R v Sampson-Arps
[2022] NZHC 2720
•19 October 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-1055
[2022] NZHC 2720
THE KING v
SHANE DAVID SAMPSON-ARPS
Hearing: 19 October 2022 Appearances:
P N M Brown for Crown K J Basire for Defendant
Sentencing:
19 October 2022
SENTENCING REMARKS OF EATON J
R v SAMPSON-ARPS [2022] NZHC 2720 [19 October 2022]
Introduction
[1] Shane David Sampson-Arps is to be sentenced, having pleaded guilty to causing grievous bodily harm with intent to injure,1 arson2 and perverting the course of justice.3
Facts
[2] The facts of your offending, Mr Sampson-Arps, have been captured in the prosecution summary of facts.
[3] You were a patched member of the Mongrel Mob Barbarian Stormtrooper faction. At approximately 7 pm on 13 November 2020, you and the victim were at an associate’s address in Christchurch for a birthday party. You had with you a hoodie with a Stormtrooper gang insignia printed on it and you began posting photos on the Mongrel Mob Facebook page of people at the party wearing the hoodie.
[4] That upset other gang members and a short time later the victim’s brother, who was also a patched member of the same faction, arrived at the address with others and demanded the hoodie. This led to a fight between you and the victim’s brother outside of the address.
[5] The victim stepped in and attempted to break up the fight. That angered you, and you began striking the victim repeatedly in the face with closed fists until he fell to the ground. He got back to his feet and told you that you still had not knocked him out. He then spat at you. You again punched him in the head, causing him again to fall to the ground. While he was on the ground you kicked his body.
[6]Police arrived soon after and you hid inside the party address.
[7] You continued drinking throughout the evening and you continued to be very angry.
1 Crimes Act 1961, s 188(2): maximum penalty of seven years’ imprisonment.
2 Section 267(1)(b): maximum penalty of 14 years’ imprisonment.
3 Section 117(e): maximum penalty of seven years’ imprisonment.
[8] At around 11.45 pm you picked up a screwdriver and you left the address. You were looking for your victim’s brother’s vehicle. Unable to find his vehicle, you popped the rear corner window panel of the victim’s vehicle. You reached inside, lighting the rear passenger seat cover with a lighter. The flame spread quickly, engulfing the inside of the vehicle and ultimately burning it out completely.
[9] This offending resulted in the charges of causing grievous bodily harm with intent to injure and arson. You were remanded in custody following your arrest in early February 2021.
[10] The charge of perverting the course of justice relates to a series of outgoing prisoner phone calls that you made to various people while you were on remand. On 17 February 2022, that is a year after your arrest, the Police were notified by the victim that the Barbarian Stormtroopers gang had sent out a threat to set him on fire if he attended court to give evidence against you.
[11] In response the Police obtained a production order for the recordings of your phone calls made from the prison. Those were reviewed by the Police and a number of calls were found to contain relevant material. Over a period of about six months, from March to August 2021, you had made nine separate phone calls to family and associates. Each call had a common purpose, to try and stop the victim giving evidence against you.
[12] After an initial series of calls you made in March, April and May, on 27 July 2021 you called a family member and asked “[s]o they’re just not going to arrive?”, to which they replied “[y]eah, and then you’ll owe him a car or whatever”. You responded:
Who ? [you then referred to the person who it appears was taking the steps on your behalf to dissuade the victim], Yeah, that’s alright. I just need to make sure that it’s all concrete because I can’t risk it going all the way there, and then yeah.
[13] Later that day you called that family member again and that person said: “He’s here, but he doesn’t want to chat. He doesn’t want to incriminate himself, but it’s all good.”
[14]On 17 August 2021, you called again and stated:
Oi that fucker is still appealing my bail. Opposing my bail. So he’s not on side. I fucking went to bail yesterday, and he told them no. He told them that he didn’t want me out. Can you try and sort it out for me?
[15] Those are the essential facts behind the charge of attempting to pervert the course of justice. As acknowledged by your guilty plea, you were actively engaged in having others acting on your behalf to dissuade the victim from giving evidence.
