R v Samson
[2017] NZHC 1632
•14 July 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-009-3764 [2017] NZHC 1632
THE QUEEN
v
ZARIAH JAE SAMSON
Hearing: 14 July 2017 Appearances:
B Hawes for Crown
J Eaton QC for DefendantJudgment:
14 July 2017
SENTENCING REMARKS OF MANDER J
Three strikes warning
[1] Ms Samson, I am about to proceed to the imposition of sentence. Before I do that I am required under the Sentencing Act to firstly give you what is described as the “three strikes warning”.
[2] Given your conviction on the charge of manslaughter you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be provided with a written notice which contains a list of these serious violence offences.
[3] The warning is this: If you are convicted of any one or more serious violent offence, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must
be sentenced to life imprisonment without parole unless it would be manifestly
R v SAMSON [2017] NZHC 1632 [14 July 2017]
unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment. I turn now to your formal sentencing.
Sentencing
[4] Zariah Samson, you are for sentence this morning for the manslaughter of Corey Protos. You pleaded guilty to that charge after I provided a sentence indication earlier this week.
Background
[5] It is first important that I record the basis upon which I proceed to sentence you for the manslaughter of Mr Protos.
[6] At the time of his death, you had been in a relationship with Mr Protos for some seven weeks. He would stay at your address in Earnslaw Crescent, where he kept a number of his personal possessions.
[7] On 26 April, you were staying at a female associate’s address in Conference Street. In the afternoon of that day, Mr Protos borrowed an associate’s vehicle. He said he was going to pick up some drugs, pay a bill, and collect his personal property that he had stored at your address. He went to Conference Street, arriving there at around 2.45 pm. Shortly before, or while at the address, he consumed opiate-based drugs as well as methamphetamine. You have also admitted to the pre-sentence report writer as being under the influence of methamphetamine and cannabis at this time.
[8] While in the kitchen of the address you became agitated with Mr Protos and accused him of spreading rumours about you before beginning to assault him. This occurred within half an hour of him having arrived at the address. He was observed by one of the females at the address with blood on his hands and tee-shirt, and looking shocked and sick.
[9] Mr Protos was made to remove his clothing to ensure he had no recording devices on him. His hands were bound behind his back and he was sat down in the
corner of the kitchen. He was covered with a blanket and assaulted by being punched, kicked and pushed over. This assault continued sporadically for approximately four hours.
[10] One of the occupants of the address, fearing you may kill Mr Protos, told you that she wanted you and Mr Protos out of the address. Mr Protos was dressed with clothes and covered with a blanket.
[11] That evening, at around 7.20 pm, you guided Mr Protos out of the address to his vehicle. Placing him in the front passenger seat, you drove the vehicle to your address in Earnslaw Crescent. You got Mr Protos out of the car and walked into the address, and to the master bedroom. Mr Protos showered, after which an argument occurred.
[12] You inflicted a superficial cut to Mr Protos’ neck before wrapping a computer cable three times around his neck with which you strangled Mr Protos and caused his death. You then wrapped Mr Protos in a blanket and pushed him underneath the bed. You sent a text message to an associate stating you were “cleaning up your mess” and requested cleaning products and petrol.
[13] Later that night, you drove Mr Protos’ vehicle to a secluded cul-de-sac and left it parked. You then walked to a relative’s address and told that person what you had done.
[14] Late in the afternoon of the following day, the relative made contact with the police and the two of you went to the police station. You told the police that you had argued with Mr Protos about some “trust issues”. You further stated that the argument escalated to a point where, you say, “a gun was held to your head”. You admitted to having then strangled Mr Protos, and advised the police of the location of his body.
Victim impact statements
[15] You have heard this morning the impact of your offending on Mr Protos’
parents and family members. They have lost their son, and it is to be hoped that you
have gained a strong insight into their grief and pain. Their personal statements have expressed their terrible loss far better than anything I could say. All I can do is to acknowledge that loss and grief. No sentence I can impose can begin to mitigate that loss.
[16] I would like to thank Mr and Mrs Protos and the Protos family for the dignity and restraint with which they have conducted themselves this morning, and I am grateful for the insight that they have provided to me about Corey as a person.
Personal background
[17] I have read the pre-sentence report and a number of psychiatric reports, including the report of Dr Chaplow, who saw you in July 2015. You were born into a dysfunctional gang family and subjected to drugs and both physical and sexual assault from a young age. You had to deal with the suicide of your mother when you were aged 14 years. Your experiences as a young person had a profoundly negative effect on you. Your schooling and social behaviour deteriorated, and led to youth offending. By the age of 19 you had had been admitted to a child and youth mental health facility with issues which included drug and alcohol abuse, depression and post-traumatic stress disorder.
[18] At the age of 22 years you had three children aged under three. It was around the time that those children were taken to the North Island by their father that you commenced your relationship with Mr Protos.
Starting point
[19] There is no tariff sentence for manslaughter. The range of sentence available for such a crime reflects the wide spectrum of circumstances in which manslaughter can be committed.1 In sentencing you, I have been required to determine a starting point for your sentence which includes the aggravating features of your conduct before examining possible mitigating factors that may require adjustment to that
starting point.
1 R v Wickliffe [1987] 1 NZLR 55 (CA); R v O’Sullivan CA340/93, 15 December1993; Solicitor- General v Kane CA154/98, 23 September 1998.
[20] There are a number of aggravating features:
(a) Firstly, that your violent conduct towards Mr Protos took place over a significant period of time at two locations; firstly at Conference Street where Mr Protos was effectively held prisoner in the kitchen, and, secondly, at Earnslaw Crescent where your violence towards him culminated in his death;
(b)Secondly, there is the use of the ligature which was an intentional and highly dangerous act;
(c) Thirdly, is the devastation caused to Mr Protos’ family from his
violent death.
[21] As I remarked earlier this week, I do not consider Mr Protos’ conduct in terms of his involvement in drugs or drug dealing, nor that apparent background which appears to have been a source of pressure on your relationship, is capable of constituting a mitigating factor.2 Nor does that element, insofar as it may have been related to the circumstances of your offending, constitute an aggravating feature. Insofar as your voluntary consumption of drugs may have affected you at the time of
the commission of this offence it cannot, as a matter of law, constitute a mitigating factor.3
[22] I do not consider you were labouring under any diminished capacity or understanding at the time that you killed Mr Protos.4 I proceed to sentence you on the basis of your involvement in the physical violence inflicted on him at Conference Street and your application of the ligature to Mr Protos’ neck at Earnslaw Crescent, with which you fatally strangled him. However, I do so, as I must, on the basis that you have pleaded guilty to manslaughter and that you lacked murderous intent.
[23] The appropriate starting point is one of nine years imprisonment.5
2 Sentencing Act 2002, s 9(2)(c).
3 Section 9(3).
4 Section 9(2)(e).
5 R v Ruru CA371/01, 12 February 2002; R v Blackmore CA29/05, 18 May 2005; R v Curran HC Tauranga CRI-2005-070-765, 30 June 2006; R v Herewini HC Rotorua CRI-2006-063-3151, 5
Personal factors
[24] I turn now to personal factors. I accept at the time of this offending you were in a state of personal decline, if not crisis, the genesis of which can be traced to your background, your drug and alcohol abuse, and psychological state. The negative impact of loosing contact with your children when they moved with their father, and your psychological decline, and associated continued abuse of drugs, was observed by others at that time. Those circumstances and your continued incarceration has continued to result in you being separated from your children. I also acknowledge the traumatic events of your upbringing which have impacted on your mental health, as has your drug addiction.
[25] You have expressed remorse for the death of Mr Protos. You have formally requested an opportunity to participate in a restorative justice process and have written a letter of apology to the Protos family. I understand that process will be carried out next week and, again, demonstrates extraordinary courage on the part of Mr Protos’s Family. You made prompt admissions to police on the afternoon following Mr Protos’ death. These are factors which I am obliged to take into account as exhibiting remorse.
[26] In recognition of your difficult personal background, age, your circumstances at the time of the offending, and remorse, I have allowed an eight month deduction from the starting point.
[27] You have no previous convictions for violence as an adult. You do, however, have convictions for other offending and were subject to a sentence of supervision at the time of this event. No adjustment, however, is required to the starting point.
Guilty plea
[28] The Crown has acknowledged, properly, that you are entitled to a reduction in your sentence for your plea of guilty to the charge of manslaughter, being a plea
which you indicated at a very much earlier stage in this proceeding that you were
October 2007; R v Kengike [2008] NZCA 32; R v Ames HC Rotorua CRI-2008-263-19, 30
October 2009; R v Scollay [2014] NZHC 465; R v Scott [2016] NZHC 1918.
willing to enter. Accordingly, I accept that a 25 per cent credit for your plea is appropriate.
Sentence
[29] It follows that the end sentence is that which I indicated to you earlier this week, being one of six years and three months imprisonment.
Minimum period of imprisonment
[30] Because I am sentencing you to a sentence of more than two years imprisonment, I need to consider whether you should serve a minimum period of imprisonment. The Crown has submitted this is an appropriate case for a minimum term.
[31] I am required to impose a sentence which must seek to hold you accountable for the harm that you have done and to denounce your conduct. I do not consider you should be eligible for parole in the ordinary way, and that it is appropriate to impose a minimum period of imprisonment to reflect the purposes of sentencing and the need for consistency in sentencing offenders for this type of violent offending.
[32] For those reasons, I consider a minimum period of imprisonment of three years and three months is appropriate.
Result
[33] Ms Samson, would you now please stand.
[34] Ms Samson, on the charge of manslaughter I sentence you to a term of six years and three months imprisonment, with a minimum term of imprisonment of three years and three months.
[35] You may stand down.
Solicitors:
Raymond Donnelly & Co, Christchurch
Jonathan Eaton Queens Counsel, Christchurch