Simon v Police

[2020] NZHC 2430

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-220

[2020] NZHC 2430

BETWEEN

STEFARN SIMON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 September 2020
Appearances:	P H H Tomlinson for Appellant L N Wilson for Respondent
Judgment:	17 September 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 17 September 2020 at 4:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

SIMON v POLICE [2020] NZHC 2430 [17 September 2020]

Introduction

[1]    On 13 May 2020, Judge B A Gibson sentenced 23-year-old Stefarn Simon1 (the appellant) to three years and two months’ imprisonment in respect of the following charges: 2

(a)Burglary ($500 - $5,000 by day);3

(b)Burglary (over $5,000 by night);4

(c)Possession of methamphetamine pipe;5

(d)Possession of Class A controlled drug, namely methamphetamine;6

(e)Possession of Class C controlled drug, namely cannabis;7 and

(f)Breaching home detention (2).8

[2]Mr Simon now appeals against that sentence.

Background

Prior offending

[3]    On 20 November 2019, the appellant was sentenced to four months’ home detention on charges of unlawfully being in an enclosed yard, a burglary (under $500, by night), using a document for pecuniary advantage, receiving property, breach of community work, breach of conditions of intensive supervision, and breach of conditions of community detention.

1      The appellant’s first name is variously misspelled in the Court documents. At the appeal counsel produced a copy of the appellant’s New Zealand birth certificate confirming his name: Stefarn Mathew Batnozic Simon.

2      Police v Simon [2020] NZDC 8293.

3      Crimes Act 1961, s 231(1)(a); maximum penalty imprisonment not exceeding 10 years.

4      Crimes Act 1961, s 231(1)(a);  maximum penalty imprisonment not exceeding 10 years.

5      Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty imprisonment not exceeding one year and/ or fine not exceeding $500.

6      Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty imprisonment not exceeding six months and/ or fine not exceeding $1,000.

7      Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty imprisonment not exceeding three months and/ or fine not exceeding $500.

8      Sentencing Act 2002, s 80S; maximum penalty imprisonment not exceeding one year or fine not exceeding $2,000.

Current offending

Breach of home detention sentence

[4]    Several weeks later, on 7 December 2019, the appellant breached his home detention sentence by absenting himself from his address and going to a number of unapproved addresses. He breached again on 8 December, and on 9 December, he breached yet again and visited 11 unapproved addresses, before cutting off his electronic monitoring strap.

Burglary – H’s house

[5]    At approximately 10.58 pm on 6 January 2020, the appellant entered the victim H’s Glendowie property. The appellant was wearing gloves and had covered his face with a black bandana and hood. He carried a torch. Once inside the residence he took: clothing; camera gear; a collection of hunting knives valued at $10,906.90; shoes; jewellery; alcohol; handbags; and Dornbracht bathroom tapware items valued at

$3,035.65.

[6]    The following evening at approximately 7.40 pm, the appellant returned to H’s property. Again he was wearing a black bandana, hood, gloves, and a dark blue cap. He had with him a small brown pouch and a head torch. He entered the dwelling after smashing the glass on the front door. Once inside he took several items, totalling around $1,300 in value. They were: a Makita battery charger; two Makita 5-AMP batteries; a Makita drill; a Makita torch; a Makita blower nozzle; a garage door remote fob; a bunch of 10 keys; a jewellery box; assorted jewellery; a Kathmandu head torch; and a Kathmandu backpack. H, who was not at his house at the time, was alerted to the presence of an intruder by means of a remote security alarm by which he observed the appellant leaving the property via the front door. The appellant was located and arrested by Police later that night.

[7]    Upon arrest by the Police the appellant was searched. In his small brown carry-pouch, Police located:

(a)a glass pipe (possesses utensils);

(b)a resealable bag containing 0.6 grams of cannabis (possesses Class C controlled drug);

(c)a sunglasses case containing a resealable bag holding 0.3 grams of methamphetamine (possesses Class A controlled drug).

[8]    The Summary of Facts states that the appellant’s explanation for his conduct was that he had lost money gambling.

District Court decision

[9]    On 13 May 2020, Judge B A Gibson sentenced the appellant to three years and two months’ imprisonment.9

[10]   In his decision, the Judge noted that the appellant had a limited criminal history, which nevertheless included a considerable amount of recidivist offending since 2014 which included serious violent offending. The Judge also noted that the appellant had not served his various community based sentences particularly successfully.10 Referring to the pre-sentence report, the Judge observed that the appellant had been assessed as being at high risk of re-offending.

