R v Simon - [2013] NZHC 3091

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…

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 [2013] NZHC 3091
Case: [2013] NZHC 3091
Decision Date: 22 November 2013

CaseChat Overview and Summary

Isaac Donovan Simon appeared before the High Court of New Zealand to be sentenced on various charges to which he had pleaded guilty. The charges included threats to kill, possession of a firearm, male assaults female, intentional damage, cultivating cannabis, and possession of materials for the production of cannabis oil. The offending occurred in the context of the breakdown of Simon's relationship with his former partner, Kelly Flint, and involved violence against third parties and drug offences. The court considered the charges in three groups: High Court charges, drug offences, and remaining District Court charges involving violence against Flint. The court determined the appropriate starting points for each group, adjusted for aggravating and mitigating factors, and imposed concurrent sentences for the lesser offences within each group. The final sentence for each group was cumulative, resulting in an overall sentence of six years imprisonment.

The court examined the nature of the offending, the level of premeditation, the use of a weapon, and the harm caused to the victims. It also considered Simon's personal circumstances, criminal history, and efforts to address his anger management issues. The court imposed a minimum period of imprisonment but decided not to disqualify Simon from holding or obtaining a driver's licence for a specific period, as it deemed it more appropriate to impose the disqualification upon his release from prison. The final sentence comprised 21 months and three years six months imprisonment for threatening to kill, nine months for possession of materials for the production of cannabis oil, and concurrent sentences for other charges. An order was made for the destruction of firearms, ammunition, and a 20-litre bottle of isopropyl alcohol found at Simon's residence.

Orders