SOLOMON v R [2019] NZHC [2915]

SOLOMON v R [2019] NZHC [2915] [7 November 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-000036[2019] NZHC 2915BETWEEN HARRIS KATENE SOLOMONAppellantAND THE QUEENRespondentHearing: 5 November 2019Counsel: R Philip for the AppellantA D H Colley for the RespondentJudgment: 7 November 2019JUDGMENT OF DOOGUE JIntroduction[1] Mr Harris Solomon appeals against a sentence of 15 months' imprisonmentimposed by Judge Adeane on 30 September 2019 in the District Court at Napier.1 Thecharges were injuring with intent to injure,2 assault with intent to injure,3 male assaultfemale,4 and common assault.5[2] Mr Solomon appeals on the basis the Judge should have commuted hissentence to home detention. He says that the Judge placed too much weight on theprinciples of denunciation and deterrence and too little weight on his positive attemptsat rehabilitation since his offending and his previous good character.1 R v Solomon [2019] NZDC 17056.2 Crimes Act 1961, s 189(2); maximum penalty of five years' imprisonment.3 Section 193; maximum penalty of three years' imprisonment.4 Section 194(b); maximum penalty of two years' imprisonment.5 Section 96; maximum penalty of one year imprisonment.Background[3] On 25 November 2017, Mr Solomon, 19, was drinking with his brother, DillonSolomon, 26, and the victims in this case at an address on Ardrossan Avenue inFlaxmere, Napier. The victims are the Solomon brothers' cousins, or friends of theircousins. To avoid confusion, I refer to the two brothers by their full names in outliningthe factual and procedural background.[4] During the night, Mr Dillon Solomon was encouraging Mr Harris Solomon tostart a fight with Karum Te Whare, one of the people present at the Flaxmere address.One of the hosts, Desiree Te Whare, attempted to usher Mr Te Whare inside to avoidan incident. As the two moved towards the back door, Mr Harris Solomon beganpunching Mr Te Whare to the body. A number of punches connected.[5] In response, one of the residents at the Flaxmere address, Samantha Araia,turned off the music and asked everyone to leave the address. The Solomon brothersdid not leave. Instead, Mr Harris Solomon pushed Ms Araia out of the way to continuehis assault on Mr Te Whare.[6] Ms Araia's sisters, Moeroa Araia, and Matangaro Teariki, also told theSolomon brothers to leave, but again, they did not do so. Ms Moeroa Araia andMs Teariki then attempted to physically remove the Solomon brothers from theproperty, who pushed back. Mr Harris Solomon pushed Ms Moeroa Araia so hard thatshe fell into a garden area and he then threw a wooden chair in her direction.[7] At this stage, Ms Te Whare, one of the people present at the Flaxmere address,came out of the house and was confronted by Mr Dillon Solomon before he walkedaway. Without warning, Mr Harris Solomon then directed his aggression atMs Te Whare, punching her about 10-15 times in the head and kneeing her.[8] The fracas continued at the end of the driveway and Ms Teariki was grabbedand pulled to the ground by the Solomon brothers. The brothers punched her severaltimes to the face as she attempted to protect herself on the ground, and they were seento aim a kick at her. At some point during this assault, Ms Teariki lost consciousnessthough this does not seem to have deterred the Solomon brothers. Ms Moeroa Araiaintervened whereupon she was punched in the left cheek by Mr Dillon Solomon. Shefell backwards onto the road.[9] In respect of the victims' injuries: Ms Teariki suffered a broken nose, fracturedcheek bone, swelling to her face, grazing to her knee and general soreness to her body;Mr Te Whare suffered a swollen, bleeding nose and soreness to his face and body;Ms Moeroa Araia suffered swelling and bruising to her left cheek and under her lefteye, and general soreness over her body; Ms Te Whare received a cut to the inside ofher mouth together with swelling and soreness to that area; and Ms Samantha Araiasuffered no injuries.District Court decision[10] The Judge outlined the facts as above, observing "it's worthy of note that insidethe house at the time were young children, including a new-born baby".6 Referring toMs Samantha Araia turning the music off and telling everybody to leave, the Judgeobserved that she stood in the doorway to obstruct the Solomon brothers' entry intoher home. Mr Harris Solomon used both hands to shove her out of the way to gainentry. The Judge observed:7However, no charge arises from that push, but it clearly gives events theflavour of home invasion when added to the other offending which took place.