Simpson v The King
[2025] NZHC 1297
•23 May 2025
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2025-406-002 [2025] NZHC 1297
BETWEEN SHANNON SIMPSON
Appellant
AND
THE KING
Respondent
Hearing: 20 May 2025
Appearances: M Zintl for Appellant
M A O’Donoghue for Respondent
Judgment: 23 May 2025
Reissued: 30 September 2025
JUDGMENT OF GWYN J
[Appeal against sentence]
Introduction
[1] Mr Simpson appeals his two cumulative sentences of five years’ imprisonment and one year and 10 months’ imprisonment (together six years and 10 months’ imprisonment).1 He pleaded guilty to aggravated wounding,2 robbery,3 unlawfully taking a motor vehicle,4 four charges of theft,5 unlawful possession of a pistol,6 four
1 R v Simpson [2024] NZDC 4672 [sentencing notes].
2 Crimes Act 1961, s 191(1); maximum penalty 14 years’ imprisonment.
3 Section 234; maximum penalty 10 years’ imprisonment.
4 Section 226(1); maximum penalty seven years’ imprisonment.
5 Sections 219 and 223(d); maximum penalty three months’ imprisonment.
6 Arms Act 1983, s 50(1)(a); maximum penalty three years’ imprisonment or $4,000 fine.
SIMPSON v R [2025] NZHC 1297 [23 May 2025]
charges of driving whilst disqualified (his 19th to 22nd time overall),7 dangerous driving,8 failing to stop when followed by red and blue flashing lights (3rd or subsequent),9 refusing request to provide blood (3rd or subsequent)10 and to breaching his release conditions. He was also convicted and discharged for possessing a methamphetamine pipe,11 and was disqualified from holding or obtaining a driver’s licence until 7 July 2029.
[2] Mr Simpson submits that the sentence is manifestly excessive because the District Court Judge only gave him a 15 per cent discount for his guilty pleas, as opposed to the full discount of 25 per cent, and did not give a discrete discount of five per cent for remorse.
Background to the offending
[3] On 12 June 2023 in Blenheim, Mr Simpson was driving while disqualified and stole petrol.
[4] At about 9.30 am on 28 June 2023 in Christchurch, Mr Simpson unlawfully took a Nissan car from Ms M, who had left it running on the side of the road while she closed a gate. He drove away.
[5] At about 10.10 am that morning, Mr Simpson drove up slowly behind Mrs E as she returned to her vehicle in a mall carpark, coming within arm’s reach of her. Mrs E was 83 years old at the time and did not hear the vehicle approaching. Mr Simpson reached out from his seat and grabbed Mrs E’s handbag, then accelerated away. Mrs E was unable to free herself immediately from the handbag and was dragged at least five metres along the concrete of the carpark, suffering injuries which required hospital admission. Mr Simpson released his grip soon after Mrs E freed herself, so drove off without the handbag.
7 Land Transport Act 1998, ss 32(1)(a) and 32(4); maximum penalty two years’ imprisonment or
$6,000 fine.
8 Section 35(1)(b); maximum penalty three years’ imprisonment or $4,500 fine.
9 Sections 52A(1)(a)(ii), 52A(5), 52A(6) and 114(2); maximum penalty three months’ imprisonment or $10,000 fine.
10 Sections 60(1)(a), 60(3) and 72(1)(e); maximum penalty two years’ imprisonment or $6,000 fine.
11 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year’s imprisonment or $500 fine.
[6] At about 12.55 pm that same day, Mr Simpson took items worth $22.50 from a dairy without paying. The following day in Blenheim, and then on 30 June 2023 in Nelson, Mr Simpson stole registration plates from other vehicles and placed them on the stolen Dualis.
[7] On 3 July 2023 in Blenheim, Mr Simpson stole a handbag from Ms S in a carpark, in a similar manner to with Mrs E. Ms S was 70 years old at the time and heard the vehicle approaching. Her handbag was hanging from a hook by the handle of her shopping trolley and she instinctively reached for it at the same time as Mr Simpson grabbed it. He used his superior strength to overcome her resistance. She reached into the car trying to stop him, but he forcibly shoved her in the left shoulder, causing her to spin and fall to the ground, before accelerating away. She suffered bruises.
[8] On the evening of 4 July 2023, Mr Simpson drove the stolen Nissan on State Highway 1 in Koromiko. He attempted to evade Police units, driving at speeds significantly exceeding the speed limit, turning off his lights on an unlit section of the road, and undertaking another vehicle at speed. He failed to stop the vehicle when signalled to stop by red and blue flashing lights in Blenheim.
[9] Mr Simpson was located at about 7.35 pm that evening in Blenheim. A methamphetamine pipe was within view inside the Nissan. He failed a compulsory impairment test and refused a request for blood to be taken. At the Blenheim Police Station, he advised Police that there was a sawn off .22 calibre firearm in the vehicle. It was missing parts and not capable of discharging a shot, but would be operable with their addition.
[10] Mr Simpson admitted all of his offending to the Police, aside from the incident with Mrs E. He stated that he “was starving and you do stupid things when you’re starving.”
Sentencing decision
[11] On 22 August 2024, the defendant received a sentencing indication. The indication was officially declined, but guilty pleas were entered on 30 August 2024.
Sentencing proceeded in accordance with the indication. The three victims of the aggravated wounding, robbery and unlawful taking of a vehicle charges respectively provided victim impact statements. The Judge commented that the extent of victim harm was greater than what was known at the indication hearing, but did not increase any starting point from the declined indication.12
[12] The starting points are not challenged by either party, but the Crown submit that they remain relevant to the ultimate question of whether the end sentence was within the available range. The first sentence was constructed as follows:13
(a)three years start point for the aggravated wounding of Mrs E,
(b)one year six months uplift for the robbery of Ms S,
(c)nine months uplift for unlawfully taking Ms M’s car,
(d)two months uplift for the four distinct charges of theft,
(e)four months uplift for the unlawful possession of a sawn off .22 pistol, and
(f)three months uplift for breaching the conditions of his release from prison.
[13] The uplifts were imposed considering totality, and had been quantified during the sentencing indication hearing. The total nominal starting point for the first sentence was six years’ imprisonment.14
[14] The cumulative sentence for the driving matters had not been thoroughly canvassed in the indication hearing, but a starting point of two years and six months’ imprisonment was adopted for the totality of the driving charges.15
12 Sentencing notes, above n 1, at [15]–[16].
13 At [19]–[28].
14 At [28].
15 At [30].
[15] A six-month uplift was applied to the first sentence for Mr Simpson’s history of prior offending; he had just been released from serving a term of imprisonment for handbag thefts in shopping malls. Mr Simpson did not receive an uplift for offending whilst on sentence.16
[16]The Judge applied all discounts equally to both sentences:
(a)A 10 per cent discount was given for Mr Simpson’s personal circumstances.17
(b)A 15 per cent discount was given for Mr Simpson’s guilty pleas. This was the amount that had been indicated. The Judge noted the ample opportunity Mr Simpson had to plead to at least some of the charges during the eight months between first appearance (on 5 July 2023) and the filing of the Crown charging document (on 8 March 2024). Her Honour noted that he had initially entered not guilty pleas and focused on obtaining bail, when most of the charges were not in any real dispute. In the sentencing indication, the Judge also noted that the charges had not changed since Mr Simpson elected trial by jury in September 2023, so the guilty pleas would not be early.18
(c)The Judge declined to give Mr Simpson any discount for remorse. Her Honour had recently sentenced him for similar, less serious offending. He confronted that prior sentencing in a letter, expressing remorse. The Judge observed that perhaps he needed to focus on the harm he had caused and consider what type of contribution he wanted to make to the community – telling him it was time to “walk the walk” rather than “talk the talk”. Her Honour considered that she could not give Mr Simpson any discrete credit for remorse, given the expressions of it came “very late in the piece, and where this was recidivist offending targeting vulnerable people in our community”.19
16 At [34].
17 At [49].
18 At [35]–[41].
19 At [50]–[54].
[17] Accordingly, a total 25 per cent discount was applied to each sentence. This, in addition to the six-month uplift for previous offending, resulted in two cumulative sentences of five years’ imprisonment and of one year and 10 months’ imprisonment.20
Approach on appeal
[18] The appellant’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against the Judge’s discretion.21
[19] In order to succeed, Mr Simpson must show that there was an error in the sentence reached and that a different sentence should have been imposed.22 The Court will not intervene where the sentence is within the range available to the sentencing Judge.23 The Court will intervene only if the sentence is manifestly excessive.24 An appellate Judge is to allow “a respectable margin of appreciation for the judgment of the trial Judge, particularly bearing in mind that sentencing is not a science”, by not “tinkering” with the sentence.25
[20]Accordingly, there are three issues for me to consider:
(a)Did the Judge err in not providing a full credit for guilty pleas of 25 per cent?
(b)Did the Judge err in not providing a discount of five per cent for remorse?
(c)If the Judge did err, was the sentence manifestly excessive?
20 At [55]–[57].
21 Filivao v R [2024] NZCA 103 at [30].
22 Criminal Procedure Act 2011, s 250(2).
23 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
24 Kumar v R [2015] NZCA 406 at [81].
25 Kay v R [2024] NZCA 1 at [36], citing R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
Guilty plea
Appellant submissions
[21] Mr Zintl, for Mr Simpson, submits that the Judge erred in declining to grant the full 25 per cent credit for the guilty pleas.
[22] Mr Zintl submits that the Judge incorrectly focused solely on the timing of the guilty pleas as opposed to the circumstances in which the pleas were entered. In essence, Mr Zintl says the factual and charging basis took some time to be resolved. He explained the timeline in the following way:
(a)The charges were originally handled by the Police and Mr Zintl had some discussions with the Police on Mr Simpson’s behalf. Once transferred for a case review hearing, on 5 March 2024, the matter was with the Crown.
(b)Mr Zintl had further discussions with the Crown and on 8 March 2024 the Crown emailed a draft statement of charges and an updated Crown charge list. The lead charge (grievous bodily harm with intent to rob, Crimes Act 1961, s 236) was amended to aggravated wounding (s 191). Mr Zintl’s discussions with the Crown encompassed the question of mens rea and fact that Mr Simpson’s conduct did not evidence intent to inflict harm but, rather, recklessness. That was reflected in the Crown’s withdrawal of a charge of assault with intention to facilitate the commission of a robbery. At that time Mr Zintl was also attempting to negotiate the firearms-related charges, on the basis that the weapon was missing parts and not capable of firing a shot.
(c)Once discussions as to the charges were completed, at the case review stage in April 2024, Mr Simpson sought a sentence indication. The sentence indication hearing did not go ahead until August 2024 for unrelated reasons. While Mr Simpson did not accept the indication, he pleaded guilty on 30 August 2024. This was the first reasonable opportunity in light of the preceding discussions.
[23] The upshot of this timeline, Mr Zintl submits, is that it was abundantly clear to the Crown from an early stage that the matter would be resolved short of trial. No trial date was ever set and the Crown was not required to file formal statements. If Mr Simpson had pleaded guilty at his first or second appearance it would have been to more serious charges than were ultimately proceeded on.
[24] Mr Zintl also submits that it is anomalous for the Crown to oppose the full 25 per cent discount on appeal when it did not oppose it in sentencing indication submissions.
Respondent submissions
[25] The Crown submits that the Judge did not err in applying a 15 per cent discount for the guilty pleas.
[26] It submits that the evidence in the case was very strong, pointing to Mr Simpson’s admissions, the likeliness that propensity evidence would be admitted, and the willingness of credible and corroborating witnesses. It says that the Judge had carefully reviewed the Court file and notations from the first appearance which predated the Crown involvement. It also notes that the driving, theft, unlawfully taking and robbery charges were as originally laid and Mr Simpson could have pleaded to those charges at an earlier point.
Relevant law
[27] In Hessell v R the Supreme Court held that the value to be attributed to a guilty plea is to be assessed having regard to all the circumstances of the case.26 The extent of the loss of discount, which may range from 25 per cent to nothing, is an evaluative decision and should be fixed by reference to the available rationales for the discount.
[28] In addition to the timing of the plea, other considerations include the scale and complexity of the trial, the proximity of the plea to first appearance or to trial, the justification for any delay, the inevitability or otherwise of convictions, the benefits of
26 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [51].
not giving evidence for victims and witnesses, and the victim’s experience of atonement following the offender’s acceptance of responsibility.27
Remorse
Appellant submissions
[29] Mr Zintl notes that Mr Simpson wrote letters of apology to the Judge and victims, which have been provided, that the pre-sentence report mentioned he was remorseful, and that the Judge accepted that the letters of remorse expressed genuine remorse.
[30] However, the Judge declined to provide a discount in circumstances where the expressions came late in the piece and where Mr Simpson was a recidivist offender. Mr Zintl submits that those factors ought not to have disqualified the Judge from allowing a discount for genuine remorse in the range of five per cent.
Respondent submissions
[31] The Crown opposed any discrete discount for remorse at the time of sentencing and maintain their scepticism of the genuineness of Mr Simpson’s remorse given his pattern of behaviour.
Relevant law
[32] Evidence of an offender’s remorse or an endeavour to make amends to the victim is to be taken into account as a mitigating factor. An assessment of remorse is necessarily evaluative and is a question of fact and judgement.28 The offender bears the onus of showing that remorse is genuine, meaning that it qualifies as remorse and that they actually experience it.29
27 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [23]; and Glassie v R [2022] NZCA 556
at [44].
28 Sweeney v R [2023] NZCA 417 at [18].
29 Parkinson v R [2024] NZHC 2853 at [32]–[33].
[33] The Judge accepted that Mr Simpson expressed genuine remorse in his letters,30 which I have also read. I see no reason to challenge that finding.
[34] However, although remorse does not need to be extraordinary to earn a discount, it does require something more than a mere acceptance of responsibility inherent in a guilty plea.31
Manifestly excessive sentence
Appellant submissions
[35] Mr Zintl does not dispute that the offending was very serious and does not dispute the Judge’s starting point. However, he notes that the sentence can be characterised as very stern. Having regard to Mr Simpson’s culpability and personal circumstances, he submits that it is manifestly excessive and the adjustments sought are necessary accordingly. In his submission they would not amount to mere “tinkering”.
Respondent submissions
[36] The Crown says that, despite any error the Court finds, the resulting sentence was not manifestly excessive.
[37] It notes that Mr Simpson received a 10 per cent discount for his various background factors and that these factors were self-reported. It submits that this discount could be considered generous due to his extensive criminal history and the resultant “frequency with which he draws from this well”.
[38] Counsel also noted the opportunities for the Judge to diverge upwards from the sentencing indication, in light of further information available by the time of sentencing. The Judge did not do so. Nor did she impose an uplift for offending while on sentence when up to 20 per cent would have been available in terms of deterrence and protection of the community.32
30 Sentencing notes, above n 1, at [15].
31 Mathew Downs (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA9.22].
32 Sentencing Act 2002, s 9(1)(c); and Lavea v R [2014] NZCA 192 at [24].
Analysis
[39] I am persuaded the Judge was in error in not granting the full 25 per cent discount for Mr Simpson’s guilty plea. As Mr Zintl’s oral submissions made clear, the lapse of time between the original charges being laid and the guilty plea do not indicate delay, rather responsible counsel seeking to ensure the charging was appropriate. While some charges were undisputed, I think it was appropriate for Mr Simpson to treat the charges as a “package” and obtain overall clarity before pleading to any of them.
[40] It would have been obvious to the Crown from a relatively early stage that the matter was unlikely to proceed to a trial and, as a consequence, the more usual considerations of wasted court and party time and cost when a plea is entered late do not arise.
[41] I am also persuaded that the Judge erred in declining to grant a five per cent discount for Mr Simpson’s remorse. The Judge accepted the remorse was genuine, but focused on the fact that Mr Simpson was a recidivist offender and the offending for which he was being sentenced being inconsistent with previous expressions of remorse.33
[42] I acknowledge that at first blush there may seem to be an inconsistency between Mr Simpson’s expressions of remorse and his repeated offending. But I am not persuaded that continuing to offend in the face of expressions of remorse is necessarily cynical or a reflection of moral failure. The reality (as made clear by the pre-sentence report) is that Mr Simpson needs therapeutic intervention in order to realistically reduce his risk of reoffending and to be able to “walk the walk”.
[43] Overall, I conclude that the decision not to award the full guilty plea discount and a discount for remorse means the sentence was manifestly excessive.
33 Sentencing notes, above n 1, at [15] and [54].
Outcome
[44]The appeal is allowed.
[45]The sentence of six years and 10 months’ imprisonment is set aside.
[46]A sentence of five years and four months’ imprisonment is imposed.
Gwyn J
Solicitors:
O’Donoghue Webber, Nelson for Respondent
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