10] Shortly
after the second phone call you and eight others escaped from the yard through a
gap in the wire mesh forming part of
the roof of the yard, that two of the group
had created. The remaining 12 inmates who stayed in the yard were threatened
with violence
by members of the group.
- [11] Having
escaped from the yard, you, Mr Haere, and others in the group of nine, smashed
windows on the overbridge above the yard.
Others in the group set a small guard
room on the overbridge alight.
- [12] The group
then began liberating prisoners housed in the upper level of the East North Wing
by using a battering ram to dislodge
the bars over the cell windows and to smash
through the cell windows. A total of 12 inmates were freed from their cells in
this way,
eight of whom chose to join the riot.
4 A telephone in the yard was able to be used by the prisoners to
phone approved contacts.
- [13] The group,
now numbering 17 prisoners, spread out and began making its way across the
rooftops that linked many buildings together,
smashing property, breaking off
padlocks to allow access to other areas of the roof and lighting a number of
fires in various places.
- [14] As part of
this phase the receiving office for the prison was set on fire when there were a
significant number of Corrections
officers and prisoners inside that area. They
were showered with bits of wood and glass from the roof. The paint store which
was
located near the receiving office was also set on fire and smoke began to
fill the buildings. Multiple objects were torn off the
building structure and
thrown at Corrections staff who were on the ground.
- [15] On that
first evening members of the group lit at least 26 fires on the prison rooftops.
Below, hundreds of prisoners were locked
inside their cells and other secure
areas. Those areas were burning and filled with smoke. Corrections officers had
to enter those
areas to free those prisoners. A number of prisoners were
unresponsive and had to be either dragged or carried out by Corrections
officers. Meanwhile, members of the group continued to attack the officers and
prisoners from above. Those other prisoners were rescued
with little time to
spare. It was only through the efforts of Corrections officers that no lives
were lost.
- [16] From the
early hours of the morning on the second day, 30 December 2020, and over the
days that followed, members of the group
were seen to conduct rooftop patrols,
during the course of which objects would be thrown at Corrections officers,
firefighters and
Police officers below. These included rocks, glass louvers and
shards, fire extinguishers and bottles, metal jars and pieces of
furniture.
- [17] Over the
next four days until 2 January 2021, the armoury in the High Security Facility
was accessed and protective body armour,
shields, a grinder and radios were
seized and used by the group. The group also fortified an area in the prison
chapel as sleeping
quarters and storage for other items retrieved from various
secure locations in the High Security Facility.
- [18] On the
evening of 1 January 2021, the group came down off the roof and confronted a
group of Corrections officers in the Advanced
Control and Restraint (ACR) team
and members of the Police Armed Offenders Squad (AOS). You advanced on these
officers with weapons.
It was only as a consequence of members of the AOS team
deploying a taser and rubber bullets that you all retreated back up onto
the
prison roof.
- [19] Following
this event, fires erupted on the top of several buildings and objects continued
to be thrown at Corrections officers
and Police officers. On the night of 1
January 2021 at least seven fires were lit with discrete points of origin. By
the early
hours of the morning on 2 January 2021 all fires were extinguished.
Although the fires caused extensive damage, the main High Security
Facility
structure remained safely accessible to you and the other prisoners on the
roof.
- [20] On 2
January 2021 at approximately 7.00 pm, two teams of ACR officers and AOS
officers entered the High Security Facility with
the intention of making their
way to the prison chapel, which the group had used as a base. However, access
via the stairway was
impeded by items of furniture which had been stacked by
members of the group in the stairwell. As the officers attempted to make
their
way up through the stairwell, burning objects were dropped by the prisoners from
above. 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 and the High
Security Facility.
- [21] As the
officers evacuated, prisoners on the roof pelted them with debris from piles
earlier collected by them, including stones,
plates and chunks of concrete, some
of which struck the officers. 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.
- [22] The fires
continued burning until the following morning and caused the near complete
destruction of the High Security Facility.