[11]    The Judge acknowledged the appellant’s realistic insight into his offending, noting that he accepted that his offending was caused by problematic drug and gambling habits, combined with an unstructured lifestyle.11 Referring to the Victim Impact Statements, the Judge also noted that jewellery items of irreplaceable sentimental value had been taken and that the victims of the burglary were left feeling unsafe in their own home.12

[12]   The Judge adopted a starting point by reference to Arahanga v R, in which the Court of Appeal said:13

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating factor at sentencing, due to the heightened risk of confrontation with the occupants. Dwelling house

9      Police v Simon [2020] NZDC 8293.

10 At [11].

11 At [12].

12 At [14].

13     Arahanga v R [2012] NZCA 480 at [78], cited at [15].

burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[13]   The Judge observed that by reason of: the appellant’s premeditation; the steps he took to disguise himself; the amount and value of the property taken; the time of day (night time) when the offending occurred; the appellant’s re-targeting of the same property for the second burglary; and the fact that his offending took place while he was serving a sentence of home detention, the appellant’s offending could not be described as being at the minor end of the scale.14

[14]   With respect to the first burglary, the Judge considered the appropriate starting point was two years’ imprisonment.15 From that, he uplifted by 18 months for the second burglary, three months for the breach of the home detention sentence, and a further three months for reoffending while still serving a sentence and within a few months of the imposition of the sentence.16 The uplifts brought the adjusted starting point to 48 months’ imprisonment. The Judge then applied a 20 per cent discount for the appellant’s guilty plea, bringing the sentence down to three years and two months’ imprisonment.17 The Judge explained his reason for allowing a slightly more generous discount for the guilty plea than had been sought by the appellant’s counsel, as being to account for the appellant having suffered from ADHD18 for many years.

[15]   With respect to the application to cancel the sentence of home detention imposed in November 2019 so as to substitute a sentence of imprisonment, the Judge credited the appellant with having served one month of the home detention sentence, leaving three months’ home detention left to serve, being equivalent to six months’ imprisonment.19 The Judge accordingly added the sentence of six months’ imprisonment cumulatively to the sentence of three years and two months’ for the recent offending, bringing the end sentence to three years and eight months’ imprisonment.20

14     At [8] and [16].

15 At [19].

16     At [19] – [20].

17     At [21] and [25].

18     Attention Deficit Hyperactivity Disorder.

19 At [24].

20 At [25].

[16]   Having regard to the totality of the appellant’s offending, the Judge incorporated sentences for all of the other charges within the sentence of three years and two months’ imprisonment, by imposing concurrent sentences of:

(a)four months’ imprisonment for the possession of instruments;

(b)one month imprisonment for the possession of cannabis;

(c)three months’ imprisonment for the possession of methamphetamine; and

(d)three months’ imprisonment for the breaches of home detention.

Approach on appeal against sentence

[17]   An appeal against sentence is governed by the Criminal Procedure Act 2011. Section 250(2) provides that the Court must allow an appeal against sentence if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.21

[18]   The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.22 As such, the measure of error that must be shown, is that the sentence is “manifestly excessive”.23 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence was reached.

21     Criminal Procedure Act 2011, s 250(3).

22     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].

23     At [26] – [27].

Submissions

For the appellant

[19]   Mr Tomlinson for the appellant notes that the appellant, although challenging the sentence imposed, in pursuing his appeal does not seek an alternative to imprisonment. He appeals against Judge Gibson’s sentence on the following grounds:

(a)The starting point of two years on the first burglary was at the very high end. Mr Tomlinson notes Hinton J’s recent observation in Nelson v Police regarding the application Arahanga v R in setting a starting point for burglary:24

From the cases referred to me, and the cases referred to by Kós J in Newton,25 I conclude that the Court of Appeal’s guidance in Arahanga is not strictly accurate or has not been strictly applied. All these cases considered Arahanga and came to starting points of less than 18 months. A more realistic range might be one year to two-and-a-half years’ imprisonment.

Mr Tomlinson also notes Rodney Hansen J’s comments in Luke v Police as to the appropriate approach:26

[13]     The decision in Senior v Police27 helpfully distinguishes between broad categories of burglary offenders but, as the Court of Appeal said in R v Southon,28 it should not be regarded as more than a very helpful analysis of historic sentencing patterns in the area.29 In the end, sentencing for burglary, as for other offending, requires the Court, in the first instance, to identify the culpability inherent in the offending by reference to the circumstances.30 That requires, as the Court of Appeal said in Nguyen v R31 that the offender’s culpability in a burglary should be assessed by reference to the degree of planning and the sophistication in the offending, the nature of the premises entered, the kind and value of the property stolen, the damage done, the impact and potential impact upon occupants or owners of property and the extent of the offending where multiple burglaries are involved.

