R v Samuels

[2009] NZCA 153

IN THE COURT OF APPEAL OF NEW ZEALAND

CA630/2008
[2009] NZCA 153

THE QUEEN

v

JAMES RAYMOND SAMUELS

Hearing:20 April 2009

Court:Ellen France, Heath and Fogarty JJ

Counsel:R J Laybourn for Appellant

N P Chisnall for Crown

Judgment:29 April 2009 at 11.30 am 

JUDGMENT OF THE COURT

The appeal is dismissed. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1]       Mr Samuels appeals against a term of ten years imprisonment that was imposed on him by Judge Ingram in the District Court on 26 September 2008.  He had entered guilty pleas to eight informations against s 198A of the Crimes Act 1961 of using a firearm against the police, which comprised four charges of presenting that firearm and four of discharging the weapon. 

[2]       A term of ten years imprisonment was imposed on lead charges arising out of the discharges of the rifle.  On the other firearms charges he was sentenced to a period of eight years.  He was sentenced on a charge of burglary for three years and for two months each in respect of breach of community work and breach of supervision.  On an unlawful taking of a vehicle charge he was sentenced to a period of one year.  All sentences are to be served concurrently.

[3]       All these charges arose from the burglary of a private home from which the appellant and his partner stole a .22 rifle, ammunition, and a motor vehicle.  They left the scene and were then pursued in an extended police chase, over a period of half an hour or more, for a distance of 50 to 60 kilometres. 

[4]       During the pursuit Mr Samuels aimed the rifle at the pursuing vehicles.  On four occasions he fired shots.  The chase ended with Mr Samuels emerging from the vehicle, with the rifle in hand and his finger on the trigger.  He failed to comply with police instructions to put the rifle down.  Instead he walked towards the police.  In the face of repeated instructions to disarm he raised the rifle and aimed directly at a constable.  He was shot.  He was struck in the chest and seriously wounded.  He is now confined to a wheelchair.  He was 19 years old at the time.

[5]       As a 17 year old youth Mr Samuels had appeared in the Youth Court in January 2005 on six charges including burglary with a weapon, receiving drugs, and theft.  In 2006 he had been convicted in the District Court for disorderly behaviour.  In February 2007 he had appeared in the District Court on several charges; in May, one charge; in June, five charges, being variously minor offences of theft and other offences such as unlawfully getting into a motor vehicle and assault.

[6]       At the time of this offending he was on bail and still subject to Court sentences which had not been completed.  He had not been sent to prison. 

Summary of the reasons for the sentences

[7]       The Judge kept:

… steadily in mind that multiple shots were fired in the course of a lengthy and dangerous vehicle chase, extending over some 50 kilometres or so … (at [58]).

Judge Ingram was of the view that this serious case should be dealt with by imposition of a sentence close to the maximum penalty.  The maximum is 14 years.  He reached the view that 12 years was an appropriate starting point. 

[8] He uplifted this by three years because of what he saw as “substantial aggravating factors”: at [59]. These included the number and seriousness of the charges, the date and relevance of Mr Samuels’ prior convictions, and of the other offences not related to firearms, in particular the burglary. He also took into account that these offences occurred while he was on bail and still subject to Court sentences.

[9]       From that total of 15 years Judge Ingram then allowed a credit of five years in the following fashion:

[62]     … I allow you a credit of four years for your guilty plea and your youth, and I allow also something for the serious injury that you have and the fact that your life will never be the same for physical reasons, as a result of these events.  That is a total of five years.  If I subtract the five years from 15 years that leaves me a sentence of 10 years imprisonment.

Issues on appeal

[10]     Mr Laybourn for the appellant argued:

(a)       The starting point of 12 years was too high.

(b)       The three year uplift was too high.

(c)       The allowances by way of deduction were inadequate.

Starting point

[11]     Mr Laybourn argued that there was some difficulty in identifying a starting point because of the relative novelty of these facts.  However, there was clearly potential for more serious examples.  He instanced two examples.  One was where a person went out armed to confront the police.  The second is of an offender confronting a lone country police officer.  By contrast he pointed out that the confrontation that occurred in this instance was in a sense opportunistic.  It occurred because the police had found the stolen vehicle and began to chase it.  Mr Laybourn pointed out that the Crown had sought a starting point of 10 to 11 years. 

