R v Simon
[2017] NZHC 235
•22 February 2017
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 DefendantSentencing:
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 nose. He has required a number of operations due to serious complications relating to his abdominal wounds, which became infected. He spent ten days in hospital following the attack.
What is the appropriate starting point?
[6] I must first set a starting point for your sentence. I will then adjust that starting point to take into account any personal factors that might justify either an increase or a decrease to your sentence.
Aggravating factors
[7] There is no guideline judgment for attempted murder. However, where an attempted murder involves serious violence, the bands in the Court of Appeal case of R v Taueki are helpful,2 though a slightly longer sentence may be appropriate given the presence of murderous intent.3
[8] Your assault on your brother involved a number of aggravating features. Extreme violence was involved, extending over two incidents, one inside the house and a second outside, where you chased your already seriously injured brother. I also take into account that you took a knife with you to your brother’s house with the apparent intention of killing him. This clearly shows premeditation.
[9] The physical injuries suffered by your brother were serious. His victim impact statement makes very sad reading. As a result of your attack, your brother
has serious ongoing health issues. He cannot work, and is limited in his pursuit of
2 R v Taueki [2005] 3 NZLR 372 (CA).
3 R v Pengelly [2013] NZHC 527 at [35]; R v Falani [2014] NZHC 1879 at [14]; R v Craw
HC Auckland CRI-2005-057-18, 7 June 2006.
his former hobbies, because of the risks of getting an infection. This has had a significant financial impact both on him and his family, and they have had to move house. Your attack on him is something that will likely continue to impact on him, both physically and emotionally, possibly for the rest of his life. Your brother’s partner has also been deeply impacted by your offending. She has to take care of your brother and has needed a lot of time off work for this. She has suffered emotional trauma as well as financial hardship. Further, the attack took place in front of your brother’s young children, who witnessed you brutally attacking their father. They are fearful and have ongoing emotional issues as a result. Tragically, your extended family has been torn apart as a result of what happened. Even though your brother is the victim here, his children’s relationship with their father’s side of the family has been seriously damaged and they have suffered as a result.
[10] The use of weapons is also an aggravating factor of your offending, as is the fact that the attacked was to your brother’s head. Assaults to the head are recognised as being particularly serious, because they carry a high risk of harm.
[11] Your brother was vulnerable, given that he was asleep in bed in his own home when the attack occurred. Later, the attack continued outside even when he was lying prone on the ground.
[12] I also take into account that this was a home invasion. You forced entry into your brother’s home, by kicking open his locked front door. You attacked your brother in his own home, where he should have been entitled to feel safe.
[13] Finally, as I have already noted, the offending took place when your brother’s children were home. You woke them up when you kicked in the front door and they then witnessed some of the attack on their father. This must clearly have been extremely traumatic for them. In the heat of the moment you obviously gave no thought at all to the likely impact of witnessing such a brutal attack on your young nieces.
[14] There is clearly an overlap between a number of these aggravating factors, particularly the extent of violence, injury, use of weapons and attacking the head. I am mindful of the need not to double count these factors. Even taking that into account, however, your offending clearly fits into band three of the bands identified by the Court of Appeal in R v Taueki as both counsel accepted. Band 3 is appropriate where there are three or more aggravating factors, where the combination of
aggravating features is particularly grave.4 Your offending therefore requires a
starting point in the range of nine to fourteen years.
[15] I have considered a number of cases that are broadly similar to yours, that have been referred to me by counsel. They all have starting points ranging from 9 years imprisonment to 12 years imprisonment.5 With reference to those cases, and having regard to the various aggravating factors I have outlined above, I have concluded that a starting point of 11 years imprisonment is appropriate in this case.
Should the starting point be uplifted?
[16] The Crown submits that your previous convictions justify an uplift to that starting point. You have a long list of convictions, including convictions for male assaults female and contravening a protection order in 2012. However, your other violent offending is historical, dating back more than a decade, and some of it back to 1997. The overall pattern appears to me to be that, apart from an incident in 2012, you had largely left your violent past behind you and matured and settled down to family life, prior to your recent offending. I have therefore decided not to apply an
uplift for your previous convictions.
