R v Bassett [2020] NZDC 24454

Published 01 October 2021

Disputed facts hearing — arson — prison protest — Auckland Women's Prison — treatment of prisoners — mental health of prisoners — minimum entitlements of prisoners — segregation orders — Corrections Act 2004, ss 5(1)(a), 6, 8, 12, 47, 48, 49, 57, 58, 59, 60, 61A, 61B-61H, 69, 71, 72, 83, 84, 85, 133, 135, 136 & 137 — New Zealand Bill of Rights Act 1990, ss 5, 9 & 23 — Sentencing Act 2002, s 8(h) — Corrections Regulations 2005, regs 44, 68, 69, 72, 123B, 123C, 159, 160, 161, 162, 163, 165, 166 & pt 5A — R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115 (HL) — Taylor v Chief Executive of Dept of Corrections [2015] NZCA 477 — Toia v Prison Manager, Auckland Prison [2014] NZHC 867 — Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC) — Taunoa v Attorney-General [2007] NZSC 70 — Attorney-General v Udompun [2005] 3 NZLR 204 (CA) — Archbold v Attorney-General [2003] NZAR 563 (HC) — Falwasser v Attorney-General [2010] NZAR 445 — R v Luce [2007] NZCA 476 — Zhang v R [2019] NZCA 507 — McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 — Toia v Prison Manager [2015] NZCA 624 — Cripps v Attorney General [2020] NZHC 3523 — Falwasser v Attorney General [2010] NZAR 445. The defendant had pleaded guilty to a charge of arson. She and three others had set a fire inside Auckland Women's Prison. The Court had provided a sentencing indication of 15 months' imprisonment, but the defendant argued that the sentence should be further discounted to take into account of the damage to her mental health brought about by how she had been treated in prison. Therefore the current proceedings were a disputed facts hearing on conditions inside the prison, including the treatment of inmates. At the time of the offending the defendant was classed as a maximum security prisoner who had a history of aggression toward staff and other inmates. Following the offending she and her co-defendants had been transferred to D wing of the prison, where there were very spartan conditions. They were not told of the reason for their transfer to D wing, nor of how the decision to transfer them was made or how long they were to stay there. They received no response to the majority of their official complaints, and they alleged that the prison staff in D wing refused to provide them their minimum requirements such as food and clothing, and violated their privacy. Further, they alleged frequent use of pepper spray against them in their cells. The defendant's mental health deteriorated, she began to refuse to eat and exercise, and she eventually attempted to commit suicide. For the prosecution, the deputy director of the prison testified that procedure inside the prison (including the use of pepper spray) had been reviewed and that she was satisfied that prison staff had acted appropriately. The deputy director was unaware of complaints by the defendant and her co-defendants, and believed that their incarceration in D wing was proper. The Court found the evidence of the defence witnesses convincing. By contrast the prosecution had failed to properly respond to the allegations. Record-keeping relating to the treatment of prisoners was sporadic, and the Court accepted the evidence of the defendant and co-defendants that their complaints had not been properly actioned. With reference to the Corrections Act, the Court found that the defendant's confinement to D wing had not followed the proper process and had gone on for too long. Also the prison staff's use of pepper spray was excessive and unreasonable, and other aspects of their treatment of the defendant were degrading and inhumane. In light of these findings, the Court commented that the parties may wish to make further submissions on how the findings should mitigate the defendant's sentence, and whether the sentence imposed should be cumulative or concurrent. Judgment Date: 17 February 2021