Police v Tipene [2017] NZDC 14819 (5 July 2017)

Last Updated: 21 November 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-012-000700 [2017] NZDC 14819
_{THREE STRIKES WARNING}

NEW ZEALAND POLICE

Prosecutor

v

RIAPO PIRIPI TIPENE

_Defendant

Hearing:	5 July 2017
Appearances:	Sergeant M Osbourne for the Prosecutor J Walshe for the Defendant
Judgment:	5 July 2017

_{NOTES OF JUDGE R G RONAYNE ON SENTENCING}

[1] Mr Tipene you are for sentence today, at the age of 21 years, having pleaded guilty to three charges, one of wilful damage which carries a maximum term of three months, one of with reckless disregard for the safety of others wounding a prison guard using a chair as a weapon which carries a maximum term of seven years and one of assaulting with intent to injure another prison guard.

[2] I need to go through the summary in some detail because it illustrates the level of violence that you inflicted on these men.

NEW ZEALAND POLICE v RIAPO PIRIPI TIPENE [2017] NZDC 14819 [5 July 2017]

[3] On the day in question you and two others were housed together in a wing of the Milburn Prison. You and your two associates are gang members. You identify as members of the Crips gang.

[4] Prior to the incident you asked Corrections staff to transfer you to a maximum security prison but at that stage your classification was too low and your request was denied. I have no doubt at all Mr Tipene that request was simply to get yourself into maximum security so that you could get some sort of social status in your world.

[5] There were three victims of this outbreak of violence, all Corrections officers. The first victim is a 59 year old, the second is a 46 year old and the third is a 42 year old.

[6] At about 1.45 pm the three of you and approximately 18 other prisoners were unlocked from your cells for your afternoon recreation. You grabbed a wheelie bin from the floor and you dragged it across the wing towards a dining room window. You picked it up and you swung it forcefully against the window a number of times.

[7] One of the others, a Mr Hirani, heard that and he started running in the direction of this event. As he ran he tied a pillowcase around his face as a makeshift mask, he began kicking the same window with some force. The window shattered. You then threw the wheelie bin across the wing floor.

[8] The three victims to whom I have just made reference and two other Corrections officers were on or nearby the wing at the time and they responded to this commotion. Victim A walked out of an interview room and instructed prisoners back to their cells.

[9] Mr Kawana ignored the instruction and he walked across the wing floor to join you and your associate. Seconds later, you picked up a hard plastic chair with both hands and you sprinted sideways across the wing floor towards victim A who was standing by the staff base. As you moved towards him you brought the plastic chair back over your right shoulder and then you deliberately and forcefully swung the legs of the chair at victim A’s face. The legs of the chair hit victim A in the face causing

his skin to break and blood to flow down his face. The chair legs also collided with right forearm. You and one of your two associates then stood side by side approximately one metre in front of the three victims who I will call A, B and C. You stood aggressively with your hands raised and your fists clenched in a fighting stance.

[10] One of your associates put his hand across you in an attempt to prevent any further incident and said words to the effect, “We’ve got what we wanted.” Your other associates stood a couple of metres to the side watching this all unfold. He started to walk back to his cell but realised that you and your other associates were refusing to return to your cells so he removed his jumper and he joined you two.

[11] You focused your attention back on victim A and you began forcefully punching him in the head with both left and right closed fists. Victim B and another officer intervened in an attempt to restrain you. Mr Kawana stepped in and delivered a flurry of clenched fist punches to victim A’s face.

[12] You were restrained by victim B and Mr Hirani, your other associate, attempted to pull you free. He was unable to break the hold that victim B had on you and so he punched victim B once in the face with a clenched left fist.

[13] As Mr Kawana was punching victim A, victim C grabbed Mr Kawana around both upper arms and pulled him backwards. Victim C stumbled and fell to the ground with Mr Kawana on top of him.

[14] Mr Kawana stood up and punched victim C forcefully in the face a number of times with clenched fists. Victim B ran over to assist victim C and attempted to restrain Kawana. You and the other associates were on the opposite side of the wing and at that stage without warning you ran at speed across the wing floor towards victim B with your right fist raised to shoulder height. As you reached victim B you leapt in the air before forcefully striking victim B in the back of the head with your right forearm. Victim B had his back to you and he was completely unprepared for the blow.

[15] You continued to punch victim B in the back of the head until victim A intervened and attempted to restrain Tipene. Mr Hirani then walked purposefully over to victim A who was holding on to you and pulled the victim A across the wing floor by his protective vest. Victim A held onto you for a few seconds before Mr Hirani managed to break his hold. You then stood over victim A and you delivered a flurry of punches to the victim’s head. A number of staff arrived on the wing at that point, you were restrained and handcuffed. While you were being handcuffed you said words to the effect, “I told them I should be in maxi.”

