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 gave a full 25 per cent discount for the guilty plea which led to an end sentence of 18 months. The Judge imposed concurrent sentences taking the view that the offending arose out of a sequence of events that related to all the charges. The better approach may have been to impose cumulative sentences given the offences were different in kind, even though connected in time sequence2 but nothing turns on that however and counsel does not take any issue with that approach.

[8]    On Mr Samut’s behalf Mr Grainger submitted the Judge erred in the following ways:

(a)in imposing the two month uplift for previous convictions other than previous driving convictions;

(b)failing to give credit for Mr Samut’s efforts towards rehabilitation and his genuine remorse and time spent on electronic monitored bail; and

(c)in declining to impose home detention by taking into account the more serious charge originally laid and by failing to take into account rehabilitative efforts and other factors that supported home detention.

[9]    The appeal is directed at reducing the term of imprisonment imposed and substituting the sentence of home detention for the ultimate term of imprisonment.

[10]   The Crown submit the sentence was not manifestly excessive and the appeal should be declined. Ms Mok argues the uplift of two months for Mr Samut’s previous record was available, noting that in addition to previous violent convictions Mr Samut also had a number of other previous convictions. While accepting the Judge did not

2      Sentencing Act 2002, s 84(1).

address the time Mr Samut had spent on electronically monitored bail, Ms Mok submitted the Judge was entitled to dismiss Mr Samut’s remorse as not genuine and that in any event the end sentence was not manifestly excessive.

[11]   There is no challenge to the starting point of 12 months for the assault with intent to injure charge and the additional 10 month sentence for driving whilst disqualified.

[12]   As discussed with counsel however, I agree with Mr Grainger’s submission that there was no basis for a further uplift of two months for Mr Samut’s “other convictions”. While Mr Samut had previous convictions for assault and a long list of other convictions the most severe sentence imposed for those was one month’s home detention. It was in this case disproportionate to add an uplift of two months for such previous offending.3 There is nothing in the other previous convictions which is directly relevant or which would support such an uplift.

[13]   I also agree with Mr Grainger’s submission that in this case some credit should have been given to Mr Samut for the rehabilitative steps he had undertaken after the offending and before sentence. Mr Samut obviously has a problem with driving whilst disqualified and also a problem with drug offending and gambling addiction. While Ms Mok noted that the first course attended was whilst Mr Samut was in custody he did complete that programme. She also noted that he did breach electronically monitored bail at an early stage. Against that he was re-admitted to electronically monitored bail and then complied with that.

[14]   I consider it relevant that Mr Samut attended and completed the alcohol and drug programme, even whilst in custody. He completed that on 28 September. It is also relevant that he completed a driving safety course on 17 and 19 November 2017. Given Mr Samut’s age and the bad record to date it was a relevant factor that he had taken those rehabilitative steps. They should have been recognised.

[15]   Mr Samut also was on electronically monitored bail for the period of 7 November 2017 until 18 January 2018, just over two months. That matter was not

3      Johnston-Walters v R [2011] NZCA 367.

addressed by the Judge in his sentencing notes although it is a mandatory consideration under s 9(2)(h) of the Act. While it is relevant that when previously on electronically monitored bail, Mr Samut breached the terms of bail, as noted he was re-admitted to electronically monitored bail for that two month period, and apparently complied with it.

[16]   A reduction overall of three months for the rehabilitative steps and the time on EM bail was required in this case.

[17]   However I do not consider the Judge was required to provide a further reduction for remorse. While the report refers to Mr Samut’s remorse appearing genuine, the report writer went on to note that despite the contrition there was an undeniable undercurrent of minimisation in relation to each Police intervention. Read overall it appears Mr Samut’s remorse was rather more directed towards the consequences on him and his family than a broader understanding of the issues his offending caused his victim and the danger he posed to other road users. Further, it was open to the Judge to reject the expressions of remorse given the recidivist nature of the offending by Mr Samut.

[18]   Adopting the above adjustments would lead to a starting point of 22 months for sentence. That would be reduced by the three months for the rehabilitative attempts and time spent on electronically monitored bail, which would reduce the notional starting point to 19 months. From that a deduction of 20 to 25 per cent for the guilty plea is appropriate. I note that while the Judge gave 25 per cent that may not have been entirely appropriate given the strength of the prosecution case. That leads to an end sentence in the region of one year, three months.

[19]   The issue then is whether the Judge was wrong not to have imposed home detention. In his reasons for declining home detention the Judge referred to Mr Samut’s criminal history, his previous flouting of Court orders, including breaches of home detention conditions, community work, and post-detention conditions, which suggested to the Judge that Mr Samut flouted authority when convenient for him to do so.

[20]   Mr Grainger submitted the Judge was in error by referring to a previous, more serious charge and that influenced his decision on home detention. As I read that reference however it is simply an observation that when faced with a serious offence Mr Samut was not minded to comply with orders of the Court and breached orders. I do not see that as a significant feature in the Judge’s decision to decline home detention.

[21]   Mr Grainger also submitted home detention was a real alternative to imprisonment and would allow Mr Samut to continue with the rehabilitation he had started whilst on bail. He submitted it would also enable more effective supervision noting it is now possible for alcohol and drug abstinence conditions to be imposed and monitored. Counsel submitted that Mr Samut’s personal circumstances, namely he has a young child on the way and a job available supported home detention. I have to observe that in the past Mr Samut’s responsibilities as a father and provider have not prevented his regular offending.

[22]   Whether home detention should be imposed is an evaluative exercise taking into account the purposes and principles in ss 7 and 8 of the Act. In the circumstances of this case the Court was required to balance the rehabilitative aspects against the need for denunciation and deterrence. I am not satisfied the Judge can be said to be in error in taking account of Mr Samut’s previous non-compliance and the Judge was also entitled to take into account in particular the purposes of denunciation and deterrence and the need to hold Mr Samut accountable for the harm caused to the victim in this case and for Mr Samut to acknowledge that harm.

Result

[23]   The appeal is allowed to the extent that the sentence of 18 months’ imprisonment is quashed.

[24]   On the assault with intent to injure charge Mr Samut is sentenced to 15 months’ imprisonment; six months concurrent on the possession of utensil and 10 months concurrent on the driving whilst disqualified, third time. The total sentence is 15 months’ imprisonment.

[25]   The order for disqualification for 14 months from 18 January 2018 is confirmed, as is the order for destruction of the pipe.

Venning J