SIMON v POLICE [2020] NZHC 2430

SIMON v POLICE [2020] NZHC 2430 [17 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-220[2020] NZHC 2430BETWEEN STEFARN SIMONAppellantAND NEW ZEALAND POLICERespondentHearing: 7 September 2020Appearances: P H H Tomlinson for AppellantL N Wilson for RespondentJudgment: 17 September 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 17 September 2020 at 4:15 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] On 13 May 2020, Judge B A Gibson sentenced 23-year-old Stefarn Simon1 (theappellant) to three years and two months' imprisonment in respect of the followingcharges: 2(a) Burglary ($500 - $5,000 by day);3(b) Burglary (over $5,000 by night);4(c) Possession of methamphetamine pipe;5(d) Possession of Class A controlled drug, namely methamphetamine;6(e) Possession of Class C controlled drug, namely cannabis;7 and(f) Breaching home detention (2).8[2] Mr Simon now appeals against that sentence.BackgroundPrior offending[3] On 20 November 2019, the appellant was sentenced to four months' homedetention on charges of unlawfully being in an enclosed yard, a burglary (under $500,by night), using a document for pecuniary advantage, receiving property, breach ofcommunity work, breach of conditions of intensive supervision, and breach ofconditions of community detention.1 The appellant's first name is variously misspelled in the Court documents. At the appeal counselproduced a copy of the appellant's New Zealand birth certificate confirming his name: StefarnMathew Batnozic Simon.2 Police v Simon [2020] NZDC 8293.3 Crimes Act 1961, s 231(1)(a); maximum penalty imprisonment not exceeding 10 years.4 Crimes Act 1961, s 231(1)(a); maximum penalty imprisonment not exceeding 10 years.5 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty imprisonment not exceeding oneyear and/ or fine not exceeding $500.6 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty imprisonment not exceeding sixmonths and/ or fine not exceeding $1,000.7 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty imprisonment not exceeding threemonths and/ or fine not exceeding $500.8 Sentencing Act 2002, s 80S; maximum penalty imprisonment not exceeding one year or fine notexceeding $2,000.Current offendingBreach of home detention sentence[4] Several weeks later, on 7 December 2019, the appellant breached his homedetention sentence by absenting himself from his address and going to a number ofunapproved addresses. He breached again on 8 December, and on 9 December, hebreached yet again and visited 11 unapproved addresses, before cutting off hiselectronic monitoring strap.Burglary – H's house[5] At approximately 10.58 pm on 6 January 2020, the appellant entered the victimH's Glendowie property. The appellant was wearing gloves and had covered his facewith a black bandana and hood. He carried a torch. Once inside the residence he took:clothing; camera gear; a collection of hunting knives valued at $10,906.90; shoes;jewellery; alcohol; handbags; and Dornbracht bathroom tapware items valued at$3,035.65.[6] The following evening at approximately 7.40 pm, the appellant returned to H'sproperty. Again he was wearing a black bandana, hood, gloves, and a dark blue cap.He had with him a small brown pouch and a head torch. He entered the dwelling aftersmashing the glass on the front door. Once inside he took several items, totallingaround $1,300 in value. They were: a Makita battery charger; two Makita 5-AMPbatteries; a Makita drill; a Makita torch; a Makita blower nozzle; a garage doorremote fob; a bunch of 10 keys; a jewellery box; assorted jewellery; a Kathmanduhead torch; and a Kathmandu backpack. H, who was not at his house at the time, wasalerted to the presence of an intruder by means of a remote security alarm by whichhe observed the appellant leaving the property via the front door. The appellant waslocated and arrested by Police later that night.[7] Upon arrest by the Police the appellant was searched. In his small browncarry-pouch, Police located:(a) a glass pipe (possesses utensils);(b) a resealable bag containing 0.6 grams of cannabis (possesses Class Ccontrolled drug);(c) a sunglasses case containing a resealable bag holding 0.3 grams ofmethamphetamine (possesses Class A controlled drug).[8] The Summary of Facts states that the appellant's explanation for his conductwas that he had lost money gambling.District Court decision[9] On 13 May 2020, Judge B A Gibson sentenced the appellant to three years andtwo months' imprisonment.9[10] In his decision, the Judge noted that the appellant had a limited criminal history,which nevertheless included a considerable amount of recidivist offending since 2014which included serious violent offending. The Judge also noted that the appellant hadnot served his various community based sentences particularly successfully.10Referring to the pre-sentence report, the Judge observed that the appellant had beenassessed as being at high risk of re-offending.