R v Samuel - [2013] NZHC 689

PROHIBITION ON PUBLISHING THE NAME OR IDENTIFYING PARTICULARS O F ANY PERSON UPON WHOM AN OFFENCE AGAINST SS128 - 142A, 144A CRIMES ACT 1961 HAS BEEN OR IS ALLEGED TO HAVE BEEN COMMITTED.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-7203 [2013] NZHC 689

THE QUEEN

v

GRAHAM TE AHURU S AMUEL
Respondent

Appearances: P P Crayton for the Crown
M N Sturm for the Prisoner

Judgment: 9 April 2013

SENTENCING NOTES OF PRIESTLEY J

Counsel:
P P Crayton, Crown Solicitor, Hamilton. Email: ppc@almaodouch.co.nz
M N Sturm, Barrister, Hamilton. Email: marksturm@xtra.co.nz

R V SAMUEL HC HAM CRI-2012-019-7203 [9 April 2013]

[1] Graham Te Ahuru Samuel, it is my task to sentence you today on two serious charges. The first is a count of rape committed between the August 1966 and August 1967 period. The second is a count of indecent assault on a young girl committed some time between 1971 and 1973 which involved digital penetration.

[2] You pleaded guilty to both these charges when the matter was first called in the High Court in February. The more serious count of rape carries a maximum, which then applied, of 14 years imprisonment. The charge of indecent assault carries a maximum of 10 years imprisonment.

[3] I need very briefly to outline the circumstances of the offending. The rape occurred in a Waikato town when you were aged 19 or 20. Your victim, who was a whanau member, was aged six at the time. You were a frequent visitor to her family home. You took her to a church where the family and you worshipped as you wanted to pick up a book. Inside the church you removed her clothing, placed her on a table adjacent to the alter, and raped her. This caused her huge physical pain. On the journey home you threatened to kill her if she told anyone what had occurred.

[4] The indecent assault offending took place in the early 1970s. Your victim then, according to the summary of facts, was aged between six and eight years. She tells me she was seven at the time. Again, this took place in a Waikato township. You again were inside her home. Shortly after the victim used an upstairs bathroom you called her into an upstairs bedroom where you were waiting. You bent her over the bed, removed her underwear, and after a number of inappropriate sexual contacts you inserted your finger into her vagina and penetrated her. Again, this caused immediate physical pain so far as your victim was concerned.

[5] From then onwards, and fortunately for you, your offending seems to have stopped and until complaints were made to the police over four decades later you never drew attention to yourself and have led a blameless, and indeed exemplary life.

[6] Both your victims, who are now middle aged women, have prepared victim impact statements which were read out in Court to me this morning. Both of them describe the harrowing emotional effects which your…

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 R v Samuel

Details

AGLC: R v Samuel [2013] NZHC 689
Case: [2013] NZHC 689
Decision Date: 9 April 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Hamilton Registry, the case of The Queen v Graham Te Ahuru Samuel, involves the sentencing of Samuel for two serious charges: a count of rape committed between August 1966 and August 1967, and a count of indecent assault on a young girl between 1971 and 1973. The court had to determine the appropriate sentence for Samuel considering the nature of the crimes, his personal circumstances, and mitigating factors. Samuel had pleaded guilty to both charges, with the rape charge carrying a maximum penalty of 14 years and the indecent assault a maximum of 10 years imprisonment at the time of the offences.

The legal issues before the court included assessing the aggravating and mitigating factors of the crimes, and determining the appropriate starting point for sentencing based on the law as it was in the 1960s and 1970s, while also reflecting contemporary attitudes towards such offences. The court also had to consider the principles of denunciation, accountability, and the least restrictive outcome as per the Sentencing Act. The court found the aggravating factors to include the extreme vulnerability of the victims, breach of trust, predatory nature of the offences, threats made to the victims, physical damage inflicted, and the long-term emotional harm. Mitigating factors considered included Samuel's exemplary life post-offences, his remorse, age, and ill health.

The court, after weighing the aggravating and mitigating factors, decided on a sentence of five years imprisonment to be served concurrently for both charges. The court noted that the sentence was consistent with the principles of denunciation and the least restrictive outcome, and reflected the forgiveness extended by the victims. The court also recommended that Samuel be allowed to pursue his faith and engage in a restorative justice programme if he and the victims were willing. The final orders included the imposition of a five-year imprisonment sentence on the rape charge and a four-year sentence on the indecent assault charge, both to be served concurrently, with Samuel being discharged without conviction on the other counts. Samuel would not be eligible for parole until he had served approximately 20 months.

Orders