Victim impact statement
[16] The victim, Mr Shirley, has explained through his victim impact statement that what happened that night was, in his words, completely over the top. He says he was simply trying to diffuse the situation between you and his brother, and you reacted in a way that went well beyond what he considered to be a “normal” fight.
[17] As a result of the assault, he sustained a broken jaw requiring a metal plate to be inserted and to this day he has trouble eating and closing his mouth. There have been really serious impacts for his mental health. He has explained that he feels his brain has been damaged since the assault, the assault has affected his mood, and he has become paranoid about leaving his home. He no longer feels safe and he has constant anxiety about being assaulted. His car, which I am told was worth about
$1,750, has been written off.
Starting point
[18] Mr Sampson-Arps, the Sentencing Act 2002 informs the approach that I must take in fixing your sentence. I must consider the purposes and principles of sentencing as set out in the Act. I have got to assess a starting point to reflect your culpability. The starting point is determined by reference to aggravating and mitigating facts of your offending and by reference to other cases that are similar to your case. I will consider the appropriate starting point for each of the three offences and I will have regard to the totality principle. After that, I will consider what adjustments are appropriate to be made to that starting point to reflect your personal circumstances.
Grievous bodily harm with intent to injure
[19] The guideline judgment for causing grievous bodily harm with intent to injure is Nuku v R.4 In that case, the Court of Appeal set three bands of violent offending involving intent to injure. The bands are set by reference to aggravating factors which are identified in another tariff case, R v Taueki.5
[20] Band one applies where there are few aggravating features, where the level of violence is relatively low, and the sentencing Judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge. There is no suggestion band one applies in your case. Band two applies where there are three or fewer aggravating factors. In that band, a starting point of up to three years’ imprisonment will be appropriate. Band three applies where there are three or more of the relevant aggravating features and the combination of those features is seen as particularly serious. In those cases, a starting point of two years up to the statutory maximum sentence will apply.
[21] Ms Brown, on behalf of the Crown, submits there are three aggravating features that apply to your case. The first is that you attacked the head of your victim.6 That is undoubtedly an aggravating feature and is acknowledged by your counsel, Ms Basire. You landed heavy, full force, punches to the head of the victim. They knocked him to the ground. After he had got to his feet again, you attacked his head with a series of punches. There can be little doubt that this was a serious assault involving you attacking the head of your victim.
[22] The Crown submits the harm and the serious injury that you caused to the victim is a further aggravating factor and Ms Brown refers to the trauma suffered by your victim, who still has the effects of a broken jaw and a head injury.7 The injuries are both physical and mental. On your behalf, Ms Basire does not dispute that the injury you inflicted was serious, rather she argues that the fact of a serious injury is reflected in the charge that you have pleaded guilty to, and it would therefore be wrong
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
5 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
6 At [31(e)].
7 At [31(c)].
to treat the victim’s injury as an aggravating factor of the offending. There is merit in that submission, and I agree care is needed in considering this aggravating factor. The reality is that the violence you inflicted, whilst not causing what on the face of it was a really serious injury, has had really lasting consequences for your victim. He still suffers today. So I find the injury is an aggravating factor, but only to a moderate degree.
[23] A third aggravating feature identified by the Crown is the allegation this offending is gang related.8 I agree with Ms Basire that the Court of Appeal did not intend in-house fighting between members of the same gang to fall under the banner of “gang-warfare” as an aggravating feature of a serious assault. Rather, in my view, that aggravating feature is directed at inter-gang violence, with the potential that has for escalating and extreme violence.
[24] In my view, there is a further aggravating factor again, albeit one of only moderate application, and that is the vulnerability of your victim.9 You continued the assault after he had been knocked to the ground and got to his feet, but you also kicked him about the body after he had gone to ground the second time when it appears he was defenceless and, therefore, vulnerable.
