Samuels v Police - [2014] NZHC 1134

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000004 [2014] NZHC 1134

RICHARD TED SAMUELS

v

NEW ZEALAND POLICE

Hearing: 27 May 2014 (via audiovisual link to Christchurch)

Appearances:

B P Kilkelly for the Appellant
C E R Power for the Respondent

Judgment:

27 May 2014

ORAL JUDGMENT OF PANCKHURST J

Introduction

[1] This is an appeal against a sentence of three years’ imprisonment imposed on the appellant in relation to a single house burglary. He, however, has a significant list of previous convictions and this circumstance assumed importance in the course of the sentencing exercise.

[2] The grounds of the appeal are essentially twofold: firstly, that the starting point adopted by the Judge of three years’ imprisonment was excessive and, secondly, that the Judge should have allowed a credit for personal mitigating factors, effectively rehabilitative steps taken by the appellant before he committed this
offence and was sent back to prison.

SAMUELS v NEW ZEALAND POLICE [2014] NZHC 1134 [27 May 2014]

The facts

[3] The burglary was committed in broad daylight at 1.00 pm on 2 December

2013. The appellant and an associate were in a car cruising in a residential area of Dunedin. The appellant went into a property, knocked on the door, but a householder was at home. He left. The car continued down the same street and the appellant entered a second property and there was no answer. Despite that, the two drove off, travelled a short distance down the street, did a u-turn and returned to the second property. The appellant re-entered the property, this time armed with a claw hammer. He endeavoured to use the hammer to force entry through windows, but was unsuccessful. However, eventually he wrenched the door of the house open using the hammer.

[4] As it happened, there was an occupant of the address, a woman aged 61, who was in the shower at the time that the efforts to force entry occurred. Obviously enough, she was perturbed by the noise. She went into a bedroom and while the offenders were getting into, and then were, in the house, she was on the phone to police, who instructed her to barricade herself in the bedroom. The appellant and his associate left the address, taking a handbag which contained $50 in cash. As a result of the phone call to them, the police went to the area and apprehended the two in the car a short distance from the subject address. Confronted with the reality of the situation, the appellant pleaded guilty at the first available opportunity, which was
20 December.

Offending history

[5] Before turning to the grounds of appeal, it is necessary to say something about his personal situation. Mr Samuels was 28 years of age at the time and is now
29 years of age. He has a formidable list of previous convictions. In 2002 in Tauranga he was sentenced to four years’ imprisonment for aggravated robbery and dealt with at the same time upon 11…

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 [2014] NZHC 1134
Case: [2014] NZHC 1134
Decision Date: 27 May 2014

CaseChat Overview and Summary

The case of Samuels v Police involves an appeal against a sentence of three years' imprisonment imposed on the appellant for a house burglary. The appellant had a significant history of previous convictions. The primary legal issues were whether the starting point for the sentence was excessive and whether the court should have given credit for the appellant's rehabilitative efforts prior to the offence. The court assessed the gravity of the burglary, noting the daytime occurrence and the presence of an occupant, which had a severe impact on the victim. The court concluded that the appropriate starting point should have been two years' imprisonment rather than three, and that despite the appellant's rehabilitative efforts, no additional discount was warranted due to his ambivalence and the recent re-offending. The appeal was allowed to the extent that the sentence was reduced to two years and three months.

The court's reasoning hinged on the specific circumstances of the burglary and the appellant's history. The use of a claw hammer and the brazen nature of the crime warranted a significant sentence, but not as high as the original three-year term. The court recognised the appellant's efforts in rehabilitation but determined that these efforts did not sufficiently mitigate the recent re-offending. The court also noted that the parole board would consider these efforts when determining future release. The outcome reflects a balanced approach, reducing the sentence while maintaining a firm stance on the need for deterrence and protection of the community.

Orders