[11] The Judge acknowledged the appellant's realistic insight into his offending,noting that he accepted that his offending was caused by problematic drug andgambling habits, combined with an unstructured lifestyle.11 Referring to the VictimImpact Statements, the Judge also noted that jewellery items of irreplaceablesentimental value had been taken and that the victims of the burglary were left feelingunsafe in their own home.12[12] The Judge adopted a starting point by reference to Arahanga v R, in which theCourt of Appeal said:13This Court has deliberately not set a tariff for burglary because the range ofcircumstances in which the offence can be committed is so varied. Burglaryof a domestic residence is a significant aggravating factor at sentencing, dueto the heightened risk of confrontation with the occupants. Dwelling house9 Police v Simon [2020] NZDC 8293.10 At [11].11 At [12].12 At [14].13 Arahanga v R [2012] NZCA 480 at [78], cited at [15].burglaries at the relatively minor end of the scale tend to attract a starting pointof approximately 18 months' to two years and six months' imprisonment.[13] The Judge observed that by reason of: the appellant's premeditation; the stepshe took to disguise himself; the amount and value of the property taken; the time ofday (night time) when the offending occurred; the appellant's re-targeting of the sameproperty for the second burglary; and the fact that his offending took place while hewas serving a sentence of home detention, the appellant's offending could not bedescribed as being at the minor end of the scale.14[14] With respect to the first burglary, the Judge considered the appropriate startingpoint was two years' imprisonment.15 From that, he uplifted by 18 months for thesecond burglary, three months for the breach of the home detention sentence, and afurther three months for reoffending while still serving a sentence and within a fewmonths of the imposition of the sentence.16 The uplifts brought the adjusted startingpoint to 48 months' imprisonment. The Judge then applied a 20 per cent discount forthe appellant's guilty plea, bringing the sentence down to three years and two months'imprisonment.17 The Judge explained his reason for allowing a slightly more generousdiscount for the guilty plea than had been sought by the appellant's counsel, as beingto account for the appellant having suffered from ADHD18 for many years.[15] With respect to the application to cancel the sentence of home detentionimposed in November 2019 so as to substitute a sentence of imprisonment, the Judgecredited the appellant with having served one month of the home detention sentence,leaving three months' home detention left to serve, being equivalent to six months'imprisonment.19 The Judge accordingly added the sentence of six months'imprisonment cumulatively to the sentence of three years and two months' for therecent offending, bringing the end sentence to three years and eight months'imprisonment.2014 At [8] and [16].15 At [19].16 At [19] – [20].17 At [21] and [25].18 Attention Deficit Hyperactivity Disorder.19 At [24].20 At [25].[16] Having regard to the totality of the appellant's offending, the Judgeincorporated sentences for all of the other charges within the sentence of three yearsand two months' imprisonment, by imposing concurrent sentences of:(a) four months' imprisonment for the possession of instruments;(b) one month imprisonment for the possession of cannabis;(c) three months' imprisonment for the possession of methamphetamine;and(d) three months' imprisonment for the breaches of home detention.Approach on appeal against sentence[17] An appeal against sentence is governed by the Criminal Procedure Act 2011.Section 250(2) provides that the Court must allow an appeal against sentence ifsatisfied that for any reason, there is an error in the sentence imposed on conviction,and a different sentence should be imposed. In any other case, the Court must dismissthe appeal.21[18] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was notintended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.22 As such, the measure of error that must be shown, is that thesentence is "manifestly excessive".23 The Court will not intervene where the sentenceis within the range that can properly be justified by accepted sentencing principles.Whether a sentence is manifestly excessive