Samuels v Police - [2019] NZHC 694

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000027

[2019] NZHC 694

BETWEEN
JONATHAN PAUL SAMUELS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 April 2019

Appearances:

A McKenzie for Appellant

J H Whitcombe and C C White for Respondent

Judgment:

4 April 2019

JUDGMENT OF COOKE J

[1] Morgan Samuels, formerly known as Jonathan Samuels, pleaded guilty to one charge of theft over $1000, seven charges of theft under $500 and four charges of trespass. On 19 February 2019, the District Court imposed a sentence of 11 months’ imprisonment.1 The appellant appeals on the basis that the sentence was manifestly excessive.

Facts

[2] The appellant has no fixed address, is unemployed and has an alcohol problem. This offending is part of a much wider pattern of shoplifting, trespass and other minor offending which has escalated since 2013, when the appellant’s partner died. This is the appellant’s 18th sentence of imprisonment since 2013.

1 R v Samuels [2019] NZDC 3137.

SAMUELS v NEW ZEALAND POLICE [2019] NZHC 694 [4 April 2019]

[3] The charge of theft over $1000 arises from the appellant taking a near-new iPhone from an unattended bag at a bar on 24 December 2018. The phone case also included a bankcard and identification.

[4]The other charges are as follows:

(a)3 September: two instances of theft from the same supermarket at values of $24 and $20.

(b)2 December: theft from a supermarket of $31.38 of goods.

(c)12 December: theft of $39.16 of goods from the same supermarket.

(d)12 December and 16 December (x2): trespass on the Christchurch bus exchange.

(e)16 December: theft of electrical goods valued at $159.98 from a shop.

(f)17 December: theft of electrical goods valued at $249.98 from one shop and then goods valued at $28.68 from a supermarket, from which the appellant had been trespassed.

[5] The supermarket thefts were all of wine and food. The pre-sentence report identifies alcohol as the major driver of the appellant’s offending, along with ongoing grief. The report notes however that the appellant is not interested in stopping using alcohol and has not completed any alcohol programme commenced.

District Court decision

[6] The Judge first acknowledged that the appellant had written to the Court, apologising for the offending and recognising the cycle of being released from prison, being unable to find accommodation, being exposed to the culture of other homeless people, and offending again. However, the Judge stressed that the main underlying factor in the appellant’s offending is alcohol, and without motivation to address those issues, escaping the pattern will be difficult.

[7] The Judge noted that alongside deterrence and denunciation, a purpose of sentencing in this case is protection of the public, particularly protection of shop owners from having their goods stolen and protection of people on properties from having the appellant go there when they no longer want the appellant there.

[8] The Judge took the theft over $1000 as the lead charge and imposed a starting…

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 Samuels v Police

Details

AGLC: Samuels v Police [2019] NZHC 694
Case: [2019] NZHC 694
Decision Date: 4 April 2019

CaseChat Overview and Summary

The case of Samuels v Police involved the appellant, Jonathan Samuels, appealing a sentence of 11 months' imprisonment imposed by the District Court for various charges of theft and trespass. The High Court of New Zealand heard the appeal, with the central issue being whether the sentence was manifestly excessive. The appellant, who has a history of shoplifting and other minor offences, committed the current offences within a short span, driven by alcohol consumption and grief following the death of a partner. The District Court judge considered the appellant's alcohol dependency and criminal history in determining the sentence, which included uplifts for the totality of the offending, breach of release conditions, and criminal history. The appellant argued that the uplifts were excessive and the overall sentence was disproportionate. The respondent, New Zealand Police, cited other cases with similar fact patterns and argued that the sentence was justified.

The court found that the starting point of six months for the lead charge was appropriate, but the cumulative uplifts were excessive. The total sentence was inconsistent with similar cases, and the uplifts were significantly greater than the starting point, engaging the principle of totality. The court considered that short terms of imprisonment were ineffective in breaking the appellant's cycle of offending and that alternative measures were needed to prevent reoffending. The court substituted the sentence with nine months' imprisonment, taking into account the discount for guilty pleas. The appeal was allowed, and the sentence was reduced accordingly.

Orders