Simpson v The Queen

[2021] NZHC 2560

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-355

[2021] NZHC 2560

BETWEEN

DEKOTA CHASE SIMPSON

Appellant

AND

THE QUEEN

Respondent

Hearing:	27 September 2021
Appearances:	I M Stewart for the Appellant M Djurich for the Respondent
Judgment:	28 September 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 28 September 2021 at 5:00 pm.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Ms I M Stewart, Barrister, Auckland

Mr M Djurich, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City

SIMPSON v R [2021] NZHC 2560 [28 September 2021]

[1]    Mr Simpson appeals against his sentence of 19 months’ imprisonment imposed by Judge A M Wharepouri in the Manukau District Court on 7 July 2021,1 following guilty pleas to:

(a)one charge of commission of intentional damage with firearm;2

(b)one charge of unlawful possession of firearm;3 and

(c)one charge of unlawful possession of explosives (ammunition).4

[2]    He was sentenced together with a co-offender, his older brother, who was sentenced on the first two charges above to seven and a half months’ home detention.

[3]    Mr Simpson appeals on the sole basis that his sentence was not the least restrictive outcome in the circumstances and ought to have been commuted to home detention.

The offending

[4]    On 10 May 2020 around 2:00 pm, Mr Simpson and his brother were driving along Roscommon Road, Wiri. Mr Simpson was driving while his brother was in the front passenger seat.

[5]    The victims, an adult couple and two children aged 12 and 13, were also travelling in their car at this time. They pulled out of a service station and onto a connecting road when Mr Simpson’s car sped up close behind them. They moved into the right-hand lane so Mr Simpson could pass them. Annoyed at Mr Simpson’s driving, the adult male victim showed his middle finger to them and yelled “fuck you” as Mr Simpson pulled into a service station on Roscommon Road.

1      R v Simpson [2021] NZDC 13733.

2      Crimes Act 1961, ss 198B(1)(a) and 66. Maximum penalty 10 years’ imprisonment.

3      Arms Act 1983, s 45(1)(b). Maximum penalty 4  years’  imprisonment  and/or  $5,000  fine. CRN 20092006001.

4      Arms Act 1983, s 45(1)(b). Maximum penalty 4  years’ imprisonment  and/or  $5,000  fine. CRN 20092006002.

[6]    In response, Mr Simpson pointed his hands at the victims, making gun gestures with both. Meanwhile, his brother retrieved a shotgun from the backseat of the car and began assembling it.

[7]The victims drove away and got on State Highway 20, heading north.

[8]    Mr Simpson and his brother then changed seats. Before getting back into the car, Mr Simpson retrieved a guitar bag from the backseat, which contained a further shotgun and ammunition.

[9]    About ten minutes later, Mr Simpson and his brother caught up to the victims on State Highway 20. They yelled at the victims from their car and Mr Simpson waved around the shotgun. He then leaned out of the front passenger window of the car with the shotgun all the way out of the window and pointed it at the adult victims. He then fired a shot from the shotgun, striking the front bumper of the victims’ car, causing significant damage to it.

[10]   The victims took down Mr Simpson’s registration plate and called Police. Police subsequently made enquiries at Mr Simpson’s address and searched his room, locating:

(a)39 live shotgun rounds;

(b)a 9 mm pistol round; and

(c)10 spent shotgun cartridges.

[11]   Police subsequently recovered the two shotguns, together with clothing worn by Mr Simpson and his brother during the shooting, from a location at Whatipu Beach.

[12]   Mr Simpson was 21 years old at the time of the offending. His brother was  24 years old.

District Court decision

[13]The Judge identified the following aggravating features of the offending:

(a)an element of planning and premeditation;

(b)the offending involved the discharge of a firearm on a public highway, which posed considerable danger to the victims and other road users;

(c)the offending involved two young children. While the Judge accepted that Mr Simpson may not have realised children were present inside the car, he “must have nonetheless appreciated that [his] actions exposed anyone inside the car to potential harm”;

(d)two firearms were involved; and

(e)the harm caused involved mental trauma to the victims and nearly

$1,500 of property damage to their car.