- [23] On 3
January 2021 all 16 of you surrendered.5 The entire High Security
Facility, which used to house in the region of 260 prisoners, was destroyed. The
Crown has filed a written
statement of Andrew Cowan, a Senior Business Partner,
Corrections Services, for the Department of Corrections. His evidence is that
the total damage caused by the events I have referred to was $51.6 million. With
insurance proceeds of $23.1 million applied against
those costs, the net cost
after insurance proceeds is $28.5 million. Within the list of items making up
the $51.6 million is a figure
of $18 million for demolition costs. Those costs
include demolition of areas of the High Security Facility which had previously
been
decommissioned and which were not used. I accept in that regard, some
discounting of the $18 million figure is required. But whichever
number is
adopted, the loss was substantial.
Approach to sentencing
- [24] Sentencing
is a two-stage process.6 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, your guilty plea, the information in the Provision of
Advice to the Court (PAC) Report and the
report under s 27 of the Sentencing Act
2002 (the Act) which you commissioned.
- [25] 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
- [26] I
have received a victim impact statement. 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
5 Mr Kameta having surrendered on 30 December 2020.
6 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
order to save the lives of the 200-plus men who were locked in their cells. Mr
Buffery 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.
- [27] 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 onsite.
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.
- [28] 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
- [29] The
arson charge is the lead, or the most serious, offence. I propose to set a
starting point for the arson charge and then apply
an uplift for the other two
charges.
- [30] 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 to
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 between co-offenders when setting the starting point.
Crown submissions
- [31] Ms Mann,
for the Crown, submits that having regard to parity considerations, an overall
starting point for all three offences
between 11 years and three
months’
imprisonment and 12 years’ imprisonment would be appropriate to reflect
your culpability. She submits the starting point should
be at the upper end of
that range.
- [32] Ms Mann
submits the following aggravating features of your offending are
present:
(a) Use of actual and threatened violence: the acts the subject of the charges
are inherently violent.
(b) Extent of loss and damage: while the Crown accepts that you are not solely
responsible for the entirety of the damage caused,
your actions contributed in a
significant way to the damage in the sum that I have referred to.
(c) Scale of the offending: the offending is of an unprecedented scale within
New Zealand and is arguably the most serious of its
kind. Seventeen prisoners
were involved and 16 of you did not surrender until the sixth day. The lives of
hundreds of prisoners were
put in jeopardy and multiple prison staff, Police and
firefighters were involved as a consequence.
(d) The victims were Prison officers acting in the course of their duty: the
events had a serious impact on staff involved.
(e) Risk of injury: the multiple fires posed a serious risk of injury to both
prison staff and prisoners, particularly those still
locked in their cells.
(f) Victim impact: the offending had a significant impact on the many
victims.
- [33] In terms of
parity considerations, Ms Mann refers to your co-offenders who have been
sentenced by other Judges. I briefly summarise
those decisions.
- [34] Following a
guilty plea, Parata Taite was sentenced by Campbell J on 28 April 2023 on the
same three representative charges:
riotous damage; arson (with a
danger
to life); and assault with a weapon.7 The Judge adopted a starting
point of 11 years and six months’ imprisonment for the arson charge with
an uplift of one year’s
imprisonment for the other two charges. This
produced a global starting point of 12 years and six months’
imprisonment,
which was one year and three months higher than that indicated for
Mr Cuff. While expressing the view that the starting point for
Mr Cuff was
lenient,8 Campbell J reduced the global starting point by six months
to temper disparity, resulting in 12 years’ imprisonment.
- [35] Matangirau
Cuff entered a guilty plea after accepting a sentence indication provided by
Woolford J on the same representative
charges.9 Justice Woolford
adopted a starting point of nine years and six months for the arson charge with
an uplift of one year and nine months
for the other two charges resulting in an
overall starting point of 11 years and three months’ imprisonment. Mr Cuff
has yet
to be sentenced.
- [36] Manutaki
Kameta was sentenced by Lang J on 28 April 2023 on the same representative
charges,10 having accepted an earlier sentence indication.11
Justice Lang adopted a starting point of eight years and four
months’ imprisonment on all charges. I refer to the reason for
that lower
starting point later in this decision.
