R v Samoa

[2016] NZHC 2731

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF CO-OFFENDER'S TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-441-000010

[2016] NZHC 2731

THE QUEEN

v

JOSEPH SAM SAMOA

Hearing:

15 November 2016

Appearances:

S Manning for the Crown

E R Fairbrother QC for the Defendant

Judgment:

15 November 2016

SENTENCING NOTES OF EDWARDS J

R v SAMOA [2016] NZHC 2731 [15 November 2016]

Solicitors:           Crown Solicitors, Auckland Counsel: E R Fairbrother QC, Napier

Introduction

[1]    Mr Samoa you appear for sentence having pleaded guilty to one count of wounding with intent to cause grievous bodily harm. The maximum penalty for that offence is 14 years’ imprisonment.1 The only issue in your case is whether a finite sentence or a sentence of preventive detention should be imposed.

[2]    Before I go on I wish to recognise the presence of Mr Poi and Mr Poi’s family and support here today and acknowledge the devastation caused to Mr Poi and his family by the attack.

Offending

[3]    The offending took place in March 2015 at Hawkes Bay Regional Prison. You, a co-offender, and Mr Poi were all prisoners in the same unit. You arranged for the victim’s pregnant partner, Ms Mohi, to smuggle a package of contraband into the prison on the prison’s family day. The package was not delivered as planned.

[4]    When you and your co-offender discovered that fact, you approached Mr Poi and returned with him to your co-offender’s cell. Your co-offender and Mr Poi entered the cell first, and you followed approximately 12 seconds later. There you, and your co-offender, viciously beat Mr Poi.

[5]    Mr Poi suffered multiple fractures to the left side of his face including his jaw, nose, cheek and eye socket. Multiple teeth were dislodged and significant bleeding was caused around his brain. This caused a traumatic brain injury from which Mr Poi is unlikely to recover. Those injuries were the result of blunt force trauma and appear to have been caused by multiple stomps to the left side of Mr Poi’s head.

[6]    Following the attack, your co-offender left the cell, but you remained and attempted to bring Mr Poi back to consciousness by sitting him up and splashing water

1      Crimes Act 1961, s 188(1).

on his face. After about 20 minutes your co-offender instructed another prison inmate to get Mr Poi out of the cell. At this point in time, Mr Poi was unconscious with his tongue obstructing his breathing. The other prison inmate forced it forward and rolled Mr Poi into the recovery position. That action may well have saved Mr Poi’s life. The other prisoner persuaded you to help him take Mr Poi to the guard office where emergency medical assistance was requested and Mr Poi was taken to Hawkes Bay Hospital.

[7]    You initially denied any involvement in the attack, then later claimed  that  Mr Poi was already unconscious when you entered the cell.

Victim impact statements

[8]    Mr Poi’s partner, Ms Mohi, has provided a victim impact statement setting out the devastating impact the offending has had on Mr Poi and their family, including their son born after the attack. She states that Mr Poi is a broken shell of a man who will never recover from his injuries and will require assistance for the rest of his life. As well as caring for Mr Poi, Ms Mohi also has to deal with her own grief and sadness at the loss of her partner and the way that this has destroyed her own life.

[9]    I have considered two statements from medical professionals who attended Mr Poi. One records that during the 39 days he was in intensive care, Mr Poi never fully woke up. The other statement confirms that from a diagnostic perspective Mr Poi would meet the criteria for a major neuro-cognitive disorder.

[10]The harm caused by your offending Mr Samoa is significant and ever-lasting.

Sentencing framework

[11]   The Sentencing Act 2002 sets out the relevant principles and purposes of sentencing. Those which are relevant in your case are the need to hold you accountable for the harm done to Mr Poi; the deterrence of you and others from similar offending; the denouncement of your behaviour; and the protection of the community.

[12]   I approach the sentencing by first assessing the finite sentence that would otherwise be imposed, and then considering whether preventive detention is appropriate.

