R v Samuel

[2012] NZHC 3326

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-063-379 [2012] NZHC 3326

THE QUEEN

v

RAWIRI JAMES SAMUEL

Hearing:         6 December 2012

Appearances: A J Gordon for Crown

M J Hine for Prisoner

Sentence:       6 December 2012

SENTENCE OF PETERS J

Solicitors:           Gordon Pilditch, Crown Solicitor, Rotorua:  [email protected]

Families Matter Law Practice, Rotorua:  [email protected]

R V SAMUEL HC ROT CRI-2012-063-379 [6 December 2012]

[1]       Mr  Samuel,  on  29  March  2012  you  pleaded  guilty  to  the  murder  of Roman Skorek in Kuirua Park in Rotorua on the evening of 23 January 2012.  I am going to sentence you now for your part in his death.

[2]      You pleaded guilty to Mr Skorek’s murder shortly after you were charged.  I know you have been given the necessary warning pursuant to s 86B(4) Sentencing Act 2002 on 29 March 2012, so it is not necessary for me to repeat that warning.

[3]      Originally it was intended that I would sentence you in June 2012.   The sentencing did not proceed on that date because there was some uncertainty, on the face of the summary of facts, as to what precisely was alleged to be the cause of death and the basis on which you were charged.   Those matters have since been clarified,  you  have maintained  your  guilty plea and  I am  now in  a position  to sentence you.

Relevant Facts

[4]      I have relied on the summary of facts that the Crown provided to the Court on 19 September 2012.  I emphasise that for two reasons.

[5]      The first is, as I say, that summary is different to the one I received originally. The other reason I mention it is that the summary of facts refers to three others who the Crown alleges were involved to some considerable extent in Mr Skorek’s murder. They are Mr Herewini, Mr Edwards and Mr Glen.   As I understand the position, those others have also been charged with the murder of Mr Skorek, have pleaded not guilty and there will be a trial next  year of the charges against them.   My references to the facts are taken from the summary of facts and the facts that emerge at their trial may be quite different.

[6]      The victim, Mr Skorek, was 64 years old, and was visiting Rotorua at the time of his death.

[7]      You, Herewini, Edwards and Glen appear to have been drinking throughout the day and into the evening of 23 January 2012.  You were drinking wine that you had stolen from a local supermarket. You were in Kuirau Park and by the time of the murder you were all heavily intoxicated.

[8]      You and the other three were drinking by one of the foot pools in the park when Mr Skorek joined you. Your group offered him a drink and a conversation was struck  up.    Some  members  of  your  group  began  to  think  that  Mr Skorek  was displaying some sexual interest towards one of the group.  That led to abuse being hurled at Mr Skorek, he left, and your group continued drinking, at one stage leaving the park to steal more alcohol.

[9]      Mr Skorek met up with your group again and the talking and the drinking resumed.

[10]     The summary of facts then states that Mr Skorek asked one of the group to go for a walk, which he did, that you got angry at what you thought were Mr Skorek’s advances and followed them, with the other two not far behind you.

[11]     You then hit Mr Skorek several times in the face and head, the others joined in.  Mr Skorek was overpowered and collapsed on the ground.  The summary records that, once on the ground, Mr Skorek was kicked repeatedly about the head.   The assault is said to have lasted for at least 10 minutes.

[12]     The assault on Mr Skorek left him with numerous fractures to the bones in his face and to his skull.  These caused bleeding into his brain.  That of itself was a very serious matter and almost certainly left Mr Skorek unconscious and near death.

[13]     You then pulled Mr Skorek’s backpack off him.  You all went away with the backpack, and on opening it found a knife with a blade that was approximately five inches long.  Together you discussed what had happened, that Mr Skorek was still alive and that he knew your names.  A suggestion was made that you return to Mr Skorek and kill him.  Your counsel says that, although this was not your idea, you went along with it.

[14]     You went back to the park, found Mr Skorek lying unconscious but making a snoring noise with his head and arms twitching.   That snoring noise is a classic indication of severe brain damage.

[15]     You all then subjected Mr Skorek to a further physical assault, by kicking him about the body and head, and he was then stabbed.  The Crown pathologist’s opinion is that Mr Skorek’s death was caused by a stab wound or wounds.

[16]     Until  recently  you  have  consistently  denied  inflicting  any  of  those  stab wounds.  You said to the Police that you had only pretended to stab Mr Skorek, once in the face and once in the neck; that you then gave the knife to another member of the group who stabbed Mr Skorek in his forehead and upper chest and neck, and that person then cut Mr Skorek’s throat, inflicting a six inch open wound across the front of the neck.

[17]     There  has,  however,  been  a  change  in  your  position  because,  in  his submissions,   your   counsel   says   that   you   now   acknowledge   that   you   used Mr Skorek’s knife to stab him once in the face and the lower lip area and once in the upper chest.   It is not clear which wound, out of all those inflicted on Mr Skorek, killed him but it is quite possible it was not yours.

