SOLOMON v POLICE [2020] NZHC 1674

SOLOMON v POLICE [2020] NZHC 1674 [13 July 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2020-488-000014[2020] NZHC 1674IN THE MATTER OF an appeal against sentenceBETWEEN NATHAN SOLOMONAppellantAND NEW ZEALAND POLICERespondentHearing: 13 July 2020Counsel: J Scott for the AppellantJ Johnson-Aufai for the RespondentJudgment: 13 July 2020(ORAL) JUDGMENT OF EDWARDS JSolicitors: Thode Utting, AucklandMarsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei[1] Mr Solomon was convicted of 15 charges of burglary, one charge of possessionof cannabis for supply, and one charge of possession of methamphetamine. He wassentenced to three years five months' imprisonment.1 Mr Solomon appeals from thatsentence on the grounds that insufficient discounts were given for personal mitigatingfeatures, and the calculation of the 25 per cent discount for guilty pleas was in error.Offending[2] Mr Solomon was stopped by police on 9 November 2019. He had been drivinga car which had been sought by police in relation to a number of burglaries in theRuakākā area. On the back of the vehicle was a brown couch which had been takenfrom a property in the area.[3] Police searched the vehicle and found approximately 20 grams of cannabis,digital scales, and plastic bags. Additionally, police found .22 grams ofmethamphetamine in Mr Solomon's wallet.[4] On 9 November police executed a search warrant at Mr Solomon's homeaddress. They located various items of property that had been stolen from numerousaddresses in the area over the previous 13 months. The sentencing Judge valued theitems at approximately $20,000. They had been taken from commercial premises,storage units, and construction sites.Was the end-sentence manifestly excessive?[5] The appeal proceeds under s 250 of the Criminal Procedure Act 2011. TheCourt must allow the appeal if it is satisfied that for any reason there is an error in thesentence imposed, and a different sentence should be imposed. The focus is on theend-sentence imposed rather than the process by which it was reached.2[6] There is no challenge to the starting point of three years, six months adoptedby the Judge, nor the 12 month uplift he applied for previous convictions and the1 Police v Solomon [2020] NZDC 7634.2 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].cannabis offending. The primary ground for appeal is that the Judge erred in failingto provide a discount for personal mitigating factors.[7] The Judge had the benefit of a s 27 report. As recorded in that report,Mr Solomon is 38 years old. He was born in New Zealand to a Pākehā mother and afather from the Chatham Islands. Mr Solomon did not know his birth father. Thereport writer observed that Mr Solomon's severe disconnection from the culture of hisbirth father affected Mr Solomon's sense of belonging in the world from birth.[8] Despite that disconnection, Mr Solomon described a "pretty good upbringing"without violence and without drugs. He had a good relationship with his step-father,and told the report writer that he could not blame his upbringing for his offending ashis parents "hated what he had done".[9] Mr Solomon told the report writer that he was reliant on alcohol and cannabisfrom the age of 13, and says he was using methamphetamine from 18 years of age. Atthe age of 21 or 22, Mr Solomon moved to Brisbane and his family soon followed. Hewas using cocaine and ecstasy at this time.[10] It appears that Mr Solomon was successful at mixed martial arts. He told thereport writer that following a loss in 2012, he became anxious and depressed, andturned to methamphetamine again. Mr Solomon says that crime was the means offeeding his addiction and he was in and out of prison in Australia.[11] In June 2018, Mr Solomon was deported to New Zealand. Since moving toAustralia, he had only been back once. He left his son, and other family membersbehind, and there is little in the way of family support in New Zealand. Mr Solomonsays he continued to commit crimes in order to sustain his addictions.[12] The pre-sentence report recorded Mr Solomon's long-standing substanceabuse problems as being causative of his offending. It was noted that Mr Solomonposed a high risk of re-offending unless his addiction problems were addressed.[13] The Judge did not consider anything in the s 27 report, nor the pre-sentencereport, required a discount. He observed that Mr Solomon had a good upbringing andthat there was no link between his family background and his offending. The Judgedid not accept Mr Solomon's self-report of anxiety and depression. Nor did heconsider Mr Solomon's addiction deserved recognition. He referred to aspects of thes 27 report which suggested that Mr Solomon had an ability to manage his drug-takingin a way that it did not impact on his employment. The Judge concluded that the reportshowed "a conscious decision" on the part of Mr Solomon to use drugs and then tocommit serious offences to support his habit.