[14]   The Judge adopted a starting point of four years’ imprisonment for the lead charge of commission of intentional damage with a firearm. The Judge adopted a slightly lower starting point of three years and six months’ imprisonment for the brother as he “did not  actually  fire the shot”  although he “nevertheless assisted  [Mr Simpson] in doing so”.

[15]   The Judge then gave a nine-month uplift for Mr Simpson’s two further charges, and a six month uplift for the brother’s one further charge.

[16]   Next, the Judge referred to the pre-sentence report. He noted Mr Simpson had told the report writer he had purchased the shotgun because he had been the victim of a home invasion in the past and needed a firearm for protection. Further, Mr Simpson maintained it was the victims’ vehicle which had inappropriately moved into his lane, and it was the adult male victim who had made a gun gesture towards him, egging him on. He told the report writer he did not intend to pull the trigger but rather it was an accident and he only intended to scare the victims.

[17]   The Judge accepted Mr Simpson did not intend to hurt the victims but only intended to scare them. However, he did not accept that Mr Simpson pulled the trigger accidentally.

[18]   The Judge then reviewed the s 27 cultural reports for both brothers, who shared much of their family history of exposure to violence, early introduction to drugs and alcohol, and a series of traumatic experiences in the 18 months leading up to the offending. These experiences included the separation of their parents, witnessing their grandfather’s serious accident, and a severe group attack on Mr Simpson and close family members resulting in significant injuries. The Judge accepted that their past experience may have had “a small role” in the offending.

[19]   From a nominal starting point of 57 months’ imprisonment, the Judge applied the following discounts for mitigating factors personal to Mr Simpson:

(a)10 per cent (6 months) for previous good character and lack of previous convictions;

(b)10 per cent (6 months) for youth;

(c)6 months for time spent on restrictive bail conditions;

(d)10 per cent (6 months) for personal circumstances and remorse; and

(e)25 per cent (14 months) for guilty pleas.

[20]   This resulted in an end sentence of 19 months’ imprisonment. The Judge declined to commute this to a sentence of home detention, saying:

[25]   Your lawyer has submitted that the sentence of imprisonment should  be substituted with one which you can serve in the community being home detention. But in my view home detention does not adequately recognise the sentencing principles of denunciation and deterrence. I consider the facts of your offending mean the sentencing principles of denunciation and deterrence should prevail over others and for that reason I decline to impose a sentence of home detention. The end sentence for you, Dekota, will then be 19 months’ imprisonment.

[21]   For Mr Simpson’s brother, the total discount brought the end sentence down to 15 months’ imprisonment. The Judge was prepared to commute this to home detention, stating:

[27] I note that you have the benefit of an address where you might serve a home detention sentence. As your offending relates to being a party only, in the sense that you did not fire the actual shot that was discharged, I am prepared to substitute your sentence of imprisonment with one that you can serve in the community, that sentence being home detention. In my view home detention for your offending can still adequately reflect denunciation and deterrence while giving you the opportunity to rehabilitate yourself. Thus,     I impose a sentence of seven and a half months’ home detention. ...

[22]The Judge also made reparation orders of $700 for each offender.

Approach on appeal

[23]   To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 The Court will not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.6 The appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.7

[24]   The choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion. It is governed by the purposes and principles of sentencing contained in the Sentencing Act 2002. Appellate review, as in other sentencing appeals, focuses on the identification of error, if any, in the court below.8

5      Criminal Procedure Act 2011, ss 250(2) and (3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

8      Manikpersadh v R [2011] NZCA 452 at 1[11]-[12]. Although the Court of Appeal in James v R [2010] NZCA 206 at [17] referred to asking whether the judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor or was plainly wrong, counsel agreed that this reference to weight did not mean reviewing the merits of the exercise of the discretion.