- [37] Malachi
Naua-Tuilotolava pleaded guilty to the same representative charges on the first
morning of the trial before the trial
commenced. He was sentenced by Downs J on
10 May 2023.12 Counsel for Mr Naua-Tuilotolava acknowledged that if
he were to be sentenced in isolation, a starting point of 10 and a half
years’
imprisonment, as indicated by the Judge, would be
appropriate.13 However, given that Mr Naua-Tuilotolava was already
serving a 24 year sentence of imprisonment for importing a very large amount of
methamphetamine, in accordance with the totality
7 R v Taite [2023] NZHC 975.
8 R v Taite [2022] NZHC 2935 at [21].
- R
v Cuff [2022] NZHC 2545. Mr Cuff has not yet been sentenced. Although a
sentence indication is given in open court (Criminal Procedure Act
2011, s
62(2)), it is an offence to knowingly publish any information about a sentence
indication that has been given before the
defendant has been sentenced (Criminal
Procedure Act 2011, s 63(1)).
10 R v Kameta [2023]
NZHC 965.
11 R v Kameta [2022] NZHC 3629.
12 R v Naua-Tuilotolava [2023] NZHC 1105.
13 At [4].
principle, Downs J imposed a sentence of six years’ imprisonment
cumulative on the 24 years Mr Naua-Tuilotolava was already
serving.
- [38] Arleye
Tapara-Taipari also pleaded guilty following a sentence indication given by Lang
J.14 The Judge indicated an overall starting point of 11 years and
three months’ imprisonment which was adopted in Mr
Tapara-Taipari’s
sentencing on 13 July 2023.15
- [39] Ms Mann
acknowledges that the sentencing decisions for your co-defendants will be of
most assistance to the Court but for completeness,
the Crown refers to other
cases involving sentencing for arson.16 Ms Mann also refers to other
cases where the courts have affirmed the proposition that offending in the
prison environment demands
a stern response, particularly where that offending
goes to the maintenance of discipline needed to effectively manage a penal
institution.17 More particularly, in the case of arson in a prison
environment, Ms Mann refers to Mouat v Police where Baragwanath J
observed that such offending:18
... 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. ...
- [40] There is
also the case of Ratu v R19 which concerned arsons in the
context of rioting within a prison, albeit on a smaller scale than the offending
in this case. The two
appellants faced charges arising out of their
participation in the 2013 riot at Spring Hill Corrections Facility. The Court of
Appeal
described those riots as “the worst in New Zealand’s
history” as matters then stood.20 The rioting began when two
prison officers were assaulted. The assaults developed into a riot lasting over
six hours. The
14 R v Tapara-Taipari [2022] NZHC 3219.
15 R v Tapara-Taipari [2023] NZHC 1812.
16 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] NZCA 109; (1988) 3 CRNZ 532 (CA); and R v Lucas- Edmonds
[2009] NZCA 193, [2009] 3 NZLR 493.
17 Tryselaar v R [2012] NZCA 353 at [18] and Kepu v R
[2011] NZCA 104 at [19].
18 Mouat v Police, above n 16, at [8].
19 Ratu v R [2016] NZCA 97.
20 At [24].
rioters lit several fires which spread and endangered the lives of other
prisoners and staff. The cost of repairs to the damage caused
was estimated at
$5 million.
- [41] The two
appellants in Ratu were not involved in the initial assaults on the
prison officers but were actively involved in a number of events during the
riot.
The starting point of six years’ imprisonment for Mr Thomas for the
lead offence of arson and a 12 month uplift to account
for the charge of riotous
damage were undisturbed on appeal.
- [42] Ms Mann
concludes by submitting that the agreed summary of facts expressly records that
all the defendants but for Mr Kameta
remained committed to the purpose of the
group and engaged in the offending until their ultimate surrender. She
accordingly submits
there is no basis to distinguish your role from that of Mr
Cuff, Mr Taite and Mr Tapara-Taipari in arriving at an appropriate starting
point for arson and uplift to reflect the additional offending.
Defendant’s submissions
- [43] Mr
Mansfield KC in his written submissions says that the appropriate starting point
on the lead charge of arson is six years’
imprisonment, with an uplift of
one year for the other two charges, resulting in an overall starting point of
seven years’
imprisonment.
- [44] In oral
submissions today Mr Taylor, while not abandoning the seven year starting point,
says that nine years would be more realistic.
- [45] I do not
accept those submissions. They are based on a number of propositions that I do
not accept. Mr Mansfield first says in
his written submissions that the
conditions at Waikeria Prison should be taken into account. In those written
submissions, he relied
on the conditions as somehow acting in mitigation of
culpability. I do not accept that. As you are aware, Mr Haere, I declined to
hear any oral submissions this morning regarding the conditions at the
prison.
