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

The incident involved the seven men punching, kicking and stomping on the victim, and one man hitting him with a broom.

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

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

The attack had gang overtones

The attackers were all members or associates of Black Power band while the victim was a nomadic patch member.

Four of the attackers convicted in Hastings and Gisborne district courts received prison sentences 17 to 18 months for their role in the assault. Another man has yet to be sentenced.

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

They appealed their sentences to High Court TO Napieron the basis that the sentencing judge set the starting point for their prison sentences too high, failed to maintain parity with their co-offenders and “(did not accept) as a mitigating factor the tikanga Maori the utu principle”.

In a recent decision, Justice La Hood found that the difference between the sentences handed down to Kaiwai and Babbington, compared to the other men, “would lead an independent objective observer to believe that the administration of justice has erred”.

He recalculated their prison terms, reducing the three years imposed to two years and one month for each man.

However, he rejected the argument that the sentences should be reduced because tikanga Māori was a mitigating factor in the gang-related incident.

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

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

“Moreover, to recognize utu would be contrary to binding authority that legal action is an aggravating rather than a mitigating factor.”

He made this finding despite the appeal citing the relatively minor injuries suffered by the victim and the final embrace as supporting the claim that the attack was unprovoked.

Councilor Cliff Church, acting for Kaiwai and Babbington, told the High Court the attack was the result of a decision “to act in a Maori cultural way; to maintain balance and harmony in the prison block and regain mana by exacting mutual revenge”.

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

She said that any recognition of utu, as argued in the case, cannot be reconciled with the fundamental principles of the statute and the applied jurisprudence.

Utu an “angry matter”, says the judge

Judge Thomas Ingram, who originally sentenced Kaiwai and Babbington, said earlier that the utu was an “angry matter” and there was no evidence before the court about it.

“The claim that utu can justify a discrete reduction in sentence is not tenable, at least in this case, and probably not at all,” he said.

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

“It could have happened in the prison system and it could have involved members of rival gangs, but the underlying feature of this incident was clearly corporal punishment for a perceived slight.

“In my view, the Sentencing Act 2002 simply could not be clearer. If people are prepared to take the law into their own hands, then they run the risk that the court will consider the matter to be in the category of legal action, and in my view, this is a clear example of that.”

Correctional officers don’t know

The attack was captured on the prison’s closed-circuit television system, but correctional officers did not know it had taken place until the victim arrived in the control room about 15 minutes later.

The Department of Corrections said that at the time, officers on the wing had been busy elsewhere and the officer in the control room was busy “monitoring the actions of another prisoner.”

Hawke’s Bay Regional Prison director general George Massingham said an internal review found the time it took officers to respond was “impacted by staff not immediately learning about the attack when it happened”.

Once the victim reached the control room, first aid was administered, backup was called, and the attackers were secured.

In 2022, the Supreme Court unanimously held that tikanga has been and will continue to be recognized in the development of New Zealand common law in cases where it is relevant.

This determination was made in a ruling that accompanied his decision overturning the historic sex offense convictions of the late former Christchurch nursery worker Peter Ellis.

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

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