Simon v R
[2014] NZCA 207
•29 May 2014 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA813/2013 [2014] NZCA 207 |
| BETWEEN | ISAAC DONOVAN SIMON |
| AND | THE QUEEN |
| Hearing: | 5 May 2014 |
Court: | O’Regan, Courtney and Clifford JJ |
Counsel: | G A Walsh for Appellant |
Judgment: | 29 May 2014 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
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REASONS OF THE COURT
(Given by Courtney J)
Introduction
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 Flint, resulting in a further charge of male assaults female. The following day, 17 December 2011, the police searched Mr Simon’s address and found cannabis plants which resulted in a charge of cultivating cannabis.On 16 January 2012 an incident occurred that gave rise to the third group of offences which were set down for trial in the High Court. Ms Flint, who was apprehensive about her safety, had asked two friends, Mr Page and Mr Wyatt, to keep watch on her house. At about 9.30 pm these men were sitting in a parked car with a view of Ms Flint’s house. Mr Simon approached the car from the rear carrying a modified .22 calibre pistol. He presented the pistol through the driver’s window and threatened to kill Mr Page who was sitting in the driver’s seat. He also demanded the keys and a cell phone, which Mr Wyatt refused to hand over. When Mr Wyatt told Mr Simon that the police were on their way he said that he did not care and that he would shoot them too. This incident formed the basis for the third threatening to kill charge.
Other charges resulted from the fight that then developed with Mr Wyatt and Mr Page, during which Mr Simon assaulted the men with a length of chain which had a large D-shackle on one end. When the Police arrived Mr Simon fled in his vehicle and subsequently abandoned it. He was also charged with driving while suspended or disqualified.
The sentencing
On the charges that had been for trial in the High Court Allan J treated the charge of threatening to kill Mr Page as the lead offence. He took a starting point of 18 months and uplifted it to two years for the other High Court offences, which attracted concurrent terms of between one month and 21 months. He considered that there should be an uplift of three months to reflect the fact the offending was committed while on bail but that uplift was cancelled out by a 10 per cent discount allowed for the belated guilty plea.
On the charges involving violence against Ms Flint, Allan J treated the charge of threatening to kill Ms Flint outside the dairy as the lead offence. He took a starting point of three years and uplifted it to four and a half years to reflect the other offences in this group in respect of which concurrent sentences of between three and 18 months were imposed.
The drug-related offending attracted concurrent sentences of six and nine months.
The Judge gave a 10 per cent discount for the District Court offending as a whole.
The cumulative sentences came to seven years three months, which the Judge considered too high. He reduced the overall sentence to six years on a totality basis.
Discount for guilty plea
Mr Simon maintains that he should have received a 20 per cent discount for his guilty plea on the High Court charges rather than the 10 per cent discount allowed by the Judge.[2] This ground of appeal rests on the late changes to the indictment.
[2]There is no challenge to the 10 per cent discount given in respect of the District Court offending.
As originally presented, the indictment in the High Court contained one charge of attempted murder, one of threatening to kill, alternate charges of wounding with intent to cause grievous bodily harm and wounding with intent to injure, unlawful possession of a firearm, assault with a weapon and driving while disqualified. On the morning of the trial the Crown filed an amended indictment. The most significant change was the removal of the attempted murder charge. On the second day of the trial the Crown elected to offer no evidence on the wounding with intent charges and the charge of committing a crime with a firearm. It was at that point Mr Simon pleaded guilty.
Notwithstanding resistance by the Crown because of the lateness of the pleas and Mr Simon’s intransigence over some aspects of the indictment, the Judge 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.
Mr Walsh argued the changes to the indictment were significant and the circumstances similar to that in Heta v R, in which a 25 per cent discount was given following a late guilty plea after amendment of the indictment to a reduced number of charges.[3] However, the circumstances in Heta were different from the present case: Ms Heta had admitted the general nature of the offending before trial. That had not happened in the present case.
[3]Heta v R [2012] NZCA 267 at [38].
