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 him. He refused, and his spare clothing and blanket were taken from him. His behaviour worsened and he ended up being “O/C sprayed”. He was subsequently offered a shower. The police officers gave him an opportunity to move down the cell block toward the shower room, but he instead took the opportunity to run up the corridor into the main charge room screaming out. He smashed a phone estimated to be worth $150. This resulted in the wilful damage charge.

[8]    Following Mr Samuels’ outburst, he was moved to Risk Cell 3. An officer was doing the dinner rounds, which involved putting food on the metal hatch in each cell’s door. He placed a hot tea on the meal hatch for Mr Samuels, who then asked if he could shower. The officer asked him to wait until the end of the dinner round and then he would check to see if it was allowed. Mr Samuels grabbed the hot tea and threw it on the officer. This resulted in a charge of assault.

The sentencing

[9]    On 24 August 2018, the Judge sentenced Mr Samuels.4 He began by recognising Mr Samuels concession that he was resigned to a sentence of imprisonment. He noted that Mr Samuels had pleaded guilty to the offences. He also noted Mr Samuels’ significant criminal history which ran to 17 pages of convictions. This included six prior convictions for driving while disqualified, by the Judge’s count, as well as numerous convictions for theft.

[10]   The Judge adopted a starting point of 12 months’ imprisonment for the lead charge of driving while disqualified (third or subsequent offence). He then applied a first three-month uplift for Mr Samuel’s previous convictions, and then a second three months for the balance of his offending. This resulted in a sentence of 18 months’ imprisonment. A guilty plea discount of three months (or approximately 15 per cent) was applied. This led to an end sentence of 15 months’ imprisonment and a two-year disqualification from driving.

4      Samuels v Police, above n 1.

[11]   The sentence was concurrent on all charges he faced. The number of offences was not specified in the judgment but the Judge referred to the sentences being “apportion[ed]”.5

Standard of appeal

[12]   Mr Samuels has brought his appeal under s 250 of the Criminal Procedure Act 2011. This is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason) first an intrinsic error in the sentence imposed and secondly a different sentence should be imposed.6 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.7 As articulated in R v Peters:8

[13]   As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.

Grounds of appeal

[13]      As mentioned above, Mr Samuels appeals his sentence on the grounds it was manifestly excessive as the Judge erred by:

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

(b)Applying an uplift of three months’ imprisonment for Mr Samuels previous convictions.

5 At [5].

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

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

8      R v Peters CA12/03, 14 May 2003 at [13].

Starting point

[14]      Mr Samuels begins by pointing out he only has five rather than six (as the Judge held) previous convictions for driving while disqualified. Mr Samuels is correct. This mistake may be the result of a double printing of page 4 of Mr Samuels criminal history.

[15]      Mr Samuels points to the PAC (pre-sentence) reports dated 22 August 2018 and 30 April 2018 (to be read together) which suggested a community based sentence would be appropriate for Mr Samuels’ offending. These reports did not, however, take into account the charges of wilful damage and assault on a police officer. Mr Samuels argues these offences are minor.

[16]      More importantly, Mr Samuel argues that the High Court decision of Drinkwater supports an approach by which the starting point for driving while disqualified should reflect all of the defendant’s convictions for driving while disqualified.9 In that decision, the defendant was on his eleventh conviction for driving while disqualified and was sentenced to 15 months’ imprisonment. Mr Samuels refers to several other decisions to support his submission that the effective starting point of 12 months imprisonment, taking account of his five previous convictions, is too high.10 I also find the decision in Iwikau of assistance; in that decision a starting point of 10 months’ imprisonment was adopted for a seventh conviction of driving while disqualified and comments were made about that a sentence of six to ten months’ imprisonment was appropriate for the offending.11

[17]      On the basis of the above authorities, Mr Samuels argues that an starting point of three to six months imprisonment would be more appropriate than 12 months imprisonment adopted.

[18]      The police disagree. They note there are two ways of approaching a starting point – either incorporating the prior sentences into the starting point, or by giving an

9 At [18].

10     Taylor v Police HC Wellington AP61/69, 3 April 1996; Himiona v Police [2012] NZHC 1756.

11     Iwikau v Police [2013] NZHC 2515 at [13].

uplift to the starting point for the prior driving while disqualified convictions.12 In assessing the seriousness of the offending the following factors are relevant:13

(a)The number of charges faced;

(b)Degree of recidivism;

(c)Time between present charges and the most recent convictions; and

(d)The period over which the offending occurred.

[19]      In the current case, Mr Samuel has five prior convictions – four from 2015 of which three are third or subsequent convictions and one from 2007. The police note Mr Samuel appeared for sentencing four times in 2015 for this behaviour, and the sentences imposed did not deter him from reoffending this year.

[20]      The police also note three authorities to support the submission that sentences between 10 and 17 months are appropriate for cases which involve five to seven prior convictions for driving while disqualified.14 The police distinguish the cases cited by Mr Samuel primarily on the basis that most of the previous convictions in those cases had occurred years in the past or that starting points of 10 months upward had been upheld.

[21]      I consider a starting point of three to six months is too low, however, a starting point of around 10 months is more appropriate, although at the higher end of this range. This two-month difference, by itself, would not result in a manifestly excessive sentence. However, I now consider the uplifts the judge imposed.

Uplift for prior conviction history

[22]      The Judge imposed an uplift to the sentence of three months to account for Mr Samuels previous convictions. He did not comment as to whether this was for his

12     Whitely v Police [2016] NZHC 1025.

13     Apiata v Police [2016] NZHC 3119 at [19].

14     Fox v Police [2017] NZHC 573; Apiata v Police [2016] NZHC 3119; Cole v R [2018] NZHC 1405.

whole history, history of theft offences or just for the driving while disqualified convictions.

[23]The police accept that the uplift applied under this head was too high.

[24]      In my view, an uplift of one month would have been more appropriate particularly in light of my comments on the start point.

Conclusion

[25]      I conclude the appeal in this case should be allowed. Two errors were made; the starting point adopted and the uplift was imposed for Mr Samuels conviction history were too high. A final sentence of imprisonment in the order of 12 months imprisonment would have been more appropriate. That number is reached in the following way:

(a)Starting point: 10 months

(b)Other offences uplift: 3 months

(c)Conviction history uplift: 1 month

(d)Guilty plea discount: 15 per cent

(e)I conclude a total of 12 months in total is appropriate.

[26]      As held by the sentencing Judge, Mr Samuels will also be disqualified from holding or obtaining a licence for two years.

[27]      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. No issue was taken with this approach, however leave is reserved for counsel to file memorandum if anything further is needed on that point.

[28]In other respects the sentence is upheld.

Grice J

Solicitors:

N Wright, Barrister & Solicitor, Gisborne

Crown Law Office, Wellington for Respondent