Hawke’s Bay prison gang attack: High Court imposes sentences despite prisoners losing utu claim

The incident saw seven men hit the victim with punches, kicks and stomps, and one man hit him with a broom.

The victim escaped serious injury and was able to stand up and embrace the main criminal at the end of the attack.

He was taken to hospital but sent back to prison the next day.

The attack had gang overtones

All of the attackers were members or associates of Black Power. gang While the victim was a patched Nomads member.

4 of the attackers were referred to the courthouse hastings And Gisborne district courts received a prison sentence They were sentenced to 17 to 18 months in prison for their roles in the attack. Not one person has been punished yet.

Tried by a different judge, Jakahn Robert Kaiwai and Paaka Malachi Babbington were each sentenced to three years in prison.

They appealed their sentences Supreme Court -most Napieron the basis that the sentencing judge set the starting point for prison sentences too high, failed to maintain equality with other offenders and “failed to accept the tikanga sentence as a mitigating factor” maori utu principle”.

In a recent judgment, Judge La Hood found that the disparity between the sentences given to Kaiwai and Babbington compared to the other men “would cause an independent, objective observer to consider that the administration of justice had failed”.

He recalculated the prison sentences and reduced the imposed three years to two years and one month per man.

But he rejected Tikanga Māori’s argument that sentences should be reduced because there was a mitigating factor in the gang-related incident.

“There was no basis to consider the practice of utu as a mitigating factor in this case,” Judge La Hood said.

“There would need to be at least pūkenga evidence (from tikanga Māori experts) to support the proposition that a planned gang attack on a rival gang member in prison is consistent with utu,” he said.

“Furthermore, recognition of utu would be contrary to the binding authority that unlawful conduct is an aggravating factor rather than a mitigating factor.”

He made this finding despite objection that the victim’s relatively minor injuries and the final embrace supported the claim that the attack was a ute.

Solicitor Cliff Church, acting for Kaiwai and Babbington, told the High Court the attack was “acting in a culturally Maori way; to maintain balance and harmony in the prison block and regain meaning through mutual revenge.”

Megan Mitchell, for the Crown, said the argument that the utu principle should be respected was “inappropriate”.

He said any recognition of utu as alleged in the case could not be reconciled with the fundamental principles of applicable statutory and case law.

Judge says Utu ‘vexing issue’

Judge Thomas Ingram, who initially sentenced Kaiwai and Babbington, previously said utu was a “vexatious issue” and there was no evidence of it before the court.

“The argument that Utu could justify a separate reduction in sentence is, in my view, at least not tenable in this case, and probably not tenable at all,” he said.

“The reason I say that is that unlawful conduct is a statutory aggravating factor, and I think this is a classic example of unlawful conduct under the circumstances.

“It may have occurred within the prison system and involved members of rival gangs, but the underlying feature of this incident was clearly the infliction of corporal punishment for perceived slights.

“In my view, the Criminal Code 2002 could not be clearer. “If people are prepared to take the law into their own hands, they run the risk of the court placing the matter in the category of unlawful conduct, and in my opinion this is a clear example of that.”

Correctional officers are unaware

The attack was recorded on the prison’s closed-circuit television system, but corrections officers did not know it had occurred until the victim went to the control room about 15 minutes later.

The Department of Corrections said officers on the wing were busy elsewhere at the time and the officer in the control room was busy “monitoring the actions of another inmate.”

Hawke’s Bay Regional Prison chief executive George Massingham said an internal review found officers’ response time was “impacted by staff not recognizing the attack when it occurred”.

When the victim reached the control room, he was given first aid, backup was called and the attackers were secured.

In 2022 the Supreme Court unanimously ruled that Tikanga has been and will continue to be recognized in the development of New Zealand common law where relevant.

This determination was made in a decision accompanying his decision. Annulling historic sex offense convictions of late former Christchurch nursery worker Peter Ellis.

Tikanga, although Pākehā, was relevant to the Ellis case because it helped decide that the appeal should continue after he died.

Ric Stevens worked for the former New Zealand Press Association news agency for many years, including as a political correspondent in Parliament, before holding senior roles at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is currently based in Hawke’s Bay. His writings in crime and justice are based on four years of front-line experience as a probation officer.