R v Samuels CA560/95 [1996] NZCA 286 (17 April 1996)

Last Updated: 13 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.560/95}

THE QUEEN

v

_{VAUGHAN FREDERICK SAMUELS}

Coram: Gault J McKay J Blanchard J

Judgment: 17 April 1996 (ex parte)

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

The appellant was found guilty after a trial by jury on a charge of robbery. He was sentenced to three years six months imprisonment, to be served concurrently with existing sentences totalling 18 months which he was then serving. He appeals against both conviction and sentence.

The appellant and at least one companion arrived at the victim's house, knocked at the door and was admitted by the victim's de facto. He talked to the victim, and attempted to wind him up. He head butted him, he tried to get him to fight and he punched him. He stole two radio controlled cars belonging to the victim's son. His companion threatened the victim with what would happen to him if he went to the police. He did go to the police, and was attacked early next morning by two men, members of the same gang, one of whom was the twin brother of the

appellant's companion the night before. The victim was hospitalised as a result. The appellant was not charged as a party to that offence.

The appeal against conviction is based on what is submitted to have been a wrongful admission of evidence. The victim gave evidence of the appellant and his companion coming into his home on the night in question, and of the events which followed. He was then asked and gave evidence of the assault carried out on him the following morning. Defence counsel then objected, and the Judge heard argument in the absence of the jury on the question of admissibility, and on an application by the Crown to have the victim declared a hostile witness. The Judge then issued rulings on both questions. The Judge said she was satisfied that the victim was doing everything he could to avoid telling the full truth, and she accordingly declared him to be a hostile witness. She then ruled that the disputed evidence should go to the jury in the very restricted form proposed by the Crown, namely that the victim was assaulted the following morning, and that one of the perpetrators of that assault was linked to the visitors the previous night. She considered the evidence relevant and probative as linking the players and linking the threats which were part of the robbery. She would not allow it to go any further.

The appellant, in the helpful written submissions prepared by his counsel, submitted that it was not necessary for the evidence of the next morning's assault to be led for the purpose of having the victim declared a hostile witness. This appears to be based on what the Judge said when the objection was first raised. Crown counsel had said he was seeking to have the witness disprove the appellant's exculpatory statement, and was seeking details as to who was present at the assault the following morning, not the details of the assault. The Judge said she would delay ruling on the objection until she had decided whether or not the victim should be declared hostile. It was not a question of the evidence being led or allowed for the purpose of deciding whether the witness was hostile. The evidence was called and

was admitted as probative in respect of the robbery. We agree it was properly admitted.

In respect of the appeal against sentence, complaint is made of the Judge's failure to refer to certain factual matters in the Judge's sentencing notes, and to certain alleged factual errors. None of these appear to us to be of significance. The Judge appears to have had an ample basis for her comment that the victim and his de facto were terrified of the appellant. It is certainly consistent with the way the victim gave his evidence and his reluctance to give it, and the Judge expressly based her comment on her observation of the way both the victim and his de facto gave their evidence in Court.

Criticism was directed against the Judge's description of the victim impact statement as "horrifying". That term is not one of precise meaning, but was clearly not inappropriate in this case. The real issue is whether the sentence can be said to be excessive to an extent which would justify interference by this Court.

The appellant has a long record of previous convictions for violent offending, including a previous conviction for aggravated robbery. The present offence occurred while he was subject to a suspended sentence and was on bail in respect of another charge involving threats of violence. He was subsequently found guilty on that charge, and sentenced to 9 months imprisonment cumulative on the earlier suspended sentence which was then activated. He was thus serving sentences totalling 18 months from 12 October 1995 at the time he was sentenced for the present offending on 8 December 1995. The sentencing Judge concluded her remarks as follows:

"I am satisfied that the appropriate term of imprisonment for this offence is one of two years. The question is whether I make it cumulative upon the current terms of imprisonment you are serving or whether I look at totality of the offending. Looking

at the three different sentences, the January one, the offending in March and this matter, I am of the view that I should look at the totality of the offending. That will also have the advantage of incorporating a parole term in your term of imprisonment, so that after your release from prison you will be subject to parole.

Accordingly I am incorporating the 18 months imprisonment that you are currently serving into an overall term of imprisonment and you are sentenced to 3 years 6 months imprisonment to be served concurrently with your present sentences, that is an additional 2 years imprisonment on top of your present sentences."

The Judge has thus decided that the appropriate term was one of two years, and that this period should be cumulative on the sentences the appellant was already serving. We agree that it was appropriate for the sentence to be cumulative on those for previous unrelated offending, and we do not regard the period of two years as in any way excessive. We were informed that the gang members who assaulted the victim the following morning were each sentenced to one year's imprisonment, but we were not informed whether this was after trial or on a plea of guilty, and we have no information as to their criminal records. In any event, they were charged with a different offence, and we are not persuaded that there is any basis for concern at the sentence on the appellant on grounds of disparity.

What is of concern, however, is the Judge's decision to increase the sentence from 2 years to 3 years 6 months in order to make it concurrent with the existing sentences. This appears to have been done at least partly for the stated advantage of enabling a parole term to be incorporated in the term of imprisonment, so that after release from prison the appellant will be subject to parole. An offence of robbery for which a sentence of more than 2 years is imposed is a "serious violent offence" under section 2 of the Criminal Justice Act 1985, so that the offender is not eligible for parole under section 89, but the Court may impose conditions under section 77B to which the offender will become subject on release. No such conditions were imposed, but in any event, that could not justify the increase from the sentence which

the Judge considered to be appropriate. The increase, although concurrent, also adds an additional 2 months to the total term that would result from a cumulative sentence, as the two previous sentences commenced from 12 October 1995 whereas the present sentence is from 8 December.

Although a total sentence of 3 years 6 months would not have been outside the range for the two offences considered together, it is inconsistent with the Judge's expressed view that the appropriate sentence for the present offence was 2 years cumulative on the sentence previously imposed. We were minded to correct this anomaly by varying the sentence to a cumulative term of 2 years. Before taking this course we directed that a copy of the appellant's submissions be sent to the Crown, and that the Crown's attitude be ascertained. We have now received a helpful written submission from Crown counsel. The Crown does not oppose the sentence being varied in the manner proposed.

We therefore dismiss the appeal against conviction, but we allow the appeal as to sentence. In its place we impose a sentence of 2 years imprisonment cumulative on the sentences previously imposed for the earlier offending.

Solicitors

Thorne Dallas & Partners, Whangarei, for Appellant

Crown Law Office, Wellington, for Crown