R v Mackle [2014] NZHC 2639 (28 October 2014)

Last Updated: 5 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-13119 [2014] NZHC 2639

THE QUEEN

v

_{JOSEPH MACKLE}

Hearing:	28 October 2014
Appearances:	M J Hammer and M R Walker for Crown S Bonnar QC for Defendant
Sentence:	28 October 2014

_{SENTENCING REMARKS OF LANG J}

R v MACKLE [2014] NZHC 2639 [28 October 2014]

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

Background

[2] The charge to which you pleaded guilty arises out of a riot that occurred at the Springhill Corrections Facility on the weekend of 1 June 2013. This caused significant damage to the facility and, in fact, has required about $5,000,000 to repair.

[3] The riot occurred in Unit 16B, which was a medium security unit containing two pods each of which held 45 prisoners. You were being held in one of those pods.

[4] The riot began when prisoners were released from their pods for morning exercise. At that point corrections officers went into your cell and discovered a home brew concoction. They also noticed that some of the prisoners, including you, appeared to be intoxicated. In a short period of time this led to several fights breaking out, and at that point some of your co-offenders assaulted corrections officers as the officers tried to retreat to the staff base. You were not involved in these particular assaults.

[5] From that point on riotous damage occurred over a period lasting several hours. Those involved, including you, fashioned weapons by breaking furniture or material removed from locked store rooms. These were then used to inflict damage on both the building and other property within the pods.

[6] The nature of the activities in which you and other prisoners were involved is significant. It included breaking doors and windows, smashing items of furniture and using items such as broken furniture to fuel fires that other prisoners began. The fact that the Crown ultimately withdrew a charge of arson that was originally laid against you indicates that it accepts you were not involved in the lighting of the fires.

[7] Matters became more serious when rioters forced their way through a glass door to the staff base using a volleyball pole. This led to further violence both to property and to a corrections officer. Again, however, you were not involved in this particular aspect of the riot.

[8] Your involvement relates to the home brew that was found in your cell and the fact that you kicked, punched and struck the staff base doors and windows with objects. You used pieces of wood to hit the staff base windows and you threw several tables against the staff base windows, causing the tables to be damaged. You also assisted to destroy other items such as toasters, sandwich presses, tables and chairs by throwing them against the staff base doors and windows. You also added broken items of property to the fires that others had started in the centre of the compound. In addition, you smashed property that you gained access to after you entered an interview room.

Principles and purposes of sentencing

[9] In any case involving a riot in a prison, issues of deterrence and denunciation are to the forefront. The Court of Appeal has emphasised on several occasions that corrections officers are entitled to the fullest protection of the law, and this principle extends to cases such as the present.¹ For that reason, as your counsel responsibly accepts, the only real issue is the length of cumulative sentence of imprisonment you should be required to serve. In this area of the law consistency is important. I need to ensure that the sentence you receive is broadly consistent with the sentences imposed on those of your co-defendants who have already been sentenced.

Starting point

[10] Several of your co-offenders have been sentenced in both the District Court and this Court. The Judges who sentenced the ringleaders and those responsible for starting the fires that caused the majority of the damage, applied a starting point of around six years imprisonment.² That starting point does not apply in your case

_{because of your lesser involvement. However, I consider your offending to be}

¹ _{See eg Kepu v R [2011] NZCA 104 at [19].}

² R v Vakapuna DC Auckland CRI-2014-004-7234.

broadly similar to that of Mr Ratu,³ Mr Tou⁴ and Mr Nahi.⁵ They were involved in offending of a broadly similar level as yours, and the Judges who sentenced them took starting points of three years three months imprisonment.

[11] Your culpability is slightly enhanced by the fact that home brew was found in your cell. Although it cannot be established with any degree of certainty that this was consumed by others, there must at least a possibility that that was the case. At the very least, you had obviously consumed home brew yourself. Taking those matters into account, I consider an appropriate starting point in your case to be one of three years four months imprisonment.

