The Queen v Samiu - [2007] NZCA 419

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 289/07
[2007] NZCA 419
THE QUEEN
v
SILA SAMIU
Hearing:18 September 2007

Court:Ellen France, John Hansen and Wild JJ
Counsel:L Hughes for Appellant

A Markham for Crown

Judgment:26 September 2007 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of two and a half years’ imprisonment on the burglary charge is quashed, and a sentence of two years’ imprisonment substituted.

C The appellant is granted leave to apply for home detention.
DThe standard release conditions set out in s 14(1) of the Parole Act 2002 apply.

REASONS OF THE COURT
(Given by John Hansen J)
[1]       Late on 10 March 2005, the complainant was watching television at his home in Mangere with two visitors. The door was kicked open and the appellant, along with a co-offender, Mr Lima, rushed inside. The offenders punched the complainant to the ground, subjecting him to a sustained assault involving repeated kicks and punches to his head. They threw items from around the room at him. When the complainant requested assistance he was told to “shut up” and “stand up”. When he did, he was again punched to the ground and kicked about the body several times. The appellant and Mr Lima left the address, threatening to kill the occupants if they called the police.
[2]       Mr Lima took a number of items from the property and was separately charged with theft.
[3]       It appears that the complainant was known to the offenders, and the appellant admitted going to the address to beat up the complainant because he was angry.
[4]       The complainant was left with a black eye, bruising and cuts and grazes to his head and body. As a result of the attack he changed jobs and moved from the area.
[5]       The appellant was not arrested until 15 months after the offending. He was initially charged with aggravated robbery and assault with intent to injure. From at least November 2006 the appellant indicated he was prepared to plead guilty to a lesser charge. On 12 February 2007 the appellant pleaded guilty to burglary and assault with intent to injure, and on 30 May 2007 he was sentenced by Judge Epati to two and a half years’ imprisonment on the burglary, and 18 months, concurrent, on the assault with intent to injure.
[6]       He appeals on the ground the sentence was manifestly excessive. It is said that the burglary should not have been treated as the lead offence; the starting point of four years’ imprisonment was too high; insufficient weight was given to relevant mitigating factors and the Judge should not have relied on the tariff decision relating to aggravated robbery (R v Mako [2000] 2 NZLR 170 (CA)).
[7]       The Crown responded that the Judge correctly relied on Mako, as the practice of applying “tariff” decisions to lesser offences with appropriate adjustments to reflect a lesser maximum penalty is well established (R v Taueki [2005]…

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 The Queen v Samiu

Details

AGLC: The Queen v Samiu [2007] NZCA 419
Case: [2007] NZCA 419
Decision Date: 26 September 2007

CaseChat Overview and Summary

The case involved an appeal by the appellant, Samiu, against his sentence for burglary and assault with intent to injure. The incident occurred on 10 March 2005, when the appellant, along with a co-offender, Mr Lima, forcibly entered the complainant's home in Mangere, assaulting him severely. The appellant pleaded guilty to the charges and was sentenced by Judge Epati to two and a half years' imprisonment for burglary and 18 months, concurrent, for assault with intent to injure. The appellant appealed the sentence, arguing it was manifestly excessive.

The court had to determine whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that the burglary should not have been treated as the lead offence, the starting point of four years’ imprisonment was too high, insufficient weight was given to relevant mitigating factors, and the Judge should not have relied on the tariff decision relating to aggravated robbery. The Crown defended the sentence, stating that the Judge correctly relied on the tariff decision, the starting point was appropriate, and the discount for mitigating factors was sufficient.

The Court of Appeal found that while the offending was serious, the complainant was not seriously injured and did not require medical attention. The Court acknowledged the significant psychological impact on the complainant. The Court considered that the starting point of four years’ imprisonment was too high and adjusted it to three years. The Court also found significant mitigating factors in the appellant's case, including his lack of previous convictions, significant progress in turning his life around, genuine remorse, and his age at the time of the offending. The Court determined that an appropriate discount for these factors was one-third, resulting in an effective sentence of two years’ imprisonment. The appeal was allowed, and the sentence was reduced to two years' imprisonment on the burglary charge. The Court also granted leave for the appellant to apply for home detention.

The Court confirmed the sentence of 18 months, concurrent, for assault with intent to injure. The Court applied standard release conditions pursuant to section 93(2) of the Sentencing Act.

Orders