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Simpson v R

Simpson v R

Case [2019] NZHC 3139 29 November 2019

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Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2019-416-000019

[2019] NZHC 3139

BETWEEN
ROPATA JOSEPH PEKAMU SIMPSON

Appellant

AND

THE QUEEN

Respondent

Hearing: 6 November 2019

Counsel:

A Simperingham and H N Tunstall for the Appellant L Marshall for the Respondent

Judgment:

29 November 2019

JUDGMENT OF DOOGUE J

Introduction

[1] The appellant, Ropata Simpson, appeals a sentence of imprisonment imposed on him by Judge Cathcart in the District Court at Gisborne on 11 September 2019.1

[2] Mr Simpson was sentenced to concurrent sentences of nine months’ imprisonment for aggravated assault,2 three months’ imprisonment for common assault,3 and nine months’ imprisonment for driving contrary to the terms of a zero alcohol licence (third or subsequent)4 and driving with excess breath alcohol (third or subsequent).5

1      R v Simpson [2019] NZDC 18513.
2      Crimes Act 1961, s 192; maximum penalty of three years’ imprisonment.
3      Section 196; maximum penalty of one year imprisonment.
4      Land Transport Act 1998, ss 32(1)(b) and 32(4); maximum penalty of two years’ imprisonment or a fine not exceeding $6,000, and disqualification from holding or obtaining a driver’s licence for one year or more.
5      Sections 56(1) and 56(4); maximum penalty of two years’ imprisonment or a fine not exceeding
$6,000, and disqualification from holding or obtaining a driver’s licence for more than one year.

SIMPSON v R [2019] NZHC 3139 [29 November 2019]

[3] In addition, Mr Simpson was disqualified from holding or obtaining a driver’s licence for six months from the date of his sentence. An alcohol interlock disqualification order was also imposed as well as a zero alcohol licence order.

[4] Mr Simpson appeals his sentence on the grounds it is manifestly excessive, and Judge Cathcart should have commuted it to a sentence of home detention.

Background

Aggravated assault and driving charges

[5] At about 1:30 a.m. on 1 December 2018, Mr Simpson was the driver of a Holden motor vehicle driving west on Abbott Street, Gisborne.

[6] At the time of driving, Mr Simpson had two previous convictions for driving with excess breath alcohol. He was also subject to the terms and conditions of a zero alcohol licence.

[7] Mr Simpson was stopped for a compulsory breath test. Mr Simpson evidently failed the roadside breath test as he was required to accompany the police officer to the Gisborne Police Station. When asked to do this, Mr Simpson refused and became verbally abusive. He was warned and subsequently advised he was under arrest. He refused to turn around to allow handcuffs to be applied. Nevertheless, handcuffs were ultimately applied.

[8] While Mr Simpson’s associate was being placed under arrest, Mr Simpson lunged forward and headbutted the arresting officer to his right eye socket causing extensive bruising and swelling to his eye.

[9] Once at the Gisborne Police Station, Mr Simpson undertook an evidential breath test which produced a result of 669 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of…

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 Simpson v R

Details

AGLC: Simpson v R [2019] NZHC 3139
Case: [2019] NZHC 3139
Decision Date: 29 November 2019

CaseChat Overview and Summary

Ropata Simpson appeals against his sentence of imprisonment imposed by Judge Cathcart in the District Court at Gisborne. Mr Simpson was sentenced to concurrent sentences of nine months’ imprisonment for aggravated assault, three months’ imprisonment for common assault, and nine months’ imprisonment for driving contrary to the terms of a zero alcohol licence and driving with excess breath alcohol. He was also disqualified from holding or obtaining a driver’s licence for six months from the date of his sentence, and an alcohol interlock disqualification order was imposed, as well as a zero alcohol licence order. Mr Simpson appeals his sentence on the grounds it is manifestly excessive, and Judge Cathcart should have commuted it to a sentence of home detention.

The legal issues before the court were whether the District Court Judge erred in exercising his sentencing discretion, and whether home detention should have been imposed instead of a short sentence of imprisonment. The court found that the District Court Judge had erred in concluding that home detention was not appropriate because Mr Simpson had previously breached such a sentence. The court found that the first breach was minor in nature and very likely to have been accidental, while the second breach was more serious but still relatively minor. The resulting penalties support this conclusion. The court also found that a sentence of home detention would have been more beneficial to Mr Simpson’s rehabilitative needs than a short sentence of imprisonment, particularly in respect of his alcohol abuse.

The appeal is allowed. Mr Simpson’s sentences of imprisonment are set aside and substituted with a sentence of four months’ home detention. He is to reside at 27 Sirrah Street, Okitu, Gisborne, and not move to any new residential address without the prior written approval of a Probation Officer. He is to remain at 27 Sirrah Street, Okitu, Gisborne, at all times unless an absence has been authorised by a Probation Officer. He is to attend and complete an appropriate alcohol abuse programme including an educational programme to the satisfaction of a Probation Officer. He is to attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of the Probation Officer. He is to attend the Whakamanahia drink drive programme, and not possess, consume or use any alcohol or drugs unless prescribed to him.

Orders