4 R v Taueki, above n 2, at [40].
5 R v Shim [2016] NZHC 1912; R v Ae [2016] NZHC 965; R v Falani [2014] NZHC 1879; R v Walker [2015] NZHC 3214; R v Khan CA83/02, 4 December 2002; R v Nelson HC Rotorua CRI-2004-077-0015577, 16 August 2005; R v O’Kane HC Dunedin CRI-2009-002-190, 2 April
2009; R v JRF HC Dunedin CRI-2011-012-2837, 30 September 2011; R v Tuheke HC Auckland
CRI-2006-044-7302, 17 December 2007.
Should a discount be given for personal mitigating factors?
[17] I now turn to the most difficult issue in your sentencing, which is whether I should discount your sentence for personal mitigating factors and, if so, by how much.
[18] Based on the evidence adduced at trial, and other material that is on the court file, I was concerned by the end of trial that you may have had mental health issues at the time of your offending. The Courts have recognised that, in some cases, mental health issues can justify a sentencing discount.6 That is because an offender who is affected by a mental disorder at the time of offending will be less morally culpable than one who was not, if the mental disorder caused or contributed to the offending in some way. Criminal liability is generally founded on conduct performed rationally by a person who exercises a positive choice to offend.
Denunciation plays a less significant role where a person has reduced moral
(if not legal) culpability.
[19] On the other hand, the Court must also take into account that mental illness or mental impairment can increase the risk of further offending. In that case personal deterrence and protection of the public are important considerations. The availability and level of discount is linked to the strength of the evidence of mental health issues,
and their causative link to the offending.7
[20] The material available to me, both from the evidence at trial and other sources (including reports prepared for sentencing) indicates that:
(a) You are a long standing methamphetamine user (approximately seven years).
(b)In the week leading up to the offending, you slept very little, mumbled incomprehensibly, and told your father that you were seeing and hearing demons. You became paranoid and convinced that
everyone was talking about you. You thought that gangsters or other
6 The relevant principles are set out in E (CA 698/2010) v R [2010] NZCA 13.
7 Nelson v R [2014] NZCA 121.
people were after you. You would hear voices and see things that no-one else could see. You would lie down in bed for a few minutes and would then go running out of the house for no apparent reason.
(c) Your brother was so concerned about your behaviour that he padlocked his front gate to try and keep you off his property.
(d) Your parents described you as “being on another planet” and were
deeply fearful for their own safety and that of their neighbours.
(e) Some evenings, you would run up the street and just stand on the street corner for extended periods, staring at nothing.
(f) The night before your assault on your brother you stood on the street corner waving your arms and yelling. Witnesses were deeply concerned at your behaviour. Your sister-in-law was so alarmed that she made repeated 111 calls to the police. She reported to them that you were acting crazy and that you were going to hurt somebody. She told the police that she was concerned because you lived with your elderly parents, and that they were in danger. It appears that the police either did not respond, or did respond and were unable to locate you.
(g)At 4:00am the next morning your mother got up and found you kneeling on the living room floor, in the darkness. You shouted out to her not to turn the lights on. It looked like you had been up all night. Shortly afterwards, you went around to your brother’s house and attacked him.
[21] In light of this information I directed the preparation of a psychiatric report for sentencing purposes. A psychiatrist tried to interview you in prison but you were not willing to engage with him. You also declined to give your consent for him to access your health records. As a consequence, he was unable to complete a report.
[22] I then received your pre-sentence report. That report raised further concerns regarding your mental health. In particular, you told the report writer that you were not crazy, but that you heard voices and had a bug in your head. The report writer
concluded that further investigation may be required by a medical health professional, to ascertain any possible issues.
