An imprisoned Nomads gang member was beaten by seven other inmates associated with Black Power. Stock photo / 123rf
An imprisoned Nomads gang member was beaten by seven other inmates associated with Black Power. Stock photo / 123rf
Two prisoners involved in a seven-on-one gang assault on another inmate tried to have their jail sentences reduced, arguing their actions were “utu” under tikanga or Māori lore.
Utu is a traditional principle sometimes taken to mean revenge but can also describe compensation or recompense to restore or maintain a balance between people or groups.
A High Court judge rejected the prisoners’ argument and found the jailhouse attack was an example of “vigilante justice”, which was an aggravating feature.
However, Justice Dale La Hood reduced the two inmates’ sentences anyway, after determining they had been handed out stiffer jail terms than the other men involved in the affray.
The attack took place in a remand wing at Hawke’s Bay Regional Prison in October last year after one of the men received “an unwanted sexual advance” from the victim in the showers.
Jakahn Robert Kaiwai and Paaka Malachi Babbington, who were dealt with by a different judge, were sentenced to three years in prison each.
The attack took place at Hawke's Bay Regional Prison near Hastings. Photo / NZME
They appealed their sentences to the High Court at Napier, on the basis the sentencing judge had set the starting point for their jail terms too high, had failed to maintain parity with their co-offenders, and “[failed] to accept as a mitigating factor the tikanga Māori principle of utu”.
In a recent decision, Justice La Hood found the disparity between the sentences handed down to Kaiwai and Babbington, compared to the other men, “would cause an independent objective observer to think the administration of justice has miscarried”.
He recalculated their jail terms, reducing the three years imposed to two years and one month for each man.
However, he rejected the argument 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,” Justice La Hood said.
“There would at least need to be pūkenga evidence [from tikanga Māori experts] to support the proposition that an orchestrated gang attack on a rival gang member in prison is consistent with utu,” he said.
“Moreover, recognition of utu would be contrary to binding authority that vigilante action is an aggravating rather than a mitigating factor.”
He made this finding despite the appeal citing the relatively light injuries sustained by the victim, and the final embrace, as supporting the contention that the attack was utu.
Counsel Cliff Church, acting for Kaiwai and Babbington, told the High Court the attack was the result of a decision “to act in a culturally Māori way; to maintain balance and harmony in the prison block and regain mana by performing reciprocal vengeance”.
For the Crown, Megan Mitchell said the argument that credit should be given for the principle of utu was “inappropriate”.
She said any recognition of utu, as claimed in the case, could not be reconciled with the fundamental principles of statutory and case law that applied.
Utu a ‘vexed issue’, judge says
Judge Thomas Ingram, who originally sentenced Kaiwai and Babbington, said earlier utu was a “vexed issue” and there had been no evidence before the court concerning it.
“The claim that utu can justify a discrete reduction in sentence is in my view not tenable, at least in this case, and probably not at all,” he said.
“The reason I say that is because vigilante action is a statutory aggravating factor, and I consider in the circumstances that this is a classic example of a vigilante action.
“It might have occurred within the prison system, and it might have involved members of rival gangs, but the underlying feature of this incident was clearly the infliction of physical 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 fall within the category of vigilante action, and in my judgment, this is a clear example of that.”
Corrections officers unaware
The attack was captured on the prison’s closed-circuit television system, but Corrections officers did not know it had taken place until the victim made his way to the control room about 15 minutes later.
The Department of Corrections said that, at the time, officers on the wing had been occupied elsewhere and the officer in the control room had been busy “monitoring the actions of another prisoner”.
Hawke’s Bay Regional Prison general manager George Massingham said an internal review found the time it took officers to respond was “impacted by staff not becoming aware of the assault immediately at the time it occurred”.
Once the victim reached the control room, he was given first aid, back-up was called, and the attackers secured.
In 2022, the Supreme Court determined unanimously that tikanga has been and will continue to be recognised in the development of New Zealand’s common law in cases where it is relevant.
Tikanga was relevant to the Ellis case, despite him being Pākehā, because it helped decide that his appeal should proceed after he had died.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, 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 writing in the crime and justice sphere is informed by four years of front-line experience as a probation officer.