is to be examined in terms of the sentencegiven, rather than the process by which the sentence was reached.21 Criminal Procedure Act 2011, s 250(3).22 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].23 At [26] – [27].SubmissionsFor the appellant[19] Mr Tomlinson for the appellant notes that the appellant, although challengingthe sentence imposed, in pursuing his appeal does not seek an alternative toimprisonment. He appeals against Judge Gibson's sentence on the following grounds:(a) The starting point of two years on the first burglary was at the very highend. Mr Tomlinson notes Hinton J's recent observation in Nelson vPolice regarding the application Arahanga v R in setting a starting pointfor burglary:24From the cases referred to me, and the cases referred to byKós J in Newton,25 I conclude that the Court of Appeal'sguidance in Arahanga is not strictly accurate or has not beenstrictly applied. All these cases considered Arahanga andcame to starting points of less than 18 months. A morerealistic range might be one year to two-and-a-half years'imprisonment.Mr Tomlinson also notes Rodney Hansen J's comments in Luke vPolice as to the appropriate approach:26[13] The decision in Senior v Police27 helpfully distinguishesbetween broad categories of burglary offenders but, as theCourt of Appeal said in R v Southon,28 it should not beregarded as more than a very helpful analysis of historicsentencing patterns in the area.29 In the end, sentencing forburglary, as for other offending, requires the Court, in the firstinstance, to identify the culpability inherent in the offendingby reference to the circumstances.30 That requires, as theCourt of Appeal said in Nguyen v R31 that the offender'sculpability in a burglary should be assessed by reference tothe degree of planning and the sophistication in the offending,the nature of the premises entered, the kind and value of theproperty stolen, the damage done, the impact and potentialimpact upon occupants or owners of property and the extentof the offending where multiple burglaries are involved.24 Nelson v Police [2019] NZHC 2434 at [33].25 Newton v Police [2012] NZHC 2829 at [14] – [17].26 Luke v Police [2013] NZHC 3175.27 Senior v Police (2000) 18 CRNZ 340 (HC).28 R v Southon (2003) 20 CRNZ 104 (CA).29 At [13].30 R v Colombus [2008] NZCA 192 at [13].31 R v Nguyen CA110/01, 2 July 2001 at [17].[14] Comparisons with other sentencing decisions may benecessary in order, among other things, to achieve consistencyin sentencing. However, care must always be taken to ensurethat points of distinction are not overlooked. Many of theaggravating factors commonly encountered and present insentencing decisions on burglary charges are not present inthis case. They include a risk of danger to occupiers;sophistication in planning and execution; and the wantondestruction of property.(b) The uplift of 18 months for the second burglary was manifestlyexcessive. An uplift of three months would have been moreappropriate.(c) The Judge failed to consider totality in accordance with s 85 of theSentencing Act 2002. If the Judge had considered totality, the 42 monthstarting point would have been greatly reduced.(d) The discount of 20 per cent for personal circumstances and the guiltypleas was inadequate. The appellant should have been given a discountof 25 per cent for his guilty pleas. The appellant was arrested on 7January 2020. While not guilty pleas were entered on 24 January 2020,his guilty pleas were entered at the first case review hearing.(e) A s 27 cultural report should have been obtained in the circumstancesof this case and of the appellant.[20] Mr Tomlinson refers to the following cases as supporting his submission thatthe uplift of 18 months for the second burglary was excessive: Stepanicic v R (twoyear starting point, nocturnal burglary, end sentence of two years' imprisonment.);32Leach v Police (starting point of two years six months' imprisonment for 3x burglary,1x property offence and home detention breach);33McArthur v Police (starting pointof one year, four months' for 2x burglaries);34 Luke v Police (starting point of one year,32 Stepanicic v R [2015] NZCA 211.33 Leach v Police [2016] NZHC 1565. Although deducting a six-month discount would produce anend sentence of three years imprisonment, the final sentence imposed was two yearsimprisonment.34 McArthur v Police [2014] NZHC 201.four months' 2x burglary, 1x receiving and 1x possession of cannabis);35 Connell-McDowell v Police (starting point of two years, two months' imprisonment for 2xburglaries);36 Solomon v Police (starting point of three years, six months' for 15xburglaries). 