[25] There is agreement between counsel that your offending falls under band two of Nuku.10 Ms Brown contends for a starting point of three years’ imprisonment. Ms Basire, by reference to Wynd v Police, submits a starting point of two years’, six months’ is appropriate.11
[26] A starting point of two years and 10 months was adopted by Woolford J in R v Harrison.12 In that case, the offender attacked his father-in-law after an argument. The victim was punched at least four times in the face and suffered a cut above his eye, significant swelling and bruising, a fractured eye socket, nasal, cheek and jaw
8 R v Taueki, above n 5, at [31(k)].
9 At [31(i)].
10 Nuku v R, above n 4.
11 Wynd v Police [2013] NZHC 1270.
12 R v Harrison [2022] NZHC 801.
bones and a small bleed to the frontal area of his brain. He had lost consciousness and spent a week in hospital.
[27] I have also considered the case of Kauvai v R.13 The offender in that case was drunk and harassing a woman. A bystander intervened and the offender punched him in the head. He threw the woman, causing her to hit her head and lose consciousness. When he went to lift her up the same bystander again intervened. The offender threw the bystander to the ground and punched and kicked him, fracturing his jawbone. He required surgery and metal plates. The Court of Appeal upheld a starting point of two years, 10 months’ imprisonment for the charge of injuring with intent to injure the bystander.
[28] Ultimately, each case will turn on its own individual facts and relatively little assistance is gained from references to High Court decisions.14 I acknowledge the circumstances of your assault that Ms Basire has outlined this morning. As submitted by her, those circumstances do not amount to provocation so as to mitigate your offending, but I do accept that the initial assault was not gratuitous on your behalf. In my view, your offending does fall within band two of Nuku and a starting point very close to that taken in Harrison and Kauvai is appropriate. I fix a starting point of two years and nine months’ imprisonment for the assault charge.
Arson
[29] Counsel are in agreement that I should impose an uplift to that starting point to reflect the arson offence. There is no guideline decision for the offence of arson.15 Each case will turn on its own facts. The Crown acknowledge that this offending falls to the bottom end of an intentional arson, given there was very limited risk to persons, the comparatively low value of the damaged vehicle, and because the offending was not so much premeditated by you but more a reflection of the level of anger that you still had after the fight. Anger that you had towards both the victim’s brother and the victim.
13 Kauvai v R [2017] NZCA 241.
14 See Kauvai v R, above n13, at [13].
15 R v Gilchrist CA429/90, 15 April 1991; Ollerenshaw v R [2010] NZCA 32 at [17]; and R v Z (CA138/00) 27 June 2000 at [6].
[30] The Crown has referred to three cases said to be similar and of relevance in setting the starting point.16
[31] The offender in Keen v R went to a motel in Christchurch and unlawfully entered different units.17 After failing to enter a particular unit she entered a campervan, stole some beer and set the campervan alight. That campervan was valued at $27,000. The Judge considered there to be inherent danger to the public which was aggravated by the offending occurring in the course of committing another crime. A starting point of up to two years was said to be available but adjusted to 12 months having regard to totality. And the Court of Appeal upheld the sentence.
[32] In Cox v R, the appellant set a fire under the wheel arch of a vehicle in a driveway parked within two metres of a dwelling house where the occupants were sleeping.18 The fire caused about $2,000 worth of damage. The appellant faced a second charge of arson involving setting fire to a baby’s pram up a driveway, causing about $12,000 of damage. The starting point of three years for both offences was considered by the Court of Appeal to be well within range.
[33] In Lefebvre v Police the appellant had an argument with her partner, she filled a petrol container with petrol from a nearby petrol station and dowsed that newspaper in the petrol, before pushing the newspaper through a window of her partner’s home near the curtains. She had removed a garden hose before lighting the fire.19 She had acted in anger and frustration. A starting point of three years’ imprisonment was confirmed on appeal.
[34] By reference to those cases, the Crown contends a starting point in the vicinity of two years’ imprisonment for the arson would be appropriate as a stand-alone sentence.
16 Keen v R [2014] NZCA 299; Cox v R [2013] NZCA 194; and Lefebvre v Police HC Christchurch CRI-2008-009-2907, 10 July 2008.
17 Keen v R, above n 16.
18 Cox v R, above n 16.
19 Lefebvre v Police, above n 16.
[35] Ms Brown proposes a one-year uplift to the grievous bodily harm charge to reflect the offence of arson. Ms Basire, on your behalf, contends for a starting point in the vicinity of 12 to 18 months and an overall uplift for the arson in the vicinity of 12 months.