- [46] I can do no
better than adopt the words of Downs J when he granted your application for an
adjournment of your sentencing. There
were two grounds relied on
in support of the application for an adjournment: (a) the trial Judge would be
well placed to resolve any difficulty about your role;
and (b) the trial Judge
would be in a better position to address prison conditions. Justice Downs said
the following, which I adopt:21
[5] I considered (b) has no merit whatsoever. First, and most obviously,
prison conditions do not comprise an ingredient of any of
the offences nor
afford a defence to any of the charges.22 Second, Campbell J recently
rejected an argument by a co-defendant that prison conditions mitigated the
offending. Third, to hold
otherwise than Campbell J did would be to invite
rioting and violence within prisons, in turn undermining the rule of law and
placing Corrections officers at even further risk (they already perform a
difficult, dangerous role). Fourth, the law sets its face against self-help
remedies, in part because
legitimate avenues of redress already exist. In the
context of prison conditions, inmates may, for example, complain to the
Ombudsman
or sue the government under the New Zealand Bill of Rights Act 1990.
These remedies are real and at the risk of repetition, consistent
with the rule
of law. Fifth, even if I am wrong about all this, the sheer scale of the
offending overwhelms any possible mitigation.
- [47] The second
submission made on your behalf in terms of the starting point is that it should
be fixed on the basis that you were
not a principal offender. In his written
submissions Mr Mansfield says the summary of facts only establishes you as being
liable
as a party. He says there is nothing in the summary of facts that
identifies you as being individually responsible for the arsons
in this case.
That summary only identifies you as part of the group. In his oral submissions
this morning Mr Taylor emphasised that
point. It is also submitted on your
behalf that the phone calls made by you to Newshub were made on behalf of the
group and they
were not acts that made you a principal offender or an instigator
of the offending.
- [48] I do not
accept those submissions. First, in relation to your role, the PAC report says
as follows:
In regard to the charges of Arson (CRN 21072000068) Mr Haere admitted to
lighting fires on top of the wooden seats and structures
inside Yard 116. Mr
Haere agreed that he set fires on the rooftops and reported “I’m
guilty of lighting many fires”.
In regard to the charges of Riotous Damage
(CRN 22019500764) he agreed to the statements of smashing windows on the over-
bridge
of Yard 116. Mr Haere agreed with the information regarding releasing
Prisoners in the Northeast Wing of Yard 116 by using a battering
ram to smash
cell windows, and all other riotous damage of property. In regard to the
- R
v Haere HC Auckland CRI-2021-072-000048, 10 May 2023 (Minute of Downs J),
footnote omitted.
22 That was an issue that arose in the
trial of the co-defendants and I gave a ruling to that effect.
charges of Assault With a Weapon (CRN 22019500783) he agreed to the
statements of the events on New Year’s day and the assaults
with makeshift
weapons and pipes on Corrections Officers.
- [49] As far as
phone calls to the journalists, the second phone call contains the following
statements by you:
I rung yous earlier about a breaking story.
... a riot in Waikeria Prison well it’s started we’ve set fires
...
... we’re setting fire to the umm roofs.
...
Well at the moment we’re just setting everything on fire, we’ve
smashed up a few wooden doors ...
- [50] When the
journalist asked what “Are you gonna do beyond the ... fires?” and
“What have you got planned after
that?” and “Are you planning
to fight?” you said “Definitely”. Following another question
from the
journalist “And are you planning to burn the whole prison?”
you said:
We’re planning to burn as much of it down as we can.
...
Yeah, they’ve lost all control. We’re in control now.
- [51] I consider
your statements as recorded in the PAC report and your statements to the
journalist indicate that you were both an
instigator and a principal
offender.
- [52] The third
argument made on your behalf is that Mr Kameta acted alone in lighting a
substantial number of fires that caused the
greatest risk of life and damage to
the prison. It is submitted on your behalf it would be grossly disproportionate
if you were to
receive a higher sentence than a primary offender on the lead
arson charge.
- [53] I accept
that there was evidence at trial of Mr Kameta lighting a number of fires on his
own on 29 December 2020. There is drone
footage showing his acts.