24     Nelson v Police [2019] NZHC 2434 at [33].

25     Newton v Police [2012] NZHC 2829 at [14] – [17].

26     Luke v Police [2013] NZHC 3175.

27     Senior v Police (2000) 18 CRNZ 340 (HC).

28     R v Southon (2003) 20 CRNZ 104 (CA).

29 At [13].

30     R v Colombus [2008] NZCA 192 at [13].

31     R v Nguyen CA110/01, 2 July 2001 at [17].

[14]    Comparisons with other sentencing decisions may be necessary in order, among other things, to achieve consistency in sentencing. However, care must always be taken to ensure that points of distinction are not overlooked. Many of the aggravating factors commonly encountered and present in sentencing decisions on burglary charges are not present in this case. They include a risk of danger to occupiers; sophistication in planning and execution; and the wanton destruction of property.

(b)The uplift of 18 months for the second burglary was manifestly excessive. An uplift of three months would have been more appropriate.

(c)The Judge failed to consider totality in accordance with s 85 of the Sentencing Act 2002. If the Judge had considered totality, the 42 month starting point would have been greatly reduced.

(d)The discount of 20 per cent for personal circumstances and the guilty pleas was inadequate. The appellant should have been given a discount of 25 per cent for his guilty pleas. The appellant was arrested on 7 January 2020. While not guilty pleas were entered on 24 January 2020, his guilty pleas were entered at the first case review hearing.

(e)A s 27 cultural report should have been obtained in the circumstances of this case and of the appellant.

[20]   Mr Tomlinson refers to the following cases as supporting his submission that the uplift of 18 months for the second burglary was excessive: Stepanicic v R (two year starting point, nocturnal burglary, end sentence of two years’ imprisonment.);32 Leach v Police (starting point of two years six months’ imprisonment for 3x burglary, 1x property offence and home detention breach);33McArthur v Police (starting point of one year, four months’ for 2x burglaries);34 Luke v Police (starting point of one year,

32 Stepanicic v R [2015] NZCA 211.

33 Leach v Police [2016] NZHC 1565. Although deducting a six-month discount would produce an end sentence of three years imprisonment, the final sentence imposed was two years imprisonment.

34 McArthur v Police [2014] NZHC 201.

four months’ 2x burglary, 1x receiving and 1x possession of cannabis);35 Connell- McDowell v Police (starting point of two years, two months’ imprisonment for 2x burglaries);36 Solomon v Police (starting point of three years, six months’ for 15x burglaries). 37

[21]   Mr Tomlinson also seeks to rely on a s 27 report prepared by Ms Shelley Turner for the purposes of this appeal. The Respondent does not oppose the admission of the report. In her report Ms Turner says that the appellant has experienced considerable disadvantages in his life. Ms Turner describes his upbringing in New Zealand and Australia with various whānau members, and refers to his diagnosis of suffering attention deficit hyperactivity disorder (ADHD). Ms Turner notes that the appellant strongly identifies as Māori through his maternal whakapapa, and is affiliated to Ngāti Porou. However, Ms Turner says that the appellant presents as severely disconnected from te ao Māori. The report notes that the appellant has experienced significant grief and loss trauma. This trauma has included his grandfather passing away when he was aged seven, his grandmother passing away when he was aged 12, his stepfather passing away when he was aged 20, and a miscarriage and abortion with a former girlfriend in his early 20s. The report states that the appellant became involved with drugs at a young age and following the passing of his stepfather he turned to methamphetamine to cope. The report also notes that the appellant is remorseful for his offending, and is now open about his methamphetamine addiction with his family and is trying to participate in a drug treatment programme to overcome his addiction.

For the respondent

[22]   Ms Wilson, for the Crown, submits that the sentence imposed by Judge Gibson was at the top of the range available.

[23]   She submits that the starting point of two years’ imprisonment for the first burglary was within the range available. She acknowledges that Arahanga provides merely general guidance for this sort of offending, and that sentences can clearly be imposed outside of the range it contemplates where appropriate on the facts of the

35     Luke v Police [2013] NZHC 3175.

36     Connell-McDowell v Police [2019] NZHC 3370.

37     Solomon v Police [2020] NZHC 1674.

particular case. Nonetheless, she submits that the appellant’s offending is typical of the type of domestic burglary contemplated by the Court of Appeal in Arahanga, involving the aggravating features of premeditation, and the use of disguise, forceful entry at night, search for and theft of valuable property. The Crown submits that moderately serious offending of this kind appropriately falls in the middle of the Arahanga range.

