R V BRIGGS HC WHA CRI-2008-027-000660 [2009] NZHC 1033 (14 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
                                                           CRI-2008-027-000660



                                      THE QUEEN



                                             v



                        
   ARTHUR DUNCAN BRIGGS



Appearances: M B Smith & B M O'Connor for the Crown
             G R Anson for the prisoner

Sentence:
      14 August 2009


                     SENTENCING NOTES OF PRIESTLEY J




Counsel:
M B Smith, P O Box 146, Whangarei 0140.
Fax: [phone]
G R Anson, P O Box 248, Kerikeri 0245. Fax: [phone]




R V BRIGGS HC WHA CRI-2008-027-000660 14 August 2009

[1]       Mr Briggs, you have been convicted of wounding with intent to cause
grievous bodily harm. That conviction follows your
being found guilty by a jury at
the end of your trial. As you know that crime carries a maximum term of 14 years
imprisonment.


[2]       You were a party to a sustained and premeditated attack on your victim,
Matthew Te Hira. The assault took place in March
2008, at a remand pod at Ngawha
Prison. Both you and your victim were inmates at the time.


[3]       I am satisfied as trial judge
on the evidence that the attack on the victim was
directed and incited by the prisoner Poutai. Mr Poutai had the belief that his
former
partner or girlfriend had been having some form of sexual relationship with the
victim.


[4]       The assaults all took
place in the victim's cell and comprised three waves.
The first wave was carried out by the prisoners Connelly and Hoeer. The victim
was
pushed and punched. The evidence suggests, however, that he was not seriously
injured during that wave. There is no satisfactory
evidence of bleeding. He was
seen to sit on a bench in his cell shortly thereafter. This sight irritated Poutai who
incited the second
wave which involved the prisoner Te Whata and you. The
evidence of those assaults suggests that the victim was pushed to the ground
and was
kicked and stomped. Mr Smith is correct when he analyses the evidence of you
being a party to the kicking and stomping the
victim around his head, his ribs and
upper body. Certainly blood flowed from the victim after that series of assaults.
Some was seen
on your tee-shirt.


[5]       The third wave involved again the prisoners Hoeer and Te Whata. During
that wave the victim was again
seriously assaulted, kicked and stomped on the
ground and was hit over the head by Mr Hoeer wielding an improvised weapon,
being
torch batteries inside a sock.


[6]       The resulting injuries on the victim and the long-term effect of those injuries
was serious.
The Crown is not able to produce any evidence as to which specific
blows or kicks caused what damage and that is relevant in assessing
your culpability.

However, the medical evidence I heard at trial was to the effect that on admission to
Whangarei Hospital the
victim was semi-comatose, had a perforated left ear drum, a
grossly swollen face and, revealed by a CT brain scan, had sustained
a subdural
haematoma on the left side of his brain and brain swelling which indicated a severe
injury.    This led to memory loss,
mild to moderate cognitive deficits and has
required support and rehabilitative intervention.        In short, he is permanently
damaged and his life has changed drastically.


[7]       Your counsel mentioned to me a few moments ago, Mr Briggs, as have other
counsel over the course of my sentencing today, that this three-phased assault took
place inside a prison. There have been discussions
as to whether a prisoner inside a
prison is a vulnerable person. Your own counsel even suggested that there would be
minimal vulnerability
on the victim's part because, had he wanted, he could have
pushed the alarm button, or indeed locked his door from the inside.


[8]       One of the most extraordinary features about these unhappy events at
Ngawha Prison in March 2008, was that it took place
in a new prison, with
Corrections Department Officers inside the pod, whose job it was to keep what was
going on inside the pod under surveillance. There were clearly monitors. There
were surveillance cameras. There was a security presence. Despite that, this three-
wave attack took place without any awareness
on the part of the prison staff that it
was taking place.


[9]       Some members of our society perhaps may be of the view that
anybody who
is sentenced to a term of imprisonment should be denied basic protection and if they
are seriously assaulted or victims
of a crime, then it is no more than they deserve. I
do not adhere to that view. As an Attorney-General of New Zealand said some time
in the 1970s, people are sent to prison as a punishment, not for punishment. It is
unfortunate that this attack took place inside
the prison. It is not the expectation of
most sectors of the New Zealand public or the judges who imprison people that, on
arrival
in prison prisoners are going to be beaten up.