[11] In describing the lead charge, the Judge said:8Both the defendants then turned their joined attention to Matangaro who theyflung to the ground, attacked with closed fists to the face, each threw severalpunches to either side of her head and both kicked her so that she was leftlying unconscious on the ground. This is the lead charge, charge 4 of injuringwith intent to injure.[12] Referring to the Department of Corrections' Provision of Advice Report to theCourt (PAC Report), the Judge said insofar as Mr Harris Solomon is concerned itcontained a number of revealing inconsistencies and incongruities. He stated:96 R v Solomon, above n 1, at [3].7 At [4].8 At [6].9 At [11].It refers to the obvious efforts of your parents, your father in particular to haveyou reinstate yourself and behave in a pro-social fashion but it also reportsthat Harris is a proudly patched Mongrel Mob member who lays blame for hisoffending on this occasion on these female victims and claims to have actedin self-defence. That of course is completely at odds with his guilty plea tothe charges and the summary of facts to which I have referred.[13] The critical paragraphs of the Judge's decision are as follows:[12] The underlying recommendation in relation to Harris is for homedetention, predicated I suspect more on the support of his family than on anyconfidence in his ability to learn or grow from what has happened. The usualcultural notes are sounded but the stark facts of this charge are that two fit andstrong young men have violated the hospitality of their female cousins andbeaten three of them physically, one to the point of broken bones andunconsciousness, and no culture worthy of its name could allow that conductto pass insufficiently denounced. Domestic violence is an absolute scourge inthis community at the moment and there can be no sign from this Court that itis countenanced on any account.[13] Nuku and Taueki bear on sentence so far as charge 4 is concerned.10There were a number of aggravating features from which defence counsel donot shy away. This is a case of multiple attackers, vulnerable female victims,an attack to the head and severe of injuries resulting. It also has strongovertones of a home invasion where the women attempted to retreat inside thehouse to avoid violence and you two would not permit them to do so.[14] In my view the starting point for this offence charge 4 cannot be lessthan two and a half years' imprisonment. So far as Harris is concerned for theother charges including a charge of assault with intent to injure there must bean uplift of nine months on that starting point on charge 4. So far as Dillon isconcerned there is the fact that he has previous violence convictions, that hewas also involved in a second assault on a female this evening and that it washe, at 26 years of age, who offered incitement to his younger brother tobecome involved in the violence in the first place. Again, an uplift of ninemonths is appropriate with the result that the starting point for each of you isthree years and three months' imprisonment....[16] So far as Harris is concerned, the matter is considerably morecomplex. He is entitled to his discount for the guilty plea, for youth andsuggestibility - largely to his brother's suggestion. I would allow a furtherdiscount of 15 percent and for lack of previous convictions of 10 percent. Inthe aggregate those two further discounts produce a reduction of eight monthsand for restrictive bail a further two months. The result is a sentence of21 months' imprisonment.[17] This makes home detention a live issue for Harris. I acknowledge thepresence in this case of supportive whanau and proper resources to allow anelectronically monitored sentence, but I also observe that these goodinfluences have not so far been strong enough to keep either you or your10 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; R v Taueki [2005] 3 NZLR 372 (CA).brother safe from yourselves or the community safe from you. Your attitudeto your offending, Harris, does not encourage confidence in a home detentionoutcome and for reasons which I have tried to spell out denunciation andaccountability are high social priorities in matters involving domestic violenceas this one does. In fact, in my view denunciation and deterrence have to bethe primary driving factors at sentencing. In that situation I decline to grantyou, Harris, home detention. However, before concluding I finally adjust thesentence on you to one of 15 months' imprisonment so that the prospect ofrelease and the opportunity to accept the guidance of your family both remainrealistic and foreseeable prospects. You are sentenced to 15 months'imprisonment for your part in this.Principles on appeal[14] An appeal against sentence may only be allowed by this Court if it is satisfiedthat there has been an error in the imposition of the sentence and that a differentsentence should be imposed.11 An appeal court will not intervene where the sentenceis within the range available to the Sentencing Judge.12 It is only appropriate for thisCourt to intervene and substitute its own views if the sentence is "manifestlyexcessive" and cannot be justified upon the application of the relevant sentencingprinciples.13The appeal[15] No issue is taken with Judge Adeane's starting point of two years and sixmonths' imprisonment for the lead offence of injuring with intent to injure, uplifted bynine months for associated offences to three years and three months' imprisonment.Nor is any issue taken with the discounts given for Mr Solomon's guilty plea, hisyouth, his lack of previous convictions, his rehabilitative prospects and being subjectto restrictive bail to reach an end sentence of 15 months' imprisonment.[16] Rather, it is submitted that the error here is that Judge Adeane's assessmentfocused solely on one sentencing principle, being denunciation and deterrence, to theexclusion of others.[17] The Crown acknowledges that home detention would have been anappropriate sentence in Mr Harris Solomon's case. However, the Judge's refusal to11 Criminal Procedure Act 2011, ss 250(2) and 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 Ripia v R [2011] NZCA 101 at [15].commute a short term of imprisonment to home detention was a matter of discretion.It is not, in itself, an error. In this regard, the Crown refers to appellate authorities forthe proposition that in the absence of any material error shown by the appellant, thetrial Judge's discretion should be upheld.Relevant law[18] This appeal concerns a narrow question of law: did Judge Adeane erroneouslyexercise his discretion in refusing to commute a short sentence of imprisonment tohome detention, such that the sentence of 15 months' imprisonment was manifestlyexcessive.[19] When sentencing an offender, the sentencing Judge must take into account allof the principles in s 8 of the Sentencing Act 2002 ("the Act"). At times, theseprinciples may appear to be in conflict.14 For example, denouncing an offender'sconduct and deterring others from engaging in it may require a lengthy sentence beingimposed, while assisting in the offender's rehabilitation may require a lesser one.Resolving any conflict will require an exercise of judgement in weighing up andbalancing the statutory purposes and principles of sentencing in that particular case.15[20] Imprisonment is the most restrictive sentence in the hierarchy of sentences inthe Act.16 It is, as the Court of Appeal noted in R v Rawiri, "a measure of last resort".17Section 16(1) of the Act provides that when considering the imposition of a sentenceof imprisonment, the Court "must have regard to the desirability of keeping offendersin the community as far as that is practicable and consonant with the safety of thecommunity." Further, where the Court has a discretion as to whether to impose asentence of imprisonment, it must only do so if satisfied that:18(a) the sentence is being imposed for all or any of the purposes ofsentencing in s 7(1)(a) to (c), (e), (f), or (g); and14 Palmer v R [2016] NZCA 541 at [19].15 R v Vhavha [2009] NZCA 588 at [29].16 Sentencing Act 2002, s 10A.17 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].18 Sentencing Act 2002, s 16(2).(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the principles in s 8 of theAct in the particular case.