37[21] Mr Tomlinson also seeks to rely on a s 27 report prepared by Ms Shelley Turnerfor the purposes of this appeal. The Respondent does not oppose the admission of thereport. In her report Ms Turner says that the appellant has experienced considerabledisadvantages in his life. Ms Turner describes his upbringing in New Zealand andAustralia with various whānau members, and refers to his diagnosis of sufferingattention deficit hyperactivity disorder (ADHD). Ms Turner notes that the appellantstrongly identifies as Māori through his maternal whakapapa, and is affiliated to NgātiPorou. However, Ms Turner says that the appellant presents as severely disconnectedfrom te ao Māori. The report notes that the appellant has experienced significant griefand loss trauma. This trauma has included his grandfather passing away when he wasaged seven, his grandmother passing away when he was aged 12, his stepfather passingaway when he was aged 20, and a miscarriage and abortion with a former girlfriend inhis early 20s. The report states that the appellant became involved with drugs at ayoung age and following the passing of his stepfather he turned to methamphetamineto cope. The report also notes that the appellant is remorseful for his offending, andis now open about his methamphetamine addiction with his family and is trying toparticipate in a drug treatment programme to overcome his addiction.For the respondent[22] Ms Wilson, for the Crown, submits that the sentence imposed by Judge Gibsonwas at the top of the range available.[23] She submits that the starting point of two years' imprisonment for the firstburglary was within the range available. She acknowledges that Arahanga providesmerely general guidance for this sort of offending, and that sentences can clearly beimposed outside of the range it contemplates where appropriate on the facts of the35 Luke v Police [2013] NZHC 3175.36 Connell-McDowell v Police [2019] NZHC 3370.37 Solomon v Police [2020] NZHC 1674.particular case. Nonetheless, she submits that the appellant's offending is typical ofthe type of domestic burglary contemplated by the Court of Appeal in Arahanga,involving the aggravating features of premeditation, and the use of disguise, forcefulentry at night, search for and theft of valuable property. The Crown submits thatmoderately serious offending of this kind appropriately falls in the middle of theArahanga range.[24] With respect to the second burglary, Ms Wilson says that it features the sameaggravating factors as the first burglary, as well as additional factors of damage causedupon entry, the repeated targeting of one home, and the presence of drugs on theappellant's person at the time. She submits that the appellant's return to the samehome is significant in that it is a marker of premeditation and impact on victims. Shesubmits that this second burglary could itself attract a starting point of between twoand two and a half years' imprisonment. In these circumstances she submits that JudgeGibson's uplift of 18 months for this second burglary was appropriate.[25] In terms of the overall starting point for the burglaries, Ms Wilson submits thatthe starting point of three years and six months was available in this case, albeit at thehigh end of the range. In support of this submission, she characterises the gravity ofthe appellant's offending as sitting above the range identified in Arahanga, and notesthe following two decisions:(a) Shierney v Police:38 The defendant and an associate burgled the sameresidential address twice over the course of one night. No one washome at the time. Numerous items of property including jewellery,electronic products and three high powered rifles were stolen. The HighCourt upheld the District Court's starting point of three years, sixmonths' imprisonment in relation to the second burglary in which thefirearms were taken (the lead charge), and the uplift of six months forthe first burglary and other minor offences, although Woolford J didconsider it to be towards the upper end of the available range.Ms Wilson submits that the appellant exhibited a greater degree of38 Shierney v Police [2014] NZHC 2963.preparation and premeditation than did Mr Shierney, because theinterval between the two burglaries committed by the appellant was awhole day before he returned to commit the second burglary.(b) Penniket v R:39 Multiple offenders burgled three different holidayhomes over ten days. Approximately $85,000 worth of property wasstolen. The Court of Appeal considered a starting point of three years,six months' to be well within range, and towards the lower end. MsWilson accepts that the monetary value of the stolen property was lowerin the present case, and that the appellant offended alone on two, notthree, occasions. However, she notes that in Penniket, the offenders didnot target the same address.