[36] I find myself in agreement with counsel and I fix an uplift of 12 months’ imprisonment for the arson which leads to an adjusted starting point of three years, nine months’ imprisonment.
Attempting to pervert the course of justice
[37] I now turn to the offence of attempting to pervert the course of justice. Mr Sampson-Arps, I am sure you have had time to think about it, but I hope you appreciate the courts take a really dim view of anybody who engages in acts intended to dissuade witnesses from giving evidence before a court. In 2013 our Court of Appeal said:20
Interfering with a witness so as to prevent him or her from giving evidence is a matter of grave concern and is to be met with a strong response commensurate with the threat that such conduct poses to the administration of justice.
[38]More recently, in 2021, the Court said:21
[23] The charge of attempting to dissuade a witness from giving evidence is more serious [than the other charges that appellant was facing]. Such offending strikes at the heart of the administration of justice and it requires a condign and deterrent sentence.
[39] Ms Brown refers to three aggravating factors of your offence. First, that your offending occurred over a period of six months. Second, that it involved the victim being sent a threat that he would be set on fire, a threat that followed nine separate phone calls made by you to family and associates indirectly pressuring the victim not to give evidence against you. And third, the impact your offending has had on the victim.
20 M v R [2013] NZCA 385 at [9]–[10].
21 Williams v R [2021] NZCA 54, (2021) 29 CRNZ 783.
[40] Ms Basire reminds me that when your various phone calls were made a trial date had not been set, and that you ceased your attempts to dissuade the victim from giving evidence about a year prior to the police investigating this particular offence. And that is true. Effectively it seems you gave up on that attempt. I do not, however, regard those factors to be of any great mitigation. Ms Basire submits that a starting point of two and a half to three years’ is appropriate.22
[41] Both counsel have referred me to a Court of Appeal decision in Harting v R.23 In that case, the appellant faced charges of violence in relation to a former partner. He wrote a letter to one of his adult step-children suggesting the complainant swear an affidavit saying she had fabricated the allegations. The letter was given to the police. The appellant had also called the step-child three times to encourage the complainant to withdraw the charges. A starting point of two years’ imprisonment was upheld on appeal.
[42] In Ledgerwood v R the appellant’s brother was facing assault charges.24 The appellant contacted the complainant via Facebook, describing the complainant as a “snitch” and a “nark” and made veiled threats intending to dissuade her from giving evidence. A starting point of three years’ imprisonment was upheld on appeal.
[43] And a starting point of three and a half years was upheld on appeal in Miller v R for an appellant who wrote a letter from prison to the former partner of another inmate who was awaiting trial.25 The purpose of the letter was to dissuade the complainant from giving evidence. The complainant ultimately gave evidence and was taken into the witness protection programme.
[44] Finally, in R v Potter, a starting point of three years’ imprisonment was confirmed by the Court of Appeal for an appellant who had placed pressure on a young relative, who was a complainant in a sex trial, to lie and retract allegations.26
22 Harting v R [2016] NZCA 296.
23 Harting v R, above n22.
24 Ledgerwood v R [2017] NZHC 822.
25 Miller v R [2014] NZCA 382.
26 R v Potter [2015] NZCA 25.
[45] Mr Sampson-Arps, I think the conduct that you engaged in was a concerted and prolonged, albeit unsophisticated, attempt to dissuade the victim from giving evidence. The gang connotations aggravate the offending. It is little wonder the victim has suffered as a consequence of being a target of your offending. Having regard to the authorities and the principle that any attempt to disturb the administration of justice should be met with a moderately lengthy sentence of imprisonment, commensurate with the threat that such conduct poses to the administration of justice, I consider that a starting point of three years’ imprisonment is appropriate.
Totality adjustment
[46] That leads to a global starting point of six years and nine months’ imprisonment. I consider all three offences and stand back and ask myself whether the starting point ought to be adjusted to reflect the totality principle.27 I do consider the starting point of six years and nine months’ imprisonment to be wholly out of proportion to the gravity of all of your offending, such that an adjustment is necessary. Both counsel are in agreement that a totality deduction is appropriate. I allow a further 12-month deduction to reflect totality. That leaves a final starting point before adjustment for personal considerations of five years and nine months’ imprisonment.
