R v Simon
[2013] NZHC 3091
•22 November 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2013-019-180
CRI 2012-019-1684
CRI 2011-019-9428 [2014] NZHC 3091
THE QUEEN
v
ISAAC DONAVAN SIMON
Hearing: 22 November 2013
Appearances: T Clark for Crown
G Walsh for Simon
Judgment: 22 November 2013
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Hamilton
G Walsh, Hamilton
R v SIMON [2013] NZHC 3091 [22 November 2013]
[1] Mr Simon, you appear for sentence this morning on a number of charges to which you pleaded guilty. In this court your plea came on the second morning of your trial. In the District Court it was possible to resolve matters in the light of what had gone on here.
[2] Some of the offending occurred in the context of your relationship with your former partner, Kelly Flint. But some of it, involving violence against third parties and drug offending, did not. I will summarise the course of events, identifying the various offences as I go.
[3] I start with those to which you ultimately pleaded guilty in the District Court;
they are earlier in time than the matters dealt with in this court.
[4] In mid-2011 your relationship with Ms Flint was coming to an end. You had been together for about 10 years and had three young daughters. You were finding it difficult to cope with the relationship breakdown.
[5] In August 2011, you were living separately from Ms Flint, but apparently at least for some of the time, in the same house. One night, having formed the view that she had another male with her inside the house, you knocked on her window. When she pulled back the curtain you pointed a sawn-off shotgun at her and threatened to kill her. Ms Flint retreated but you continued to shout threats at her from outside the house.
[6] That incident attracted charges of threatening to kill and of unlawful possession of a firearm.
[7] The next month, September 2011, saw the police conduct a search at the address. They located two bags containing 3.7 kg of cannabis, and 20 litres of isopropyl alcohol. The latter is commonly used in the production of cannabis oil. The Crown says that the items found during the search were capable of producing
185 grams of cannabis oil worth between $7,000 and $13,000. The location of these items resulted in a charge of possession of material to manufacture cannabis oil.
[8] During the same search, the police located a sawn-off semi-automatic shotgun and four 12 gauge shotgun rounds. You did not hold a firearm’s licence and were charged with unlawful possession of a shotgun.
[9] In December 2011, when you and Ms Flint were at home, you became angry with her, you followed her into the kitchen and punched her hard in the stomach, winding her. That produced a charge of male assaults female.
[10] At about the same time, on 16 December 2011, there was an incident at a nearby dairy. Accompanied by your two year old daughter, Ms Flint was in her car about to leave the dairy. As she was reversing, you arrived and parked behind her, preventing her from leaving. You were visibly angry. Ms Flint locked her car doors from the inside and called the police. You smashed the driver’s window, showering glass over her and your daughter. That produced a charge of intentional damage. You then said “I should kill you right now”. That attracted a charge of threatening to kill. You then reached through the broken window and pulled Ms Flint towards you, punching her once to the side of the face with considerable force. Because of that, you were charged with a second offence, male assaults female.
[11] Ms Flint received severe bruising and swelling to her right eye, and numerous small cuts to her forehead, hand, arms and back. In her victim impact statement she says that her cheekbone was fractured. Your little daughter was not harmed, but naturally enough she was upset and traumatised.
[12] The following day, 17 December 2011, saw a police search of your address where 13 cannabis plants were found growing in a canoe hanging from the roof. That produced a charge of cultivating cannabis.
[13] I turn now to your trial in this court. You pleaded guilty to four counts at the commencement of the second day of the trial. All of the offending concerned an incident on 16 January 2012, about a month later than the incident outside the dairy. Ms Flint remained apprehensive about her safety. She had asked two friends, Mr Page and Mr Wyatt, to keep watch on her house because she suspected that you may be in the vicinity. At about 9.30 pm on 16 January 2012, Mr Page and
Mr Wyatt were sitting in a car parked outside a club, but with a view of Ms Flint’s residence. You approached their car from the rear, so that they had little warning of your arrival. You were in possession of a modified .22 calibre pistol. You presented the pistol through the driver’s window and threatened to kill Mr Page, who was sitting in the driver’s seat. That produced a charge of threatening to kill. You demanded the keys and a cell phone. Mr Wyatt refused to hand the phone over and told you that the police were on their way. You replied that you did not care and that you would shoot them too.