Finite sentence

Starting point

[13]   The first step is to set a starting point. R v Taueki sets out the three sentencing bands for grievous bodily harm offending.2 Both parties agree that your offending falls within Band 3 of R v Taueki. That band attracts starting points of nine to fourteen years.3

[14]   There is also agreement on the following aggravating features of your offending:

(a)First, the extent of violence and injury. Mr Poi suffered multiple serious facial fractures, bruises, lacerations and swelling. He suffered traumatic brain injury with permanent long-term effects;

(b)Second, the fact that the attack was to the head. The blows inflicted on Mr Poi were almost exclusively targeted at his head. The only other injuries were bruises to his chest and an abrasion on his abdomen;

(c)Third, the fact that Mr Poi was in a vulnerable position alone with you and your co-offender in a small prison cell with no ability to escape or seek help;

(d)Fourth, the fact that the assault involved two offenders.

[15]   Your counsel disputes that the attack was premeditated. I do not agree. The attack was neither impulsive nor spur of the moment. The victim was directed towards your co-offender’s cell. The very purpose in doing so was to ensure that he faced the

2      R v Taueki [2005] 3 NZLR 372 (CA).

3 At [13].

consequences  of  the  failed  delivery  of the contraband.    Premeditation is another aggravating feature of your offending.

[16]   I accept that the violence may already have been underway when you first entered the cell. However, I do not consider that this greatly assists you. As the Court of Appeal noted in Mafi v R, it is artificial to differentiate between the roles played by the two of you in a joint attack of this type.4

[17]   I have taken into account that you tried to assist Mr Poi following the attack by sitting him upright and splashing water into his face. I also take into account that you eventually sought help for Mr Poi, although the delay was significant and it was only as a result of another prison inmate’s intervention that Mr Poi remains alive today.

[18]   Taking these aggravating factors in combination, and in particular the extent of Mr Poi’s injuries, I consider the overall gravity of the offending falls at the lower end of Band 3 of Taueki.

[19]   The principle of consistency requires me to have regard to other cases involving comparable offending in setting the appropriate starting point. I have had regard to those cases cited to me by the Crown.5

[20]   I consider the offending to be broadly comparable to that in Rowles v R although slightly less serious.6 A starting point of ten and a half years was considered high but within range in that case. Similarly, the offending is broadly comparable to the offending in Mafi where permanent brain damage was caused. The Court of Appeal considered a 10 year starting point was stern, but within range.

[21]   The Crown submits that a starting point of 10 years’ imprisonment is appropriate. Your counsel submits nine years’ imprisonment would be justified. Taking into account the aggravating features of your offending and comparable cases I adopt a starting point of nine and a half years.

4      Mafi v R [2015] NZCA 408 at [52].

5      R v Wereta [2015] NZHC 2248; Tuau v R [2013] NZCA 623 and Mafi v R, above n 4.

6      Rowles v R [2016] NZCA 208.

Personal aggravating and mitigating features

[22]   The next step is to consider adjustments for personal aggravating and mitigating features.

[23]   In terms of aggravating factors, the most significant is your previous conviction for two charges of murder, one of attempted murder, and nine aggravated robberies. It is for this offending that you are serving a sentence of life imprisonment with a minimum non-parole period of 22 years. Because this offending is relevant to the preventive detention sentence also, I briefly address it here.

[24]   Your previous offending involved a series of aggravated robberies between December 2001 and May 2002. Two of the robberies resulted in two innocent men being murdered, and the attempted murder of a third man. You pleaded guilty at the outset to five of the nine aggravated robberies, and you were found guilty in respect of the other charges.

[25]   You were not present when the gun was fired that killed the two innocent men. However, you were involved in the planning of the robberies, the provision of weapons and disguises, and you encouraged the principal offender to carry out the robberies. In sentencing you, Randerson J said that you and another co-offender were the brains behind the offending which probably would not have occurred without your involvement. He regarded you as being at least equally culpable with the principal offender who fired the gun.7

[26]   I agree with the Crown that an uplift is appropriate for those prior convictions. In determining that uplift, I take into account that you should not be punished twice for the same offending. I apply an uplift of 12 months for your prior convictions. That brings the sentence to ten and a half years.

