Samaeli v The King

[2024] NZHC 441

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-232

[2024] NZHC 441

BETWEEN

WAYLON SAMAELI

Appellant

AND

THE KING

Respondent

Hearing:	15 February 2024
Appearances:	A M S Williams & K N Stitely for Appellant L Fiennes for Respondent
Judgment:	5 March 2024

JUDGMENT OF PRESTON J

This judgment was delivered by me on 5 March 2024 at       pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

SAMAELI v R [2024] NZHC 441 [5 March 2024]

Introduction

[1]                  In February 2023 Waylon Samaeli was an inmate at Christchurch Mens Prison. Together with four other men he took part in a premeditated group attack on Corrections officers in their unit.

[2]                  Mr Samaeli accepted a sentence indication from Judge Crosbie and pleaded guilty to two charges of assault with intent to injure.1 On 18 October 2023, the Judge sentenced Mr Samaeli to 16 months’ imprisonment.2 It is against this decision he now appeals.

[3]                  Mr Samaeli says that as a result of a difference in the methodology adopted at sentencing an erroneous sentence was imposed which requires correction.

[4]                  It is common ground that the sentencing Judge departed in some respects from his earlier indication, however the appellant does not wish to vacate his plea and be re-sentenced.3 Accordingly, this Court must determine whether that departure has resulted in an end-sentence imposed which is manifestly excessive.

The offending

[5]                  I adopt the outline of the offending from the District Court Judge’s sentencing notes, as follows:4

The four of you were housed within  the Matai  2 unit.  At  about 4 pm on  28 February you were brought to the unit to go back into your cells for dinner. At that time, you were allowed some personal time to receive mail and the like before being placed back in your cells.

The victims in the matter, Corrections officers working on Matai 2 were known, obviously, to all of you. At 4.16pm Mr Strickland and Mr Samaeli were speaking with the first of the Corrections officers, referred to as victim

1.    Whilst speaking with him and looking at Mr Samaeli, Mr Strickland came from his left and punched him in the right-side of his face with his left hand. He was dazed and possibly briefly knocked out. When he has recovered consciousness, he immediately backed away from Mr Strickland and put his hands in the air. Mr Strickland continued to strike which included a series of punches to the face and kicks to the legs.

1      Crimes Act 1961, s 189(2) – maximum penalty of five years’ imprisonment.

2      R v Samaeli [2023] NZDC 23078.

3      Williams v R [2021] NZCA 54.

4      R v Samaeli, above n 2, at [3] – [10].

At the time Mr Strickland started the assault on victim 1, victim 2 and a third Corrections officer were standing at the bottom of the stairs situated at the back of the unit dealing with some paperwork, handing out mail and phone cards and the like. Victim 2 saw what was happening and tried to make a distress call on the radio. Victim 3 retreated up the stairs. Mr Samaeli picked up a water bottle off the nearby table and threw it at the third at close range hitting him in the chest area. Victim 3 was wearing stab resistant body armour so was unharmed.

The second of the Corrections officers, victim 2, was attacked by Messrs Ward, Whitlow, and Beazley. All advanced aggressively on him with Whitlow and Beazley attempting to punch him in the face and head and forcing him backwards into a cell. The point I make here is that Ms Gordon has stressed on Mr Ward’s behalf that his involvement was advancing, being part of the group.

The Corrections officer kept his arms up over his head and face during that time, but his elbow caught the doorway as he backed into the cell resulting in a gash. Once inside the cell he has fallen over backwards causing him to hit his head on the cell floor. As a result, he sustained several nasty gashes to the head.

Victim 1 was pursued around  the  back  of  the  unit  under  the  stairs  by Mr Strickland and, on moving through the other side of the unit, the defendants Ward and Beazley, who were advancing and/or attacking on victim 2, had been distracted and together with Mr Samaeli joined the assault on the first victim with Whitlow, Beazley and Samaeli attempting to punch him at every opportunity.

Victim 1 has pushed a large rubbish bin over in the direction of the defendants but had to move through them to get away. They all tried to punch him again. Mr Strickland has continued to pursue victim 1 around the back of the unit behind the stairs until he has been sprayed by another officer through the stairs. He again tried to come at victim 1, but victim 1 managed to get his pepper spray out while Mr Strickland was momentarily distracted. He sprayed him directly in the eyes and face at that stage. Mr Strickland has finally backed down.

All defendants have moved to the back of the unit while the victims 1 and 2, the Corrections officers, have stayed at the other end of the unit to keep an eye on them and the other prisoners in the  unit.  Additional  staff  arrived  at  that time but Mr Strickland together with the other defendants continued to be aggressive and confrontational towards the staff.

