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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
THE KING
v
GRAYSON HAERE

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]

The offending

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.

4 A telephone in the yard was able to be used by the prisoners to phone approved contacts.

Approach to sentencing

Victim impact statement

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.

Starting point

Crown submissions

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.

(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.

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.

7 R v Taite [2023] NZHC 975.

8 R v Taite [2022] NZHC 2935 at [21].

  1. 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.

... 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. ...

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.

Defendant’s submissions

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.

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

  1. 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.

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 ...

We’re planning to burn as much of it down as we can.

...

Yeah, they’ve lost all control. We’re in control now.

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

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

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.

Personal aggravating features – previous convictions

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

Discount for guilty plea

Remorse

Personal circumstances

End sentence

27 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[112].

28 At [115].

Minimum period of imprisonment

Sentence

Gordon J

29 Sentencing Act, s 86(1).

30 Section 86(2)(a)–(d).


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