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Simon v Police

Simon v Police

Case [2020] NZHC 2430 17 September 2020

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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;…

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 Simon v Police

Details

AGLC: Simon v Police [2020] NZHC 2430
Case: [2020] NZHC 2430
Decision Date: 17 September 2020

CaseChat Overview and Summary

The appellant, Stefarn Simon, appeals against his sentence of three years and eight months' imprisonment, imposed by Judge B A Gibson for a series of serious offences including burglary, possession of drugs, and breaching home detention. The appeal focuses on the appropriateness of the starting point for the burglaries, the uplift for the second burglary, and the discount for personal circumstances and guilty pleas. The respondent argues that the sentence was at the top of the available range and appropriate given the nature of the offending. The court found that the starting point for the burglaries was at the upper end of the available range and the uplift for the second burglary was excessive. The court also found that the discount for personal circumstances and guilty pleas was inadequate, particularly in light of the appellant's background and efforts towards rehabilitation. The court imposed a sentence of two years and five months' imprisonment, inclusive of the six-month sentence for the cancelled home detention. The concurrent sentences for the other charges remain unaffected.

Orders