[12]     Section 198A(1) of the Crimes Act  provides:

198A   Using any firearm against law enforcement officer, etc

(1)       Every one is liable to imprisonment for a term not exceeding 14 years who uses any firearm in any manner whatever against any member of the Police, or any traffic officer, or any prison officer, acting in the course of his or her duty knowing that, or being reckless whether or not, that person is a member of the Police or a traffic officer or a prison officer so acting.

[13]     As this Court said in R v Taylor CA407/88 9 May 1988 at 6:

Section 198A was enacted in 1986 and shows a firm legislative intention that those using firearms against law enforcement officers should be dealt with severely.  Clearly deterrence must be a major consideration in sentencing for this offence.  The maximum penalty is one of 14 years imprisonment, and the section does not distinguish between different kinds of use, indeed it speaks of using a firearm in any manner whatever.  Presenting a firearm, even an unloaded one, is thus clearly within the terms of the section, and any instance of it must be treated seriously.

[14]     We think that the conduct of Mr Samuels is the very sort of conduct in respect of which Parliament intended there to be severe punishment.  Police officers on patrol are routinely unarmed, and vulnerable to attacks of this sort.  Presenting firearms against law enforcement officers is intended by Parliament to be dealt with severely.  In our view there is little assistance to be gained by arguing this was lesser offending than an attempt to murder, also having a maximum penalty of 14 years.  (The appellant had been charged with attempted murder which had been withdrawn.)  There are different policy reasons why these charges have the same maximum period of imprisonment.  The correct exercise is to focus on the obvious reason for the high maximum penalty for using firearms against law enforcement officers, set out in Taylor. 

[15]     We are not persuaded that there was any error on the part of Judge Ingram in selecting a starting point of 12 years.  The offending was “near to the most serious of its type” and therefore, in our view, justified a starting point “near to the maximum” penalty prescribed: s 8(d) of the Sentencing Act 2002.

The uplift of three years

[16]     If the burglary of the rifle and the vehicle are examined in isolation from the car chase, and the presenting of the firearms, then a penalty of three years for burglary as the lead offence is likely to be at the top of the range of available penalties, as Mr Chisnall properly acknowledged.  In that regard we are not satisfied that that related offending is of itself sufficient to justify an uplift of three years.  However, when one adds the 50 to 60 kilometre road chase at speeds of 50 to 70 kilometres and upwards for over half an hour, part being through built-up areas, posing risks to the public, and in defiance of police authority, we think that the uplift of three years for these aggravating features is justified. 

Discounting factors

[17]     It was common ground that the plea of guilty should be taken as prompt, as it followed immediately the withdrawal of the attempted murder charge just prior to the depositions.  Sentencing judges have a degree of discretion as to the percentage of discount.  We think in the circumstances that a discount of four years was well within that range (R v Fonotia [2007] 3 NZLR 338 at [50] (CA)), acknowledging as well the inclusion of the additional factor of the youth of the offender. Not much weight can be given to that latter factor given his criminal history.

[18]     The Judge allowed a further discount of one year for the serious injury he had suffered and the fact that he is currently in a wheelchair and likely to be for some considerable period of time.  That is not a mitigating discount but is a compassionate recognition of consequences of criminal offending.  It is supported by the reasoning of the Supreme Court in Jarden v R [2008] 3 NZLR 612 at [14] and [15]. We note he did not impose a minimum period of imprisonment, and took into account the power of the Parole Board, should it not prove possible to keep the appellant in prison. We agree.

General conclusion

[19]     In the round, we think that the sentence of Judge Ingram was undertaken carefully.  We are of the view his sentences should not be disturbed.  We have, as we are sure he did, kept the totality principle in mind.  We have agreed with his sentence for slightly different reasons, as is not uncommon in a sentencing task of this complexity. 

[20]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington