Samuels v Police
[2024] NZHC 2061
•26 July 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-000110
[2024] NZHC 2061
BETWEEN SHAWN TONY SAMUELS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 July 2024 Appearances:
H C Coutts on behalf of J Tupaea for Appellant W J S Mohammed for Respondent
Judgment:
26 July 2024
JUDGMENT OF PRESTON J
This judgment was delivered by me on 26 July 2024 at 4.00 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
SAMUELS v NEW ZEALAND POLICE [2024] NZHC 2061 [26 July 2024]
Introduction
[1] Mr Shawn Samuels pleaded guilty to one charge of injuring with intent to injure.1 On 23 April 2024, Judge O’Driscoll sentenced Mr Samuels to two years three months’ imprisonment.2 Mr Samuels appeals that sentence on the basis that it is manifestly excessive and should be replaced by a sentence of home detention or community detention.
The offending
[2] The offending involved a two-hour attack by Mr Samuels and a co-offender, Ms Martin-Tihi, against one victim. The victim was unknown to Ms Martin-Tihi but had known Mr Samuels for six years. The victim was in a relationship with Mr Samuels’ younger sister at the time. Both the victim and Mr Samuels’ sister were and continue to be under the care of Hohepa Care due to their intellectual disabilities.
[3] Just before midnight on 30 September 2023, Mr Samuels and Ms Martin-Tihi arrived outside the victim’s home address. They approached the victim and began to yell at him. The argument escalated and Mr Samuels punched the victim in the face. He and Ms Martin-Tihi then entered the victim’s address. Mr Samuels spoke to the victim’s flatmate and said he was about to fuck the victim up. Mr Samuels and Ms Martin-Tihi told the victim to come with them and they left the victim’s address in a vehicle driven by an associate.
[4] The victim sat in the rear middle seat between the two co-offenders. Ms Martin-Tihi punched the victim multiple times in the head and face as they drove to an address on Hampshire Street, Christchurch. Mr Samuels and Ms Martin-Tihi took the victim to a garage at the address and told him to sit on a couch. Ms Martin- Tihi punched the victim in the face multiple times while she was sitting next to him.
1 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
2 Police v Samuels [2024] NZDC 9096.
[5] The victim ran from the address, but Mr Samuels and Ms Martin-Tihi followed him. Mr Samuels approached the victim and punched him in the face, causing him to fall to the ground. Mr Samuels lifted the victim up by the front scruff of his hoodie and pushed him back to the ground.3
[6] The co-offenders told the victim to get into the car. Ms Martin-Tihi punched the victim multiple times in the face and bit him on the wrist. The victim was taken back to the same address and garage. During this time, both Mr Samuels and Ms Martin-Tihi continuously punched the victim in the face.
[7] Mr Samuels allowed the victim to leave the address and the victim arrived at his home address at approximately 2 am.
[8] The victim suffered a cut above his left eye, requiring stitches, further cuts to his lips and cheek, a fractured nose, and significant swelling and bruising to his eye and mouth.
[9] In explanation, Mr Samuels said he had punched the victim in the face while he was outside the victim’s address. He said he chased the victim down as he attempted to run away, threw him to the ground and punched him in the face. Mr Samuels denied assaulting the victim further and stated he had heard the victim getting punched later in the night but did not see who did it. He stated he did not see any injuries on the victim and denied having any intent to hurt the victim.
[10] Ms Martin-Tihi stated she went to the victim’s address because Mr Samuels told her his little sister had been hurt. Ms Martin-Tihi said Mr Samuels told her to give it to the victim.
Victim impact statement
[11] The victim provided two impact statements dated 6 November 2023 and 8 March 2024.
3 In written submissions, the Crown submit the appellant then kicked the victim in the ribs and legs, while on the ground. I have not seen reference to this in the Summary of Facts or the Judge’s sentencing notes and I disregard it, accordingly.
[12] In both statements, the victim describes that he feels he cannot go outside by himself, vulnerable, and is wary and distrustful of others. He required counselling as a result of the offending. He has stopped looking for a job because he does not want to be “out and alone and run into [Mr Samuels]”.
[13] In the March 2024 statement, the victim said he had only just started “to get back to my normal self” and the offending was “one of the hardest things” he has ever gone through.
District Court decision
[14] The Judge considered the offending was serious for its kind and involved multiple aggravating factors: prolonged nature; attack to the head; premeditation; multiple attackers; vigilante action; and occurring within a car. The Judge did not consider Mr Samuels was less culpable than Ms Martin-Tihi, finding rather that they acted jointly. In considering the least restrictive sentence, the Judge considered the seriousness and gravity of the offending and Mr Samuels’ culpability were “at the higher end of the scale”.4
[15] Based on the aggravating factors and their cumulative effect, the Judge adopted a starting point of three years three months’ imprisonment.5
[16] The Judge deducted 10 per cent for Mr Samuels’ age and lack of previous violence convictions. The Judge deducted 20 per cent for Mr Samuels’ guilty plea.
[17]The Judge imposed an end sentence of two years three months’ imprisonment.
4 Police v Samuels, above n 2, at [20].
5 While not expressed in the sentencing remarks, this placed Mr Samuels in band three of Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38(c)] which provides for a starting point of two years’ imprisonment up to the statutory maximum where there are three or more aggravating features present as set out in R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA).
Principles on appeal
[18] An appeal against sentence is available as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. It will be successful only if the appeal Court is satisfied there has been an error in sentencing and that a different sentence should be imposed.6 A court will not intervene if the ultimate sentence imposed is within the available range and can properly be justified on the application of relevant sentencing principles.7 When assessing whether the sentence is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which it was reached, or its constituent elements.8
Approach to sentencing for injuring with intent to injure
[19] In Nuku v R, the Court of Appeal issued guidance for sentencing of offending involving intent to injure, including under s 189(2) of the Crimes Act 1961.9 The indicative bands under Nuku are:10
(a)Band one: starting point of less than imprisonment may be appropriate where there are few aggravating features, a relatively low level of violence and the offender’s culpability may have been better reflected in a less serious charge.
(b)Band two: starting point of up to three years’ imprisonment where three or fewer aggravating factors identified in R v Taueki are present.11
(c)Band three: starting point of two years’ imprisonment up to the statutory maximum where three or more aggravating Taueki factors are present.
6 Criminal Procedure Act 2011, s 250(2) and (3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].
8 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
9 Nuku v R, above n 5.
10 At [38].
11 R v Taueki, above n 5, at [31].
[20] The aggravating factors identified by the Court of Appeal in Taueki which contribute to the seriousness of the conduct and criminality involved in the offending are, relevantly:12
(a)Extreme violence: where violent is prolonged, unprovoked or gratuitous.
(b)Premeditation: serious violence that can be classified as impulsive or a reaction to an unexpected event will generally be seen as less culpable than premeditated violence.
(c)Serious injury: noting care is to be taken not to double count the level of violence inflicted and the seriousness of the injuries which result from it.
(d)Attacking the head: even without the use of weapons, attacks on the head of a victim can have particularly serious consequences.
(e)Multiple attackers: greater number of attackers and greater disparity between the attackers and the victim/s, the greater the culpability.
(f)Vulnerability of victim: where the victim is particularly vulnerable, including disparity in size or strength and disabilities or otherwise defenceless, the greater the culpability.
(g)Home invasion: offending involving the invasion of the sanctity of the home will be a particularly important factor.
(h)Vigilante action: where the offending results from actions of persons taking the law into their own hands or acting out of revenge.
[21]Many of these factors mirror those in s 9(1) of the Sentencing Act 2002.
12 At [31].
Analysis
[22] Counsel for the appellant submits the end sentence failed to recognise the appellant’s rehabilitative potential and the low risk he poses to the community.13 It is argued the starting point was too high and the discounts too low, and the Judge did not recognise the impact of the appellant’s Attention Deficit Hyperactivity Disorder (ADHD) diagnosis. As a result, the end sentence was manifestly excessive and should be replaced by a sentence of home detention or community detention.
[23] Mr Mohammed, for the Crown, submits no error is disclosed: the starting point was within the available range as this was serious offending of its kind and the discounts were appropriate, if within the mid-range.
Was the starting point too high?
[24] The Judge considered the appellant had the same level of culpability as Ms Martin-Tihi:14
[25] I do not see any real difference in culpability between this defendant and his co-offender. There were two defendants involved. I find on summary that they were clearly acting jointly; they both assaulted the victim. It was a joint effort and the presence of the two attackers left the victim clearly being overpowered and unable to defend himself.
[25] In this, Mr Alloway argues, the Judge erred by wrongly holding the appellant criminally responsible for the actions of his co-offender although they were not charged as parties. As a result, counsel argues the Judge adopted too high a starting point. Counsel contrasts Mr Samuels’ conduct, which he submits amounted to two single punches to the victim’s head while outside the victim’s house and the garage, grasping the victim and pushing him to the ground, and further punches of “an unspecified number” in the garage, with that of Ms Martin-Tihi, which he says amounted to many more punches and a bite to the wrist.
13 Mr Alloway prepared written submissions, Ms Coutts appeared on the appeal.
14 Police v Samuels, above n 2.
[26] I am not persuaded any error is disclosed in the Judge’s culpability assessment. First, to isolate the culpability enquiry to a comparative calculus of punches (or other violence) by each offender as counsel suggests ignores the wider context of this offending. This was a prolonged assault in which both offenders were present at all times.15 Their joint conduct no doubt heightened the victim’s fear and limited his chances of escape, and the violence inflicted by both offenders was of a similar kind. The appellant’s conduct cannot be “viewed in isolation” from that of Ms Martin-Tihi as Mr Alloway submits. This was not a case where a co-defendant introduced an additional level or nature of violence unforeseen by the other. This was a joint attack.
It is artificial to suggest otherwise.16
[27] Nor did the Judge double count the aggravating factor of the involvement of multiple attackers, as Mr Alloway submits. That feature is but one of those informing the assessment of broadly equivalent culpability, as discussed above. Where offending is committed in a group, this does not prevent the court from distinguishing the culpability of different offenders based on different conduct. However here, for the reasons discussed, I do not accept there is a significant difference between both offender’s conduct in what was a sustained and prolonged attack.
[28] Further, even were I to accept Mr Samuels’ culpability is lower because he did not punch the victim as many times as his co-offender did, on the other hand, his culpability is increased by other elements of the offending. It was he who instigated the offending. Ms Martin-Tihi did not know the victim. Mr Samuels, in reaction to hearing his sister was hurt, took Ms Martin-Tihi to the victim’s address. When the victim ran from the address, both co-offenders followed him but it was Mr Samuels who then further assaulted him, preventing his escape.
15 Together with a third person, the driver of the vehicle in which they sat flanking the victim, during part of the offending.
16 All the allegations were set out in the Summary of Facts which Mr Samuels accepted, on the face of which it is also recorded he was charged “Together with” the co-offender Ms Martin-Tihi.
[29] For these reasons, I agree with the Judge’s assessment that there was no real difference in culpability between the two offenders.17
[30] Having regard to the seriousness of the offending, as the Judge identified, numerous of the Taueki aggravating factors were present: attacks to the head; premeditation; the involvement of multiple attackers outnumbering the victim; victim vulnerability; a vigilante aspect to the assault; its prolonged nature; and the abduction and detention in the car. I agree the victim was particularly vulnerable, as the Judge found. He has an intellectual disability, causing developmental delay and difficulty understanding social situations and cues. Relevantly, Mr Samuels had known the victim for six years and was aware of this vulnerability as is evident from his comments in the pre-sentence report.18 It is to be inferred Mr Samuels likely had a greater appreciation of the implications of such a disability than other people when considering his younger sister has a similar disability.
[31] The offending also included the further aggravating factor of home invasion. And, while no long-term disability has resulted, as the photographs on the court record attest, the victim suffered significant head and facial injuries. The emotional impact has been significant and long-lasting.
[32] Given the number of aggravating factors present, the appellant’s offending clearly fell within band three of Nuku attracting a starting point of between two years’ imprisonment and the maximum penalty, here five years’ imprisonment. I also accept, by reference to the aggravating factors individually and considered in accumulation, the offending is very serious of its kind.
[33] Assessing all these matters, I consider the starting point is unimpeachable, as plainly within the available range.
17 At sentencing, Mr Samuels’ co-offender had not been sentenced. No disparity argument is available, accordingly, for example due to a more lenient sentence having been imposed on a co- offender. Any such hypothetical challenge would necessitate examination whether an arguably lenient sentence was nonetheless within range.
18 Describing the victim as a “simpleton”.
Discounts
[34] The Judge deducted 10 per cent from the starting point having regard to the appellant’s age, 22 years at the time of the offending, and his lack of past violence convictions. Mr Alloway submits the appellant’s offending has “all the hallmarks” of youth and the discount was too low.
[35] Youth discounts are often given to young offenders to recognise the age-related neurological differences between young people and adults. As the Court of Appeal in Diaz v R observed:19
Such discounts acknowledge that an offence may be an act of immaturity or youthful indiscretion, young people can be more vulnerable or susceptible to negative influences and outside pressures, and young people may fail to appreciate the full gravity of offending. Youth discounts also recognise that imprisonment is likely to be disproportionately severe on young people and that young people have a greater capacity for rehabilitation.
[36] The extent to which the rationale for youth discounts is present will vary from case to case and as such so will the size of the discount.20 Factors such as whether the defendant is a first-time offender, the offending was impulsive (or, conversely, whether there was premeditation) or caused by peer pressure will also be relevant.21
[37] Mr Alloway submits the Judge wrongly conflated the factors of youth and absence of previous convictions or that, at least, the 10 per cent was insufficient given this. I do not agree. The absence of relevant convictions demonstrates an offender’s rehabilitative potential, that is, it suggests greater capacity for rehabilitation, as is also recognised due to youth for similar reasons. It was appropriate for the Judge to combine these two factors into one joint discount.
[38] Further, the younger the offender is, the greater the likelihood the rationale for youth discounts will be relevant. Mr Samuels was 22 years old at the time of the offending. This is in the mid-range of the age bracket (18-25 years) in which the court may recognise the mitigation of youth.
19 Diaz v R [2021] NZCA 426 at [37]; and see Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[79].
20 Williams v R [2023] NZCA 637 at [20].
21 At [20].
[39] I accept the matters raised by Mr Alloway, and emphasised by Ms Coutts in oral submissions, including the harsher impact of imprisonment on a young offender, are engaged. However, there are other factors which operate to reduce the credit otherwise available.
[40] First, while it was prompted in response to a grievance, the offending was not purely or wholly impulsive, as Mr Alloway submits. The appellant went to the victim’s address and took Ms Martin-Tihi with him. Ms Martin-Tihi stated that the appellant had told her to “give it to [the victim]”. The appellant told the victim’s flatmate he was “about to fuck the victim up”. There was an element of premeditation and the appellant had a clear intention of injuring the victim, not merely having a “discussion” as counsel submits, both before he went to the victim’s address and upon arrival before the first punch had been thrown. Even accepting the initial punch by the appellant at the victim’s address might have been impulsive, the attack was prolonged. It lasted two hours, involved organising a third associate to drive the offenders and the victim to another address and, when the victim tried to run away, the appellant chased him down and brought him back to the garage. That is not rash, impulsive behaviour.
[41] Second, I accept as Mr Mohammed submits, Mr Samuels’ rehabilitative potential is limited by his lack of remorse and insight into his offending. He commented to the pre-sentence report writer that he “felt justified in his actions towards the victim when he punched him”. In light of this, I consider limited additional weight for rehabilitative prospects, if any, attaches to the offer to attend restorative justice, which did not occur because it was considered inappropriate.
[42] Third, no peer pressure or negative influence is evident. Rather, the appellant instigated the attack. He threw the first punch. If anything, it was Mr Samuels who pressured Ms Martin-Tihi to go with him to the victim’s address and carry out the attack with him.
[43] Weighing these aspects and accepting that another judge may have afforded more than a 10 per cent reduction, I am not persuaded it was out of range. I agree with the Crown it was at the “midpoint”.
[44] As well, the Judge deducted 20 per cent for Mr Samuel’s guilty plea. The offending occurred over the night and early hours of 30 September and 1 October 2023. The appellant first appeared on 8 November 2023, entered a not guilty plea on 29 November 2023 and pleaded guilty on 12 February 2024. It does not appear a trial date had been set. In those circumstances, the 20 per cent discount at sentencing was arguably generous. This goes some way to balance any insufficiency in the discount for youth and lack of past convictions.
[45] Accordingly, I do not disturb the 10 per cent discount for youth and absence of previous relevant convictions.
[46] Mr Alloway further submits a discount was warranted for the appellant’s ADHD diagnosis because it exacerbates his issues with impulsivity, was a causal factor of the offending and means prison life is more difficult.22 Additionally, because it is a treatable condition, it shows clear rehabilitative potential because medication could bring about a significant change.23
[47] Mr Samuels was diagnosed with ADHD at the age of four and had little treatment for it, coming off medication at the age of 13. His ADHD is untreated currently. He told the pre-sentence report writer he does not intend to go on medication as he is able to manage it well without treatment. In the absence of an intention to take medication or alternative treatment methods, rehabilitative potential on this basis is not indicated. Moreover, for the reasons explained at [39], I do not find the appellant’s ADHD diagnosis has a causal link to the offending due to the symptom of impulsivity.
[48] I accept the appellant’s ADHD may mean imprisonment is harsher for him but, against the facts of the offending, I consider a maximum discount of five per cent for the appellant’s ADHD could have been available to the sentencing Judge, either as a discrete deduction or added to the discount for youth and absence of prior relevant convictions to reflect the extent to which factors of youth and ADHD may intertwine or the latter exacerbates symptoms of the former (for example, impulsivity). A five
22 R v EE Kuogh (Augustine) Lau [2018] NZHC 2935.
23 Kolofale v R [2022] NZCA 74.
per cent adjustment on appeal is inappropriate. I note that even if applied here, it would result in an end sentence of 25 months’ imprisonment, which would prevent consideration of a sentence of home detention.
Conclusion
[49] No error is disclosed. The starting point is unimpeachable in relation to what was sustained and concerted offending against a vulnerable victim. The credit afforded for youth and Mr Samuels’ absence of any prior violence convictions was available, if mid-range. No, or no material, additional credit was warranted for his condition of ADHD, for the reasons I have explained.
Result
[50]The appeal is dismissed.
………………………………………
Preston J
Solicitors:
G E R Alloway, Christchurch J Tupaea, Christchurch
Crown Solicitors, Christchurch
Copy to:
H C Coutts, Barrister, Christchurch
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