[21] Home detention is available if the Court would otherwise sentence the offenderto a short-term sentence of imprisonment (defined under s 4(1) of the Parole Act 2002as a sentence of 24 months or less) and, as with the imposition of a sentence ofimprisonment, the purpose or purposes for which the sentence is being imposed cannotbe achieved by any less restrictive sentence or combination of sentences.19[22] While a Court must always impose the least restrictive outcome appropriate inthe circumstances,20 unless expressly stated, there is no presumption in favour of homedetention where a short-term sentence of imprisonment is determined to beappropriate.21 It is ultimately a matter of discretion and an "evaluative assessment ofall the circumstances" is required.22 Nevertheless, the Court of Appeal has previouslycommented that home detention provides a real alternative to imprisonment.23 This isbecause it carries with it the principles of denunciation and deterrence.24[23] In undertaking this evaluative assessment, it is paramount that the sentencingJudge applies ordinary sentencing principles, that is, takes heed of the (discretionary)purposes and (mandatory) principles of sentencing in ss 7 and 8 of the Act. Failure todo so constitutes an error of law. As the Court of Appeal in Fairbrother v R stated:25[29] Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of law. One is where the sentencing Judge hasassumed that the offence category lies beyond a sentence of home detention.The other is where the purpose of deterrence has been given complete prioritywithout regard to any of the countervailing purposes of sentence.19 Section 15A(1). Before a sentence of home detention can be imposed, the technical criteria ins 80A must also be met. These criteria will ordinarily be addressed in any pre-sentence report(which is a prerequisite for consideration of home detention under s 26A(1)).20 Section 8(g).21 R v Stacey [2008] NZCA 465 at [21]; R v Vhavha, above n 15, at [29]; Osman v R [2010] NZCA199 at [20]; Palmer v R, above n 14, at [19].22 R v Risschop [2008] NZCA 229 at [18]-[19].23 R v Iosefa [2008] NZCA 453.24 R v Ismail [2016] NZHC 79 at [45].25 Fairbrother v R [2013] NZCA 340 (footnotes omitted).[30] That does not mean that a short-term period of imprisonment mustalways be commuted to a sentence of home detention. That equally would bean error of law. What it does mean is that the judge must make a consideredand principled choice between the two forms of sentence, recognising thatboth serve the principles of denunciation and deterrence, and identifyingwhich of them better qualifies as the least restrictive sentence to impose takinginto account all the purposes of sentencing.[24] The Court went on to acknowledge that at times, distinguishing between themore appropriate sentence may be difficult.26 However, even in those cases, "thefactors that really count must be identified and weighed".27Analysis[25] This appeal concerns the second error of law identified in Fairbrother:Mr Solomon argues the purpose of deterrence was given complete priority withoutregard to any of the countervailing purposes of sentencing.28 I can deal with the issuesraised by Mr Solomon briefly.[26] I do not accept that Judge Adeane failed to consider sentencing purposes otherthan denunciation and deterrence. While it is clear the Judge considered thesepurposes to be of particular importance given the violent nature of the offending, theJudge also acknowledged Mr Solomon's age, pro-social whānau and the supportavailable to him.[27] Further, it is clear from the Judge's sentencing notes that the six-monthdeduction from the ostensible end-point of 21 months' imprisonment was anacknowledgement of Mr Solomon's rehabilitative prospects given his age and in lightof the support and guidance provided by his whānau. This discount was over andabove those given for youth and lack of previous convictions and can be appropriatelydescribed as generous.[28] Ultimately, it was the gravity of Mr Solomon's offending and the informationprovided by the PAC Report — Mr Solomon's propensity to use violence and the fact26 At [31], citing R v D (CA253/2008) [2008] NZCA 254 at [66].27 At [31].28 See also Manikpersadh v R [2011] NZCA 452 at [8].he is a patched member of the Mongrel Mob — that were of particular significance inthe Judge's determination that home detention was not appropriate in this instance.[29] I acknowledge that another Judge may have been persuaded that a sentence ofhome detention was appropriate in Mr Solomon's circumstances. However, it doesnot follow that Judge Adeane made an error in concluding, for the reasons outlined,that imprisonment would be more appropriate in all the circumstances of this case.29In saying this I note the Court of Appeal's observation in R v D (CA253/2008) that,when an offender is on the cusp of home detention, the Court will ordinarily defer tothe assessment of the sentencing Judge.30 The mere existence of home detention as adistinct sentence does not displace the viability of a short-term sentence ofimprisonment in the appropriate circumstances.31[30] For these reasons, I see no error of principle in the Judge's decision nor is thedecision plainly wrong.Sentence manifestly excessive?