Simmonds v The King
[2025] NZHC 1751
•26 June 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-109
CRI-2025-409-110 [2025] NZHC 1751
BETWEEN JAREN LEE MASON SIMMONDS
Appellant
AND
THE KING
Respondent
Hearing: 26 June 2025 Appearances:
M J Smit for Appellant
M W Fulton for Respondent
Judgment:
26 June 2025
ORAL JUDGMENT OF EATON J
(appeal against sentence)
SIMMONDS v R [2025] NZHC 1751 [26 June 2025]
Introduction
[1] Jaren Simmonds was sentenced to three years’ imprisonment by Judge M J Callaghan on 30 April 2025 having pleaded guilty to charges of:1
(a)driving under the influence of a drug causing injury;2
(b)impeding breathing;3
(c)burglary;4
(d)wilful damage (x2);5 and
(e)operating a motor vehicle causing sustained loss of traction.6
[2] Mr Simmonds appeals his sentence on the ground insufficient weight was given to mitigating factors giving rise to a manifestly excessive end sentence.
Facts of the offending
[3] On the afternoon of 27 May 2024, police observed the driver of a car, registered to Mr Simmonds, performing a handbrake turn before reversing and parking in Mr Simmonds’ driveway. The intentional braking of the tyres caused smoke and a loud screech to come from the rear wheels.
[4] Overnight, between 15 and 16 June 2024, Mr Simmonds went to a Christchurch community garden, jemmied the bolt to the locked garden gate and the door to the building. Once inside, Mr Simmonds stole a television with the remote
1 R v Simmonds [2025] NZDC 9505. Mr Simmonds was initially charged with three additional offences but these were withdrawn by leave pursuant to the Criminal Procedure Act 2011, s 146.
2 Land Transport Act 1998, s 61(2)(b)(i)—maximum penalty five years’ imprisonment or $20,000 fine.
3 Crimes Act 1961, s 189A(b)—maximum penalty seven years’ imprisonment.
4 Crimes Act, s 231(1)(a)—maximum penalty ten years’ imprisonment.
5 Summary Offences Act 1981, s 11(1)(a)—maximum penalty three months’ imprisonment or
$2,000 fine.
6 Land Transport Act 1998, s 36A(1)(c)—maximum penalty three months’ imprisonment or $4,5000 fine.
control and some knives and forks. Reparation of $296 was sought from the community group to replace the stolen items.
Impeding breathing and wilful damage
[5] The victim and Mr Simmonds had been in an intimate relationship for approximately a year.7
[6] Early on Friday 28 June 2024, Mr Simmonds arrived at the victim’s address in Christchurch, an argument ensued, and the victim asked Mr Simmonds to leave—he refused. Mr Simmonds flipped the victim’s bed mattress and the victim tried to leave. Mr Simmonds stopped the victim on the internal staircase and pinned her on her back on the stairs. He then held her down by holding his right forearm across her chest. With his right hand he held the victim’s throat and squeezed for five to 10 seconds, during which she struggled to breathe and thought she was going to die. Mr Simmonds then left the address.
[7] At about 9.00 pm, Mr Simmonds returned to the victim’s address. He pushed her television (valued at $800) off its stand, causing extensive damage.
[8] An altercation took place between the victim and Mr Simmonds. It was alleged he then kicked the victim with steel capped boots. That charge was withdrawn. Mr Simmonds left the address and drove his vehicle into the victim’s garage causing extensive damage to the garage door and the victim’s vehicle which was parked inside. He initially admitted to police he had damaged both the television and the garage but denied causing any other damage or assaulting the victim.
Driving under the influence of a drug causing injury
[9] In the early evening of 26 January 2025, Mr Simmonds was driving on a rural, unsealed north Canterbury road with his ten-year-old daughter sitting in the passenger seat without a seatbelt. Mr Simmonds’ driver’s licence had been cancelled due to demerit points. The road had pools of water due to torrential rain throughout the day.