Aggravating factors

[12] The Crown submits that the starting point should be increased to reflect the fact that you have a reasonably lengthy list of previous convictions. These include convictions for violence and also property offences, including aggravated robbery. The Crown submits that an uplift of three months imprisonment is appropriate to reflect these factors.

[13] I consider this issue to be finely balanced. Although you have a lengthy list of previous convictions, you do not have any convictions for similar offending to that for which you appear for sentence today other than a conviction for wilful damage in 2006. I therefore intend to adopt a somewhat generous approach and not apply an uplift in respect of your previous convictions.

Mitigating factors

[14] I now need to consider the extent to which the sentence should be reduced to reflect mitigating factors personal to you.

[15] The Crown accepts that you should receive a discount of five per cent, or two months, to reflect the fact that by pleading guilty you have saved the State the cost of

³ _{R v Ratu [2013] NZHC 3085.}

⁴ _{R v Lakau DC Auckland CRI-2013-004-013119, 13 March 2014.}

⁵ R v Nahi DC Auckland CRI-2014-004-007234, 8 August 2014.

proceeding to trial of the charge against you. That type of discount would normally be included within the discount for a guilty plea, but some of your co-offenders have received a specific discount to reflect this factor and the Crown accepts that it is appropriate in your case as well. I therefore reduce the starting point by two months to reflect this factor.

[16] Your counsel points out that, since the date of the riot, you have engaged actively in counselling sessions and that this has enabled you to gain insight into the factors that are likely to lead to offending of this type. You have also provided me with a letter today in which you express your remorse for what occurred and assure the Court that you will not engage in the future in any similar activity.

[17] Mr Mackle, the onus is really on you here because the parole authorities, at the end of the day, have the final say as to when you are going to be released. If you become involved in similar activities in the future, then you can rest assured that your parole date will continue to be extended. I consider, however, that I should provide discrete recognition today for the fact that you have undertaken rehabilitative activities, including counselling sessions, since the date of the riot. I propose to make a further allowance of three months to reflect this factor.

[18] This leads to an end starting point of two years 11 months before taking into account the discount to be applied in respect of your guilty plea. Your guilty plea was not entered at an early stage because it came on 5 August 2014, which is more than a year after the events that gave rise to the charge took place. However, the Crown accepts that it initially proceeded with the arson charge in spite of the fact that you had made known through your counsel at an early stage that you would be prepared to enter a guilty plea to the charge of riotous damage. Once the arson charge was withdrawn, you immediately elected to enter a guilty plea. In those circumstances, the Crown accepts that a discount of 25 per cent is appropriate. I therefore propose to apply a discount of nine months to reflect this factor, leading to an end sentence of two years two months imprisonment.

Totality principles

[19] You are currently serving an effective sentence of five years four months imprisonment. This was imposed on you in the District Court on 26 January 2012 on a variety of charges. The fact that I am imposing a cumulative sentence means that I am required to have regard to totality principles.⁶ I need to ensure that the end sentence you serve on all charges is not out of all proportion to the gravity of your overall offending.

[20] In this context, the Court of Appeal has stressed that totality principles must be applied carefully when Judges impose cumulative sentences in relation to offences committed whilst in prison.⁷ If an overly generous approach is taken in this regard, it could severely compromise or undermine the need to maintain prison discipline. I have given this factor consideration, but in the end have elected not to make any adjustment to reflect totality principles. I consider that an end cumulative sentence of two years two months imprisonment viewed against the existing sentences you are already serving is not totally disproportionate to the overall gravity

of your offending.

Sentence

[21] On the charge of riotous damage to which you have pleaded guilty, I impose a sentence of two years two months imprisonment. That sentence is to be served cumulatively on the existing sentences you are currently serving.

_{[22] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

S Bonnar QC

⁶ _{Sentencing Act 2002, s 85(2).}

⁷ Tryselaar v R [2012] NZCA 353 at [18].