[10]      It is my hope that whatever defects there were at Ngawha Prison in March
2008, are not repeated. It is also my hope that some of the systemic failures which

took place inside that prison last year are
not repeated in other penal institutions. It
is, as I have said, not the expectation of either Parliament or judges or most of the
New Zealand public that assaults like that should take place. Prisoners should be
kept safe when they are incarcerated.


[11]  
Returning now to your position Mr Briggs.


[12]   I have been assisted by letters from two of your cousins and I have also been
assisted by a pre-sentence report. It is unfortunate that you took the view you were
not going to be interviewed by the probation
officer, regardless of what competing
visits you had at the time. This was your opportunity to put your side of the case.
Unfortunately,
for your own reasons, you chose not to do that.


[13]   You are aged 25. It is clear from earlier reports that you have no school
qualifications. You have been unable to find or hold down full-time work. There is
a tendency on your part, which is noted, for you
to minimise your involvement in
your offending. You do, however, have a supportive family. They have regrettably
been unable to control
or influence you. Some of those difficulties probably stem
from family difficulties you encountered in your mid teens. I am impressed
by the
two letters I have received from your cousins, Ms S and Ms M Tatana. Both of them
seem to have a very realistic appraisal
of your strengths and your weaknesses, and it
is high-time Mr Briggs that you yourself appraised yourself, because if you go on
like
you have over the last six or seven years, you are going to spend the bulk of
your adult life in jail. Your salvation is in your
own hands and only you at the end
of the day can pull yourself up.


[14]   You have a number of previous convictions as I have discussed
with counsel.
Forty-four on my count, which is a lengthy list for a man aged 25 years of age.
Mr Smith has, in a memorandum, itemised
the more recent and relevant of these.
Fortunately for you, you have no recent convictions of serious violence. However,
between
April 2003 and December 2008 you have convictions for assault on the
police, common assault, aggravated robbery, robbery and two
further common
assault convictions which have been met with short prison sentences.

[15]   I turn now to what are some of the aggravating
features of your offending and
in particular I set out what the Court of Appeal has said in the well-known tariff case
of R v Taueki
 [2005] 3 NZLR 372. In that case the Court of Appeal mandates
various aggravating features and proscribes three bands. There is no doubt in my
mind,
having regard to paragraphs [40]-[41] of Taueki, that the assaults generally sit
inside Band 3 where the start points are suggested
as ranging from nine years to the
maximum of 14 years. Band 3 requires three or more aggravating features which in
combination are
particularly grave.


[16]   Relevant aggravating features here to the offending to which you were a
party Mr Briggs are; a premeditation,
serious injury, the use by Hoeer of a weapon,
attacking the head, multiple offenders spread over three waves, and the vulnerability
of the victim, who although an adult was confined to a prison pod and was sitting
inside his cell (there was nowhere he could really
go). There is probably present the
broad description of vigilante action inasmuch as Mr Poutai and those acting at his
direction
took the law into their own hands acting out of revenge. Although Taueki
headlines as a serious aggravating feature gang warfare
[31](k), a description of
serious violence perpetrated by members of a criminal group can in my view, be
correctly seen as an aggravating
feature given that Mr Poutai and most of the
assailants were Black Power members. I interpolate there Mr Briggs, that you were
not
a Black Power member. It appears that your affiliations were with the Cripps
gang, but for whatever reason that afternoon you decided
to ally yourself with Black
Power objectives.


[17]   Looking at the aggravating features which are present as they relate to you,
these have been correctly identified by your own counsel, Mr Anson, although his
submissions do not concede that they have particular
relevance to you. Mr Anson
concedes that you were involved in a multiple attack. He also concedes that there
were attacks to the
victim's head. Other factors which in my judgment are there,
relevant to the overall offending but of perhaps lesser application
to you, are
premeditation, the vulnerability of the victim which I have discussed, the gang
warfare element, and the vigilante action.