Sentence indication

[6]                  On 22 August 2023, Judge Crosbie gave a sentencing indication to Mr Samaeli and three of his co-offenders, Messrs Ward, Whitmore and Strickland.5 He noted this was a “general indication” and that starting points would not be higher than indicated.

5      R v Samaeli DC Christchurch CRI 2022-009-003644, 22 August 2023.

[7]                  The Judge was informed that a fifth co-offender who was ascribed “lower end” culpability had received a starting point of around 18 months. He dealt with the defendants before him on the basis that Mr Ward had a similar lower end level of culpability, Mr Samaeli and Mr Whitmore had greater culpability and Mr Strickland was the lead offender.

[8]                  Dealing with each in turn, the Judge indicated a nominal starting point which had regard to the defendant’s culpability, together with a tailored uplift for relevant previous convictions and a guilty plea credit (15 per cent in each case), before any other credits personal to the offender. The question of any other discounts available on further information at sentencing was left open.

[9]                  For Mr Samaeli, Judge Crosbie indicated a starting point of 22 months’ imprisonment, with a three-month uplift because of his history in the District Court, and discounts of 15 per cent for his guilty plea and 10 per cent for his youth.6

[10]In relation to the youth discount, the Judge observed that:

“Mr Samaeli, while youthful in years, is not youthful in terms of criminal history. There is an entrenched history in the Youth Court but the two matters that see him serving a current sentence are aggravated robbery. They are serious, meaning that the youth discount needs to be more tempered”.

District Court decision

[11]Judge Crosbie sentenced the four co-defendants together on 18 October 2023.

[12]              The Judge regarded the case as one involving extreme violence with premeditation and attacks to the head of vulnerable victims who were acting in a difficult employment environment as prison officers. He advised he was applying the starting points he had earlier indicated, which were informed by two decisions of this Court, Howes v Police7 and Haeata v Police.8 Placing a clear focus on denunciation, the Judge noted the need for a deterrent message applying not only to the defendants

6 At [7]. Mr Samaeli was 21 years old at the time of the offending.

7      Howes v Police [2019] NZHC 1841.

8      Haeata v Police [2019] NZHC 3268.

but also to the general prison population that offending in this manner will invariably be dealt with by a sentence of imprisonment.

[13]              To each of the defendants, the Judge gave a credit of 15 per cent for their pleas and a further discount of five per cent for the offer to attend restorative justice as well as personal circumstances.

[14]              When dealing with Mr Samaeli his Honour noted he referred to premeditation but said the offending was organised by another and had provided a written apology which was taken into account.

[15]              As noted, the Judge expressed himself in terms of confirming the starting points which he had previously indicated. But in respect of Mr Samaeli he fixed a starting point of two years, not the 22 months indicated. No uplift was applied for previous convictions. Total credits of 20 per cent were applied as recorded at [13], above but there was no discount for youth. The sentence of 19 months’ imprisonment was reduced by  three  months  for  totality.  This  resulted  in  an  end-sentence  of 16 months’ imprisonment.

Approach on appeal

[16]              The focus of an appeal against sentence is not on the process by which it was reached but the correctness of the end result.9

[17]              An appellate court may allow an appeal only if it is satisfied that there has been an error in the imposition of the sentence and a different sentence should be imposed.10 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.11 Only if the sentence is “manifestly excessive” will it be appropriate for this Court to intervene and substitute its own views.12

9      Ripia v R [2011] NZCA 101 at [15].

10     Criminal Procedure Act 2011, ss 250(2) and 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

12 At [33].

The competing submissions

Appellant’s submissions

[18]              For the appellant Mr Williams submits a “clear error” has occurred by the failure to follow the sentence indication, including the omission of the youth discount. He says that the sentence was manifestly excessive having regard to Mr Samaeli’s involvement in the offending, his youth and personal circumstances and what was the “best and appropriate sentence” for a young man who would be in jail from ages 19 to 25 years. Mr Williams submits that had the District Court followed the sentence indication, the applicable sentence would have been 17.5 months’ imprisonment prior to adjustment for totality and argues for further discounts on appeal.

Respondent’s submissions

[19]              The respondent accepts that the Judge departed from the sentence indication but submits no error has resulted as, although differently constructed, the end sentence of 19 months before adjustment for totality was  the same as had been indicated.13  Ms Fiennes argues the sentence imposed is not manifestly excessive as the higher starting point was within range and while a youth discount of between five to ten percent was available its omission was immaterial given the omission of any uplift for Mr Samaeli’s previous District Court convictions. Further, no totality adjustment was necessary given the nature of the offending.