Application to adduce further evidence

[25]   Ms Stewart, for Mr Simpson, sought leave to admit three affidavits on appeal: Mr Simpson’s affidavit and those of his parents. Ms Stewart submitted the Court may receive evidence on appeal if it is necessary or expedient in the interests of justice.9 Mr Djurich, for the Crown, accepted this approach is correct, and noted the overriding test is whether it is in the interests of justice to admit the evidence.10

[26]   Mr Simpson’s affidavit outlines his experience with the current sentence of imprisonment. Both counsel submitted, and I accept, that this affidavit is fresh and it is in the interests of justice to admit it.

[27]   The affidavits of Mr Edward Simpson and Ms Rawiri reaffirm their continued support for Mr Simpson. Ms Stewart acknowledged these affidavits are not fresh but submitted that Mr Simpson does not seek to rely on these affidavits beyond establishing that the support in the community that was available to him at sentencing is still available. Mr Djurich agreed the affidavits are not fresh but given the limited use for which they are sought to be adduced, the respondent did not oppose their admission on appeal. I consider that it is in the interests of justice to admit these affidavits for the limited purpose of establishing the continued support available to Mr Simpson.

Home detention

Appellant’s submissions

[28]   Ms Stewart submitted that the Judge erred in two respects (acknowledging the first submission is context for the second primary submission):

(a)by giving excessive weight to the fact that the appellant wielded the firearm during the offending; and

9      Criminal Procedure Act 2011, s 335; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

10     At [116], citing R v Crime Appeal (CA60/88) (1988) 3 CRNZ 512 (CA) at 513.

(b)in finding that the principles of deterrence and denunciation could not be met by a sentence of home detention.

[29]   As to the first ground, Ms Stewart submitted that the Judge gave this factor excessive weight by further treating it as giving rise to an almost presumptive call for a sentence of imprisonment for Mr Simpson. She submitted the fact that Mr Simpson wielded the firearm was the sole factor which led to different sentencing outcomes for the two offenders – it should not have resulted in a materially different assessment of each offender’s culpability, or a higher call for deterrence. While Mr Simpson personally discharged the firearm, Ms Stewart submitted the brother was an equal participant in the offending, was older and more experienced, and both offenders “pleaded guilty as principals”. She submitted the Judge erred in relying on this fact alone to differentiate the sentencing outcomes when he had already relied on it to differentiate the starting points, and this led to a sentence that is manifestly excessive.

[30]   As to the second ground, Ms Stewart submitted the Judge placed excessive weight on the principles of denunciation and deterrence, and that home detention is the least restrictive outcome appropriate in the circumstances. She referred to Fairbrother v R,11 and the mandatory requirements of s 16 of the Sentencing Act 2002, submitting that where imprisonment is not the presumptive or mandatory sentence, as here, the Judge must be satisfied:

(a)the purpose for which imprisonment is to be imposed must be to hold the offender accountable, or to induce a sense of responsibility, or to serve the interests of any victim, or to denounce the offending, or to deter, or protect the community;

(b)any such purpose must not be able to be achieved by any lesser sentence; and

(c)there must be no other sentence that would be consistent with the s 8 principles that apply.

11     Fairbrother v R [2013] NZCA 340.

[31]   Ms Stewart submitted the Judge erred by failing to take this approach. She submitted the Judge stopped short of considering whether denunciation and deterrence could be met by a less restrictive sentence, failed to consider other sentencing purposes and principles, and gave unjustified prevalence to the “facts” of the offending, in particular the fact that Mr Simpson wielded the firearm. She submitted the Judge did not give an intelligible decision identifying and weighing all relevant factors.

[32]   Ms Stewart submitted that the Judge gave deterrence complete priority without regard to any of the countervailing purposes of sentencing, highlighting that the Court of Appeal has consistently warned against this error.12 The Judge therefore failed to acknowledge that the Sentencing Act does not, in effect, allow a sentencing Judge to treat imprisonment and home detention as equally available options.

[33]   She submitted that, had the Judge taken the correct approach, the exercise ought to have led to an outcome of home detention. Deterrence, while relevant, should not have been determinative.13 A sentence of home detention can adequately meet the purposes and principles of denunciation and deterrence. It is a significant sentence in its own right, particularly for someone like Mr Simpson who has not previously been subject to any form of sentence.

[34]   Ms Stewart submitted that Mr Simpson was in all respects a good candidate for home detention. The pre-sentence report recommended home detention and assessed Mr Simpson at a low  risk of re-offending.   The report writer noted that   Mr Simpson was able to see the offending from the point of view of the victims and could understand how his actions had impacted on them. While the report assessed him as potentially being at high risk of harm, this was based on the nature of the offending and the fact that the causes of the offending were unaddressed. The report writer recommended a number of rehabilitative programmes as part of the home detention sentence to address these factors.

12     Fairbrother v R [2013] NZCA 340 at [29] citing Manikpersadh v R [2011] NZCA 42 at [17].

13     Manikpersadh at [10], citing Osman v R [2010] NZCA 199 and R v Vhavha [2009] NZCA 588 at [45].

[35]   Ms Stewart submitted the Judge failed to give sufficient weight to the least restrictive outcome principle, notwithstanding the fact that Mr Simpson clearly had many personal factors weighing in favour of home detention. The Judge ought to have considered the appropriateness of home detention in light of its objective to obviate the well-known harmful impacts of imprisonment on young first-time offenders.14

[36]   She also submitted that Mr Simpson’s affidavit confirms the harrowing reality of a custodial sentence for a young, first-time prisoner. He is a young “peasant” (meaning he does not belong to any prison gang or crew) who is vulnerable to criminal association against his will and is under pressure from prisoners seeking to recruit him to gangs or even abuse him.

[37]   Ms Stewart also relied on the principle of parity between Mr Simpson’s sentence and that of his brother.

[38]   For these reasons, Ms Stewart submitted the sentence of 19 months’ imprisonment was manifestly excessive, and proper consideration and balancing of the relevant purposes and principles of sentencing ought to have led to a sentence of home detention.

Crown submissions

[39]   As to the first ground, Mr Djurich submitted that only Mr Simpson was a principal to the lead charge. In addition to Mr Simpson’s greater role in that offending, he submitted that other differences led to different sentences being imposed:

(a)Mr Simpson faced a further charge of possession of explosives;

(b)his brother assisted Police by voluntarily taking officers to Whatipu Beach to locate the firearms, which were hidden in scrub;

(c)his brother exhibited greater insight into the impact of the offending on the victims; and

14     Bowlin v New Zealand Police [2014] NZHC 2066 at [45] (citations omitted).

(d)at the time of sentencing, his brother’s partner was pregnant with their first child.

[40]   In any event, Mr Djurich submitted the Judge was entitled to take into account Mr Simpson’s role in both setting a starting point and in imposing sentence. To do so is so not double counting. An assessment of role will often be relevant in assessing an individual’s culpability in order to fix a starting point. It may also be relevant in assessing what end sentence is required to meet the various purposes and principles of sentencing. An offender’s actions which result in harm to a victim may give rise to a greater need for responsibility,15 denunciation and deterrence,16 or protection of the community17 than may be the case in respect of their co-offender. Similarly, their role may have a bearing on which sentence is the least restrictive outcome.18

[41]   Accordingly, Mr Djurich submitted that the Judge made no error in this regard, nor is it apparent that Mr Simpson’s role gave rise to a presumption in favour of any one sentence outcome over another. Rather, the different sentences are a reflection of the differing weights appropriately afforded to the purposes and principles of sentencing, having regard to, among other things, each offender’s role in the offending.

[42]   As to the second ground, Mr Djurich referred to the appellate court’s role and submitted it is clear from the Judge’s sentencing remarks that in imposing a term of imprisonment, the Judge had proper regard to all relevant purposes and principles in addition to denunciation and deterrence. He submitted there can be no doubt the Judge considered Mr Simpson’s youth and lack of previous convictions, and consequently the potentially greater impact of imprisonment on him. These factors were noted in the pre-sentence and s 27 reports, and attracted a discount of 20 per cent. The Judge also considered in some detail Mr Simpson’s personal circumstances, giving a discount of 10 per cent (which included recognition for remorse).

