Samuels v Police - [2018] NZHC 2931

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-19

[2018] NZHC 2931

BETWEEN
FALCON SAMUELS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 November 2018

Appearances:

N Wright for Appellant

C C Gullidge for Respondent

Judgment:

12 November 2018

JUDGMENT OF GRICE J

(Sentence appeal)

Introduction

[1] Mr Samuels pleaded guilty to one charge of driving while disqualified (third or subsequent offence), failure to answer police bail, wilful damage, assault and two charges of theft under $500. He was sentenced to 15 months’ imprisonment and disqualified from holding or obtaining a licence for two years in the Gisborne District Court on 24 August 2018.1

[2] Mr Samuels appeals his sentence on the grounds it was manifestly excessive. 2He says the Judge erred by:

(a)Failing to adopt an appropriate starting point; and

1 Samuels v Police [2018] NZDC 17949.

SAMUELS v NEW ZEALAND POLICE [2018] NZHC 2931 [12 November 2018]

(b)Applying an uplift of three months’ imprisonment for conviction history.

[3] The Crown oppose the appeal on the basis the end sentence was not manifestly excessive. The Crown argues that an appropriate starting point of 12 months was adopted, and that the initial uplift of three months for the balance of the offending was lenient in the circumstances. The Crown concede that the uplift of three months applied for previous convictions appears above the usual range in the circumstances. It says this error was insufficient to trigger the threshold of ‘manifestly excessive’.

Background

The offending

[4] On the evening of 13 March 2018, Mr Samuels and an associate were in a car at a BP service station in Lower Hutt. Mr Samuels filled his car up with $99.51 of petrol while his associate was in the driver’s seat. Once Mr Samuels got back in the car, the associate then drove away without paying. This offending resulted in the first charge of theft under $500.

[5] Later that same week, on 18 March 2018, Mr Samuels was at the hospital with an associate. They walked around the carpark, found a suitable car and Mr Samuels smashed the window. They took a Prada handbag and other items before Mr Samuels drove them away in his car. This resulted in the second charge of theft under $500. Mr Samuels was disqualified from driving at the time of this offending. He was charged with driving while disqualified (third or subsequent offence).

[6] Mr Samuels breached his EM2 bail conditions on 3 July 2018, resulting in the charge of breaching police bail. As a result of the breach, he was taken to the Gisborne Police Station.

[7] On 4 July 2018 Mr Samuels was in custody in Risk Cell 2 (which has CCTV3) because of his previous behaviour. On that evening, Mr Samuels was seen with a

2 Electronically monitored.
3 Closed Circuit Television.

contraband item which was flammable. The police entered the cell to talk to Mr Samuels in an attempt to get the item off…

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 [2018] NZHC 2931
Case: [2018] NZHC 2931
Decision Date: 12 November 2018

CaseChat Overview and Summary

In Samuels v Police, the appellant, Mr Samuels, appealed his sentence on the grounds that it was manifestly excessive. He argued that the Judge erred by failing to adopt an appropriate starting point and by applying an uplift of three months' imprisonment for his conviction history. The Crown opposed the appeal, arguing that the sentence was not manifestly excessive and that any error in the uplift was insufficient to trigger the threshold of 'manifestly excessive'.

The court considered the starting point and uplift applied by the Judge. The court found that a starting point of around 10 months was more appropriate, and that an uplift of one month for the conviction history would have been more appropriate. The court concluded that a sentence of 12 months imprisonment would have been more appropriate, with a two-year disqualification from holding or obtaining a licence. The sentence of 12 months imprisonment is to be applied concurrently with the sentences for the other offences and apportioned as contemplated by the Judge in terms of his sentencing notes.

The appeal was allowed, and the sentence was varied to 12 months imprisonment and a two-year disqualification from holding or obtaining a licence. In other respects, the sentence was upheld.

Orders