Discussion

[20]              It is common ground the Judge did not follow the sentencing indication, in three material respects. He adopted a starting point of 24 months’ imprisonment having indicated 22 months. He did not apply any uplift for Mr Samaeli’s relevant previous convictions, having indicated a three month uplift which would have yielded an adjusted starting point of 25 months, and he omitted to give the discrete 10 per cent discount for youth he had indicated.

13     Williams v R [2021] NZCA 54.

[21]              A Judge giving a sentence indication is bound by that indication unless further evidence comes to hand which shows that the sentencing indication was inappropriate.14 A defendant who is facing an increased sentence must be given the opportunity to vacate the guilty plea and go to a defended hearing rather than waiting to be sentenced on the newly discovered facts.15 Here, the appellant argues he has received an increased sentence. But he eschews the opportunity to vacate his plea and be re-sentenced by the District Court.

[22]              On its face an error has occurred in the sentencing process. This Court’s determination of the impact of the error and whether it has resulted in an increased sentence is central to the determination of the appeal.16

A preliminary observation: the starting point error

[23]              Although this aspect of the appeal was not argued before me, a preliminary observation is necessary having regard to the starting point error.

[24]              Judge Crosbie at sentencing summarised the starting points he had indicated for each of the offenders as follows:17

I indicated starting points of two years and six months for Mr Strickland, two years for Mr Samaeli, two years two months for Mr Whitlow and 18 months for Mr Ward.

[25]              It is clear from his remarks that the Judge understood he was applying the same starting points for each offender as he had indicated.18 However, it appears that at sentencing when referring to the “starting point" he was referring to an adjusted starting point, which included any relevant uplift for convictions.

14     Criminal Procedure Act, s 116(1).

15     Section 115.

16     Ferris-Bromley v R [2017] NZCA 115.

17     R v Samaeli, above n 2, at [19].

18     At [35] and [37], for example.

[26]              This can be seen by a comparison of each of Mr Samaeli’s co-offenders’ starting points at the sentencing indication and as subsequently applied at sentencing.

Mr Strickland

[27]              Mr Strickland was the lead offender. Judge Crosbie had indicated a starting point of 24 months, with an uplift of six months for his “significant and relevant previous convictions”. At sentencing, Judge Crosbie adopted an “overall starting point” of 30 months, which is consistent with his initial indication of the starting point combined with the tailored uplift.   The Judge did not apply a discrete uplift for     Mr Strickland’s previous convictions.

Mr Whitlow

[28]              Similarly, the Judge indicated for Mr Whitlow a starting point of 22 months, with a four month uplift for previous convictions. At sentencing, the Judge confirmed the starting point as 26 months, did not apply any uplift for previous convictions, and from that combined starting point applied the credits for mitigating factors personal to Mr Whitlow.

Mr Ward

[29]              So, too, Mr Ward. Judge Crosbie had indicated a 16 month starting point with a “moderate” uplift of two months. At sentencing, the Judge confirmed a starting point of 18 months, before credits were applied. Again, no uplift was applied for previous convictions.

What did that mean for the sentence imposed?

[30]              Two points emerge from this review. First, in relation to the other co-offenders Judge Crosbie’s approach was to apply an adjusted starting point which absorbed the indicated uplift as a term of months, not as a percentage, and then apply credits for mitigating factors expressed as percentages of that adjusted starting point. Second, it appears Mr Samaeli’s two year starting point was an inadvertent error intended to refer to the overall starting point Judge Crosbie had indicated including the uplift, albeit it was an under-statement if so by one month.

[31]              This analysis supports the appellant’s argument but departs from the two-step methodology in Moses v R.19 On this approach overall credits including the youth discount indicated would total 30 percent from an adjusted starting point of 25 months (as it would appear the Judge intended), reducing the end-sentence before totality to

17.5 months.20

[32]              In contrast, the Crown argues that the Court should apply the two-step sentencing methodology set out by the Court of Appeal in Moses v R to the enquiry on appeal.21 Using that methodology in a side-by-side comparison the Crown submits there was no material difference in the end sentence before totality adjustment:

Sentence components	Sentence indication	Sentencing
Starting Point	22 months	24 months
Uplifts:	3 months (13.6%)	Nil
Discounts:	Plea: 15% Youth: 10%	Plea: 15% Personal factors/RJ 5%
Net discount:	11.4%	20%
End sentence:	19.5 months	19.2 months

[33]              However, I consider it would be artificial to re-consider the sentence on appeal as the Crown contends for, given the Judge’s approach at sentencing. While the Crown argues a lower youth discount, between five and ten per cent, could have been applied the Judge had expressed an intention to afford ten per cent.

19     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

20     As the respondent identified in submissions, if the sentence proposed by the appellant is re- assessed applying the Moses methodology, the end sentence before totality would be 18.4 months.