[26] As to the Judge's consideration of personal factors, Ms Wilson submits that itwas open to him to increase the sentence by three months to account for the fact thatthe offending occurred soon after he was sentenced to home detention. She notes thatthe appellant's history of offending demonstrates that the community requiresprotection from him.[27] Finally, Ms Wilson submits that the 20 per cent reduction for the appellant'sguilty pleas was appropriate, noting that he only sought a 15 per cent discount.Analysis[28] An assessment of the culpability of appellant's offending in relation to the firstburglary on 6 January 2020 is informed by: the targeting of a residential property atnight with the possibility of encountering the occupants of the address; thepremeditation and planning evident by the appellant's possession of a head torch,gloves, and a bandana and hood to conceal his identity; the forced entry of the lockedpremises; the significant value of the items stolen; the victim's loss of items ofsentimental value. In my view the appropriate starting point for the first burglarywould be 18 months' imprisonment. I nevertheless consider that the two year starting39 Penniket v R [2016] NZCA 154.point adopted by Judge Gibson was at the upper end of the available range havingregard to the observations of the Court of Appeal in Arahanga.[29] The second burglary on 7 January involved the same features of burglaryoffending and was aggravated by being a second targeting of the same premises. Wereit considered in isolation it would justify a starting point of around 18 months. I do nothowever consider that it warrants the adoption of an uplift of 18 months of the startingpoint adopted in respect of the first burglary. Because these two burglaries were soclosely related, the preferable approach is to consider the culpability of the offendingon a totality basis.[30] In my view the gravity of the appellant's offending would be appropriatelyreflected by the adoption of an 18 month starting point for the first burglary, with anine month uplift for the second burglary, to reach a total starting point for the twoburglaries of two years, three months' imprisonment. The appellant does not challengethe two three month uplifts for the breach of the home detention sentence and for theoffending while under sentence. The addition of a further six months for those upliftsyields a total starting point of two years, nine months' imprisonment.[31] As regards the discount for the appellant's guilty pleas, I note that on his firstappearance in the District Court on 8 January 2020 he was remanded in custodywithout pleas being entered and when he next appeared on 26 January, he denied allthe charges and not guilty pleas were entered. He entered guilty pleas on 18 February2020, and in light of that sequence, it cannot be said that he admitted the charges at anearly stage such as to warrant a allowance of a full 25 per cent discount. I considerthat a discount of 15 per cent is appropriate recognition of his guilty pleas havingregard to the time that they were entered.The s 27 report[32] In her comprehensive report Ms Turner expresses her opinion that thecompounding effect of adverse childhood experiences, trauma, and drug addiction hashad a causative impact on the appellant's offending. As a young child he was affectedby ADHD, and experienced considerable transience at home and as he made his waythrough the education system. The report notes that the appellant was moved from"pillar to post" amongst various members of his whānau in response to both hiscondition, and following the deaths of family members. The report also notes thatcoinciding with the appellant's learning and behavioural difficulties was his early useof cannabis and over time progressing to use of synthetic cannabis andmethamphetamine.[33] In relation to the appellant's drug addiction Ms Turner says that ultimately heis an addict. She notes that throughout most of his teenage and young adult life he hasbeen addicted primarily to cannabis and synthetic cannabis, but that in more recentyears he has become a methamphetamine addict. She says that in the throes of hisaddiction he was not making rational decisions and that his life had become all aboutobtaining and using methamphetamine and gambling, and crime was his primarysource to fund his drug addiction.