Ms Laurenson, for the Crown, explained that Mr Simon had consistently refused to admit he had brought a weapon to the scene of the threatening to kill offences and, as a result, no progress could be made towards a resolution of the matter. We also note that, although the changes to the indictment were significant, the threatening to kill charge had always been included. In the end Mr Simon pleaded guilty to that charge, which had remained unchanged throughout. Had he wished to accept responsibility for that offence he could have done so at an early stage without compromising his position in relation to the charges that were ultimately not pursued.
In these circumstances we consider that the level of discount given was appropriate and see no error on the Judge’s part.
Were the starting points taken for the threatening to kill charges too high?
In his written submissions Mr Walsh addressed only the starting point taken for the threat to kill Mr Page. In argument, however, the appeal was also advanced in respect of the threat to kill Ms Flint outside the dairy. There was no objection from the Crown and we proceed on the basis that both starting points are under challenge.
Threatening to kill Mr Page
Allan J described the offending against Mr Page as moderately serious, noting that, although a frightening experience, the victims had soon recovered and were able to pursue Mr Simon. As noted above, the Judge took a starting point of 18 months’ imprisonment. He noted that there is no guideline judgment for this charge,[4] but did refer to decisions that had some factual similarity, namely Allan v Police[5] and R v Sykes.[6]Mr Walsh submitted that, by comparison with those cases, the starting point Allan J took was too high.
[4]As this Court noted in Burchell v R [2010] NZCA 314 at [25].
[5]Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.
[6]R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.
In Allan v Police the sentencing Judge in the Dunedin District Court took an initial starting point of 12 months and uplifted it to 18 months to reflect the aggravating features of the case, which included premeditation and the presence of a weapon. That was upheld on appeal by White J, who considered that a starting point of between 18 months and two years might well have been justified.[7] In his decision White J identified the factors that assist in determining the overall seriousness of this type of offending. They include the degree of premeditation, the apparent willingness of an offender to carry out the threat, the use of a weapon, the level of harm or fear caused to the victim, and whether the threat was made directly to the victim.[8]
[7]Allan v Police, above n 5, at [33].
[8]At [29].
In R v Sykes a starting point of 12 months was taken and uplifted to 18 months for repeated threats, proximity between the offender and the complainant, and use of a weapon.[9]
[9]R v Sykes above n 6, at [22].
Allan J also referred to cases in which much higher starting points had been taken, including Daniels v R.[10]However, the charge in Daniels v R was laid under a provision of the Crimes Act 1961 carrying a maximum penalty of ten years’ imprisonment compared to the charge that Mr Simon faced which carried a maximum penalty of seven years’ imprisonment.
[10]Daniels v R [2011] NZCA 234.
We consider that a comparison with factually similar cases confirms the Judge’s starting point was appropriate.
Threatening to kill Ms Flint outside the dairy
The Judge viewed the threat to kill Ms Flint outside the dairy as much more serious than the threat to kill Mr Page and took a starting point of three years’ imprisonment which he uplifted by 12 months to reflect the earlier threat to kill at Ms Flint’s house. The uplift is not under challenge.
In arguing the starting point was too high, Mr Walsh relied on two cases involving threats to kill in the context of a domestic relationship. In R v Puke the offender had grabbed his partner around the throat threatening to kill her.[11] During the same argument he assaulted his pregnant daughter. The sentencing Judge took a global starting point of three and a half years, which was confirmed on appeal, with Priestley J describing it as arguably severe but within range.[12]
[11]R v Puke [2009] NZCA 582.
[12]At [21].
The second case was Johnstone v R, which also involved assaults and threats to kill the offender’s partner as well as a neighbour whom the partner had asked to call the police.[13] The Judge imposed sentences of three months’ imprisonment on the charges of threatening to kill but these were concurrent with the sentence imposed on the lead charge of causing grievous bodily harm with reckless disregard. The starting point on that charge was 18 months uplifted to three and a half years to reflect the totality of the offending. The Court of Appeal considered the uplift was not manifestly excessive and properly reflected the totality of the offending.[14]
[13]Johnstone v R [2013] NZCA 214.
[14]At [59].
We consider 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. Further, we are satisfied that the Judge’s assessment of six years for such serious offending was entirely appropriate on a totality basis. There is no justification for interfering with the end sentence.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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