Personal factors
[47] The next step in fixing sentence is to consider whether there should be any uplifts or discounts from that starting point because of factors personal to you.
Personal aggravating factors
[48] The Sentencing Act requires that I look at your criminal history and assess whether there should be an uplift, that is an increase, in the starting point to reflect your history, particularly your history of violent offending.28
[49] But for the repeal of the three strikes legislation, the grievous bodily harm charge that you are being sentenced on today would have been your third strike
27 Sentencing Act 2002, s 85
28 Section 9(1)(j).
offence. In July 2012 you received a first strike warning for a serious assault. In May 2017 you received a second strike warning for kidnapping. You were convicted of assault in 2014, assault with intent to injure in March 2020, the same offence again in April 2020 and another common assault in December 2020. The sad reality is that violence has been a feature of your life in recent years.
[50] An uplift is not imposed to punish you again for offences for which you have already been sentenced, but to recognise that previous sentences have failed to deter you from violent offending. An uplift is also appropriate to protect the community from the risk that your violent offending poses.
[51]I fix an uplift of six months to reflect your previous convictions.
[52] The assault and arson offences were committed while you were serving a sentence of home detention. An uplift is also appropriate to reflect that. If you had been complying with your sentence you would have been at home and not at your associate’s birthday party. The fact that you breached the sentence shows a willingness to breach court orders. The fact that you commit serious offences while breaching the sentence, indicates that, certainly at that time, you had very little respect for court orders. Both your counsel and the Crown are in agreement that a discrete uplift of three months is appropriate to reflect your offending whilst serving a sentence of home detention. I agree. That brings the total uplift to one of nine months which equates to about 13 per cent of the overall starting point.
Personal mitigating factors
Cultural and psychological reports
[53] I have been provided with a court ordered psychologist’s report from October 2020, a February 2022 report from Consultant Clinical Psychologist, Craig Prince, a s 27 Cultural report prepared by Shelly Turner and a pre-sentence report. Those reports tell me a great deal about your upbringing and all the challenges you have faced. It is not a happy story Mr Sampson-Arps. I accept that. Please be assured I have read the reports very carefully. It is not necessary for me in these sentencing notes to refer to the detail of your past, and particularly your childhood. They are very
private matters. I accept and recognise it took some courage for you to open up to others, to confront your personal vulnerabilities and to acknowledge what I read as an acceptance that you are in dire need of help if you can ever be a responsible parent to your three children and steer them down a different path to the path that your life has taken you to date.
[54] When I read those reports, I look for a causative connection between where you come from, what has shaped you and what has led to your offending. That is not to excuse your offending, but to allow me to make a true assessment of your culpability, recognising we are all shaped by our past, a past over which we might have little or no control. I am also looking for any signs that what appears to be an entrenched cycle of offending might not be so deeply woven into who you are, that there is a prospect of breaking the cycle.
[55] Having read the reports about your past, I have no doubt your impulsive and violent tendencies are a consequence of your past trauma, your consequential mental health issues, complicated and aggravated by your methamphetamine addiction. In my view, the causal connection is real. And I do sense that you have some insight as to what has led you to where you are and what you need to do to change course. That means you do have potential or, as Ms Basire said this morning, you are not a lost cause. But it undoubtedly is going to take much hard work and intensive interventions, and I agree that the STURP programme seems to be a good starting point.
[56] The question of what level of credit is appropriate to reflect your past and its causal connection to your offending is a difficult one. The Court of Appeal in McMillan v R recently gave guidance as to the appropriate level of credit.29 The Court said this in relation to one of the defendants:30
[148] Mr Philip had the advantage of a thorough and supportive s 27 report that disclosed a traumatic childhood with intergenerational history of social and economic deprivation leading to dependence on drugs for most of his adult life. The Judge allowed a 30 per cent discount for these personal factors. This Court treats 30 per cent as being at the upper end of discounts available for such personal factors, with 15 per cent being a much more usual discount in
29 McMillan v R [2022] NZCA 128.
30 Emphasis added, footnotes omitted.
cases where a causal link is made out between offending and seriously disadvantaged personal backgrounds.
