Simmonds v Police

[2015] NZHC 2666

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000092 [2015] NZHC 2666

BETWEEN

DEREK SIMMONDS

Appellant

AND

NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	28 October 2015
Appearances:	C Hislop & M G Dixon for the Appellant C Newman for the Respondent
Judgment:	29 October 2015

JUDGMENT OF NATION J

[1]      Mr  Simmonds  appeals  against  a  total  sentence  of  one  year  11  months’

imprisonment for the following offences, tabulated by his counsel as follows:

Charge	Maximum penalty	Offence Date	Sentence imposed
Disqualified Driving (third or subsequent) CRN 15009007609	2 years’ imprisonment/ $6000 fine, 12 months’ disqualification	29 June 2015	1 year and 11 months’ imprisonment Disqualification of 2 years from 31 August 2015 Section 129 Confiscation of Mazda Van RF2431
Breach of Release Conditions CRN 15009500784	1 year imprisonment/ $2000 fine	3 March 2015	3 months’ imprisonment

SIMMONDS v NEW ZEALAND POLICE [2015] NZHC 2666 [29 October 2015]

Breach of Community Work CRN 15009501007	3 months’ imprisonment/ $1000 fine	23 April 2015	2 months’ imprisonment
Theft (under $500) CRN 15009005723	3 months’ imprisonment	16 May 2015	1 month imprisonment
Offence Behaviour CRN 15009007610	$1,000 fine	31 May 2015	Convicted and discharged

[2]      I  note  that  in  submissions  for  Mr  Simmonds,  Ms  Hislop  described  the sentences imposed for the secondary charges as cumulative.  They are not.  Each was imposed concurrently and Judge Garland referred to them in uplifting the starting point for all offending.

Background

[3]      Mr Simmonds’ offending was summarised by Judge Garland on sentencing as follows:1

(a)     Mr Simmonds was released from prison on 24 June 2014 and subject to release conditions following his conviction for burglary.  On 3 March

2015 he failed to report as instructed.  Mr Simmonds failed nine times without reasonable excuse to report, despite many attempts made to re- engage him by the Probation Service.  (When Mr Simmonds appeared on this charge initially he pleaded not guilty and was remanded on bail.)

(b)     Mr Simmonds’ sentence on release conditions expired on 8 May 2015.

He was sentenced to 120 hours’ community work on 27 January 2015, following  conviction  on  a  charge  of  possession  of  instruments  for

conversion.    On  Thursday  23  April  Mr  Simmonds  failed  without

1      New Zealand Police v Simmonds [2015] NZDC 16144 at [2]-[6].

reasonable excuse to report.  As at 11 May 2015, he had done only 19 hours’ community work and had 81 hours outstanding.

(c)     On 31 May this year, Mr Simmonds was at an address in 6 Crusader Lane, Christchurch.  A female neighbour, the victim in this matter who was known to him, walked out onto their shared driveway.   Mr Simmonds stood in the doorway of his home naked in full view and called out to the victim to look at him.   She looked and saw him standing naked in the doorway.  She then entered her own property and rang the police.

(d)On 16 May 2015, Mr Simmonds was in the New World Supermarket Stanmore Road, Christchurch.   He took a jar of Vegemite, a jar of peanut butter and one block of cheese and concealed those in his pockets.  He then left the store without making any attempt to pay for the items.  He was stopped by staff outside the store and those items were recovered.

(e)    On 27  November 2013,  Mr Simmonds  appeared  in  Court  and  was disqualified from driving for one year plus one month commencing on

31 July 2014.   On Monday 29 June 2015, he was found driving a Mazda motor vehicle on Pages Road in Christchurch.   When he was stopped by the police, Mr Simmonds attempted to evade the police by running away.  He was subsequently apprehended by the police.

[4]      Mr Simmonds’ counsel, Ms Hislop, acknowledges that Judge Garland was correct to treat the driving whilst disqualified charge as the lead offence.  His Honour took a starting point of 24 months’ imprisonment in respect of this charge, the maximum which he considered was necessary given that the offending occurred while he was on bail, in breach of community work and breach of release conditions charges, and because, on being apprehended, Mr Simmonds had absconded.

[5]      In relation to the charge of breach of release conditions, Judge Garland noted that  it  was  Mr  Simmonds’ fourth  conviction  of  that  type.    He  considered  an additional three months’ uplift was required in respect of that charge.

