Samut v The Queen - [2018] NZHC 372

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000031

[2018] NZHC 372

BETWEEN
YUSUF TAUFIQ SAMUT

Appellant

AND

THE QUEEN

Respondent

Hearing: 9 March 2018

Appearances:

J Grainger for Appellant E Mok for Respondent

Judgment:

9 March 2018

ORAL JUDGMENT OF VENNING J

Solicitors: Public Defence Service, Auckland
Meredith Connell, Wellington

SAMUT v R [2018] NZHC 372 [9 March 2018]

[1] Yusuf Samut pleaded guilty to assault with intent to injure; driving whilst disqualified, third or subsequent offence; and possession of utensils for methamphetamine use. Judge B A Gibson sentenced Mr Samut to 18 months’ imprisonment and disqualified him from holding or obtaining a driver’s licence for a period of 14 months from 18 January 2018.1

[2]Mr Samut appeals against the sentence.

[3] On 22 November 2016 Mr Samut was disqualified for a period of one year from that date. On Monday 10 July 2017 he breached the order for disqualification by driving. He picked up the complainant to the assault with intent to injure charge from an address in Mount Albert and drove with him and another person to a petrol station at Great North Road.

[4] Mr Samut and the third male began smoking methamphetamine in the car at the petrol station. The complainant refused to engage in the smoking. Mr Samut became aggressive. He punched the complainant twice in the head with a closed fist, then got out of the car, and opened the passenger door next to the complainant. He grabbed the front of the complainant’s hoodie jumper with his left hand and, using his closed right fist, began punching the complainant in the face and head with sufficient force to cause the complainant to become dizzy. Mr Samut continued punching the complainant with a closed fist. The assault only stopped when the complainant managed to get out of the car and run to the forecourt. Mr Samut then drove off.

[5] The Police subsequently stopped Mr Samut’s car as he arrived at his home. A search of the car located a glass methamphetamine pipe next to the driver’s seat.

[6] As a result of the assault the complainant suffered several cuts and bruises to his face and head. In his victim impact statement he said he had a bad migraine for a month after the attack and sometimes would pass out. The migraines have stopped now but he still feels insecure as a result of the attack.

1 The Queen v Samut [2018] NZDC 1805.

[7] In sentencing Mr Samut Judge Gibson noted that he had a long list of previous convictions, including 15 for driving whilst disqualified. The Judge took a start point of 12 months’ imprisonment for the assault with intent to injure charge. He uplifted the 12 months by 10 months for the driving, given Mr Samut’s bad driving history and then added a further two month uplift for other previous convictions. From that starting point of two years’ imprisonment the Judge…

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 Samut v The Queen

Details

AGLC: Samut v The Queen [2018] NZHC 372
Case: [2018] NZHC 372
Decision Date: 9 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Yusuf Taufiq Samut appealed against his sentence for assault with intent to injure, driving while disqualified, and possession of utensils for methamphetamine use. The Crown opposed the appeal. The appellant had been sentenced to 18 months' imprisonment and disqualified from holding or obtaining a driver’s licence for a period of 14 months. The appellant's legal representatives contended that the sentence was excessive and that the judge had erred in imposing a two-month uplift for previous convictions, failing to give credit for rehabilitation efforts, and declining to impose home detention. The Crown argued that the sentence was not manifestly excessive and that the appeal should be dismissed.

The court found that the appellant's arguments had merit. The court was satisfied that there was no basis for a two-month uplift for the appellant's previous convictions, given that the most severe sentence imposed for those convictions was one month's home detention. The court also agreed that some credit should have been given to the appellant for the rehabilitative steps he had undertaken after the offending and before sentence. However, the court did not consider the judge was required to provide a further reduction for remorse. The court observed that while the report referred to the appellant’s remorse appearing genuine, there was an undeniable undercurrent of minimisation in relation to each police intervention. The court further held that the judge was not in error in taking account of the appellant’s previous non-compliance with court orders and that the purposes of denunciation and deterrence and the need to hold the appellant accountable for the harm caused to the victim were relevant considerations.

The court allowed the appeal and quashed the sentence of 18 months' imprisonment. The appellant was sentenced to 15 months' imprisonment for the assault with intent to injure charge, with six months concurrent on the possession of utensil and 10 months concurrent on the driving while disqualified charge. The order for disqualification for 14 months from 18 January 2018 and the order for destruction of the pipe were confirmed.

Orders