Simon v Police

[2012] NZHC 317

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000360 [2012] NZHC 317

BETWEEN  DANIEL SIMON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 February 2012

Appearances: B L Sellars for the Appellant

K L Bannister for the Respondent

Judgment:      1 March 2012

JUDGMENT OF GILBERT J [Appeal against sentence]

This judgment was delivered by me on 1 March 2012 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Counsel:            B Sellars, Barrister, Auckland: [email protected]

Solicitors:           Crown Solicitor, Auckland:  [email protected]

SIMON V NZ POLICE HC AK CRI 2011-404-000360 [1 March 2012]

[1]      Daniel Simon pleaded guilty to  three charges of burglary, one charge of attempted burglary, one charge of breach of intensive supervision and one charge of breach of bail.  He was sentenced by District Court Judge McElrea to two and a half years’ imprisonment on each of the three burglary charges, three months’ imprisonment for the breach of intensive supervision and two months’ imprisonment for breaching bail. These terms of imprisonment were to be served concurrently.

[2]      Mr Simon appeals the sentence of two and half years’ imprisonment on the burglary charges.  The stated ground of appeal is that the sentence was manifestly excessive and/or inappropriate.

[3]      Mr  Simon  also  claims  that  there  is  an  unjustified  disparity  between  the sentence he received and the sentence imposed by a different judge on a different day on a co-offender, Mr Nightingale, who participated in one of the burglaries and the attempted burglary.   Mr Nightingale was sentenced on a total of 19 charges, including these two charges.  Mr Nightingale received an overall end sentence of two years’ imprisonment.

Background

[4]      The offences, which followed a similar pattern, were committed during the period 25 November 2010 to 22 March 2011.   They all took place at residential addresses during daytime hours.

[5]      The  first  burglary  occurred  at  about  11.00  am  on  25  November  2010. Mr Nightingale drove Mr Simon to a residential address in Sandringham.  Mr Simon got out of the car, went to the front door of the house, forced it open and then uplifted property valued at approximately $4,000.   He returned to the car where Mr Nightingale was waiting and they both drove off.

[6]      The second burglary took place on 15 December 2010 at another residential address in Sandringham.  Mr Simon went to the rear of the premises and forced open

a bedroom window.   He searched all of the bedrooms and the lounge, uplifting electronic items, clothing and jewellery to the value of $1,500.

[7]      The attempted burglary was at another residential address in Sandringham on

30 December 2010.   Mr Nightingale drove Mr Simon to the address.   Mr Simon attempted to force open the door but was disturbed by a neighbour so he ran back to the car and Mr Nightingale drove them both away.

[8]      The fourth burglary was committed on 22 March 2011 at a residential address in Herne Bay.  Mr Simon smashed a glass panel from a French door to gain access. Again he searched through all of the bedrooms and the lounge, uplifting electronic items and jewellery to the value of $1,338.

Previous convictions

[9]      Mr Simon, who is only 22, had 40 previous convictions at the time of his sentencing.  These convictions included numerous convictions for theft and burglary. In the course of sentencing Mr Simon, the District Court Judge described Mr Simon as a “prolific young burglar and drug addict” and “an absolute menace to society”.

District Court decision

[10]     Judge McElrea noted that the burglaries all involved considerable distress for the  complainants.    Looking  at  the  four  main  charges  together,  and  taking  into account Mr Simon’s poor past record, the Judge considered that a starting point of three years’ imprisonment was required.  He allowed a discount of 25 per cent for the guilty plea, which would have resulted in a sentence of two years and eight months’ imprisonment.  This was rounded down to two years and six months’ imprisonment, which was the end sentence imposed.

Clearly excessive?

[11]     I  have  received  comprehensive  and  very  helpful  submissions  from  both counsel.    Ms  Sellars,  for  Mr  Simon,  accepted  at  the  hearing  that  the  sentence imposed in the District Court cannot be challenged as being outside an acceptable range or manifestly excessive.  This was, in my view, a responsible concession.  The starting point in this case was towards the upper end of the range but it was not clearly excessive.  There was no challenge to the 25 per cent discount for the guilty plea which was clearly appropriate. This ground of appeal must therefore fail.

Disparity

[12]     Ms Sellars submitted that there was such a disparity between the sentence imposed on the co-offender, Mr Nightingale, and that received by Mr Simon that the appeal should be allowed.

[13]     Ms  Sellars  candidly  acknowledged  that  it  is  difficult  to  draw  direct comparisons between Mr Simon and Mr Nightingale.  However, she submitted that Mr Simon and Mr Nightingale were “similar in many respects” at sentence.  They were of like age and had similar criminal histories.  Ms Sellars also pointed out that Mr Nightingale was being sentenced on many more charges committed over a longer time period than Mr Simon.

[14]     Ms Bannister submitted that there were a number of points of distinction between Mr Simon and Mr Nightingale which could justify the longer term imposed on Mr Simon.  She pointed out that Mr Nightingale played a lesser role in the two burglaries in which he participated with Mr Simon.  Mr Simon had 23 convictions for   dishonesty   offences   compared   to   Mr   Nightingale,   who   had   only   five. Ms Bannister  noted  that  Mr  Simon  was  on  intensive  supervision  when  the  last offence was committed.  Mr Simon also had $5,000 of outstanding fines remitted at sentencing.

[15]     These submissions highlight the difficulty of making comparisons of this type and illustrate the care that must be taken when considering an appeal based on claimed disparity in sentencing.

[16]     Even if it were appropriate to regard Mr Nightingale as being in all material respects, in the same position as Mr Simon was at the time of sentencing, I do not accept that the difference between two years’ imprisonment and two and half years’ imprisonment constitutes a sufficient disparity to require intervention on appeal. The

test was formulated by the Court of Appeal in R v Lawson,[1] as being whether:

...  a  reasonable-minded  independent  observer,  aware  of  all  the circumstances, would think that something had gone wrong with the administration of justice given the disparity.

[1] R v Lawson [1982] 2 NZLR 219 (CA) at 223.

[17]     Despite Ms Sellars’ excellent submissions, I am not satisfied that there is any unjustified disparity here, let alone a disparity which is sufficiently significant as to justify disturbing the sentence imposed in this case.

Result

[18]     For the foregoing reasons, the appeal must be dismissed.

M A Gilbert J