[14] The incident rapidly escalated. Mr Wyatt and Mr Page got out of the car and a fight developed between the three of you. You tried to reload your pistol but could not do so, so you pulled out a length of chain with a large D shackle on one end. You swung the chain so that it wrapped around Mr Wyatt’s abdomen, although he suffered no permanent harm. That produced a charge of assault with a weapon. Then you ran off through the park and down an alleyway, pursued by Mr Page and Mr Wyatt. They caught you in the alleyway where you again used the chain and shackle as a weapon, by swinging it at Mr Page. He was sufficiently close to you to justify a charge of assault using a weapon. There followed something of a scuffle in which you appear to have suffered some superficial injuries, but you soon made good your escape. The police located your vehicle, whereupon you led them on a high speed car chase during which you appear to have committed a number of serious driving offences. But you have not been charged in respect of those, at least not for present purposes, and I put them to one side.
[15] Eventually you abandoned your car and ran away but were subsequently apprehended by the police. The only charge arising out of that aspect of the incident is that of driving while your licence was suspended or disqualified. You pleaded guilty to that charge in this Court, prior to the commencement of your trial. That is your seventh such charge. When spoken to by the police, you denied being the aggressor and stated that Mr Wyatt and Mr Page had tried to shoot you.
Victim impact statement
[16] All of this offending, except for the drug offences, is related in one way or another, to the breakdown of your relationship with Ms Flint. You would not accept that the relationship was over and in effect, stalked her and the children. She said she had to move several times after you found out where she was living, and she spent some time in a women’s refuge. The need to move house to escape you has taken a heavy financial and emotional toll on her. She has had panic attacks and is on anti-depressants and anxiety pills. She has undertaken counselling, and of course, your daughters have suffered as well. In particular, there have been periods when she would not let them go to school because she was concerned that you would track them down. She has also suffered the various injuries I have detailed earlier.
Personal circumstances
[17] While you have a substantial criminal history, most of your prior offences occurred more than 15 years ago. Your history is not a relevant factor for today’s purposes in my view, save for your driving history.
[18] You are 41 years old and of Maori descent. You have been self-employed since the age of 19, principally as a roofing contractor, although occasionally you undertake car repair work. You say you have not consumed alcohol for ten years and no drugs for the last two.
[19] Somewhat concerningly, you disputed many aspects of the summary of facts in your meeting with the probation officer, alleging that you were the victim and the subject of a conspiracy, rather than an offender. You indicated that you pleaded guilty to some of the offences simply in order to save time and get it all over with.
[20] The Court however must sentence you on the basis of the summaries of facts on which you have pleaded guilty.
[21] At the core of most of this offending, is your inability to accept that your relationship with Ms Flint had come to an end, and your tendency to solve your problems by resort to violence and intimidation. That will have to change if you are
to make progress in your life. I note that you have taken the initiative by seeking to be included in a residential programme for violent offenders. That is a first step in the right direction. Help with anger management would also be of assistance. This morning Mr Walsh handed up three certificates in respect of courses you have taken already while on remand in prison. Those courses appearing to be the sort of thing that will be very useful and helpful to you as you try and restructure your life.
Sentencing structure
[22] The task for the Court this morning is somewhat complicated. I consider that the charges may usefully be separated into three groups. The first group concerns the charges that were dealt with in this Court. Then there is the drug offending, and finally there are the remaining District Court charges, all involving offences against your partner. I will deal with each group separately. For each offence it is necessary to consider a sentencing start point, and then to make adjustments for aggravating and mitigating factors, so producing an end sentence. Within each group I propose to select the lead offence, that is the worst case in the group, and then to consider the other offences in that group. I will impose concurrent sentences for the less serious offences in each group, so that those lesser offences will not attract an additional period of imprisonment. But they may already have been taken into account in calculating the end sentence for the lead offence in each group.
[23] But the sentences for each group will be cumulative on each other. That means that the final sentence for each group of offences will be added together to produce the ultimate sentencing outcome. Then in conclusion I need to consider whether the result needs to be adjusted downwards, in order to ensure that the sentence finally imposed on you is appropriate in all the circumstances.
High Court matters
[24] I start with the High Court charges. The lead offence is that of threatening to kill, made when you produced a firearm and threatened Mr Wyatt and Mr Page through the open window of their car. There is no tariff case for threatening to kill. I have however taken into account the helpful observations of White J in Allan v
Police.1 There, the Judge set out a number of factors which may assist in determining the overall seriousness of the offending. Among the relevant factors are the degree of premeditation involved, the apparent willingness of an offender to carry out the threat, whether it involved the use of a weapon, the level of harm, distress or fear caused to the victim, and whether the threat was made directly to the victim or through some third party.
[25] Allan is itself a helpful case. There, the appellant, in the midst of a long argument with his partner, went outside and retrieved a rifle from his utility vehicle. He returned to the house and came up behind his victim. The chamber of the rifle was empty but she did not know that. She turned around to find the rifle pointed at her head. The victim was told that he was deadly serious; that the gun was loaded and that he would kill her and then himself if she tried to end the relationship. He then moved away, but put the rifle on the floor with the barrel pointing upwards towards his lower jaw, indicating that he was going to kill himself. Ultimately he was persuaded to put the rifle down altogether.
[26] White J considered that a starting point of 18 months to two years might have been appropriate for the threatening to kill charge, and upheld the overall sentence imposed in the District Court.
[27] A starting point of 18 months was also selected in R v Sykes.2 There, the prisoner having taken umbrage at something said at his grandfather’s funeral, approached the victim and pointed the pistol at her head, threatening to kill her. He then walked round the lounge making general threats with the pistol before throwing it on the ground and leaving the address.
[28] Counsel for the Crown has referred to several other cases, including Daniels v R.3 There the appellant got into an argument outside a club where he had been drinking. He took a semi-automatic rifle from his car, pointing it at a victim and threatening to kill him. The Court of Appeal approved a starting point of four years
imprisonment. It is to be noted however that the charge there was laid under s 198B
1 Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.
2 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.
3 Daniels v R [2011] NZCA 234.
of the Crimes Act 1961, where the maximum penalty is ten years imprisonment, as against seven years in the present case.
[29] I consider a starting point of 18 months imprisonment to be appropriate here. This is a moderately serious case of its type. Although it must have been a frightening experience for the victims, they soon recovered and were able to pursue you through the park.
[30] There will be concurrent sentences for the other High Court charges, but it is necessary in addition to impose an uplift to reflect the totality of the offending alleged in this Court. There will be a three month uplift in respect of the assault with the shackle and chain against Mr Wyatt, and a further three months uplift for driving while disqualified. It is unnecessary to impose an uplift in respect of the assault on Mr Page, which as matters emerged at trial, involved no more than a threat constituted by your swinging the chain in his direction.
[31] So the total starting point in relation to the High Court offending is two years imprisonment in respect of the threatening to kill charge.
District Court violent offending
[32] I turn to the District Court charges, commencing with the violent offending. The lead offence is plainly the charge of threatening to kill, arising from the incident outside the dairy. This was significantly more serious in my view, than the threat to kill Mr Page and Mr Wyatt, and also than the earlier threat to Ms Flint when she was inside the house and you were outside with a gun. Ms Flint must have been terrified by your actions. You smashed the car window, you assaulted her and you seem to have no regard for your little daughter. And of course you had blocked her exit, so she was trapped. She had by then had significant experience of your tendency to resort to violence and threats when you were angry with her during the period of the breakdown of your relationship, so that she had that in her mind and must have been aware that you had the capacity to carry out any threat.
[33] I consider the appropriate starting point to be three years imprisonment for threatening to kill outside the dairy. But there must be an uplift of 12 months
imprisonment for the earlier charge of threatening to kill Ms Flint, a further three months concurrent between themselves for the two charges of male assaults female, and a further three months concurrent between themselves for the two charges of possession of a firearm. The charge of intentional damage does not warrant an uplift. That produces a total starting point of four years six months imprisonment for the District Court offending involving violence.
District Court drug offending
[34] That leaves the drug offences, which are of course governed by the Court of Appeal guideline case of R v Terewi.4 Terewi relates in its terms to cultivating cannabis but it is accepted that it extends also to other cannabis related activities. Band two of Terewi, which covers relatively small scale commercial activities, prescribes a starting point of between two and four years imprisonment.
[35] Counsel for the Crown refers to R v Kemp,5 where a 30 litre and two 20 litre plastic drums formerly containing isopropyl alcohol (all empty) had been found, along with a further ten litres of isopropyl alcohol. Mr Kemp had been sentenced to two and a half years imprisonment for manufacturing cannabis oil. That was regarded by the Court of Appeal to be stern, but nevertheless within range.
[36] This case is somewhat less serious than Kemp by reason of the more limited quantities involved. Indeed I consider it falls somewhere on the cusp between bands one and two of Terewi. The appropriate starting point here is 12 months imprisonment uplifted by three months to recognise the second charge of cannabis cultivation. That produces combined starting points of 15 months for the drug offending.
Aggravating and mitigating factors
[37] An aggravating factor in respect of the High Court offending is that those offences were committed while you were on bail for the District Court charges. In my view that justifies an uplift of three months on the threatening to kill charge in
this Court, but the uplift is cancelled out by your entitlement to a discount of about
10% for your eventual guilty pleas. Although Crown counsel has submitted that your pleas came very late, and you were intransigent over some aspects of the indictment, the fact remains that the Crown earlier dropped an attempted murder count and accepted a guilty plea to a lesser charge when the Crown evidence did not come up to brief at trial. The result is that the uplift and the discount cancel each other out.
[38] It is agreed that a discount of about 10% is appropriate in respect of the District Court proceedings as a whole. I propose to reflect that by reducing the starting point for the more serious threatening to kill charge from three years imprisonment to two years six months, and the combined sentence for the District Court violent offending to four years imprisonment.
Totality
[39] The result to this point is that the sentences would be two years in total for the High Court offending, four years in total for the District Court violent offending, and 15 months for the District Court drug offending, a total of seven years three months.
[40] I must now consider whether that outcome properly reflects the overall criminality of the offending in the light of your circumstances.6 It is necessary in cases like this, involving sentencing for multiple offences, to stand back and look in a broad way at the totality of the criminal behaviour involved.7 I have done that here and have concluded that a total of seven years three months imprisonment is too high. I consider the appropriate sentence overall to be six years imprisonment. For that reason I propose to adjust the ultimate sentences so as to achieve that result.
Minimum period of imprisonment
[41] The Crown has raised for consideration the prospect of the imposition of a minimum period of imprisonment pursuant to s 86 of the Sentencing Act 2002. I am
not satisfied that such an order is required here. Much of this offending centres round your fraught relationship with your former partner. I consider it highly likely that once you have served your sentence you will see that former relationship in quite a different light. None of the s 86 factors are engaged, in my view.
Disqualification
[42] Upon conviction for a seventh offence of driving whilst disqualified, the Court is bound to further disqualify you from holding or obtaining a driver’s licence for a period of at least one year.
[43] Counsel for the Crown submits that a disqualification period of five years would be appropriate, having regard to the likely term of imprisonment to be imposed today. Mr Walsh strenuously opposes that approach. He says that 12 months is sufficient, and that a five year disqualification is appropriate only where the underlying offending is much more serious than this.
[44] In principle Mr Walsh is right but I have discussed the proper approach with counsel during this morning’s hearing. There is little point in making a lengthy disqualification order which may or may not be spent long before you are released on parole. I propose to adopt the ordinary course of imposing a period of disqualification to commence on the date of your release from prison. The period concerned will be 18 months.
Sentence
[45] Mr Simon, I deal first with the High Court matters. When you pleaded guilty in this Court on the second morning of your trial, the Crown offered no evidence on counts two and four in that indictment. You are accordingly discharged on those counts pursuant to s 347 of the Crimes Act 1961.
[46] You are likewise discharged on counts four and five in the District Court indictment upon which the Crown offers no evidence.
[47] The actual sentences I am about to impose vary slightly from those which I have discussed to date, in order to take into account the totality exercise which I have already discussed.
[48] On the charge of threatening to kill in this Court, you are sentenced to 21 months imprisonment. The remaining sentences for offences to which you have pleaded guilty in this Court will be the subject of concurrent sentences. That means that the total sentence in respect of offences in this Court is 21 months imprisonment.
[49] On the charge of assault with a weapon in respect of Mr Wyatt, you are sentenced to three months imprisonment.
[50] On the charge of assault with a weapon in respect of Mr Page you are sentenced to one months imprisonment.
[51] On the charge of possession of a firearm you are sentenced to three months imprisonment.
[52] On the charge of driving while disqualified you are sentenced to eight months imprisonment.
[53] In respect of this last offence, you are disqualified from holding or obtaining a driver’s licence for a period of 18 months, to commence on and including the date of your release from prison.
[54] I deal now with the District Court violent offending. On the charge of threatening to kill Ms Flint on 16 December 2011 (the dairy incident), you are sentenced to three years six months imprisonment, to be served cumulatively on the sentence of 21 months imprisonment already imposed for threatening to kill Mr Page and Mr Wyatt.
[55] The remaining District Court charges involving violence and firearm possession will be the subject of concurrent sentences. On the charge of intentional damage you are sentenced to three months imprisonment.
[56] On the charge of threatening to kill Ms Flint in August 2011, you are sentenced to 18 months imprisonment.
[57] On each of the two charges of male assaults female you are sentenced to nine months imprisonment, and in respect of the two charges of possession of a firearm, you are sentenced to three months imprisonment.
[58] In conclusion I deal with the drug offending. The lead charge is of possession of materials for the production of cannabis oil. On that charge you are sentenced to nine months imprisonment to be served cumulatively on the sentences of 21 months imprisonment and three years six months imprisonment respectively concerning the two charges of threatening to kill, which are the lead offences in the prior categories.
[59] On the charge of cultivating cannabis you will serve a concurrent sentence of six months imprisonment.
[60] The end result is a sentence of six years imprisonment, comprising sentences of 21 months and three years six months imprisonment respectively for threatening to kill, and nine months for possession of materials for the production of cannabis oil.
[61] There will be an order for destruction of any firearms and ammunition found at your residence, together with the 20 litre bottle of isopropyl alcohol.
C J Allan J