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  offences  of  burglary.    For  those  he  was sentenced to nine months upon each, but the terms were all concurrent with the aggravated robbery sentence.

[6]      In 2005 he was sentenced to eight years’ imprisonment for assault with intent to commit robbery, possession of a firearm and a further assault.  Then in 2007 he was sentenced to 14 months’ imprisonment cumulative upon the eight year term upon a charge of assault with intent to injure.

The pre-sentence report

[7]      The pre-sentence report contains considerable information concerning the appellant’s actions and performance after he was paroled from the two sentences to which I have just referred.   He was paroled in June 2011 to attend the intensive programme run by Moana House in Dunedin.

[8]      The pre-sentence report indicates that initially when he was assessed it was concluded that he lacked victim empathy and instead laboured under a sense of entitlement.  This culminated in his being involved in a programme of psychological counselling, which ran from March to November 2012 and involved 20 intensive sessions.   He apparently made good progress, but at the end of those sessions an assessment was to this effect: “Mr Samuels had formed beliefs that allow him to justify his behaviour that brought his instant gratification, with concerns for the impact of others being less relevant.”  Nonetheless, it is apparent that he had put his foot forward and worked hard during that period, with the result that he became a senior member at Moana House, who had a leadership role in relation to other of the residents.

[9]      In 2013 he was released back into the community and attended a course at the Otago   Polytechnic,   which   Mr   Kilkelly   has   described   as   a   six   month pre-apprenticeship  course  from  which  he  graduated  in  November  2013.    This enabled him to look for employment with a building company and it seems he was in the process of doing that when the present offence was committed at the start of December.    That  offence  led  to  his  recall  to  prison  by the  Parole  Board,  with reference to the cumulative sentence of nine years, two months, to which I have already referred.

The sentence

[10]     The three year sentence was imposed by Judge Phillips on 14 February 2014. The Judge, after reference to some relevant authorities, adopted a starting point of three years’ imprisonment.   He then uplifted the starting point by 12 months on account of the appellant’s formidable offending history.  As Mr Power has noted, the Judge could also have taken account of the fact that the appellant was on parole at the time of the burglary and that this also was relevant to the uplift.   From that four year  notional  sentence  the  Judge  then  made  a  deduction  of  one  year,  or

25 per cent, in recognition of the plea and hence arrived at a three year sentence which was not made cumulative upon the balance of the nine year, two months sentence to which the appellant remained subject.

The submissions

[11]   Mr Kilkelly, in advancing the sentence appeal, has made two principal submissions.    He  argued  that  the  three  year  starting  point  should  have  been two years.  He did not quibble in relation to the one year uplift, but he did submit that a further allowance of six to eight months should  have been made for the rehabilitative efforts of the appellant in 2012/2013 before his regression and the commission of this further burglary.   On this basis Mr Kilkelly said that the end sentence should have been no more than a year and nine months.

[12]     Mr Power has stated that the sentence might be characterised as stern, but in his submission it is not out of range and should not therefore be disturbed.

[13]     Mr Kilkelly also argued that the Judge erred in characterising Mr Samuels as a recidivist burglar, when in terms of the decision in Senior v Police1  he might be better described as a spree burglar.  The point was that the 11 burglaries committed in 2002 occurred over a relatively short period of a few months and constituted a spree and, despite the other serious offences committed since then, this was the first further burglary in which the appellant had been involved.

[14]     It seems to me nothing turns on the characterisation of his burglary offending. The uplift of one year is not challenged and, if anything, that characterisation is relevant in that respect.

Evaluation

[15]     I turn then to the principal arguments: was the starting point of three years too high?  This is to be assessed by reference to the gravity of the burglary itself.  It was committed in daytime and obviously upon a residential property.   This meant that there was a significant risk that an occupant of the address would be present and that, of course, proved to be the case.

[16]     The impact upon this woman has been severe.  Her victim impact statement outlines the effects upon her. She lives alone, the entry into her home in the circumstances I have already outlined has left her markedly affected and she is finding it difficult to reside in her home alone.   That is hardly surprising and it demonstrates the impact that house burglaries can have upon occupants.

[17]     The other aggravating feature was the use of the claw hammer in order to effect entry into the property and also the brazen nature of the offending.  For all of that I see this as a mid-spectrum burglary, although one which happened to have a high impact upon the victim because of her presence in the house.

[18]     I have considered the various authorities mentioned in the submissions.  To my mind the case of most assistance is a Court of Appeal decision in 2008 of R v Columbus.2 Having considered it, I am of the view that the appropriate starting point for this burglary was two years’ imprisonment.   It follows that with the uplift of

12 months to recognise not only the appellant’s appalling record but the fact that he was on parole produces a nominal sentence of three years, or 36 months, before allowance is made for the guilty plea.   A 25 per cent reduction produces an end sentence of two years and three months.

[19]     I turn then to the second ground of appeal, the rehabilitative steps that the appellant took.  I have already outlined what he did, at least in the main.  One further initiative was his involvement in Narcotics Anonymous in attending meetings after his release into the community.

[20]     Despite those rehabilitative steps the final assessment in the pre-sentence report is in these terms:

Mr Samuels exited the programme reporting the experience had been beneficial.  With the agreement of Moana House and his Probation Officer he resided in the community and attended the Otago Polytechnic.  Prior to his recall he was attending Narcotics Anonymous (NA) meetings and stated that he was not using illicit substances.  Although Mr Samuels still remains eligible to attend the Medium Intensity Rehabilitation Programme (MIRP) and the Short Intensive Drug Treatment Unit Programme (DTU3) he has insufficient   time   left   on   his   sentence   to   complete   either   of   these progerammes under the current sentence.   At this time he is assessed as ambivalent  regarding  returning  to  Moana  House  or  considering  other options, as he did not consider his offending to be related to relapse but a response to criminal opportunities i.e a return to a familiar lifestyle.

The  report  writer  then  noted  that  Mr  Samuels  had  been  recalled  to  prison  on

19 December.

[21]     I commend him for the efforts that he obviously made in 2012 and 2013.  It is no small thing when a person of Mr Samuels’ background applies himself and makes obvious progress, both in relation to dealing with a drug problem and in equipping himself to become an employee in an industry.  However, I am not persuaded that any further allowance is required on  account of those rehabilitative steps.   The ambivalence of which the report writer speaks, coupled with the commission of the further burglary, to my mind render Mr Kilkelly’s submission untenable in relation to a further discount.

[22]     In this regard I am also influenced by the fact that the present sentence was not made cumulative upon the previous one.  Mr Power has helpfully made enquiries and established that the net effect of the sentence will be to extend the period before which the appellant will be eligible to be considered for parole by a period of months, now a few months less than what would otherwise be the case because of my allowing the appeal to a limited degree.  He is perhaps fortunate in that regard,

that the sentence was not made cumulative.  More importantly, the Parole Board will be in a position to take account of the progress he made before this offence was committed when it comes to making a decision upon his release and that, to my mind,  is  where  recognition  of  the  steps  he  took  may  be  most  appropriately considered.

Conclusion

[23]     For these reasons, the appeal is allowed to the extent that the sentence of three years is quashed and I substitute a term of two years, three months in relation to the burglary.

Solicitors:

B P Kilkelly, Barrister, Dunedin

Wilkinson Adams, Dunedin