In November 2013 Allan J sentenced Isaac Donovan Simon on a variety of charges, including two of threatening to kill, arising from offending between August 2011 and January 2012.[1] Some of the charges had been set down for trial in the District Court and some in the High Court. There were several changes to the indictments before Mr Simon’s eventual guilty plea to all charges, and sentencing in the High Court.
[1]R v Simon [2013] NZHC 3091.
Allan J imposed an effective sentence of six years’ imprisonment for all the offending. Mr Simon appeals the sentence on the grounds that the discount given for the guilty pleas was too low and the starting points taken for the threatening to kill charges were too high.

The offending

For sentencing purposes Allan J treated the charges as falling into three groups: those that had been for trial in the High Court, those that had been for trial in the District Court involving violence against Mr Simon’s former partner, Ms Flint, and the drug-related offences that were also for trial in the District Court.
Chronologically, the offences against Ms Flint and the drug-related offending occurred first. In mid-2011 the long term relationship between Ms Flint and Mr Simon was coming to an end. In August 2011, having formed the view that there was another man inside Ms Flint’s house with her, Mr Simon knocked on a window and when Ms Flint drew back the curtain he pointed a
sawn-off shotgun at her and threatened to kill her. This incident resulted in charges of threatening to kill and unlawful possession of a firearm.
The following month, September 2011, the police conducted a search of the address previously occupied by Mr Simon and Ms Flint. They found 3.7 kilograms of cannabis and 20 litres of isopropyl alcohol, which resulted in a charge of possession of material to manufacture cannabis oil. They also found a sawn-off, semi-automatic shotgun and four 12-gauge shotgun rounds, resulting in a charge of unlawful possession of a shotgun.
In December 2011 Mr Simon assaulted Ms Flint by punching her in the stomach. That resulted in a charge of male assaults female. Also in December 2011 Mr Simon parked behind Ms Flint at a local dairy preventing her from reversing out. He smashed the driver’s window, showering glass over Ms Flint and their
two-year-old daughter who was also in the car. That resulted in a charge of intentional damage. He threatened to kill Ms Flint, which resulted in the second charge of threatening to kill. He reached through the broken window and punched Ms…

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 R

Details

AGLC: Simon v R [2014] NZCA 207
Case: [2014] NZCA 207
Decision Date: 29 May 2014 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Isaac Donovan Simon appealed against his conviction and sentence. The appeal was heard by O’Regan, Courtney, and Clifford JJ. Simon was sentenced to six years’ imprisonment by Allan J for various charges including threatening to kill. Simon argued that the discount given for his guilty pleas was too low and that the starting points for the threatening to kill charges were too high. The court had to decide whether the discount given for the guilty pleas was appropriate and whether the starting points for the threatening to kill charges were too high.

The court found that the discount given for the guilty pleas was appropriate. The court considered that the abandonment of the attempted murder charge and acceptance of a guilty plea to a lesser charge was adequate explanation for the lateness of the plea and allowed a 10 per cent discount. The court also found that the starting points for the threatening to kill charges were appropriate. The court considered that the starting point of 18 months for the threat to kill Mr Page was appropriate when compared to factually similar cases. The court also found that the starting point of three years for the threat to kill Ms Flint outside the dairy was at the high end of the available range but was appropriate on a totality basis.

The appeal was dismissed.

Orders