[27]   In terms of mitigating features, your counsel submits that you are clearly motivated to engage in appropriate programmes and are frustrated at your exclusion from such programmes until you are eligible for parole. I am not persuaded that this

7      R v Samoa HC Auckland TO23161, 19 February 2004 at [49]-[50].

factor is sufficient to warrant any discount. Nor am I persuaded that any expressions of remorse or regret are genuinely held. The health assessor reports I have received indicate a tendency to minimise the impact of your offending and you have given differing accounts of your involvement in the offending. I decline to grant any discount for mitigating factors.

[28]   The final issue is a discount for the guilty plea. You were originally charged on 22 August 2015 and initially pleaded not guilty and elected a jury trial. You then changed your plea to guilty on 21 April 2016. The Crown case against you appeared relatively strong given CCTV footage outside the cell and the injuries witnessed by others. Whilst I accept that you were cautioned to wait until the case against you was fully considered before entering a guilty plea, I nevertheless consider a full 25 per cent discount cannot be justified in the circumstances. I adopt a 20 per cent discount for the early guilty plea. That brings the sentence to eight years five months.

Minimum period of imprisonment

[29]   The final issue to consider in terms of a finite sentence is whether a minimum period of imprisonment should be imposed.

[30]   Under s 86 a minimum period of imprisonment may be imposed where the period otherwise applicable would be insufficient to hold the offender accountable for the harm; denounce the conduct; deter the offender and/or protect the community.

[31]   I consider a minimum period of imprisonment of 50 per cent (or four years two months) is appropriate given the need for deterrence in the prison context and to hold you accountable for the severity of your offending.

[32]   I am severely constrained by the Sentencing Act as to what I can do in terms of a finite sentence. Whilst a finite sentence may have no practical effect on your parole eligibility date, it will, nevertheless, mark the seriousness of your offending and that is something that the Parole Board may take into account when considering your release.

Finite sentence

[33]   A finite sentence would therefore result in eight years, five months imprisonment with a minimum period of imprisonment of four years and two months.

Preventive detention

[34]I next turn to consider the question of preventive detention.

[35]   The imposition of a sentence of preventive detention requires first an assessment of whether the pre-conditions in s 87(2) are met. If they are, then the imposition of preventive detention involves the exercise of a discretion which requires the evaluation of the factors set out in s 87(4).8

[36]   I turn to consider first whether the pre-conditions in s 87(2) are met. There is no dispute that the first two preconditions are met in your case. The only issue is whether I am satisfied that you are likely to commit another qualifying offence if you are released at the sentence expiry date of any sentence able to be imposed.9

[37]   I have had regard to the pre-sentence report and the three health assessor reports in assessing that likelihood.

[38]   The pre-sentence report records your risk of reoffending and risk of harm to others as high. The writer of that report notes that there is little evidence to suggest that any realistic rehabilitative intervention is available to you whilst in prison to mitigate that risk.

[39]   In Dr Lokesh’s opinion, you have a high risk of future offending. However, Dr Lokesh notes the difficulty in assessing the likelihood of further serious offending so far into the future, and where you are already serving an indeterminate sentence. Dr Lokesh’s opinion is based on the serious nature of your historical and current offending, your drug and alcohol problem, and his assessment of you as having an

8      Leonard v R [2013] NZCA 553 at [7]-[8].

9      Sentencing Act 2002, s 87(2)(c)

anti-social and narcissistic personality. In the absence of treatment for drug and alcohol abuse, he considers that you will tend to commit serious offences in the future.

[40]   Dr Jones’ opinion is that you have a moderate risk of violent offending during the remainder of your non-parole period of incarceration. He too considers that the earliest possible release date is too far in the future to estimate the risk of violent reoffending in the community thereafter. He is of the view that the risk of violent reoffending could be reduced through attendance at suitable treatment programmes.

[41]   Dr Barry Walsh considers attempts to predict the likelihood of reoffending to be problematic and has instead focused on factors which are personal to you. He refers to your history of violence, the 2002 convictions, and the fact that methamphetamine use was a critical feature of that offending. He considers that you showed insight, remorse and empathy for your victims although he acknowledges that was brought into question by your recent offending and the differing accounts you gave about your involvement in the beating. He notes your previous employment history and your ability to maintain a long stable relationship over a period of approximately 10 years. He believes that you may engage well with interventions which could assist in diminishing the risk of further offending.

[42]   Those reports are of substantial assistance, but ultimately the evaluation as to the likelihood of another qualifying violent offence being committed on expiry of the sentence, is mine to make.

[43]   I have weighed the facts of the index offending, the pattern of past offending, the seriousness of harm done, rehabilitative efforts, and the assessments of the tendency to reoffend. I accept that there are a number of factors which suggest that there is a risk of future violent offending. The horrific brutality of the injuries inflicted on Mr Poi, and the scale of the 2002 offending, are the strongest of those factors. I do not disregard Dr Lokesh’s opinion that there is a high risk of further offending. But, a risk of future offending is not enough. The test requires me to be satisfied that you are likely to commit another qualifying offence if released at the sentence expiry date.

[44]   I have given your case careful and considered attention Mr Samoa. Ultimately, I have concluded that I cannot be so satisfied of that likelihood for the following reasons:

(a)First, the sentence expiry date is too far into the future to be able to accurately predict the likelihood of reoffending. That is frankly acknowledged in the health assessor reports.

(b)Second, the 2002 offending, whilst very serious, was over a relatively confined period of time. You were not directly involved in the physical violence which resulted in the deaths of two men, and were not present when they were killed.

(c)Third, prior to the 2002 offending, you only had two previous convictions, none of which involved serious violence. There is no extended history of serious criminal offending in your case which might be indicative of a future risk on expiry of your sentence date.

(d)Fourth, prior to the 2002 offending you maintained a stable and non- violent relationship with your ex-wife. You also maintained employment. The 2002 offending appears to have been fuelled by methamphetamine use, although greed was noted as a motivating factor. Your ability to maintain a stable relationship and employment is a positive indicator for you.

(e)Fifth, the pre-sentence report records that up until this horrific event, the prison services view of you was that you were a mentor to other prisoners and otherwise compliant. Prison notes indicate overall good progress and you were described as respectful.

(f)Finally, and most importantly, you have not had an opportunity to participate in rehabilitation programmes despite a desire to do so. The report writers suggest that rehabilitation efforts may mitigate your risk of re-offending in the future. Dr Jones recommends psychological

intervention in the interim and that appears, at least, at present to be an option open. Other programmes to address your substance abuse issues are clearly warranted and if there was an opportunity to engage in those  earlier  than  that  would  be  imperative  that  you  do  so.  Dr Lokesh’s opinion was that in the absence of that drug and alcohol intervention there would be a tendency to commit serious offences in the future, and as I have mentioned Dr Jones expressed the view that the risk of reoffending could be reduced through rehabilitation. Participation in rehabilitation programmes designed to address those issues is therefore essential to mitigate the risk of future harm.

[45]   The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members. It is not punitive. It can only be imposed if there is a likelihood that another qualifying violent offence will be imposed if the person is released at the sentence expiry date. Taking all these factors together, I am unable to be satisfied as to the likelihood of a further violent offence being committed at the expiry of the sentence date. That means the precondition under s 87(2)(c) has not been met, and I do not have jurisdiction to impose a sentence of preventive detention in your case.

[46]   Mr Samoa, the decision I have reached today has not been an easy one. The brutality of your attack on Mr Poi is truly horrifying. You are on the cusp of a sentence of preventive detention. Future offending may well attract that sentence. I truly hope that it will not come to that and that there will be no other victims of offending at your hands. But you are nevertheless on notice.

Sentence

[47]Mr Samoa please stand.

[48]   On the charge of wounding with intent to cause grievous bodily harm, I sentence you to eight years and five months imprisonment and impose a minimum period of imprisonment of four years and two months.

[49]Mr Samoa, please stand down.

Edwards J