[16] I completely reject the submission made on your behalf that charges are over charges, if anything they are under charges.

[17] You have previous convictions. Your first conviction in 2013 was for an aggravated robbery committed in 2012. For that and a number of other offences you were sent to prison.

[18] The other offences were unlawfully getting into a motor vehicle, another aggravated robbery, a burglary, a wounding with intent and another burglary.

[19] On 2 July 2014 you were imprisoned for two years and nine months for a wounding with intent to cause grievous bodily harm.

[20] In November 2015 you were given a cumulative sentence of two years and five months cumulative on the two years and nine months for injuring with intent to cause grievous bodily harm.

[21] Those are very relevant previous convictions.

[22] A pre-sentence report has been written. Amongst other things you told the report writer that you prefer the action in maximum security prison and that a mere high security prison was too soft for you. You also repeated that you did what you had to do in order to secure your maximum security rating.

[23] The report writer notes that a previous pre-sentence report noted that you had ruminated about violence including homicide for a long time and that you had fantasies about violence which you had in fact acted on.

[24] In short Mr Tipene, you are a very dangerous man.

[25] The inevitable recommendation of the pre-sentence report is one of imprisonment. That report reveals simple juvenile premeditation on your part, “just trying to be the man.” You wanted to get yourself in maximum security so you deliberately premeditated an attack on men who were simply doing their job.

[26] That is quite apparent from the victim impact statements that I have before me. There has been a considerable effect on these men who are doing a job that they think gives them the opportunity to help people like you.

[27] You deny any planning, I reject that. Unsurprisingly you are at very high risk of further offending and in my view a condign sentence is appropriate. On the day in question you were simply a gang thug trying to prove yourself.

[28] I identify the aggravating features in this way:

(a) First, this was a premeditated and cunning setup of a Corrections officer, or officers. That aggravating feature is present to a moderate to high degree.

(b) Secondly and self-evidently there are multiple Correction officers affected by this offending.

(c) Thirdly, there was a sustained level of violence. That aggravating feature is present to a low to moderate extent.

(d) Fourthly, you targeted the head. That is an aggravating feature present to a high degree.

(e) Fifthly, although in a sense an element, you used a weapon. That is an aggravating factor present to a moderate degree.

(f) Sixthly, the victim impact has been significant and ongoing, significant injury occurred. Although a chair is not in itself a lethal weapon, you have caused significant ongoing effects on the victims. This feature is present to a moderate degree.

(g) The seventh aggravating feature is that you used strength in numbers.

That is an aggravating feature present to a moderate degree.

[29] I take the view Mr Tipene that the combination of these factors is particularly serious. On the positive side you pleaded guilty but I do not consider you are showing any real remorse that I can take into account.

[30] There is no absolute entitlement to a discount for youth and at age 21, bearing in mind the nature of this offending, a premeditated nature of it and your previous convictions, you get no discount for your youth.

[31] Starting point has to reflect the aggravating features and also the purposes and principles of sentencing. In your case that is especially denunciation and deterrence and the need for Corrections officers and prisoners to see an appropriate response to this sort of gratuitous violence.

[32] In my view an appropriate starting point is one of four years’ imprisonment on the wounding with reckless disregard charge.

[33] At this notional stage of the sentencing exercise I would add one year to that to reflect the other charges.

[34] From the five year result I would reduce that by six months to reflect the totality of your offending.

[35] From the four and a half year notional result I discount the sentence by

25 percent for your guilty pleas. That is 13 and a half months, I round that up to 14 months. That brings the sentence down to one of three years and four months.

[36] I have to say Mr Tipene you are fortunate that the prosecutor has not sought a minimum period of imprisonment. You would have found that difficult to resist.

[37] The result is this. On the intentional damage of the window, the property of the Department of Corrections you are sentenced to one month prison.

[38] On the charge of wounding with reckless disregard you are sentenced to three years and four months’ prison, that is cumulative on the sentence of two years and five months’ prison imposed on 12 November 2015.

[39] On the charge of assault with intent to injure the sentence is one year and six months’ prison.

[40] Just to be absolutely certain Mr Tipene, lest there be any confusion over the matter, although the record does appear that you were given a first strike warning, I give you that warning again. This is in relation to your offence committed under s

188(2).

[41] Given your conviction for with reckless disregard for the safety of others wounding the Corrections officer using the chair as a weapon, you are now subject to the three strikes law.

[42] I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which list the serious violent offences.

[43] If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

[44] If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

R G Ronayne

District Court Judge