7 At sentencing I referred to this victim being the mother of Mr Simmonds’ children. This was incorrect.
[10] Mr Simmonds lost control of the vehicle and swerved off the road on to a grass bank. The vehicle travelled along the bank before rolling and landing on the driver’s side. As the vehicle rolled, his daughter was ejected from the car, landing nearby on the ground. Mr Simmonds exited the vehicle and carried his daughter back to his address and emergency services were alerted. The daughter was flown to Christchurch hospital for urgent treatment and Mr Simmonds was taken via road to Christchurch hospital for treatment. Blood testing returned a positive result for methamphetamine at a high-risk level of 70 nanograms per millilitre of blood. Mr Simmonds’ daughter suffered extensive internal injuries and required surgery. She remained in hospital for almost two weeks.
[11] Mr Simmonds, in explanation, said he had been travelling at 50 kmph when he drove through a puddle and lost control causing the vehicle to roll.
Victim impact statement
[12] The victim of the strangulation stated the offending was “horrible” and outlined how Mr Simmonds was “tall and solid” while she was “a lot smaller than him”. She said she was “not able to breathe at all when he strangled me” and believed she nearly died and outlined how “powerless” she felt at the time in her own home.
[13] One of the victims of the burglary, a volunteer of the community garden, records the garden is run entirely by volunteers and they receive “no actual funding”. That victim stated the volunteers are now “a little worried about this happening again and have had to rethink our security arrangements.”
Restorative justice
[14] Mr Simmonds met with the strangulation victim at a restorative justice conference in February 2025. The victim did not express anger or appear to blame him but did express how hurt she was by the incident and told Mr Simmonds he needed to commit to his family, to get work and to get his life sorted. Mr Simmonds apologised to the victim, telling her that he wished he could take it back and that he regretted it straight away. He described how drug use had turned him into a different person, but he does not want to use that as an excuse.
[15] Mr Simmonds also met with his partner, who is the mother to his daughter who was injured in the car crash. His partner described the emotional toll the incident had taken on her, and the stress and complications it had caused, having to be away from the two other children while the daughter was hospitalised. Mr Simmonds responded he was “struggling with his feelings” and that every day was harder. He said he was sorry and acknowledged he almost killed his daughter by being on drugs and expressed a desire to make better choices in the future.
District Court decision
[16] The Judge outlined Mr Simmonds’ history of assaults, reckless driving and sustained loss of tractions and stated that his “driving history is abysmal”.8
[17] The Judge, in considering the strangulation charge, noted the victim was vulnerable and in her own home before determining that a 24-month starting point was appropriate in the circumstance of associated violent behaviour.9 A one-month uplift was applied for the intentional damage charges.
[18] The Judge applied a two-year starting point for the driving while impaired charge, finding that offending was seriously aggravated by Mr Simmonds being suspended from driving at the time, that he was driving in dangerous conditions, the high level of drugs in his system, and that his young daughter was unrestrained in the passenger seat.10
[19] The Judge considered nine months was appropriate for the burglary charge noting it could have been higher. He did not apply an uplift for the loss of traction charge.
[20] The Judge considered the global starting point of four years and 10-months was too high and allowed a four-month deduction to reflect totality.11
8 R v Simmonds, above n 1, at [24].
9 At [34] citing Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.
10 At [36].
11 At [38].
[21] As regards mitigating factors, the Judge applied a five per cent parental incarceration deduction, accepting that Mr Simmonds is described as a “responsible” father.12 However, that level of deduction reflected that his daughter was a victim of his offending.
[22] The Judge acknowledged that guilty pleas were entered early for some charges, but later for others. He determined a 15 per cent deduction for guilty pleas was overall appropriate. A 10 per cent deduction was allowed to account for remorse and participation in the two restorative justice conferences. Total deductions of 30 per cent were allowed.13
[23] Those deductions led to a sentence of three years and two months’ imprisonment. The Judge then made a further and final deduction of two months to reflect the time Mr Simmonds had spent on electronically monitored (EM) bail, resulting in an end sentence of three years’ imprisonment.14
Principles on appeal
[24] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.15 As the Court of Appeal commented in Tutakangahau v R, referencing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.16 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.17
12 At [39].
13 At [41].
14 At [43].
15 Criminal Procedure Act 2011, ss 250(2) and 250(3).
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
17 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[25] On appeal Mr Simmonds does not challenge the starting point applied. Mr Smit, in concise submissions for Mr Simmonds, contends insufficient deductions were allowed for Mr Simmonds’ guilty pleas and the role of drugs as a contributing factor of his offending. He submits an additional 7.5 per cent deduction for guilty pleas, as was proposed by the Crown at sentencing, and a 10 per cent deduction for the contribution of drugs and Mr Simmonds’ rehabilitative prospects is appropriate.18
[26] Mr Smit proposes total deductions of 47.5 per cent and an end sentence of two years and four months’ imprisonment before allowing the two-month deduction for time spent on EM bail.