[18]     You all then left the park.  Not one of you called an ambulance although it must have been obvious that Mr Skorek was either dying or was dead.  Instead, the summary of facts says that you all went and bought some food with the money that you had stolen from Mr Skorek and continued to enjoy the evening.

[19]     You were interviewed  by Police on 25  January  2012  and  to  your credit promptly admitted to the essential facts of the murder.

[20]     Standing back, my overall impression is of a violent and unprovoked group attack by four young men, over a prolonged period of time. You then went away and had an opportunity to leave it at that but instead agreed as a group that you should ensure Mr Skorek was dead by using an entirely different form of weapon, namely a knife.  I am conscious that the fatal stab wound may have been inflicted by someone

else but the fact that there was a fatal stab wound could not have been unexpected because the whole point of going back was to kill Mr Skorek.

Victim Impact statement

[21]     I have read the victim impact statement from Mr Skorek’s daughter that the Crown has provided to me today.  It says precisely what one would expect a daughter to say when her father has suffered a violent death many thousands of miles away.  It is quite clear that the fact that Mr Skorek died in a painful way and subject to a brutal attack makes his loss even harder to bear.

Pre-sentence report

[22]     Now, I come to your circumstances, Mr Samuel.  You were interviewed by a Probation Officer prior to sentencing and I have read the report that the Department of Corrections prepared.

[23]     You are now 22.  You are the youngest of five children and had a somewhat disrupted childhood due to a difficult situation at home.  You left secondary school when you were 17, and went on to do short courses in welding and fishing.  You have  a  good  work  history  although  you  were  unemployed  at  the  time  of  the offending.  I am told that, at the time of the pre-sentence report, you were expecting your first child with your partner with whom you have had a somewhat on and off long-term relationship.

[24]     You have an ongoing harmful pattern of using both alcohol and illegal drugs, including cannabis and methamphetamine.  You have acknowledged the harm they do and are willing to undertake treatment in prison. You claim to have had some low level affiliation with a gang but it is not suggested that this was a factor in the murder.

[25]     You explained your behaviour on the evening as a product of being very drunk and a desire to, as you saw it, protect the other members of the group from what you believed were Mr Skorek’s advances and attention.  You do not appear to

have considered the consequences of your actions but your own counsel now assures me  that  you  are  remorseful  and  I  am  willing  to  proceed  on  the  basis  of  that assurance.

[26]     As  to  your wish  to  protect  other members of  the group  from  what  you perceived to be Mr Skorek’s advances, in my view any such advances are entirely irrelevant.   They could not have warranted that sort of reaction in any way.   You should not be under any illusion about that, Mr Samuel.

[27]     In health terms, you have problems with high blood pressure but this can be dealt with in prison.  Apparently you attempted suicide in 2008 by jumping from a bridge but I have no further details of that incident and there is also reference to another suicide attempt at about Christmas 2011.

[28]     At the time the report was prepared, you were on medication for depression, high blood pressure and schizophrenia.

[29]     You  have  prior  convictions  for  dishonesty  offences,  for  drug  related offending and failure to comply with Court orders and sentences.   None of that offending is relevant to the offending before the Court today and the Court accepts that it should be totally disregarded for today’s purposes.

Mental health report

[30]     Another judge of this  Court  was  concerned  as  to  your mental  state  and ordered a report to be prepared.   I have that report, prepared by a consultant psychiatrist, Dr Majeed, who interviewed you while on remand.

[31]     That interview again confirms that you are remorseful.  You gave the doctor more information as to your drug taking, and mentioned, in particular, the effect of methamphetamine on you although you were not using it at the time of the murder. You have previously been seen by psychiatric services in relation to your behaviour whilst taking methamphetamine.

[32]     It is clear from the interview that you were affected by the situation in which you have ended up, feel despondent and have difficulty coming to terms with imprisonment.

Submissions

[33]     Now, I come to the sentencing, Mr Samuel.

[34]     The Crown pointed to a number of features of this murder which suggest that it is one which should be regarded as particularly serious and attract a  17 year minimum period of imprisonment.   In this respect, Crown counsel has pointed to Mr Skorek’s  vulnerability,  the  brutality  of  the  murder  and  the  fact  that  you committed it to avoid detection for the earlier attack.   Having got to that point, however, Crown counsel accepts that certain factors relevant to you would mean that a 17 year term would be manifestly unjust and something less than that must be imposed.

[35]     Your  counsel  has  addressed  the  facts  of  the  offending  and  the  matters disclosed in the various reports.  Your counsel personally vouches for the fact that you are deeply remorseful and your family are also apparently shocked and upset by your actions which it has to be said are quite out of character for you.