[34] Ms Turner says that "unpacking" the appellant's addiction revealed underlyingtrauma, and that he was deeply affected by the death of his stepfather who was a fatherfigure to him, and had turned to using methamphetamine as a coping mechanism forhis grief and loss trauma. Ms Turner says that one of the key ways in which a person'sbackground may be relevant to sentencing is where it reduces their moral culpabilityfor the offending. Ms Turner says that while it is ultimately a matter for the Court, inher opinion there appears to be a plausible connection between the appellant'sbackground and his offending that mitigates his culpability.[35] I also note that the appellant has shown genuine remorse for his offending andthat he is making a committed effort towards rehabilitation. His efforts includeaddressing his drug addiction and engaging with his whānau and his cultural identityin a way he has not previously been open to doing.[36] At the appellant's sentencing in the District Court, his counsel also produced areport prepared by PARS40 Rangatahi Services dated 8 May 2020. PARS describesitself as having a team that works intensively with young people aged between 12 and24 who have been affected by the justice system, to assist them to navigate towardstheir unrealised potential. The PARS report also refers to the appellant's personal40 People at Risk Solutions organisation.background and confirms that he has expressed his commitment to change andrehabilitate himself.[37] Section 8(i) of the Sentencing Act provides that the Court must take intoaccount an offender's personal, family, whānau, community and cultural backgroundwhen imposing a sentence. Section 27 of the Act provides a mechanism for anoffender to provide the Court with information relevant to those matters. Discretediscounts of sentence may be given based on information contained within s 27reports.41 However, an offender's background will not always be a mitigating factorin sentencing. In Heta, Whata J concluded that for these factors to be mitigatingfactors, the evidence needs to create a link between the offender's background andtheir offending.42 Whether discounts are to be given on account of an offender'spersonal circumstances is a matter of judicial discretion.43[38] I am satisfied by the matters described in Ms Turner's report that there is acausal connection between the appellant's personal and cultural background and hisoffending, and I consider that a discrete discount to recognise the contribution hispersonal and cultural background has played as a causative factor in his offending isappropriate.[39] I consider that the discount allowed by the Judge of effectively five per centreduction of the sentence on account of the appellant suffering ADHD, was insufficientto recognise the significant contribution of the appellant's personal background hadon his offending and its causal connection to his offending. I consider that a discountof 15 per cent would be appropriate to recognise this mitigating factor.[40] From the starting point sentence of two years, nine months' imprisonment (33months), I allow a discount of 15 per cent for the guilty pleas and a further 15 per centto recognise the appellant's background and circumstances and their causalcontribution to his offending. Applying those two discounts, totalling 30 per cent, to41 Tania Singh "Discount Resulting from Information Contained in a Cultural Report providedpursuant to s 27 of the Sentencing Act: Solicitor General v Heta [2018] NZHC 2453" (2018) NZLJ350.42 Solicitor-General v Heta [2018] NZHC 2453 at [50].43 Rudolph v R [2019] NZCA 451 at [33].the starting point yields an end sentence of one year, eleven months imprisonment (23months).44[41] To that sentence the further six months cumulative sentence for the cancelledhome detention sentence is to be added, with the result that the total sentence imposedis two years and five months' imprisonment.[42] Having determined that a sentence of one year and eleven months'imprisonment is appropriate for the appellant's burglary offending, I find there was anerror in the sentence imposed on him by the District Court on 13 May 2020 of threeyears and two months' imprisonment for the burglary charges, and that a differentsentence should be imposed.Result[43] The appeal is allowed.[44] The sentence imposed by the District Court of three years and eight months'imprisonment is quashed. In its place I impose a sentence of two years and fivemonths' imprisonment, which includes the six month cumulative sentence for thecancelled home detention sentence at [41] above.[45] The concurrent sentences imposed by the District Court on 13 May 2020 standand are not affected by this judgment.45_____________Paul Davison J44 Moses v R [2020] NZCA 296 at [46].45 Police v Simon, above n 2 at [26].