R v Simon - [2017] NZHC 235

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-063-2259 [2017] NZHC 235

THE QUEEN

v

NATHAN ARAI SIMON

Date ofhearing: 22 February 2017

Counsel:

N Tahana for Crown
M M Dorset for Defendant

Sentencing:

22 February 2017

SENTENCING NOTES OF KATZ J

Solicitors: Gordon Pilditch, Office of the Crown Solicitor, Rotorua

Counsel: M M Dorset, Barrister, Tauranga

R v SIMON [2017] NZHC 235 [22 February 2017]

Introduction

[1] Mr Simon, you appear for sentence today having been found guilty, following a jury trial, of the attempted murder of your brother.1 The maximum penalty for attempted murder is 14 years’ imprisonment.

The offending

[1] I am going to first set out the facts of your offending, based on the evidence I

heard at trial.

[2] At the time of the offending you were living at your parents’ home. Your brother and his family lived on the same street. In the period leading up to the attack you were acting strangely and not sleeping. The evidence before the Court was that you were paranoid and behaving in an increasingly odd way. You became convinced that your long-term partner was having an affair with your brother. Your family became increasingly concerned regarding your mental state, indeed your sister-in- law phoned “111” several times the evening before your offending due to concerns about your erratic behaviour.

[3] At about 5:30am on the morning of 5 August 2015 your brother was asleep at his home when you kicked his front door open. You stormed down the hallway looking for your brother. You were carrying a knife you had brought with you from your parents’ house. You found your brother asleep in a back bedroom and accused him of having sex with your partner. You attacked him violently, stabbing him repeatedly in the head and face. You stabbed him with such force that the blade of the knife broke off and became lodged in your brother’s head.

[4] You then went into the kitchen to get another knife. Your brother realised what you were doing and picked up a nearby machete and swung it at you. He could barely see due to the blood streaming down his face. He hit you on the back of the head. He then dropped the machete and fled the house. Unfortunately, he tripped outside on the driveway. You caught up to him and, using the knife you had taken
from the kitchen, you stabbed him in the stomach region, while telling him to die.

1 Crimes Act 1961, s 173.

After a struggle your brother managed to break away and run to a neighbour’s house. The knife blade was still embedded in his head. At the neighbour’s house he pulled it out and the neighbour took him to hospital.

[5] Your brother sustained a number of serious knife wounds, including multiple lacerations to his face and abdomen and defensive injuries to his hands and forearms. He also received a fractured right eye socket and a broken bone beneath his…

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 R v Simon

Details

AGLC: R v Simon [2017] NZHC 235
Case: [2017] NZHC 235
Decision Date: 22 February 2017

CaseChat Overview and Summary

Nathan Arai Simon was found guilty of the attempted murder of his brother and was brought before the High Court of New Zealand for sentencing. The court was tasked with determining the appropriate sentence for the defendant, considering the nature and severity of the crime, the presence of any aggravating or mitigating factors, and the overall impact on the victim and the community. The court also had to decide whether the defendant's mental health issues at the time of the offence warranted a discount on the sentence.

The court first established a starting point for the defendant's sentence, taking into account the aggravating factors of the crime, such as the extreme violence, premeditation, and the use of weapons. The attack resulted in the victim suffering serious injuries, ongoing health issues, and emotional trauma. The court also considered the impact of the crime on the victim's family, particularly the children who witnessed the attack. The court determined that a starting point of 11 years imprisonment was appropriate.

Next, the court considered whether to uplift the starting point based on the defendant's previous convictions for violent offences. However, the court decided not to apply an uplift as the defendant's previous convictions were historical, and he had largely left his violent past behind him prior to the recent offence.

The court then turned to the question of whether to grant a discount on the sentence for personal mitigating factors. The defendant's mental health issues at the time of the offence were considered, and although there was evidence to suggest that the defendant may have been suffering from a mental disorder, there was no medical evidence to support this claim. The court concluded that a modest discount of six months was appropriate for the defendant's mental health issues at the time of the offence.

The court found no other sentencing discounts were available, such as for remorse or cultural factors. Ultimately, the defendant was sentenced to 10 years and 6 months imprisonment for the attempted murder of his brother.

In summary, the court took into account the severity of the crime, the aggravating and mitigating factors, and the overall impact on the victim and the community when determining the defendant's sentence. The court decided on a starting point of 11 years imprisonment, declined to uplift it based on previous convictions, and granted a six-month discount for the defendant's mental health issues at the time of the offence. The final sentence was 10 years and 6 months imprisonment for the defendant.

Orders