[6]      Judge  Garland  noted  that  Mr  Simmonds  had  four  prior  convictions  for offending similar to the breach of community work charge.   He considered that charge required a further uplift on the starting point of two months and the theft charge warranted a further one month uplift, resulting in a starting point of two years and six months’ imprisonment for all the offending.  The Judge allowed a reduction of seven months on account of Mr Simmonds’ guilty pleas, resulting in the end sentence of one year 11 months’ imprisonment. Mr Simmonds was disqualified from holding or obtaining a drivers licence for a period of two years beginning 31 August

2015. An order was made for the confiscation of his Mazda van.

Submissions for the appellant

[7]      Mr Simmonds’ counsel accepted that the uplift of six months for the further offending was  appropriate.    She submitted that  the starting point  of two  years’ imprisonment for the driving while disqualified charge was too high, that a starting point of 18 to 20 months’ imprisonment would have been appropriate and that a total starting point for all the offending of 24 to 26 months would have been appropriate before a discount for guilty pleas.   She submitted that the overall sentence of one year 11 months’ imprisonment did not fairly reflect the totality of the offending.

Jurisdiction

[8]      This appeal is brought under s 244 of the Criminal Procedure Act 2011. Section 250 of the Act requires that the appeal be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2  The Court must dismiss the appeal in any other case.

[9]      I must focus on the overall sentence that was imposed for the totality of the offending rather than the process by which the ultimate sentence was reached.3

2      Criminal Procedure Act 2011, s 250(2).

3      Larkin v Ministry of Social Development, [2015] NZHC 680 at [26].

Discussion

Starting point

[10]     Arguably, the starting point of two years’ imprisonment for the driving while disqualified charge was high, having regard to the aggravating features associated with the offending.  One of the principles in the Sentencing Act 2002 is that penalties near to the maximum prescribed for the offence must be imposed if the offending is near to the most serious of cases for which that penalty is prescribed.4    Despite Mr Simmonds’ numerous prior convictions for driving while disqualified, there was at least nothing dangerous or remarkable about his driving in this instance.   Counsel referred me to a number of judgments of the High Court where, on a charge of

driving while disqualified, there was a history of offending similar in scale to that which has occurred here,  In these cases, the starting point was short of the two year maximum for this offence.

[11]     The Crown, however, correctly point out that the Judge arrived at the starting point of two years for the driving while disqualified offence, having regard also to aggravating features associated with Mr Simmonds’ extensive history of criminal offending. The Judge was entitled to do this.

[12]     Mr Simmonds has 26 convictions for driving while disqualified.   I do not accept the submission that some regard could be had to the fact that most of these convictions had been incurred more than 20 years ago.  He was sentenced for driving while disqualified and driving while suspended on 27 November 2013 in respect of offences committed on 19 July 2013 and 26 September 2013.  He was sentenced to community work and disqualified on 4 July 2013 for driving while his licence was suspended or revoked on 3 July 2013.

[13]     Mr  Simmonds’ history  of  criminal  offending  included  the  conviction  for possessing instruments for conversion imposed on 27 January 2015 in respect of an offence committed on 26 August 2014 after he had been released from his last

sentence of imprisonment.

4      Sentencing Act 2002, s 8(d).

[14]     Taking all his criminal offending into account, I do not consider the starting point of two years was manifestly excessive.

End sentence

[15]     I must also consider whether the overall sentence imposed was manifestly excessive.

[16]     The offending for which Mr Simmonds was to be sentenced showed that he had a disregard for orders made by the Court in relation to both his disqualification and  community  work  sentence.    The  theft  charge,  although  involving  items  of limited value, was indicative of a propensity to dishonesty, consistent with his 22 convictions for theft, shop-lifting and burglary. At the time he was sentenced for this offending, he was also convicted and discharged for offensive behaviour, indecently exposing himself to a neighbour.  That offending nevertheless indicated that, as well as  showing  a  disregard  for  Court  orders  and  sentences  and  a  propensity  to dishonesty, Mr Simmonds was antisocial towards someone who had done him no harm.

[17]     The nature of the offending, occurring as it did over an extended period and involving recurrent refusals to engage with the probation service and failure to do more than 19 of 120 hours’ community work, was consistent with the probation officer’s view that Mr Simmonds showed no remorse for the offending with which he was involved.  I have read the letter Mr Simmonds provided to the Court.  It is unfortunate that the death of Mr Simmonds’ mother did not cause him to reflect on where his offending had led him to.

[18]     Ms Hislop submitted that the sentence imposed did not sufficiently take into account the fact that Mr Simmonds had been diagnosed as depressed at the time of the offending.  He was also treated for cancer in 2013.  On his release from prison, Mr Simmonds was in a poor state and struggled to find accommodation.  While this depression may explain why he was not motivated to engage with the Probation Service on his release from prison, it does not in any way excuse or explain his choosing to drive when  he was  disqualified or reverting to dishonesty with the shoplifting charges.

Conclusion

[19]     I consider the end sentence imposed was within the range that was available for the offending.  The nature of the offending, considered against Mr Simmonds’ history of offending and the need to consider the principles of deterrence and community protection, did warrant the total sentence that was imposed.

[20]     The appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch.