R v Rewha [2014] NZHC 2636 (21 October 2014)

Last Updated: 9 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-013199 [2014] NZHC 2636

THE QUEEN

v

_{SAMSON BRUCE RINA RAYMOND REWHA}

Hearing:	21 October 2014
Counsel:	M J Hammer and M R Walker for the Crown M E Goodwin for the Prisoner
Sentence:	21 October 2014

_{SENTENCE OF DUFFY J}

Counsel: M E Goodwin, Auckland

_{Solicitors: Meredith Connell, Auckland}

R v REWHA [2014] NZHC 2636 [21 October 2014]

[1] Mr Rewha, you appear for sentence having pleaded guilty to one charge of riotous damage under s 90 of the Crimes Act 1961. The maximum penalty is seven years’ imprisonment.

Facts

[2] The facts are that on 1 June 2013, a riot took place at Springhill Corrections Facility, which caused significant damage to the correctional facility. The riot occurred in unit 16B, a medium security unit containing two pods. Each pod held 45 prisoners. The riot resulted in damage that required this unit to be demolished and rebuilt at a cost of $5,000,000.

[3] The riot began when two fights broke out between several of the prisoners. The senior corrections officer and three other corrections officers assigned to unit 16B then intervened and attempted to diffuse the situation. When the senior corrections officer returned to the staff base, some of your co-offenders punched and kicked the remaining three corrections officers as they tried to return to the staff base. You were not involved in those assaults.

[4] Riotous damage then took place that lasted several hours. The rioting prisoners fashioned weapons from breaking existing furniture, or material removed from locked storerooms, open cells and from the dining room. Those weapons were used to smash the building and other property within the pods.

[5] The summary of facts includes an extensive list of riotous actions, including setting fire to property and breaking doors and windows. Various items such as toilet paper, clothing and bedding were used to fuel the fires. The only behaviour explicitly attributed to you was that you used a steel pole to smash a CCTV camera. A considerable amount of force was required to break the reinforced protection around the camera.

[6] Matters became extremely serious when the rioters forced through the glass door to the staff base using a volleyball pole. Further, the spread of the fire and

smoke placed prisoners and staff at risk, especially the prisoners that were still detained in their cells.

Personal circumstances

Prior convictions

[7] In terms of your personal circumstances, you are 31 years of age. You have a range of prior convictions. They span between the years of 1998 to 2006 for property, dishonesty and violent offending. I note you have no convictions for intentional damage to property. Most recently in 2008, you were sentenced to six years and six months’ imprisonment for aggravated robbery and injury with a firearm. You were serving this sentence at the time of your current offending. The current statutory release date is 24 May 2015.

Pre-sentence report

[8] The pre-sentence report noted that the prison file notes indicate that generally, your behaviour in prison has been satisfactory. The report writer considered your involvement in the riot to be minor in comparison to the damage created by others who were more actively involved. You explained to the report writer that once you were aware that a riot was in progress, you walked to the staff base seeking safety. At this point, you found that the corrections staff had fled and that you were locked in with the riotous crowd. You said that you feared for your own safety and decided to smash the camera in the hope of gaining staff attention as a means of being rescued from the other prisoners. I note you have maintained that position in your letter to me today.

[9] The report assessed your risk of re-offending as high, given your recidivist history of serious offending. Your risk of causing harm to others was also assessed as high. However, the report writer noted that you have successfully completed a short motivation programme and an intermediate drug and alcohol programme to address your offending behaviour. You are waitlisted to attend more intensive

interventions. Individual treatment with a psychologist may be available to you during the remainder of your sentence.

[10] You have also undertaken a bi-cultural therapy programme. The facilitator of that programme advised the report writer that you have displayed a growing awareness of the need to take more responsible actions, as opposed to being reactive. Your case manager confirmed that you have actively sought interventions, such as the bi-cultural therapy programme, and that is to your credit.

[11] The report recommended a sentence of imprisonment. The report writer saw it as the only sentencing option available, as your next review is not until early next February. You are aware that your current charge has heightened your risk status and that you will need to demonstrate exemplary behaviour to order to become eligible to participate in the interventions that you wish to partake in.

