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Samuels v The Queen

Samuels v The Queen

Case [2018] VSCA 251 1 October 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0122

HAYDEN SAMUELS (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	1 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 251
JUDGMENT APPEALED FROM:	R v Samuels (a pseudonym) [2018] VCC 781 (Judge Tinney)

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CRIMINAL LAW – Application for leave to appeal against sentence – Two charges of rape – One charge of threat to kill – Victim applicant’s wife – Violence – Anal penetration contrary to Coptic religious faith – Anal injury – ‘Extremely serious’ offending – Absence of remorse – Exercise of dominion over victim’s body by using physical force and ignoring distress – Specific deterrence – General deterrence – Sentenced as serious sex offender on third charge – Total effective sentence of 10 years 6 months – Non-parole period of 7 years 9 months – Whether manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Thexton Lawyers
For the Respondent	No appearance	John Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Hayden Samuels (‘Samuels’)[1] applies for leave to appeal against sentence.[2] The sole proposed ground of appeal is manifest excess.
[1]To ensure there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the offender.
[2]R v Hayden Samuels (a pseudonym) [2018] VCC 781 (‘Reasons’).

Samuels was convicted, after trial by jury, of two charges of rape and one charge of making a threat to kill. He was sentenced in the County Court on 30 May 2018 to a total effective sentence of 10 years and six months’ imprisonment.

The details of his sentence are as follows:

Charge Offence Maximum Sentence Cumulation

3 Rape [Crimes Act 1958 s 38] 25 years 8 years Base

4 Rape [Crimes Act 1958 s 38] 25 years 8 years 2 years

5 Make a threat to kill [Crimes Act 1958 s 20] 10 years 2 years 18 months concurrent

Total Effective Sentence: 10 years 6 months

Non-Parole Period: 7 years 9 months

Pre-Sentence Detention Declaration: 82 days

Other relevant orders:

Declaration that the applicant is sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 in respect of charge 5.

Forensic Sample Order

Circumstances of the offending

The victim was Samuel’s wife of many years. The offences all occurred in 2015 at their family home in Taylors Hill. The victim was 46 years old and Samuels was 50 years old.

Samuels and the victim married in 1996 and have two children, a daughter and a son who were aged 18 and 14–15 at the time of the offending. The family emigrated from Egypt to Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Samuels v The Queen

Details

AGLC: Samuels v The Queen [2018] VSCA 251
Case: [2018] VSCA 251
Decision Date: 1 October 2018

CaseChat Overview and Summary

In the High Court of Australia, the case of Samuels v The Queen involved the applicant, a man convicted on two charges of rape and one charge of threatening to kill his wife. The applicant sought leave to appeal against the sentence imposed, which was a total effective sentence of 10 years and 6 months imprisonment, with a non-parole period of 7 years and 9 months. The applicant argued that the sentence was manifestly excessive, considering the nature of the offences and the circumstances.

The legal issues before the court were whether the sentence imposed was manifestly excessive, and if so, whether leave to appeal should be granted. The court had to consider the severity of the crimes, the applicant's lack of remorse, the specific and general deterrence aspects of sentencing, and the need to exercise dominion over the victim's body using physical force and ignoring her distress. The court also had to consider the total effective sentence and non-parole period imposed by the trial judge.

The High Court held that the sentence was not manifestly excessive. The court found that the applicant's offending was extremely serious, involving violence and acts contrary to the victim's religious beliefs. The court also noted the absence of remorse and the need for both specific and general deterrence. The total effective sentence and non-parole period were deemed appropriate, taking into account the seriousness of the crimes and the need to protect the community. The court concluded that the applicant had not demonstrated that the sentence was manifestly excessive and therefore refused the application for leave to appeal.

No further orders were made by the court beyond the refusal of leave to appeal.

Orders