[23] Given this further indication that there may be issues of concern, I then took the very unusual step of ordering that you be detained in a secure psychiatric facility in a further attempt to enable a psychiatric report to be prepared for sentencing purposes. You were detained for a week but you refused to co-operate and refused to discuss your mental health at the time of the offending. For the week that you were observed you did not show any signs of psychopathology. The report writer notes, however, that on the basis of other information provided it was possible that you could have been suffering from a drug induced psychosis at the time of the offending. At the time of the assessment, however, you were considered to be of sound mental state, with coherent thought processes and capable of making your own decisions concerning consent and cooperation.
[24] Subsequently, on your original sentencing date last December, you made comments that again raised concerns regarding your mental health. I therefore adjourned sentencing to enable a final attempt to be made to obtain a psychiatric report. When the psychiatrist met with you, you were unwilling to co-operate unless your counsel was present. As a result, the evaluation could not proceed. There was some suggestion that a fourth attempt could be made to engage with you, in the presence of your counsel. That would not be a full psychiatric assessment, however, but rather a meeting to ascertain the reasons why you did not wish to engage. Unfortunately, no such meeting has occurred.
[25] Despite the lack of a psychiatric report I have been assisted by other material before the Court, some of which I have just outlined. I am also assisted by a cultural report prepared by Laurence O’Reilly, Denis O’Reilly and Dr Jordan Waitai. Although you declined to speak to them, their very comprehensive report does cast some further light on various issues including your drug use and possible mental health issues, in a broader cultural context. Although they were unable to speak to you they were able to interview family members including your parents, as well as undertake a thorough review of the documentary material before the Court.
[26] In summary, based on all the material before me, you do not appear to be currently suffering from a formal mental disorder. It seems likely, however, that you were suffering from some form of mental health issues, including paranoia and delusional thought processes, at the time of your attack on your brother. Your behaviour was of sufficient concern that your sister-in-law made multiple 111 calls only hours before the offending. Although methamphetamine use may have contributed to the development of any mental health issues, there is no evidence that you were under the influence of methamphetamine at the time of the offending itself. This is relevant because the Court cannot take into account by way of mitigation the fact that an offender was affected by the voluntary consumption or use of
methamphetamine at the time of the offending.8
[27] The Crown accepts that, despite your refusal to engage with the preparation of a psychiatric report, a modest discount may still be available for your apparent mental health issues at the time of offending. In all circumstances of this case, which I have given very careful consideration to, I have concluded that a six month discount is appropriate for your mental health issues. If there was supporting medical evidence regarding your mental state at the time of the offending it is quite likely that a more significant discount may have been available. However, in the absence of medical evidence it is difficult to justify a greater discounter than six months.
[28] No other sentencing discounts are available, in my view. I have already referred to the s 27 cultural report that was prepared. As Ms Dorset observed in her submissions, a key theme of that report is the impact of long term use and abuse of methamphetamine on your family. As I have already noted a separate and specific discount is not available in relation to that issue. I did, however, find the cultural report helpful and took it into account in the context of my overall consideration of your mental health issues, as it provides helpful information and cultural context in
relation to that particular issue.
8 Sentencing Act, s 9(3).
[29] As for remorse, I am not satisfied that your level of remorse is sufficient to justify a sentencing discount. Although you acknowledge having attacked your brother you appear to have fairly limited insight into your offending and the impact it has had on your brother and your extended whanau generally.
[30] Mr Simon, I urge you to reflect carefully on the fact that your brutal and unprovoked assault on your brother has had a catastrophic effect on your entire extended whanau. You are facing now a lengthy term of imprisonment. Your children are growing up without their father and your wife has effectively lost her partner. Your parents, to some extent, have now lost both their sons and they are no doubt grieving deeply. You were once close to your brother, enjoying hunting and fishing trips together. Now, however, he will suffer lifelong physical and emotional effects from your attack on him. His wife and children have been traumatised and your entire your extended family have been torn asunder by divided loyalties.
[31] You cannot undo what has been done, but I urge you to take the time while you are in prison to carefully reflect on all that has occurred and to take whatever steps may be necessary to address any issues that may have contributed to your offending , including any mental health issues and your methamphetamine use.
Result
[32] Mr Simon, please stand. On the charge of attempted murder you are sentenced to 10 years six months imprisonment.
[33] You may stand down.
Katz J
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