Those fires did cause risk to life and damage to parts of the
prison. However,
Mr Kameta surrendered the following day on 30 December 2020.23
- [54] You
remained on the roof until you surrendered on 3 January 2021. Significant fires
were lit on 1 January 2021 and 2 January
2021 causing extensive damage to the
High Security Facility which I have already referred to. But in any event, even
approaching
your liability on the basis that you were a party under s 66(2) of
the Crimes Act 1961, the summary of facts records that you and
the other 15
defendants remained committed to the purpose of the group until your surrender
on 3 January 2021.
- [55] Fourth, Mr
Mansfield submitted in his written submissions and Mr Taylor emphasised this on
your behalf today, that this was not
conduct you engaged in for a malevolent
purpose, but rather because of prison conditions. It is said that this was a
protest and
that in making the phone calls to the journalists you were seeking
to draw attention to prison conditions. This is really a subset
of the first
argument on your behalf which I have already addressed. It is apparent from your
statement to the journalist that you
and others were intent on burning down the
whole prison. That cannot be justified on any basis.
- [56] Finally,
there was issue taken with the amount of damage caused. I have already addressed
that by referring to the amounts paid
out for insurance and the reference to the
decommissioned central area of the High Security Facility. As I have already
said, regardless
of the actual cost, the High Security Facility was almost
completely destroyed with the consequential effects I have referred to
when
discussing the contents of the victim impact statement.
- [57] It is also
submitted on your behalf, in relation to your culpability but not directly in
relation to setting the starting point,
that you were involved in releasing
other prisoners from the East North Wing onto the roof because their cells were
filling with
smoke and so your conduct was in order to prevent those other
prisoners from
23 That was noted by Lang J in setting the starting point in R
v Kameta, above n 11, at [15]: “... he surrendered relatively early in
the piece and before most of the major damage to the prison complex
was
done.”
being asphyxiated by smoke inhalation. I do not accept that. Neither did the
jury, having regard to the verdict on the charge of
burglary that pertained to
breaking into the cells to release prisoners in the East North
Wing.24
Discussion
- [58] I accept
that all the aggravating features of the offending identified by the Crown are
present. The scale of the offending of
which you were part is unprecedented in
New Zealand. Many lives were put at risk.
- [59] The
starting point I will adopt is influenced by the starting points adopted for
your co-offenders who have already been sentenced.
- [60] Mr Haere,
you were with Mr Taite, Mr Cuff, Mr Tapara-Taipari and Mr Kameta in yard 116
when the events started. I accept that
in the initial stage involving the escape
from the exercise yard Mr Cuff played a more leading role than you. He was the
one, closely
followed by [redacted], who made the opening in the wire mesh
enabling him and others following him, including you, to escape. But
I agree
with Campbell J that the starting point for the arson charge for Mr Cuff was
lenient.
- [61] As far as
comparison with Mr Tapara-Taipari, I accept that his involvement with Mr Cuff in
using the razor and its subsequent
handing over to Corrections officers was a
trigger for initial unrest in the yard when you were told that you would all be
returned
to your cells early. However, tensions were observed to settle down
after that when you were all told you could remain in the yard
and would not be
returned to your cells before the usual time. You were clearly in the thick of
things from an early stage having
regard to what you said to the writer of the
PAC report and to a journalist, and you were involved in the offending right
throughout
the riot.
- [62] Your
position is not materially different from that of Mr Taite, Mr Cuff and Mr
Tapara-Taipari. I would adopt a starting point
for the arson charge of 11 years
with an uplift of one year’s imprisonment for the other two charges. That
would produce a
starting point of 12 years’ imprisonment. However, given
the starting points adopted
24 Charge 5 in the Amended Crown Charge Notice dated 26 April
2023.
for Mr Cuff and Mr Tapara-Taipari, I will reduce the global starting point by
six months to address disparity and adopt a global
starting point of 11 years
and six months’ imprisonment. That is slightly more than the starting
point for those two defendants
but less than the starting point for Mr Taite.
- [63] There are
no mitigating features of the offending.