[31] There having been no error of principle, the appeal comes down to whether asentence of 15 months' imprisonment is manifestly excessive. I am not persuaded thatit is.[32] I agree with the Judge that Mr Solomon's offending was serious and thatdenunciation and deterrence are important sentencing considerations. Mr Solomonwas charged with four violent offences. The offending was unprovoked and continueddespite multiple attempts to stop Mr Solomon and his brother. Further, despite beingencouraged by his brother to start the violence, Mr Solomon continued the assault onmultiple people present at the Flaxmere address in an uncontrollable and escalatingmanner and of his own volition. This resulted in a number of victims, some of whomsustained serious injuries. The effect alcohol may have had on Mr Solomon and thefact that everyone had been drinking do not in any way excuse or justify this behaviour.29 Polyanszky v R [2011] NZCA 4 at [12].30 R v D (CA253/2008) [2008] NZCA 254 at [66].31 Kincaid v R [2010] NZCA 384 at [29].[33] I note that in sentencing the Solomon brothers, the Judge made commentsabout home invasion and made reference to children being present at the Flaxmereaddress. In my view, those comments provided background information and servedto contextualise the offending. I do not consider that the Judge necessarily sought toelevate those factors to aggravating factors in themselves. However, it is clear thatthose comments directly apply to Mr Solomon's offending rather than that of hisbrother. It was Mr Solomon who pushed Ms Araia out of the way to continue hisassault on Mr Te Whare who was heading inside to get away from the Solomonbrothers. Therefore, while I do not consider home invasion to be an aggravatingfeature of Mr Solomon's offending, I agree with the Judge's contextualisation of theoffending, which confirms its seriousness and justifies the importance of denunciationand deterrence in this instance.[34] There is no doubt that rehabilitation is also an important sentencingconsideration in Mr Solomon's case, particularly given his age and the fact he hasbegun associating with gang culture. The Judge was acutely aware of this in hissentencing notes. There is no doubt that home detention serves a greater rehabilitativepurpose than imprisonment. As the Court of Appeal observed in Palmer v R, a"custodial sentence is not usually the best rehabilitative option for a young person".32[35] In my view, however, there are two factors relevant to the question of whethera short sentence of imprisonment is manifestly excessive such that a sentence of homedetention is more appropriate. The first is in respect of Mr Solomon's whānau. In thePAC Report, the report writer noted that while Mr Solomon presents a moderate riskof reoffending, his whānau have expressed a willingness to assist in his rehabilitation.The Judge also noted this in addition to his observation that Mr Solomon's offendingflew in the face of what he had been taught by his parents and how he had been raised.However, Mr Solomon's gang membership, his openness about potentially beingrequired to use violence on behalf of the Mongrel Mob, and the level of violenceexhibited in his offending have all eventuated despite having a supportive and pro-social whānau. In my view, this decreases the rehabilitative value of a sentence ofhome detention.32 Palmer v R, above n 14, at [27].[36] The second factor is Mr Solomon's lack of insight into his offending. Unlikehis brother who exhibited some insight into the effect his actions have had on both hisvictims and his whānau, the PAC Report notes that Mr Solomon "has sought to layblame for his offending onto his victims". In combination with the factors I haveidentified above, it does not give me confidence that home detention will necessarilyhave the desired rehabilitative effect on Mr Solomon.[37] I am fortified in my view given that Mr Solomon's sentence of imprisonmentis a short one and he will be released once he has served half the sentence.33 In myview, this period is unlikely to have an irreversible effect on his rehabilitativeprospects.[38] For these reasons, I do not consider a sentence of 15 months' imprisonment tobe manifestly excessive.Result[39] The appeal is dismissed._________________________Doogue JSolicitors:Bramwell Bate, HastingsCrown Law Office, Wellington33 Parole Act 2002, s 86(1).