The appellant pleaded guilty on indictment to three charges, consisting of assault with intent to injure, intentional damage, and male assaults female. He was sentenced by Judge Crosbie in the District Court at Dunedin to two years and five months’ imprisonment.[1]
[1] R v Samuel DC Dunedin CRI-2011-012-2056, 7 May 2012.
The appellant now appeals against that sentence on three grounds. Those are: that the starting point of 20 months’ imprisonment was too high; the uplift for the appellant’s previous criminal history was excessive; and the Judge did not acknowledge or make any allowance for compassionate grounds advanced on behalf of the appellant.
The appeal was filed out of time. However, the Crown does not oppose an extension of time. We grant an extension of time to bring the appeal.

Factual background

The background facts are not in dispute. The following summary is drawn from the Judge’s outline at sentencing. The appellant is aged 22 years. The victim of his offending is his former partner. On the afternoon of 8 August 2011 the appellant asked the victim if he could use her laptop computer. The victim permitted the appellant to use the laptop for several minutes before asking him to return it. When he refused, the victim grabbed a cord from the laptop and held it behind her back. The appellant approached her and attempted to retrieve the cord, causing pain to the victim’s arm. When the appellant let go, the victim went to her bedroom and locked the door. The appellant then kicked the bedroom door open and proceeded to punch the victim twice in the face with a closed fist. The force of those blows caused the victim to fall to the floor. The appellant positioned himself on top of her and prevented her from standing up. This continued for about two minutes, during which time the victim’s flatmate came into the room. The appellant said to her “just let me choke her out so she will calm down”.
The appellant then let the victim go, and she went to the living room to call the police. The appellant prevented her from doing so by pulling the telephone jack out of the wall. The appellant approached the victim, prompting the victim’s flatmate to attempt to protect her by standing between the two. The appellant shoved the victim’s flatmate then attempted to punch the victim. His punch struck the victim and also connected with the head of the flatmate. The appellant then retrieved the laptop from the bedroom and threw it…

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 Samuel v R

Details

AGLC: Samuel v R [2012] NZCA 376
Case: [2012] NZCA 376
Decision Date: 24 August 2012

CaseChat Overview and Summary

In this case, Tama-Ngakau Aroha Morris Samuel, the appellant, appealed against the sentence imposed by Judge Crosbie in the District Court at Dunedin. The appellant had pleaded guilty to three charges: assault with intent to injure, intentional damage, and male assaults female. He was sentenced to two years and five months' imprisonment. The grounds for the appeal were that the starting point of 20 months' imprisonment was too high, the uplift for the appellant's previous criminal history was excessive, and the Judge did not acknowledge or make any allowance for compassionate grounds advanced on behalf of the appellant. The appeal was filed out of time, but the Crown did not oppose an extension of time, so the Court granted an extension of time to bring the appeal.

The court considered the starting point of the sentence, the uplifts, and the discounts. The Court found that the starting point of 20 months' imprisonment was appropriate, as there were several aggravating factors present, including the blows to the victim's head, the prolonged and overbearing nature of the violence, and the wanton destruction of property. The Court also found that the uplifts were appropriate, as the appellant had a serious issue with violent offending that needed to be addressed. The discounts, including the guilty plea discount, were also found to be appropriate. The Court did not find that any further discount should be given on compassionate grounds, as the protection of the community was seen as important.

Ultimately, the Court found that the sentence imposed was not manifestly excessive, and the appeal was dismissed. The Court's reasoning and outcome were based on a thorough evaluation of the aggravating and mitigating factors present in the case, as well as an examination of the relevant sentencing principles and precedents.

Orders