[57] Ms Basire seeks a deduction of 20 per cent to reflect the matters raised in the reports and your prospects for rehabilitation. Ms Brown accepts a deduction is available. She submits that it ought to be less than 20 per cent. She leaves it to the Court to fix the level of deduction.
[58] I fix the further deduction to recognise your personal circumstances and your willingness to engage in rehabilitation at 20 per cent. Included within that deduction is my recognition of your remorse—which I accept to be genuine—as evidenced in the various reports that I have read, as I hope, and I am sure, is recognised in the letter that you have written to the victim that I have not seen, and in your willingness to engage in a restorative justice conference. As I understand it, the victim was also prepared to meet you in a restorative justice conference. But it was deemed inappropriate for that conference to be held, without any explanation of the reasons for that. Given where I sense you are at, at the moment in terms of your thoughts about your past and your future, and given what I read between the lines about the victim and his attitude towards you, I would have thought there is some great benefit for both of you in participating in a restorative justice conference and I certainly encourage Ms Basire to take the steps she outlined this morning to follow that up after this sentencing. And I encourage you, if you do get the opportunity, to embrace that.
Guilty pleas
[59] Finally, I consider your guilty pleas. You entered an early guilty plea to the charge of perverting the course of justice. The plea to the arson charge was entered in April 2022. The plea in relation to the violence charge was entered a very long time after that charge was laid. The plea was entered following amendment, lessening the seriousness of the offence, and then after the three strikes legislation was repealed. The Crown acknowledges that your guilty pleas have some significance in reducing the impact on the victim and other witnesses, and, of course, saving cost to the State. The Crown acknowledges a guilty plea discount of 15 per cent is appropriate. Ms Basire supports that level of discount.
[60] Quantifying the level of discount for a guilty plea must be particular to the circumstances of the case at hand. I accept there is benefit to the victim of your offending in that they no longer have to give evidence and I can understand your position in deferring a guilty plea pending the repeal of the three strikes legislation. I acknowledge that you were highly stressed awaiting the repeal of that legislation because of the consequences it would have otherwise have had for you. I acknowledge your plea came shortly after the Crown agreed to amend the charge. That is a circumstance which ordinarily might justify a full credit of 25 per cent. However, a feature of your case is that your guilty plea came only after you had failed in a prolonged course of conduct aimed at dissuading the victim from giving evidence at trial and I must take that into account.
[61] I will allow a 15 per cent deduction for your guilty pleas. I do regard that allowance as generous over all the circumstances.
[62] The net adjustment to the starting point to reflect personal considerations, that is balancing the uplift of 13 per cent for your previous convictions and offending on sentence against the 35 per cent deduction for the guilty plea and your personal factors, is 22 per cent and that equates to 15 months. The end sentence is therefore one of four years and six months’ imprisonment.
[63] I acknowledge, as I have been told this morning, that your current custodial remand has been really challenging for you against the circumstances that you face. It sounds really simple, Mr Sampson-Arps, but you know better than anyone what the answer is to avoid that circumstance. You are fortunate to have Ms Basire at your side as you move forward hopefully through the STURP programme and your impending release which is not that far away, given the time that you have spent in custody.
Result
[64]Can you please stand.
[65] On the charge of causing grievous bodily harm with intent to injure, I sentence you to two years and two months’ imprisonment.
[66] On the charge of arson, I sentence you to a term of 12 months’ imprisonment to be served cumulatively on the sentence of two years and two months’ imprisonment.
[67] On the charge of attempting to pervert the course of justice I sentence you to one year and four months’ imprisonment. That sentence is to be served cumulatively on the other sentences I have imposed.
[68]The total sentence is one of four years and six months’ imprisonment.
...................................................
Eaton J
Solicitors:
Crown Solicitor’s Office, Christchurch
Copy to:
Katherine Basire, Barrister, Christchurch
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