R v Samson
[2018] NZHC 1500
•21 June 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CRI-2017-085-2143
[2018] NZHC 1500
THE QUEEN v
BRONSON BOUDINE SAMSON
Sentencing: 21 June 2018 Counsel:
J M O’Sullivan for Crown K Preston for Defendant
Sentencing Remarks:
21 June 2018
SENTENCING REMARKS OF CHURCHMAN J
Introduction
[1] Mr Samson, you appear today for sentence having pleaded guilty to 10 separate charges:
(a)two charges of aggravated robbery;1
(b)5 x charges of using a document;2
1 Crimes Act 1961, s 235(b). Maximum penalty is 14 years’ imprisonment.
2 Section 228(b). Maximum penalty is 7 years’ imprisonment.
R v SAMSON (SENTENCING REMARKS), 21 June 2018 [2018] NZHC 1500
(c)1 x charge of kidnapping;3
(d)1 x charge of aggravated wounding;4 and
(e)1 x charge of arson.5
[2] You have already entered a guilty plea to one of those charges of aggravated robbery on 23 March 2018 before Thomas J. A conviction was entered at that time and a first strike warning given to you in terms of s 86A of the Sentencing Act 2002.
[3] I note that both counsel in their full submissions which I have read, are agreed that a sentence of imprisonment is the least restrictive option appropriate in the circumstances, and indeed your comments to the Probation Officer indicate that you understand why it is that a substantial prison sentence has to be imposed on you in this case.
[4]In sentencing you this morning, I am going to explain the context for:
(a)your offending;
(b)the sentencing approach that I am obliged to take;
(c)the starting point which I have adopted, and indeed you understand that already from the sentencing indication which you have accepted;
(d)the various adjustments that I have made to that starting point to reflect what is the totality of your offending, having regard to your prior convictions and also giving you credit for your guilty plea, and for the remorse and insight that your counsel has emphasised in his oral submissions this morning, and that is evident in the written note that you have prepared.
3 Section 209(b). Maximum penalty is 14 years’ imprisonment.
4 Section 191(1)(a). Maximum penalty is 14 years’ imprisonment.
5 Section 267(1)(a). Maximum penalty is 14 years’ imprisonment.
Your offending
[5]I can start with describing your offending.
[6] The charges that you are sentenced today on arise from two separate incidents. As you know the first one occurred at Petone Beach, and the second one involved a taxi driver.
Petone Beach incident
[7] On 8 August last year, you and your associate confronted two victims on the Petone waterfront. Your associate threatened the victims while you stood close by and kept watch. When one of the victims tried to run, you stopped him and you dragged him back to the scene of the robbery, where the threats continued and the victims handed over their possessions. You and your associate then left, and you used the bank card that you had taken from one of the victims to purchase goods including alcohol.
[8] The victims in this case were people who had only recently arrived in New Zealand and they have been significantly traumatised, as would be expected, from your actions towards them on this occasion.
Taxi driver incident
[9] The taxi driver incident occurred the next day at about 2.30 in the morning. You and an associate attacked from behind the third victim, the taxi driver. You hit him several times in his head and the face to the point where he became unconscious and you then put him in the boot of his own taxi. You drove around for some two hours or so with him in the boot before you stopped. You removed some of his belongings, and then you lit the driver’s seat of the taxi on fire, knowing that the victim was still in the boot, as far as you were aware, unconscious. Fortunately for both you and him, he had regained consciousness and was able to escape, although he suffered serious lacerations to his head and his face, bruising to his face and arms, and cracked ribs.
[10] Now, this victim was also someone who was relatively new to New Zealand. He had come from Iraq. He had struggled to do the right thing and establish a life for
himself and his family, and your actions have had profound physical and psychological consequences for him even to the extent that he has not been able to continue to work and to support his family. You will understand just how significant that is for someone who has struggled to make a new life for himself in another country.
Sentencing approach
[11] In terms of sentencing approach, the totality of all your offending in this case is particularly serious. In addition to the aggravated robbery and aggravated wounding offending, there is also kidnapping, arson and using a document. The approach that I must take must ensure that I avoid double-counting – in other words, a doubling up on the penalty for the individual offences, but at the same time I have to consider a suitable total sentence that appropriately captures all of the offending, and that’s the starting point that has been talked about.
[12] Now, I have considered the submissions both from the Crown and from your counsel, and having regard to them, the starting point for the aggravated robbery and wounding offence has been identified, and as you know from the sentencing indication, there have been uplifts for the other offences; the kidnapping, the arson, and the using of a document, to reach an overall starting point taking into account all of the offending.6
Starting point
[13]I will now explain to you that starting point.