Respondent’s submissions
[27] Ms Collett filed written submissions for the Crown. Ms Fulton appeared in support of those submissions. The Crown submit any further deductions which could have been applied by the sentencing Judge are offset by the lenient starting points on all charges, the fact no uplift was imposed for Mr Simmonds’ prior criminal history or his offending whilst on bail, and by a generous deduction for time spent on EM bail. Consequently, it is the Crown submission that the end sentence is not manifestly excessive.
[28] With reference to authorities, the respondent submits the aggravating factors of the strangulation were not reflected in the starting point adopted by the Judge. It is submitted that a starting point of up to 28 months’ imprisonment was available.19 The starting point range for the burglary was nine to 12 months’ imprisonment.20 It is
18 Citing for this latter submission Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16];
Zhang v R [2019] NZCA 507 at [149]; and Carr v R [2020] NZCA 357 at [64].
19 Citing Shramka v R, above n 7; Oldham v R [2024] NZCA 690; and Solicitor-General v Hutchinson [2018] NZCA 162, [2018] 3 NZLR 420.
20 Citing Patangata v Police [2020] NZHC 407; Wharerau v Police [2017] NZHC 72; R v Inia [2015] NZHC 2351; and R v Tangiora [2015] NZHC 1223.
submitted a starting point of two years and six months’ imprisonment was available for the driving while impaired charge.21
[29] The Crown contend a 10 per cent uplift was warranted for Mr Simmonds’ offending whilst on bail, observing that he was on bail for all but one of the offences committed and that he was subject to a sentence of supervision at the time. That sentence was in place from August 2023 to August 2024. Crown counsel submits Mr Simmonds benefitted from the withdrawal of charges in relation to the 28 June offending, and that it would double benefit him if he was granted a higher guilty plea deduction.
[30] It is not accepted there is a causal connection between Mr Simmonds’ addiction and his offending. Finally, the Crown submits Mr Simmonds received a generous deduction for the five months spent on EM bail (that equates to a 40 per cent deduction).22
Analysis
[31] The issues raised in this appeal call into play the observations of the Court of Appeal in Te Ao v R.23 Addressing the proper approach in considering an appeal alleging a sentence was manifestly excessive, the court relevantly said:24
[16] … It is the end sentence which must be shown to be manifestly excessive. It is the end sentence which will be the Court’s focus. Where one component of a sentence is criticised, the Court’s inquiry, if the criticism is found justified, will be whether the end sentence is nevertheless within the range available to the sentencing Judge.
[17] We use the term “range” advisedly. Determining a sentence is not a mathematical exercise. It is a judicial evaluation. Different judges could quite properly weigh factors relevant to a sentence differently.
[18] A sentence might lie in a range from lenient to stern and be unimpeachable.
[19] For a sentence to be manifestly excessive it must be beyond the upper end of the range available to the sentencing Judge. In other words, it will be
21 Citing Kapa v Police [2017] NZHC 1748.
22 Citing Gage v R [2014] NZCA 140 where the Court of Appeal held no deduction was available for five months subject to EM bail where the appellant had offended on bail and EM bail.
23 Te Ao v R [2023] NZCA 327.
24 Footnotes omitted.
significantly more severe than it ought to have been having regard to the seriousness of the offence and the culpability of the defendant.
Guilty plea credit
[32] Dealing first with the guilty plea credit, guilty pleas to the various charges were entered at various times. That always poses a difficulty in fixing an appropriate overall deduction. Here, both the Crown and defence proposed a 22.5 percent deduction at sentencing. That level of deduction was said to recognise that early pleas had been entered to most of the charges including the serious driving causing injury charge and the burglary charge. The other, and perhaps most serious charge was the strangulation. A plea was not entered for that charge until a pre-trial conference. Plainly it was not entered at the first opportunity. At the time it was entered, other serious charges were withdrawn.
