R v Ratu [2015] NZHC 79 (5 February 2015)

Last Updated: 18 February 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-13119 [2015] NZHC 79

THE QUEEN

v

_{MATTHEW ROSS RATU}

Hearing:	5 February 2015
Appearances:	M R Walker for Crown M J Dyhrberg QC for Defendant
Sentence:	5 February 2015

_{SENTENCING REMARKS OF LANG J}

R v MATTHEW ROSS RATU [2015] NZHC 79 [5 February 2015]

[1] Mr Ratu, you appear for sentence today having pleaded guilty to charge of causing 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 was laid after you participated in a riot that occurred at the Spring Hill Corrections Facility on the weekend of 1 June

2013. This caused significant damage to one area of the facility that has required about $5 million to repair.

[3] The riot occurred in Unit 16B, which is a medium security unit. It contained 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 noted that some of them appeared to be intoxicated. Disorderly behaviour then ensued, and some inmates began fighting each other. When prison officers moved to defuse the situation, the matter quickly escalated. A large group of prisoners then began grabbing items of furniture and other items to use as weapons. Over a period of several hours this group of prisoners then caused a very significant amount of damage to prison property by smashing it using implements, and by burning it in a fire they started in the yard.

[5] The prisoners entered several areas of the prison, including the pod dining room, activities room and a staff base. Inside those areas, they smashed items of furniture and equipment. They removed files and set fire to them in the yard. You were a full participant in those activities, but you have not been charged with arson. I therefore proceed on the basis that the Crown accepts you were not one of the ringleaders who began the fires that caused so much damage.

[6] The role that you played in events is described in a global summary of facts prepared in respect of charges faced by all of the participants in the riot. This says that you and two others used an object to hit the staff base door and windows. You and several others then collected items from around the compound including

furniture, appliances, clothing and toilet paper. You added these to fires that had already been lit in the centre of the compound. You and two others then climbed in and out of the staff base window carrying TVs and keyboards and throwing them out into the pod. You also took files from the staff base. You then entered an activity room armed with a pole and walked directly towards a window. You smashed the pole twice against the window. You and three others then entered the dining room, where you used implements to smash various fixtures in that room. The summary records that you then supplied others with weapons by breaking up chairs, tables and benches. Finally, you walked to the staff base steps and used a pole to smash the top of the door on several occasions. You and two others then walked around the compound randomly smashing the glass on the grilles and doors to cells in the unit.

[7] This description of events marks you out as a full participant in the riot, although not one at the upper end, because you were not a ringleader and you were not charged with arson. Nevertheless, you must be treated in the same way as others who were involved in like fashion.

Starting point

[8] In selecting a starting point for the sentence to be imposed on you, I have the advantage of having presided over sentencing hearings for several of your co- offenders. I have also had the benefit of reading sentencing decisions in the District Court where other offenders have been dealt with.

[9] It is clear from reading these decisions that offenders fall into two groups. First, there is the group of ringleaders and those who started the fires. Judges who have sentenced those persons have selected a starting point in the region of six years imprisonment.¹

[10] Judges who have sentenced persons charged solely with causing riotous damage have tended to select starting points of around three years three months to

_{three years four months imprisonment.}² _{Both the Crown and your counsel submit}

¹ _{R v Vakapuna DC Auckland CRI-2014-004-7234, 29 August 2014.}

² R v Ratu [2013] NZHC 3085; R v Lakau DC Auckland CRI-2013-004-013119, 13 March 2014;

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

that an appropriate starting point is three years three months imprisonment, and I

concur.

Aggravating factors

[11] Counsel differ, however, as to whether I should apply an uplift to reflect the fact that you have previous convictions. You have a large number of previous convictions but as your counsel rightly points out, most of these are for different types of offending. I note, however, that you have several previous convictions for wilful damage. These have been entered over several years. You are clearly a person who in the past has been prepared to damage other people’s property, and you were obviously prepared to become involved in damaging the prison’s property on this occasion.

[12] I propose to add an uplift to reflect your previous convictions, but a modest one. I will apply an uplift of three months to reflect this factor.

Mitigating factors

[13] It is now necessary to consider the extent to which I should reduce the end starting point of three years six months imprisonment to reflect mitigating factors personal to you.

[14] I note that you are now 36 years of age. You told the probation officer who prepared the report that you have been frustrated by the court process. By that I take you to mean that you are concerned at the length of time the court process has taken to come to an end. The only thing I have to say about that is that it was open to you at any stage to seek a sentence indication and to enter a guilty plea as you have now done. As I understand the situation, you indicated earlier that you proposed to take that course of action, but then resiled from it. You therefore largely have yourself to blame for the fact that you are not being dealt with until now.

[15] You say that your offending came about because you were effectively forced to join others in the riot. You say it was a question of joining the rioters or becoming a victim yourself. That is obviously an explanation for your offending, but does not

provide an excuse in respect of it. You had a clear choice to make. You either joined the rioters, in which case you had to accept responsibility for what then happened, or you could have taken the course that many other prisoners did, and remained in your cell. In that event you would not be subject to any additional sentence by the Court, but of course you would have run the risk of retribution by other prisoners. I acknowledge the difficulty of the situation that you faced, but in the end you made your choice and must now live with the consequences. I cannot reduce the starting point I have selected to reflect your view that you were effectively forced into participating in the riot because of retribution you would receive if you did not.

[16] I take the view that there are three areas in respect of which I can provide you with a discount. The first is the fact that you spent some six months subject to restrictive bail conditions when you were granted EM bail in December 2013. This period of time apparently passed without incident and without breach. I propose to provide you with a discount of three months to reflect that factor.

[17] As in the case of other offenders who have been charged as a result of this incident, the Crown has accepted that you should receive a discount of five per cent, or two months, to reflect the fact that you have saved the State the cost of a trial. In addition, your counsel submits that you should receive a further discount for remorse. The remorse is said to be demonstrated by comments you made to the probation officer who prepared the pre-sentence report. You told the probation officer that you regretted what you had done, and you felt bad about what had happened to prison officers who were caught up in the riot. You have expressed similar sentiments in a letter you have tendered to me today.

[18] I accept these comments as far as they go, Mr Ratu, but at the end of the day you are an offender who has appeared before the Court on many previous occasions. I do not consider, given your relatively late plea and late expression of remorse, that I can give you any additional discount for that. You are of course entitled to a discount for the guilty plea that you have entered albeit not at the earliest opportunity. Both counsel agree that this should be in the region of 20 per cent. I propose to reduce your sentence by eight months, which is slightly above 20 per

cent, to reflect your guilty plea. This produces an end sentence of two years five months imprisonment.

Cumulative sentence: totality

[19] You are now serving another sentence of imprisonment as a result of an incident that apparently occurred in May 2014 whilst you were on EM bail. The Crown submits, and your counsel accepts, that the present offending is completely different to the offending for which you are currently serving a sentence of imprisonment. I therefore propose to impose a cumulative sentence and your counsel accepts that this is appropriate, because the present offending is completely different to that which occurred in May 2014.

[20] Having indicated that I propose to impose a cumulative sentence, I am bound to have regard to totality principles. You will be subject to automatic release on the sentence you are currently serving in or about April this year after serving approximately nine months imprisonment. I take the view that no further adjustment is necessary to reflect totality principles in relation to the sentence I am about to impose.

Sentence

[21] On the charge of causing riotous damage to which you have entered a guilty plea, you are sentenced to two years five months imprisonment. You are to serve that sentence cumulatively on the existing sentence of imprisonment you are

_{currently serving.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

M Dyhrberg QC, Auckland