[14] Both counsel have submitted that the aggravated robbery connected to the taxi driver incident should be considered the lead offence. I agree with that. The case of R v Mako is the leading guideline judgment for aggravated robbery.7 There, the Court of Appeal identified a number of aggravating features that are commonly present in aggravated robbery cases. The relevant factors in your offending are the use of violence, the associated offending – that means the other crimes committed as part of
6 This approach has previously been used in cases such as R v Kahu [2017] NZHC 983, where a starting point for an aggravated burglary was uplifted to recognise a kidnapping carried out as part of the same series of events
7 R v Mako [2000] 2 NZLR 170 (CA).
the exercise, the impact on the victims, and that there were multiple instances of offending, and the need for deterrence.
Aggravating features
[15]The specific aggravating features that I have identified in your case are:
(a)duration of the offending: the victim was detained for a period of approximately two hours in the boot of a car while he was suffering from serious injuries that you had inflicted on him;
(b)level of risk to life: you knew that the victim was still in the car and had the appearance of being unconscious when you lit the fire;
(c)use of violence: the victim was struck in the head and face repeatedly with sufficient force to render him unconscious, obviously sustaining injuries that were so severe that required hospitalisation;
(d)threats to kill;
(e)attacks to the head;
(f)level of harm and impact on victim: the victim believed it was likely he would be killed and not only, as I mentioned, was he hospitalised, his life has been changed to the extent he’s not been able to continue, not just the occupation he had at the time, but at least for the moment, any other occupation;
(g)victim was vulnerable: he was a taxi driver working at night. In addition, the arson and kidnapping offending, this offending took place when you had rendered the victim further vulnerable by assaulting him and making him unconscious;
(h)deterrence: unfortunately, there is a particular need for deterrence in relation to offences involving taxi drivers. They are particularly vulnerable given the circumstances in which they work;
(i)extent of the loss, damage, or harm is also a matter in this case – a lesser matter but still an aggravating feature: you took $350 in cash and you damaged the taxi to the extent of $900 – big costs for the victim involved in this case; and
(j)finally, in terms of aggravating features, there was an element of cruelty in this offending in that the victim was locked in the boot of the vehicle while suffering these injuries, and being driven around in the vehicle, combined with the level of fear he must have experienced when he appreciated that the vehicle was on fire.
Mitigating features
[16] As well as setting out the aggravating features which I have just taken you through, I am also obliged to look at and weigh the mitigating features. Both counsel for the Crown and your counsel have agreed that in relation to the offending itself, there are no mitigating features. It’s perhaps to your credit that you have accepted that you must stand up and accept your part in this offending and not suggest that you were led along by your co-offender.
Comparable authorities
[17] What I must now do is look at comparable authorities, and counsel for the Crown has suggested that this case is comparable in its factual situation to a decision in Mako:8 In that case, the Court said:
Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between four and five years would be appropriate.
8 R v Mako, above n 7, at [57].
[18] Counsel submitted that in this case the aggravated robbery is just the one aspect of what is very serious offending when considered in totality. The violence in the aggravated wounding offending, the kidnapping and, the arson, each operate to elevate this offence beyond what is encountered in Mako.
[19] Counsel for the Crown submits that if the aggravated wounding aspect of the offending were considered in isolation it, too, would attract a significant starting point. The case of R v Taueki has set the guidelines for serious violent offences including aggravated wounding, providing the following guidance for starting points in relation to street attacks where multiple attackers set upon a victim. The Court in that case said:9
… On the other hand, where the attack features the use of a weapon (such as a fence paling found at the scene) or there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have a lasting effect on the victim.
Analysis
[20] In this case, the offending involved a high level of violence against the complainants, and in the relation to the taxi driver, a significant impact. As I have indicated to you, that victim still suffers both physical and psychological consequences of the attack.
Conclusion
[21] After considering all of the issues and the submissions of counsel, I have concluded that the appropriate starting point for the aggravated robbery is six and a half years’ imprisonment as I indicated to you.
Adjustments to reflect the totality of your offending
[22] In terms of the adjustments to be made, s 85 of the Sentencing Act requires me to have regard to the totality of your offending which means that I must examine all of the offending as a whole and determine the appropriate sentence in light of that.
9 R v Taueki [2005] 3 NZLR 372 (CA) at [37].
[23] Counsel have provided me with a number of authorities relevant to setting a starting point for present offending which deals with the kidnapping, arson, and using documents. I am now going to discuss those and explain why I have reached the decision I have reached.