[33] The Judge allowed a 15 per cent overall deduction. That lesser level of deduction was not explained. Crown counsel suggest the Judge may have considered a lesser deduction to be appropriate to avoid Mr Simmonds receiving a double benefit, given charges had been withdrawn. I do not accept that submission given the Judge made no reference at all to charges being withdrawn and I am not aware why they were withdrawn.
[34] If the Judge is to take a different view to what appears to be the reasonable and common position advanced by counsel, it will always benefit the parties, and this Court on appeal, to understand why. Absent an explanation it is difficult to discern why the Judge settled on a 15 per cent deduction. I agree with Mr Smit, that a higher deduction was available and that another Judge might well have allowed the
22.5 per cent deduction as proposed.
Addiction and rehabilitation
[35] Mr Smit candidly acknowledges that at sentencing he did not propose a discrete deduction to reflect Mr Simmonds’ history of addiction, and what is said to be a causal connection between his addiction and his offending.
[36] I acknowledge that addiction may logically give rise to a deduction in sentencing if it mitigates the moral culpability of the offending25 and helps explain in some rational way why the offender has offended.26 But foremost, the voluntary consumption of drugs or alcohol, other than for bona fide medical purposes, cannot be taken into account by a sentencing Court in mitigation.27
[37] There was very limited material before the Judge addressing Mr Simmonds’ addiction. The Judge did not have the benefit of an Alcohol and Drug report or a s 27 background report. Mr Simmonds had not provided any material addressing his background or addiction. The pre-sentence report recorded Mr Simmonds’ explanations for his offending and referred to his use of methamphetamine. He expressly denied that the burglary was motivated by his addiction. Mr Smit says Mr Simmonds has rather downplayed the relevance of drug use to his offending. Nevertheless, the pre-sentence report did recommend Mr Simmonds engage in alcohol and drug treatment.
[38] In my view Mr Simmonds’ drug addiction bears little causal connection to his admitted defending. I have no doubt Mr Simmonds was under the influence of drugs, most likely methamphetamine, throughout the period he offended but I do not consider that any of his offending was motivated or otherwise causally connected to his drug dependency. One of the most serious offences committed by Mr Simmonds was his drugged driving causing serious injuries to his daughter. It is rare that the court would find there to be a strong causal connection between an offender’s background giving rise to addiction and drugged driving that might mitigate the offending.28
[39] Mr Simmonds’ offending may well have been fuelled by drug use. It was not in my view, fuelled by drug addiction.
[40] The Judge, I observe, did allow a generous deduction of ten per cent for remorse including participation in restorative justice conferences. In my view that
25 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].
26 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16(c)].
27 Sentencing Act 2002, s 9(3).
28 R v Carter [2025] NZHC 228 at [47]; and Lowther v R [2025] NZHC 682 at [32] citing Wilson v Police [2021] NZHC 402 at [42].
deduction, at least in a small part recognises that Mr Simmonds had both acknowledged and expressed the motivation to address his addiction.
[41] I am not satisfied the Judge erred in not allowing a discrete deduction to reflect addiction and rehabilitative prospects.
Other relevant factors
[42] The essential question on appeal is whether the end sentence of three years’ imprisonment was manifestly excessive. Mr Simmonds engaged in very serious offending over an eight-month period. A feature of his offending is that it was unconnected. He committed serious family violence, burglary and a serious driving offence with real consequences for his daughter. I agree with the Crown that another Judge might well have imposed a modest uplift for his prior offending and, perhaps more particularly, for his offending on bail. I also agree that the deduction of two months for time spent on EM bail was generous given that he offended whilst on EM bail, particularly the drugged driving causing injuries offence.29
[43]Standing back, I am not satisfied the end sentence was manifestly excessive.
Result
[44]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
M J Smit, Barrister, Christchurch
29 Counsel both submitted all offences except one occurred whilst on EM bail, however the formal records do not support this.
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