Submissions

Crown submissions

[12] The Crown submits that the aggravating factors of the offending include the extent of the damage caused, the period of the offending that lasted approximately six and a-half hours, the number of persons involved, the risk of injury, the actual or threatened violence involved and the fact that the victims were prison officers acting in the course of their duty.

[13] The Crown submits that whilst each defendant did not cause all of the damage, the extent of the damage and the cost of the rebuild cannot be ignored. Further, there were additional costs involved in relocating the 89 prisoners from unit 16B to other correctional facilities. The Crown submits that the CCTV camera that you damaged was replaced at a cost of $957.93.

[14] In regards to the risk of injury, the Crown submits that the fires caused imminent mortal danger to prisoners detained in their cells. You, as a prisoner yourself, must have some idea of what it must be like to be locked in a cell knowing

there are fires around you. While the Crown accepts that you were not involved in the arson, the Crown says that the fire services were prevented from safely entering the unit to extinguish the fires until the rioting group was restrained.

[15] After taking into account the important consideration of parity between co- offenders, the Crown submits that a starting point of approximately three years’ imprisonment is appropriate. The Crown considers that a reduction of approximately five per cent is open to the Court to account for the savings in cost and time associated with an early guilty plea. In addition, the Crown supports a guilty plea discount of between 20 to 25 per cent.

[16] The Crown submits that your sentence should be served cumulatively on your existing sentence, without an adjustment for totality.

Offender’s submissions

[17] Your counsel, in regards to the aggravating factors of the offending, submits that whilst the overall damage caused was high, the damage was largely a result of the fires that were lit. You were not involved in the arson. Your counsel accepts the Crown’s submission regarding the overall period of time that the riot took place, but submits that your involvement was limited to a single act. Further, your actions did not involve actual or threatened violence, or a risk of injury to prison staff and other prisoners. Your counsel submits that your riotous damage was not directed towards the prison staff and, therefore, the aggravating factor that the prison officers were victims of the offending does not apply to you.

[18] Your counsel submits that the appropriate starting point should be two years’ imprisonment to recognise your limited involvement in the riot. Your counsel submits that the broken CCTV camera would have had little effect on the detection of further offending, as there were a number of other cameras operating in the relevant area of the prison.

[19] In terms of personal factors, your counsel submits that there should be no uplift for previous convictions. For mitigating factors, your counsel submits that you

have shown motivation to change and you have taken positive steps to further your rehabilitation. For your effort, your counsel says that you deserve a discount of five per cent. Your counsel submits that a full 25 per cent discount is warranted in the circumstances for your guilty plea.

[20] Lastly, your counsel submits that a further reduction for totality is required in light of your low level of culpability, the absence of violence, your personal circumstances and the length of your current sentence. Your counsel refers to a co- offender, Mr Nahi, who received a discount for totality. Your counsel submits a discount of five to 10 per cent would be appropriate for totality.

[21] Your counsel submits that the appropriate end sentence would be 13 months’

imprisonment to be served cumulatively on your existing sentence.

Principles and purposes of sentencing

[22] In order to determine an appropriate sentence, the Court must take into account the relevant purposes provided for in s 7 of the Sentencing Act 2002. These include: the need to hold you accountable for the harm done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm of your offending; to denounce and deter your conduct and to protect the community, here, namely the prison staff and other prisoners.

[23] Regarding the principles of sentencing under s 8 of the Sentencing Act, the Court must take into account the gravity of the offending, the seriousness of the type of offence, consistency with appropriate sentencing levels and similar offenders who have committed similar offences, and the need to impose the least restrictive outcome appropriate in the circumstances.

Sentencing

[24] There is a three-stage approach to sentencing. First, the appropriate starting point is set. Secondly, allowance is made for personal aggravating and mitigating

factors and, finally, there is a discount for a guilty plea: see Hessell v R [2010] NZSC

135; [2010] NZSC 135; [2011] 1 NZLR 607 and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

Setting a starting point

[25] In setting a starting point, this Court has to be consistent with previous comparable cases. I also have to consider parity between co-offenders.

[26] In its written submissions, the Crown has referred to R v Wirihana DC Wellington CRI-2007-078-001858, 20 October 2008. That is a sentencing in the District Court where Mr Wirihana was sentenced to 22 months’ imprisonment for riotous damage. The facts involved an incident at Rimutaka Prison where Mr Wirihana and other prisoners caused substantial damage to the youth unit. The prisoners resisted efforts from guards to intervene and broke through onto the roof of the unit. The riot occurred over a period of five hours and the damage was estimated to be in the vicinity of $250,000.

[27] Judge Davidson noted that while one person did not cause all the damage, it was impossible to ignore the extent of the damage in its entirety: [9]. The Judge adopted a starting point of two years and three months’ imprisonment.

[28] In R v Mei [1989] NZCA 213; (1989) 4 CRNZ 580 (CA), the applicant unsuccessfully applied for leave to appeal against conviction and sentence. The facts involved a riot that developed at a party. Substantial damage was done to a police van, and a shed on a neighbouring property was set alight. The fire then spread to the back of the property and certain members of the rioting group attempted to prevent the firemen from putting out the fire. The applicant was charged with riot, two charges of riotous damage and possession of an offensive weapon. He was concurrently sentenced to

18 months’ imprisonment for riotous damage and 12 months for the other charges. The Court of Appeal did not consider 18 months to be excessive, having regard to the totality of the offending.

[29] Both the Crown and your counsel are in agreement as to the importance of parity between co-offenders in sentencing. On 13 March 2014, Judge Field in the

District Court gave sentencing indications to five other offenders who took part in the riot: R v Lakau DC Auckland CRI-2013-004-013119, 13 March 2014. In respect of Mr Lakau, who faced one charge of riotous damage, he was involved in punching and kicking the staff base doors and windows, smashing property and windows, fuelling the fire and helping to push the volleyball pole against the staff base door. The Judge considered his culpability to fall in the most serious category and adopted a starting point of three and a half years’ imprisonment.

[30] Turning to Mr Ratu, who also faced just one charge of riotous damage. His culpability was considered to be at a medium level. Mr Ratu was involved with fuelling the fire, removing electronics from the staff base, reading files, smashing various fixtures in the dining room with weapons, and using a pole to smash at the top of the staff base door. In the sentencing indication, Judge Field adopted a starting point of three years and three months’ imprisonment.

[31] Another co-offender, Mr Tangiia, was sentenced by Judge Field: R v Tangiia DC Auckland CRI-2014-004-007234, 29 August 2014. Mr Tangiia was involved in throwing chairs against the staff base windows and using chairs and pieces of wood to smash those windows. The Judge accepted Mr Tangiia’s culpability was at the lower level and adopted a starting point of three years’ imprisonment.

[32] Another co-offender, Mr Nahi, was sentenced by Judge de Ridder: R v Nahi DC Auckland CRI-2014-004-007234, 8 August 2014. Mr Nahi was involved in hitting windows, smashing property against walls, and adding property to the fires that were lit. The Judge considered Mr Nahi’s culpability to be similar to Mr Ratu’s and adopted the same starting point of three years and three months’ imprisonment. The Judge agreed that the sentence should be cumulative upon the sentence that Mr Nahi was already serving, but reduced the sentence by nine months to account for totality after having regard to Mr Nahi’s lesser role, his age and the length of his current sentences.

[33] Mr Rewha, I have considered the culpability of your offending carefully. As you were not involved with the fires and you were not charged with arson, I do not consider that you can be held responsible for the damage caused by the fires. Further, your offending was limited to one single act, which did not pose a risk of injury to staff or other prisoners. However, your act of breaking the CCTV camera still involved considerable force and contributed to the amount of damage that the riot caused in total.

[34] Your culpability, in my view, is much lower than that of the co-offenders to whom I have referred. You did not take a prolonged role in the riot. You did not contribute to the initiation, or the spread of the fires and your conduct was not a threat to life or person. In the circumstances, I am going to adopt a starting point of two years’ imprisonment.

Adjusting the starting point

[35] I now have to consider aggravating and mitigating factors that are personal to you.

[36] The Crown considers a small uplift would be appropriate for your previous convictions, which include violent offending and breaches of court orders. Whilst I acknowledge that the act of breaking the CCTV camera involved force that could in a more general sense be seen as a violent act, I note that you do not have previous convictions for intentionally damaging property. I do not propose an uplift for your previous convictions.

[37] In each of the cases where your co-offenders were sentenced, the maximum guilty plea discount of 25 per cent was given, along with an additional five percent discount as another mitigating factor under s 9(4)(a) of the Sentencing Act. The Crown submits that this additional discount recognises the significant savings in time and effort by avoiding a defended trial. Strictly, those benefits are seen to be

encapsulated in a guilty plea discount: see Hessell v R at [45]. However, given the

Crown’s stance, I propose to give you this additional five per cent discount.

[38] Your counsel refers to your attempts to improve your behaviour as warranting an additional five per cent discount. I have carefully considered the materials before me and I consider that you have demonstrated a desire to rehabilitate and to address the causes of your offending. In particular, I note that you have actively sought to participate in departmental programmes and wish to be admitted to programmes that are designed to teach life skills. The Sentencing Act requires me to impose the least restrictive sentence and to pay regard to your rehabilitation. There is also the letter that you have provided me with today where you do express what I see to be genuine remorse for your conduct. So, in the circumstances, I propose to give you an additional five per cent for the attempts to improve your behaviour. I consider that someone with a criminal history such as yours, who has made attempts to rehabilitate himself, deserves encouragement.

[39] This brings the total discount to 10 per cent, reducing the sentence to 21.5

months’ imprisonment.

Guilty plea

[40] The Crown accepts that you pleaded guilty at the first trial review hearing in the High Court on 5 August 2014. Your counsel has explained to me today the history behind the postponement of a guilty plea insofar as the summary of facts initially alleged further criminal conduct against you. You disputed that but responsibly accepted that you were liable for the destruction of the CCTV camera. It seems that it was not until shortly before a disputed facts hearing that the Crown finally accepted that your culpability was limited solely to the destruction of the CCTV camera. I propose, therefore, to give you a full 25 per cent discount for the guilty plea. This reduces the sentence to 16 months’ imprisonment.

[41] I now turn to consider totality. Both your counsel and the Crown are in agreement that this sentence should be cumulative upon the sentence that you are already serving. I now have to step back and consider whether this cumulative sentence is out of proportion to the totality of the offending under s 85 of the Sentencing Act. On 25 November 2008, you were sentenced to six years and six months’ imprisonment for aggravated robbery. This was concurrent upon a sentence of five years imposed on 12 October 2007 for wounding with intent to cause grievous bodily harm.

[42] Re-offending in a prison environment has frequently been commented upon by the Court of Appeal. In R v Connelly [2010] NZCA 52, the Court said:

[31] ... In a case such as this, where the respondent was subject to a nine- year sentence for previous violent offending, any regard to the totality principle can only be minimal, given the gravity of the overall offending. Re- offending, particularly violent re-offending, while in prison, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.

[43] Later in Tryselaar v R [2012] NZCA 353, the Court reiterated:

[18] We consider that the proper approach in this case is that expressed in Connelly and Kepu. Offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response. That would be seriously undermined if sentences for such offending required adjustment to reflect the fact that the offender is already serving a sentence of imprisonment.

[44] Despite those comments of the Court of Appeal in Connelly and Tryselaar, your counsel submits that you should be entitled to a five to 10 per cent discount for totality. In stepping back and assessing the length of your sentence and the sentence that I am about to impose cumulatively, I am satisfied that it is out of proportion to the gravity of the overall offending. I am aware that you were before the Parole Board in January 2014. I understand the earlier appearance before the Parole Board may well have resulted in you not being granted parole because of the current offending for which I am sentencing you. I consider the only certain date that I can take into account when assessing the impact on a cumulative sentence is

the release date of 24 May 2015. I note that Mr Nahi, whose offending was more serious than yours, received a discount for totality. It seems to me that although he is younger than you, the sentence he was serving seems to me to be much in the same range as yours.

[45] If you had had a more active role in the riot, I would have followed the approach of the Court of Appeal in Connelly and Tryselaar that demands a stern response for offending in the prison environment. But as the majority of the damage that was caused by the riot cannot be attributed to you, I am prepared to give you a

10 per cent discount for totality. This results in an end sentence, rounding down, of

14 months’ imprisonment. That will be the final sentence.

Sentence

[46] Mr Rewha, please stand.

[47] On the charge of riotous damage, I sentence you to 14 months’ imprisonment. The sentence is imposed cumulatively upon the sentence that you are currently serving.

[48] Please stand down.

Duffy J