[24]   With respect to the second burglary, Ms Wilson says that it features the same aggravating factors as the first burglary, as well as additional factors of damage caused upon entry, the repeated targeting of one home, and the presence of drugs on the appellant’s person at the time. She submits that the appellant’s return to the same home is significant in that it is a marker of premeditation and impact on victims. She submits that this second burglary could itself attract a starting point of between two and two and a half years’ imprisonment. In these circumstances she submits that Judge Gibson’s uplift of 18 months for this second burglary was appropriate.

[25]   In terms of the overall starting point for the burglaries, Ms Wilson submits that the starting point of three years and six months was available in this case, albeit at the high end of the range. In support of this submission, she characterises the gravity of the appellant’s offending as sitting above the range identified in Arahanga, and notes the following two decisions:

(a)Shierney v Police:38 The defendant and an associate burgled the same residential address twice over the course of one night. No one was home at the time. Numerous items of property including jewellery, electronic products and three high powered rifles were stolen. The High Court upheld the District Court’s starting point of three years, six months’ imprisonment in relation to the second burglary in which the firearms were taken (the lead charge), and the uplift of six months for the first burglary and other minor offences, although Woolford J did consider it to be  towards  the  upper  end  of  the  available  range.  Ms Wilson submits that the appellant exhibited a greater degree of

38     Shierney v Police [2014] NZHC 2963.

preparation and premeditation than did Mr Shierney, because the interval between the two burglaries committed by the appellant was a whole day before he returned to commit the second burglary.

(b)Penniket v R:39 Multiple offenders burgled three different holiday homes over ten days. Approximately $85,000 worth of property was stolen. The Court of Appeal considered a starting point of three years, six months’ to be well within range, and towards the lower end. Ms Wilson accepts that the monetary value of the stolen property was lower in the present case, and that the appellant offended alone on two, not three, occasions. However, she notes that in Penniket, the offenders did not target the same address.

[26]   As to the Judge’s consideration of personal factors, Ms Wilson submits that it was open to him to increase the sentence by three months to account for the fact that the offending occurred soon after he was sentenced to home detention. She notes that the appellant’s history of offending demonstrates that the community requires protection from him.

[27]   Finally, Ms Wilson submits that the 20 per cent reduction for the appellant’s guilty pleas was appropriate, noting that he only sought a 15 per cent discount.

Analysis

[28]    An assessment of the culpability of appellant’s offending in relation to the first burglary on 6 January 2020 is informed by: the targeting of a residential property at night with the possibility of encountering the occupants of the address; the premeditation and planning evident by the appellant’s possession of a head torch, gloves, and a bandana and hood to conceal his identity; the forced entry of the locked premises; the significant value of the items stolen; the victim’s loss of items of sentimental value. In my view the appropriate starting point for the first burglary would be 18 months’ imprisonment. I nevertheless consider that the two year starting

39     Penniket v R [2016] NZCA 154.

point adopted by Judge Gibson was at the upper end of the available range having regard to the observations of the Court of Appeal in Arahanga.

[29]   The second burglary on 7 January involved the same features of burglary offending and was aggravated by being a second targeting of the same premises. Were it considered in isolation it would justify a starting point of around 18 months. I do not however consider that it warrants the adoption of an uplift of 18 months of the starting point adopted in respect of the first burglary. Because these two burglaries were so closely related, the preferable approach is to consider the culpability of the offending on a totality basis.

[30]   In my view the gravity of the appellant’s offending would be appropriately reflected by the adoption of an 18 month starting point for the first burglary, with a nine month uplift for the second burglary, to reach a total starting point for the two burglaries of two years, three months’ imprisonment. The appellant does not challenge the two three month uplifts for the breach of the home detention sentence and for the offending while under sentence. The addition of a further six months for those uplifts yields a total starting point of two years, nine months’ imprisonment.

[31]   As regards the discount for the appellant’s guilty pleas, I note that on his first appearance in the District Court on 8 January 2020 he was remanded in custody without pleas being entered and when he next appeared on 26 January, he denied all the charges and not guilty pleas were entered. He entered guilty pleas on 18 February 2020, and in light of that sequence, it cannot be said that he admitted the charges at an early stage such as to warrant a allowance of a full 25 per cent discount. I consider that a discount of 15 per cent is appropriate recognition of his guilty pleas having regard to the time that they were entered.

The s 27 report

[32]   In her comprehensive report Ms Turner expresses her opinion that the compounding effect of adverse childhood experiences, trauma, and drug addiction has had a causative impact on the appellant’s offending. As a young child he was affected by ADHD, and experienced considerable transience at home and as he made his way through the education system. The report notes that the appellant was moved from

“pillar to post” amongst various members of his whānau in response to both his condition, and following the deaths of family members. The report also notes that coinciding with the appellant’s learning and behavioural difficulties was his early use of cannabis and over time progressing to use of synthetic cannabis and methamphetamine.