[14] The Crown submits that the Judge was correct to reject addiction as amitigating feature in this case as there was insufficient evidence that it was causativeof the offending. Although Zhang v R concerns methamphetamine offending, thestatements regarding the evidence necessary to obtain a discount are neverthelessrelevant here. The Court of Appeal said:3[A]ny such discount should be based on persuasive evidence, as opposed tomere self-reporting. Inasmuch as a stage two discount for mitigatingcircumstances is engaged, the onus of proof (to the civil standard) lies on theoffender to establish the extent and effect of addiction.[15] The sentencing Judge in this case appears to have accepted that Mr Solomonhad an addiction. That is not contested by the police. Mr Solomon's self-report iscorroborated by statements from his family members and it is consistent with hiscriminal history. The fact that Mr Solomon was found with .22 grams ofmethamphetamine when arrested by police substantiates his claims of struggles withthat drug.[16] The issue in this case is the extent of that addiction and its causative link to theoffending. The Judge was correct to highlight the fact that, for periods at least,Mr Solomon appeared able to manage his addiction in a way that meant he maintainedhis employment. But that does not mean that the addiction was not causative ofMr Solomon's offending. Indeed, Mr Solomon's criminal history and the nature ofthe index offending suggest that it was in fact the primary driver.3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].[17] The impact of that addiction reduced his capacity to make rational decisionsand his culpability is mitigated as a result. It is clear that prison sentences have notdeterred Mr Solomon in the past, and the focus must be on treating the underlyingcauses of his offending to reduce the risk of re-offending.4[18] Mr Solomon's counsel submits that a discount of 30 per cent is available. I donot consider the evidence regarding the extent of Mr Solomon's addiction justifies adiscount of that order. In my view, Mr Solomon's addiction warrants a discount ofaround 15 per cent from the starting point.[19] As to other mitigating factors, like the sentencing Judge, I do not consider aseparate discount for mental health can be established. Mr Solomon did not tellanyone about his anxiety and depression and there is nothing to establish a linkbetween that condition and his offending. Counsel for Mr Solomon points todifficulties in getting Mr Solomon's mental health condition assessed given he hasbeen in custody since his arrest. However, the Court cannot fill in an evidential gapwith speculation about what the assessment, if obtained, might have been. In theabsence of any evidence, the Judge was right not to recognise this as a mitigatingfactor.[20] In written submissions counsel for Mr Solomon referred, albeit faintly, to theobservations in the s 27 report to Mr Solomon's alienation from his birth father'sculture which affected his sense of belonging. That dislocation is acknowledged.However, and as properly accepted by counsel, the link between that dislocation andMr Solomon's offending is not made apparent in that report and so there is aninsufficient basis to apply a discount in this case.[21] Finally, counsel refers to the lack of support for Mr Solomon in New Zealandwhich, he submits, makes imprisonment disproportionately harder for him. Again,this submission is not substantiated by the evidence regarding Mr Solomon's supportstructures in New Zealand. It appears that he has some support from his half-brotherand a cousin. There is mention of a partner in the material before the Court, but4 See Zhang v R [2019] NZCA 507 at [138] and [146].nothing about the nature of that relationship. Further information would be requiredto justify a discount for this factor.[22] Finally, the alleged error in the application of the guilty plea discount was notan error, but a consequence of rounding, and was not substantive at all. In any event,this ground of appeal has no effect given my conclusions regarding the discount forpersonal mitigating factors will result in a different end-sentence.[23] To conclude, the sentence imposed is manifestly excessive because it failed toreflect the impact of Mr Solomon's addiction as a cause of the offending. A discountof approximately 15 per cent on the starting point of four years, six months, brings thenotional sentence to 46 months (applying rounding in Mr Solomon's favour). Theapplication of the full 25 per cent discount for guilty pleas leads to an end-sentence of34 months or two years, and 10 months.Result[24] The appeal is allowed. The sentence of three years, five months is quashedand substituted with a sentence of two years and 10 months' imprisonment.___________________Edwards J