[24] In the case of R v Geros, Mr Geros pleaded guilty to two charges of kidnapping and two charges of aggravated robbery.10 A starting point of four years’ imprisonment was adopted with respect to the entirety of his offending. He and four associates had approached a parked vehicle containing two male occupants and demanded their money and phones. After receiving those items, they demanded the victims drive them to an address following threats of violence. One of the victims was punched and put in the boot of the vehicle with a pit-bull dog. The victims were taken to ATMs and attempts made to withdraw money from their bank accounts.
[25] The aggravating features in that case included the large group of offenders targeting the victims, that actual violence was used, that a victim was put in the boot of the car with a dog, the incident carried on for a considerable period of time and the desire to terrify and rob the victims.
[26] It is my view that your offending is of a greater degree of seriousness than in this case, given the extent of the violence and the injuries sustained by the victim.
[27] It was also referred to the case of R v Hewitt. In that case, Mr Hewitt was found guilty following a trial by jury to charges of kidnapping, aggravated robbery, male assaults female, unlawfully taking a motor vehicle, assault with intent to rob and demanding with menaces.11 In that case, the sentencing Judge adopted a starting point of five years and nine months’ imprisonment.
[28] There are a number of cases that have been referred to me and I won’t mention them all but what they do indicate is that the seriousness of the facts in your case justify the starting point that I have reached.
10 R v Geros HC Auckland CRI-2006-027-1485.
11 R v Hewitt [2017] NZHC 1220.
Personal aggravating and mitigating factors
Adjustment to reflect your previous convictions
[29] As I mentioned to you, I am also required to consider both your previous convictions and the other matters that are relevant to, and explain your behaviour.
[30] As your counsel has mentioned, you do have convictions in Australia. From the point of view of the Court, the offences that you were convicted of in Australia are disturbingly similar in character in that they involve gratuitous violence and occurred after an incident of taking drugs and drinking.
[31] On the positive side, the fact that the offences in Australia resulted in you serving your entire prison term and then spending a period of time in what must have been unpleasant conditions on Christmas Island is relevant and I note that although the Crown has suggested a six-month uplift in relation to those offences would be appropriate, for those reasons, I have decided that a three-month uplift is all that is required.
Discount for remorse
[32] As you know, you get a discount for remorse and that is a matter that your counsel has addressed me on.
[33] Section 9(2)(f) of the Sentencing Act indicates that a Judge must take into account remorse shown by the offender. And it’s to your credit that you have been able to articulate in the letter that I have been provided with this morning, remorse and an understanding of how your actions have affected the victims.
[34] The legal position is that where a proper and robust evaluation of all the circumstances demonstrates genuine remorse beyond that which might reasonably be inferred from the guilty plea, sentencing credit can be given separately from the discount for the guilty plea.12 And that is what I propose to do in this case.
12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
[35] In the pre-sentence report dated 6 June 2018 prepared by the Probation Service, it was noted that you were open to restorative justice. As your counsel had indicated, the fact that didn’t proceed is as a result of matters that you were unable to control. You have indicated that you were prepared to apologise to the victims face-to-face although they were not open to this. So, I am prepared to give you a discount five per cent for genuine remorse.
Guilty plea discount
[36] As you know, I indicated a discount for your guilty plea, and I have considered all the submissions in relation to this and I recognise that you have accepted responsibility for your offending and perhaps most importantly by entering a guilty plea you have avoided the victims having the trauma of having to come to this Court and give evidence.13 So for that, you are allowed a 20 per cent reduction, which I would indicate to you, is a generous discount in the overall circumstances.
[37] So, applying all of those factors together, your final sentence is one of six years seven months’ imprisonment.
Minimum period of imprisonment
[38] Now as counsel indicated in their submissions to me, the real issue before the Court today is this question of a minimum period of imprisonment.
[39] The Parole Act 2002 provides that the non-parole period of a long-term determinate sentence is one-third of the length of the sentence.14 Now, what that in effect means is that, if no minimum period of imprisonment (MPI) is imposed, you would be eligible to apply for parole after having served a third of your sentence.
[40] However, if an offender receives a determinate prison sentence of more than two years, they may be ordered to serve a MPI if the Court is satisfied that the normal non-parole period is insufficient for any of the purposes of accountability,
13 At [45] and [73]-[77].
14 Parole Act 2002, s 84(1).
denunciation, deterrence or protection of the community.15 Such sentence must not exceed two-thirds of the full term of the sentence.16
[41] The imposition of a MPI is a matter in the discretion for the sentencing Judge,17 and what is relevant is the “the totality of the offending when you exercise this discretion”.18 The relevant authority called R v Gordon has made it clear that the process when considering an MPI involves two stages: firstly, fixing the maximum length of sentence, taking into account all the relevant sentencing considerations (and I’ve done that); and secondly, considering whether it’s necessary that the normal non- parole period will be sufficient to punish, deter and denounce the offending.19 The Court of Appeal in the case of Gordon said:20
[W]here the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, the Court may confer a degree of reality on the sentence and the overall outcome by imposing a minimum period of imprisonment.
[42] All of the purposes and principles laid down in ss 7, 8 and 9 of the Sentencing Act apply when fixing an MPI.21 The primary consideration is the level of culpability and whether this has been increased by unusual callousness, extreme violence, vulnerable or multiple victims, and serious actual or intended consequences.22
Relevance of overseas convictions
[43] In respect of the MPI, I am also entitled to have regard to your convictions in Australia, notwithstanding that I have adjusted the starting sentence by three months to reflect those.
[44] The relevant authority, a Court of Appeal decision in a case called Inamata v R said:23
15 Sentencing Act 2002, s 86(1) and (2).
16 Section 86(4).
17 See R v Brown [2002] 3 NZLR 670 (CA) at [28]-[36].
18 Lavulo v R [2016] NZCA 158 at [12].
19 R v Gordon [2009] NZCA 145 at [35].
20 At [15].
21 R v Brown, above n 26, at [27].
22 At [32].
23 At [9].
The question to be considered under s 86(2) is not whether the factors referred to in that section have been recognised in the imposition of the finite sentence, but whether the minimum period provided for under the Parole Act is insufficient to meet the specified sentencing purposes of accountability, denunciation, deterrence and community protection.
[45] In that case, the offender’s previous history included a number of convictions in Australia for which the offender had received lengthy prison sentences, one being for eight years and six months. The Court concluded that the Australian criminal history made it clear that he presented a high risk of reoffending, as was indicated by his committing robbery only a year after he completed his sentence in Australia and returning to New Zealand.24 You must appreciate that has significant parallels to your case.
[46] So, I consider that your prior convictions in Australia are relevant, particularly given that this offending occurred shortly after you were deported to New Zealand. That facts indicate that you are at high risk of reoffending, and indeed I note that the writer of the pre-sentence report also came to that conclusion as well. So, I am satisfied that imposing an MPI in these circumstances is necessary to provide additional deterrence and to protect the community from an offender who has demonstrated an inability to learn from past experiences.
Length of MPI
[47] So, you have been sentenced to a term of six years seven months’ imprisonment. You have obviously previously served terms of imprisonment in Australia. I think it is appropriate that the minimum non-parole period required to hold you accountable to denounce your conduct, to deter you from offending in this manner in the future, and to protect the community, is an MPI of three years three months’ imprisonment.
Final sentence
[48]Mr Samson, would you please stand.
24 At [10]-[11].
[49] I am sentencing you to six years seven months’ imprisonment. Although it has no bearing on the overall length, I am also obliged to allocate a finite sentence to each conviction, and I do so on these terms:
(a)Charge 2 (aggravated robbery – taxi driver incident): six years seven months’ imprisonment.
(b)Charge 1 (aggravated robbery – Petone Beach incident): four years’ imprisonment.
(c)Charge 3 (kidnapping): 15 months’ imprisonment.
(d)Charge 4 (aggravated wounding): five years’ imprisonment.
(e)Charge 5 (arson): 18 months’ imprisonment.
(f)Charges 6–10 (using a document): six months’ imprisonment.
[50] I also order that you are to serve an MPI of three years three months’ imprisonment.
[51] There was an application for reparation. I decline to make a reparation order simply on the basis that to do so would merely give your victims false hope that you might actually be able to repay the loss that you caused them.
[52] Now the author of the alcohol and drug assessment report which I have been provided with and which I have read, requested that the Court release that report to your sentence planner to support referral to the Drug Treatment Unit and I authorise that.
[53] I take into account the comments made by your counsel at the end of his submissions to me. I accept that there are indeed two components to your personality. It is clear that abuse of alcohol and drugs is the factor which is associated with all of your offending. You are intelligent and perceptive enough to understand that.
[54] If you do not take steps to effectively deal with that, your future is grim. It is likely to be punctuated by periods of serious offending, followed by long periods of incarceration. You are a young man – 24 years. You can still do something with your life so I would encourage you, while you are in prison, to take full advantage of the opportunities there that would be available to you, to address this factor that has blighted your life, and indeed blighted your involvement in the community to date.
[55]Please stand down.
Churchman J
Solicitors:
Crown Solicitor’s Office, Wellington Public Defence Service, Wellington
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