[18]   Mr Anson's submissions, and let me say both today and at the trial
Mr Briggs, your counsel has done a good job for you,
take issue with whether your
offending can properly sit inside the third band of Taueki. Counsel have referred me
to a number of
Court of Appeal cases which are set out helpfully in his submissions,
which make it clear that although three or more aggravating
features as specified in
Taueki may be present, those in themselves do not necessarily result in Band 3 being
applied. In other words
in the cases cited by Mr Anson most, if not all of them,
relate to a sentence which clearly sits inside Taueki Band 2. R v Donnan
CA 532/08
 [2009] NZCA 171; R v Wi CA 586/08  [2009] NZCA 81; R v Williams CA 549/08
 [2009] NZCA 55; R v Konui CA 42/08  [2008] NZCA 401 (30 September 2008); R
v Duncan CA 283/07 CA 384/07  [2008] NZCA 365; R v Service CA 263/08  [2008]
NZCA 314; R v Kanakartnam CA24/08  [2008] NZCA 258; R v Buttar CA 560/07,
561/07, 562/07, 563/07  [2008] NZCA 28; R v Mohamed CA330/06  [2007] NZCA
170; R v Keoghan CA 377/06  [2007] NZCA 109.)


[19]   Dealing with that submission, which was powerfully made by Mr Anson, I
note, however, that in Taueki [42] the Court of Appeal
has stressed that it is
illustrative for guideline purposes and that the suggested bands and starting points
are to be used flexibly.
Often adjustments to start points will need to reflect that
flexibility. Importantly, the Court of Appeal identifies what must lie
at the centre of
the offending in any case, which is to establish a start point which properly reflects
the culpability inherent
in the offending.     That is what I intend to do in your
particular case. I accept, as the Court of Appeal has stated in the same
paragraph,
that where there are multiple offenders different levels of involvement in the
offending and the actual culpability of
each offender needs to be discussed. That
approach is followed in the sentencing I have carried out today.


[20]    I turn now to
mitigating factors. The only mitigating factor I can find,
(because you did not enter a guilty plea and I do not punish you at all
for that, that is
your right), the only mitigating factor I can find is that mentioned in Mr Anson's
submissions which seems to flow
from a question by him as to whether there was
anything you particularly wished to discuss with me. When asked that question you
said to your counsel that you wanted to express remorse to the victim.             That,
Mr Briggs, is as far as it seems to go.

[21]   Your counsel's submissions I have dealt with. Although not nailing his
colours to a start point mast Mr Anson clearly feels
I should be looking at a start
point in the seven to nine year range, in other words the upper limit of Band 2.
Mr Smith for his
part, although accepting there needs to be some flexibility and
variation, is firm in his submission that I should be looking at
a start point in Band 3
of Taueki. The Crown also submits that I should, depending on the final sentence
arrived at, impose a minimum
term of imprisonment under s 86.              Mr Smith's
submission in that regard is that s 86(2) clearly covers this situation
and that
denunciation, deterrence, and holding you accountable would justify a minimum
term probably in the order of 50 per cent.


[22]   Stand up Mr Briggs.


[23]   You are not, Mr Briggs, a member of the same Black Power gang as most of
the other offenders.
Nonetheless you chose to join in the second wave attack. This
attack on a defenceless victim, together with Mr Te Whata, involved
kicking and
stomping the victim whilst he was on the ground, particularly with kicks and blows
being aimed at his ribs, upper part
of his body and his head. I do not consider your
culpability and the aggravating factors of your offending fall to a lower level
than the
bottom of Taueki Band 3. I consider that a start point in your case of nine years
imprisonment is justified. Apart from
your remorse, which perhaps is not really
consistent with your decision to try at trial for an acquittal on the reasonable doubt
ground, which was your right, there are no other mitigating factors that I can
identify.


[24]   I do not in your case choose to
uplift that nine year start point to reflect the
fact that you offended whilst on remand or for your relatively minor previous assault
convictions. In short I see your personal mitigating and aggravating factors as being
in equipoise.


[25]   I, therefore, sentence
you to nine years imprisonment. Given that you have
some family support and that there is some hope of your turning your life around,
I
decline to impose a minimum term of imprisonment. But I underscore for the Parole
Board that your release on parole at three years
in your case, ought not to be

automatic if you have shown little signs of facing up to your responsibilities or
controlling your
indiscipline. Failure to do so is a flaw your family have rightly
identified.   In my view, which is why I am treating you leniently
so far as a
minimum term of imprisonment is concerned, you are worth the effort of some
rehabilitation attempts. I recommend that you be given the opportunity to benefit
from courses available
to you in prison.

                                                      .............................................
         
                                                                        Priestley J