21     Moses v R, above n 19.

[34]              Similarly, while the nature of this violent offending in the prison environment called for a condign response and the Court of Appeal has recognised in these circumstances a totality adjustment may not be indicated,22 the experienced Judge found one was appropriate here, for each offender. That is particularly relevant in Mr Samaeli’s case given his relative youth and the impact of the cumulative term. I return to the quantum of the adjustment for totality below.

Should there have been more credit?

[35]              I turn now to the additional matters for which Mr Samaeli says he should have been afforded more credit.

Mr Samaeli’s involvement in the offending

[36]              I am not persuaded the Judge wrongly assessed Mr Samaeli’s culpability in the offending.

[37]              On any view this was a serious assault involving a fluent, if chaotic, pack attack on multiple victims who were chased to different areas of the unit as they ran for protection. Mr Samaeli may have tried to dissuade it beforehand, but he joined in with force, once it was under way. I put aside the fact that Mr Samaeli was speaking with the first victim when a co-offender punched that officer without warning, which on the information before me I cannot determine was necessarily planned. However, once it began, Mr Samaeli then threw the water bottle at a third officer who was retreating and joined two others in the further attack on the first victim who had been chased under the stairs. There, Mr Samaeli along with others tried to punch him at every opportunity.

Personal circumstances

[38]              Mr Samaeli received a five per cent discount for his personal background factors and his willingness to engage with restorative justice. I do not consider the Judge “dismissed” the background factors as set out in the appellant’s s 27 report or

22     Tryselaar v R [2012] NZCA 353.

gave them inadequate weight. The appellant contends these justified a discrete further discount of 7.5 per cent. I acknowledge Mr Samaeli’s unfortunate background reflects criminogenic factors including childhood abuse, his diagnosis of ADHD and his youthful association with anti-social gang influences leading into his early involvement in criminal activity.

[39]              As Judge Crosbie noted, he had the unique advantage of having sat on the Parole Board for the 22 years that he has been a Judge. He was well placed to undertake the enquiry required in accordance with Berkland v R to assess the impact of those personal factors in context of this offending.23 He noted the s 27 reports that had been provided for Mr Samaeli and another. He acknowledged the circumstances of hardship and deprivation therein, which he observed were reflected in the backgrounds of each of the four co-offenders before him. He did not consider that there was any, or sufficient, causative link between those circumstances and the offending. That conclusion was open to him; accepting the gang associations which were at play in the offending, it is unclear how the issues of childhood abuse and ADHD diagnosis were a causative contributor to Mr Samaeli’s decision to join this planned group attack.

[40]              Further, this case is clearly one of those in which the sentencing purposes of denunciation, deterrence and community protection are prominent given the nature and seriousness of the offending and notwithstanding Mr Samaeli’s youth and his greater prospects of rehabilitation. The discount for Mr Samaeli’s background was inevitably limited, and properly so.24

[41]              Nor is it incongruent as Mr Williams submits that the appellant’s previous offending (but not Youth Court involvement, which was expressly excluded by the Judge) was intended to be taken into account as, as I have found, some credit was afforded for his personal circumstances and it was open to the Judge to temper the credit.

23     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

24 At [16].

Conclusion

[42]              It is unclear whether Mr Samaeli’s case involves a mathematical error in the sense described by the Court of Appeal in Ferris-Bromley, resulting in an end sentence greater than the Judge patently intended.25 The appellant’s counsel concedes as much. This is realistic given that the indicated totality adjustment was not quantified before sentencing. Although a higher starting point was adopted than indicated, no uplift was applied for Mr Samaeli’s previous convictions and on an orthodox approach no material difference to the end sentence resulted. However there was a material error by omission of the indicated youth discount. No doubt that occurred inadvertently in the sentencing of multiple offenders but the net effect, on the Judge’s indicated methodology, has led to an end sentence greater than that indicated.

[43]              Standing back, the appropriate approach in my view is to apply the sentencing methodology as the Judge had indicated and afford the additional youth discount of 10 per cent. This yields an end-sentence before totality of 17.5 months.

[44]              This leaves the question of totality. As I have found, it would be wrong to omit to provide any adjustment for totality. The appellant contends for a totality adjustment of two months. Rounded down this results in an end-sentence of 15 months. In different circumstances this Court might regard such an adjustment as tinkering but in the special circumstances of this case it should be corrected on appeal.

Result

[45]              The appeal is allowed. The end-sentence is reduced to 15 months’ imprisonment on each of the two offences, cumulative on Mr Samaeli’s current sentence.

………………………………………

Preston J

Solicitors

A M S Williams Barrister, Christchurch for Appellant Crown Solicitor, Christchurch for Respondent

25     Ferris-Bromley v R above n 16 at [15].