[33]   In relation to the appellant’s drug addiction Ms Turner says that ultimately he is an addict. She notes that throughout most of his teenage and young adult life he has been addicted primarily to cannabis and synthetic cannabis, but that in more recent years he has become a methamphetamine addict. She says that in the throes of his addiction he was not making rational decisions and that his life had become all about obtaining and using methamphetamine and gambling, and crime was his primary source to fund his drug addiction.

[34]   Ms Turner says that “unpacking” the appellant’s addiction revealed underlying trauma, and that he was deeply affected by the death of his stepfather who was a father figure to him, and had turned to using methamphetamine as a coping mechanism for his grief and loss trauma. Ms Turner says that one of the key ways in which a person’s background may be relevant to sentencing is where it reduces their moral culpability for the offending. Ms Turner says that while it is ultimately a matter for the Court, in her opinion there appears to be a plausible connection between the appellant’s background and his offending that mitigates his culpability.

[35]   I also note that the appellant has shown genuine remorse for his offending and that he is making a committed effort towards rehabilitation. His efforts include addressing his drug addiction and engaging with his whānau and his cultural identity in a way he has not previously been open to doing.

[36]   At the appellant’s sentencing in the District Court, his counsel also produced a report prepared by PARS40 Rangatahi Services dated 8 May 2020. PARS describes itself as having a team that works intensively with young people aged between 12 and 24 who have been affected by the justice system, to assist them to navigate towards their unrealised potential. The PARS report also refers to the appellant’s personal

40     People at Risk Solutions organisation.

background and confirms that he has expressed his commitment to change and rehabilitate himself.

[37]   Section 8(i) of the Sentencing Act provides that the Court must take into account an offender’s personal, family, whānau, community and cultural background when imposing a sentence. Section 27 of the Act provides a mechanism for an offender to provide the Court with information relevant to those matters. Discrete discounts of sentence may be given based on information contained within s 27 reports.41 However, an offender’s background will not always be a mitigating factor in sentencing. In Heta, Whata J concluded that for these factors to be mitigating factors, the evidence needs to create a link between the offender’s background and their offending.42 Whether discounts are to be given on account of an offender’s personal circumstances is a matter of judicial discretion.43

[38]   I am satisfied by the matters described in Ms Turner’s report that there is a causal connection between the appellant’s personal and cultural background and his offending, and I consider that a discrete discount to recognise the contribution his personal and cultural background has played as a causative factor in his offending is appropriate.

[39]   I consider that the discount allowed by the Judge of effectively five per cent reduction of the sentence on account of the appellant suffering ADHD, was insufficient to recognise the significant contribution of the appellant’s personal background had on his offending and its causal connection to his offending. I consider that a discount of 15 per cent would be appropriate to recognise this mitigating factor.

[40]   From the starting point sentence of two years, nine months’ imprisonment (33 months), I allow a discount of 15 per cent for the guilty pleas and a further 15 per cent to recognise the appellant’s background and circumstances and their causal contribution to his offending. Applying those two discounts, totalling 30 per cent, to

41 Tania Singh “Discount Resulting from Information Contained in a Cultural Report provided pursuant to s 27 of the Sentencing Act: Solicitor General v Heta [2018] NZHC 2453” (2018) NZLJ 350.

42 Solicitor-General v Heta [2018] NZHC 2453 at [50].

43 Rudolph v R [2019] NZCA 451 at [33].

the starting point yields an end sentence of one year, eleven months imprisonment (23 months).44

[41]   To that sentence the further six months cumulative sentence for the cancelled home detention sentence is to be added, with the result that the total sentence imposed is two years and five months’ imprisonment.

[42]   Having determined that a sentence of one year and eleven months’ imprisonment is appropriate for the appellant’s burglary offending, I find there was an error in the sentence imposed on him by the District Court on 13 May 2020 of three years and two months’ imprisonment for the burglary charges, and that a different sentence should be imposed.

Result

[43]The appeal is allowed.

[44] The sentence imposed by the District Court of three years and eight months’ imprisonment is quashed. In its place I impose a sentence of two years and five months’ imprisonment, which includes the six month cumulative sentence for the cancelled home detention sentence at [41] above.

[45]   The concurrent sentences imposed by the District Court on 13 May 2020 stand and are not affected by this judgment.45

Paul Davison J

44     Moses v R [2020] NZCA 296 at [46].

45     Police v Simon, above n 2 at [26].