Personal aggravating features – previous
convictions
- [64] The
Court is required to take into account the number, seriousness, date, relevance
and nature of any previous convictions.25
- [65] I accept
the submission made on your behalf that the Court should not increase the
sentence that would otherwise be imposed merely
because of a defendant’s
previous convictions. 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.26
- [66] Your
criminal history records 62 convictions for offences including aggravated
wounding, wounding with intent to injure, other
assaults (including on prison
officers and Police) and escaping custody. With that history, the Crown submits
that an uplift of four
months’ imprisonment is appropriate.
- [67] On your
behalf it is submitted the uplift should be two months.
- [68] I consider,
especially in the light of your convictions for assaulting prison officers and
Police and in circumstances where
the charges on which you are now being
sentenced include assaulting Corrections officers, an uplift should be added for
your previous
convictions. I consider a five per cent uplift is proportionate
with the starting point I have adopted. That is 6.9 months. I will
use the
percentage figure in my further calculations, as the mitigating factors which I
now come to will be calculated on a percentage
basis.
25 Sentencing Act 2002, s 9(1)(j).
26 R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 (CA) at [597]; Kushell v
Police [2012] NZHC 2380 at [10].
Personal mitigating factors
- [69] Mr
Taylor submits the Court should apply the following discounts: 25 per cent for
your guilty plea; five per cent for remorse;
and 20 per cent for personal
circumstances.
- [70] I address
each of those matters in turn.
Discount for guilty plea
- [71] Mr Cuff and
Mr Taite received sentence indications on 4 October 2022 and 9 November 2022
respectively and each pleaded guilty
shortly thereafter. They both received 25
per cent discounts. You pleaded guilty on 2 February 2023. It is submitted on
your behalf
that you are entitled to the same 25 per cent discount. The Crown
submits that a credit of 10 to 15 per cent would be the maximum
available.
- [72] On your
behalf it is said that having regard to the significant volume of security
camera footage and drone footage, a review
of that disclosure took considerable
time. I accept that submission given my knowledge as the trial Judge of the
amount of footage
involved. In his written submissions Mr Mansfield says the
review could only commence once the Crown served a USB provided to the
defendants in custody, containing relevant footage of excerpts of raw footage
stitched together along with an index spreadsheet.
- [73] It is
further said on your behalf that over the period from December 2022 up to when
you were able to enter your guilty pleas,
counsel experienced ongoing
difficulties obtaining access to you. It is said the actual final timing of the
guilty plea was out of
your control.
- [74] Nevertheless,
the guilty plea date of 2 February 2023 was very close to the trial commencement
date of 13 February 2023. I do
not consider you should be treated in the same
way, as regards the discount, as those defendants who pleaded guilty much
earlier.
They, similarly, were required to review file footage.
- [75] I consider
an appropriate discount for a guilty plea is 15 per
cent.
Remorse
- [76] It is said
on your behalf that you have created a five year plan for yourself. It is
submitted that this indicates you have acknowledged
your actions and want to
make a change to better yourself. It is said that a five year plan shows you are
realistic about this.
- [77] In the s 27
report, which I come to shortly, it is recorded that you said you had made some
choices that you cannot change but
you say “I can do better for me”.
Additionally, the writer of the PAC report states that you presented as
remorseful.
- [78] Ms Mann
submits that there is nothing over and above what is inherent in a guilty plea
that would warrant a separate discount
for remorse.
- [79] Evidence of
remorse can warrant recognition over and above the recognition for a guilty
plea. In this case, there is limited
material available that would warrant
separate recognition. However, this morning you sought to address the Court
yourself, but in
the end a submission was made through counsel and that is that
you say you are remorseful and you did not realise that so many lives
would be
placed in jeopardy. By a narrow margin I am prepared to accept that a five per
cent discount for remorse is appropriate.
Personal circumstances
- [80] The Court
has received a report prepared under s 27 of the Act by Dr Jarrod Gilbert and
three others (together, the writers).
The information in the report is based
primarily on an interview conducted with you. The report notes that where
possible, details
of your account were corroborated by speaking to your older
sister and a pro- social friend of yours. It is a detailed report. I
have read
it carefully.
- [81] You are a
30-year-old Māori man belonging to the Ngāti Porou iwi. Your father
was a Black Power associate but not a
patched member. You can recall patched
members partying at your home.
- [82] You say
your family was poor and you often did not have shoes to call your own. You
described times when your family could not
afford to put food on the table and
you were homeless for a period of months when your family was unable to pay
rent.
- [83] You
reported to the writers that you can remember your father beating up your mother
and seeing blood from her injuries and hearing
arguing. Both your parents openly
smoked cannabis and your mother progressed to smoking methamphetamine.
- [84] Your
parents separated when you were about three or four years old when your father
went to prison.
- [85] You first
started entering Child, Youth and Family (CYF) care once your father went to
prison. As I have said you were aged about
three or four. You also spent time
living with extended family members and you described being beaten by your
cousins.
- [86] At one home
you recall a particular event that occurred with an older boy.
- [87] At the age
of seven you joined a Crip gang. You stayed with the Crips until you were
18.
- [88] On
returning from the boys’ home your mother had a new partner, who would
beat you for the most mild infractions. This
partner also taught you to
burgle.
- [89] As a teen
you started huffing solvents, drinking and using cannabis. By the time you were
18 you tried methamphetamine. You joined
the Nomads gang while in prison and
stayed with that gang until you were about 26 or 27. Next, you joined the
Mongols.
- [90] Although
you have used drugs heavily in the past, you report you have been clean of
methamphetamine for six years. However, you
did take prescription pills that
were stolen from the medical centre in the prison during the riot.
- [91] I accept
that at no point in your life did you have a positive role model or a realistic
opportunity to do something positive
with your life. It was mostly a matter of
survival.
- [92] On a
positive note, you have support from your sister, who is two years older than
you and the two of you are close. Your pro-social
friend, referred to by the
writers, once had a life of crime but has turned his life around and now works
as a rehabilitation coach.
He is supporting you.
- [93] I accept
there is a causative contribution27 from the factors that led you to
being imprisoned at the time of the offending and becoming involved in the
violence that led to the
present charges: offending was normalised in your
upbringing; your father was incarcerated during your childhood; there was
deprivation;28 a lack of stability in your childhood; and you
experienced violence as a child. But I see some prospect of rehabilitation as
referred
to in the s 27 report.
- [94] Ms Mann
submits that the credit sought on your behalf is too great. At most there should
be a modest allowance in the region
of five to 10 percent.
- [95] I propose
to allow a discount of 15 per cent for your personal factors. I have given you a
separate discount for remorse.
End sentence
- [96] Mr
Haere, I have adopted a global starting point of 11 years and six months’
imprisonment. I have made allowances of: 15
per cent for your guilty plea; five
per cent for remorse and 15 percent for your personal circumstances. That is a
total of 35 per
cent. From that I deduct five per cent for your previous
convictions. The total discount for your personal factors is therefore 30
per
cent. Calculated in months against the starting point of 11 years and six months
that is 41.4 months (or three years and six
months’ imprisonment –
rounded up in your favour). The end sentence is therefore eight years’
imprisonment.
27 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at
[107]–[112].
28 At [115].
Minimum period of imprisonment
- [97] In
earlier written submissions Ms Mann submitted the Court should impose a minimum
term of imprisonment because all of the purposes
for which a minimum period may
be imposed are engaged in your case. In her oral submissions today Ms Mann
acknowledges that no
minimum period was imposed in relation to those co-
offenders who have already been sentenced.
- [98] The Court
has the power to impose a minimum term of imprisonment when it imposes a
sentence of two years or more on an offender.29 The Court may only do
so where the normal parole provisions, which require an offender to serve
one-third of the sentence before being
eligible to apply for parole, would be
insufficient to meet the sentencing principles of denunciation, the need to hold
the offender
accountable, deterrence and the need to protect the
community.30
- [99] There was
no minimum term imposed by the Court for Mr Taite, Mr Kameta or Mr
Tapara-Taipari. There is no real distinction that
I can see between you and
Mr Taite and Mr Tapara-Taipari on this issue. For parity reasons, I will not
impose a minimum term of
imprisonment.
Sentence
- [100] Mr
Haere, would you please stand. On the charge of arson you are sentenced to eight
years’ imprisonment. On each of the
charges of riotous damage and assault
with a weapon you are sentenced to five years’ imprisonment. You will
serve all those
sentences concurrently.
- [101] 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
29 Sentencing Act, s 86(1).
30 Section 86(2)(a)–(d).
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