[36]     Mr Hine accepts that a sentence of life imprisonment is the appropriate end sentence.    His  submissions  deal  principally  with  whether  this  offending  should attract a minimum period of imprisonment of more or less than 17 years.  Mr Hine accepts that a number of features of the offending might qualify it for a minimum period of imprisonment of not less than 17 years but he argues that your guilty plea, your remorse and other matters make it manifestly unjust to impose a minimum period of 17 years.

Sentencing

[37]     As Mr Hine acknowledges, Mr Samuel I must impose a sentence of life imprisonment on the murder charge unless it would be manifestly unjust to do so.  It would not be manifestly unjust in this case.

[38]     Secondly, I must fix a minimum period of imprisonment, being the number of years that you must serve in prison before you are eligible to be released.

[39]     That minimum period of imprisonment must be at least 10 years and must be the minimum I consider necessary to hold you accountable for the harm done to the victim and to the community by your offending, to denounce the conduct in which you were involved, to deter you and others from committing the same or a similar offence and to protect the community from you.

[40]     I  am  required  as  a  matter  of  law  to  impose  a  minimum  period  of imprisonment of at least 17 years unless I am satisfied it would manifestly unjust to do so.[1]

[1] by s 104 of the Sentencing Act 2002 (“the Act”)

[41]     I am satisfied that Mr Skorek’s murder was committed in an attempt to avoid detection.  By that I mean I am satisfied he was stabbed to avoid detection and that was the cause of death.  I am also satisfied the murder was committed with a high level of brutality.  I am particularly persuaded of that because you went back to kill him, having already inflicted a very severe beating which on its own might well have been sufficient to kill Mr Skorek.   I am also satisfied that the deceased was particularly vulnerable because he was subject to an attack by a group of four men.

[42]     Because of these matters, I am satisfied that this case falls within that special category of murders in which I must consider imposing a minimum period of imprisonment of at least 17 years.

[43]     In R v Williams,[2] the Court of Appeal gave guidance as to the correct way to approach a case such as this.  Having considered the factors to which I have already

referred, I must go on to consider all the aggravating and mitigating features of the offending, comparable cases and matters relating to your personal circumstances.  I then need to consider whether the imposition of a minimum period of imprisonment of 17 years would cause manifest injustice, and whether it is necessary to reduce that period.

[2] R v Williams [2005] 2 NZLR 506.

[44]     I  do  not  consider  that  there  are  any  other  aggravating  features  of  the offending that must be taken into account.  Equally there are no mitigating factors of the offending.

[45]     I must then consider matters that relate to you personally.  I do not consider there are any aggravating factors relating to you personally which I must take into account but there are mitigating factors.

[46]     One matter which I have considered is your age at the time of the offending. You were 21 at the time.  This is very much an age at which the Court will expect the immaturity of youth to have declined and so any reduction on account of age must be carefully considered.[3]   Nonetheless, looking at the rationales for recognising youth,[4]

I am satisfied that several of them are relevant to your case. You were immature

passing  through  a  period  of  relatively  minor  offending  and  some  impulsive behaviour is evident on the facts.   While you must serve a lengthy term of imprisonment I recognise that confinement may be more difficult for you and that a long-term sentence might well crush all hope of the future that remains with you.

[3] Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [98].

[4] At [76] – [92].

[47]     I have also considered your mental health concerns but they do not, in my view, diminish your culpability or make prison disproportionately severe.

[48]     The Crown, your counsel and I agree that I must take into account your considerable remorse for your actions and your very prompt guilty plea.

[49]     The usual course in all offending is to recognise a guilty plea with a reduction to the final sentence.  The amount of that reduction varies from case to case.  For

good policy reasons the courts have always accepted that recognition should be given to guilty pleas.   That is because it will often represent acceptance of responsibility and because it saves the cost of a trial and avoids witnesses, often those close to the victim, having to go through the process of giving evidence.

[50]     There is no doubt that you are remorseful and the Crown accepts that also and accepts that there should be a separate recognition for it.

[51]     To conclude, Mr Samuel, this is a case where the circumstances in which the murder  was  committed  would  warrant  a  minimum  period  of  imprisonment  of

17 years, but no more than that.   I am also satisfied, however, that it would be manifestly unjust to impose such a term of imprisonment on you.

[52]     I  propose   therefore   to   require   you   to   serve   a   minimum   period   of imprisonment  of  12 years.    I  am  satisfied  this  minimum  period  is  sufficient  to recognise the aggravating features of the offending and to provide for the mitigating factors relating to you personally.   This term is at the minimum that the Crown submits is open to me and I agree.   It is the very minimum that would be open. However, having given the matter considerable thought, and having discussed the matter with counsel, I have decided that this term is appropriate for the reasons I have given and particularly for your guilty plea and for your remorse.

[53]     Mr Samuel, please stand.   On the charge of murder I sentence you to life

imprisonment and direct that you serve a minimum of 12 years’ imprisonment.

[54]     Please stand down.

..................................................................

M Peters J