[43]   Against  this,  Mr  Djurich  submitted  the  Judge  had  regard  to  the  fact  Mr Simpson’s actions put the victims and public in considerable danger, as well as the

15     Sentencing Act, s 7(1)(b).

16     Sections 7(e) and (g).

17     Section 7(g).

18     Section 8(g).

significant victim impact. He noted that the Judge was also referred to cases where the Courts emphasised the harm associated with gun-related violence, and the need for denunciation and deterrence.19 Mr Djurich submitted that the Judge did not err by giving deterrence “complete priority” – he clearly had regard to all of the purposes and principles of sentencing in imposing a sentence of imprisonment. That the Judge gave greater weight to the principles of deterrence and denunciation over others is not an error in the exercise of his discretion.

[44]   Mr Djurich responsibly raised the issue of parity, submitting that the disparity was justified given the differences identified and did not reach a level requiring the Court’s intervention.20

Discussion

[45]   As indicated, in relation to this fettered discretion, the appellate focus remains on identifying error. It is not to revisit the merits of the exercise of discretion. As the Court of Appeal said in Fairbrother v R:21

[29]      Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.

[30]      That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31]      Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”. Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.

[46]   In choosing between the two forms of sentence, I do not accept that the Judge failed to consider principles other than denunciation and deterrence. He said that he

19     R v Epplett HC Christchurch T17/90, 17 May 1990; and Freakley v R [2010] NZCA 497.

20     R v Lawson [1982] 2 NZLR 219 (CA) at 223; and R v Autugavaia [1985] 1 NZLR 398 (CA).

21     Fairbrother v R [2013] NZCA 340 (footnotes omitted).

considered the facts of the offending “mean the sentencing principles of denunciation and  deterrence  should  prevail  over  others”.  Although  brief  and  non-specific,  he referred to other sentencing principles – which can be taken to include rehabilitation and the least restrictive sentence – and weighed them against denunciation and deterrence. Thus, he did not focus solely on denunciation and deterrence. In that sense, this case is distinguishable from Manikpersadh v R.22

[47]   I also accept Mr Djurich’s submission that the Judge’s assessment must be read in the context of his earlier sentencing remarks regarding the circumstances of the offending and Mr Simpson’s personal circumstances including his youth, absence of previous convictions and expression of some remorse. It is implicit the Judge had these personal circumstances in mind when choosing between the two forms of sentence.

[48]   The Judge’s assessment is also informed by his equivalent assessment in relation to Mr Simpson’s brother. It is clear from the two assessments that the essential differentiator, the factor that really counted, in choosing between the two forms of sentence was the fact that Mr Simpson fired the shot. As Mr Djurich acknowledged, the Judge gave it complete priority. In the circumstances, and having regard to the further evidence on appeal, I consider that was an error. I make three points.

[49]   First, the harm associated with gun-related violence is obvious, and so is the need for its denunciation and deterrence.23 This is particularly so in the gang context. Mr Djurich referred to examples where this Court has declined to substitute a sentence of home detention in cases of unlawful possession of firearms.24 Here, the firearm was discharged. The actions of Mr Simpson and his brother put the victims and public in considerable danger, and had significant victim impact. But the Judge accepted that Mr Simpson did not intend to hurt the victims. The lead charge was commission of intentional damage.

22     Manikpersadh v R [2011] NZCA 42.

23     R v Richardson CA450/02, 25 March 2003 at [33].

24     Martel v Police HC Hamilton, CIV-2010-419-69, 4 October 2010; and Rowell v Police [2019] NZHC 471.

[50]   Secondly, the fact that Mr Simpson fired the shot, whereas his brother was a party only to the charge, was appropriately reflected in the different starting points for their  respective  offending.  That  differential  was  six  months’  imprisonment.   The additional three month differential in uplifts given Mr Simpson’s further charge of possession of ammunition was also appropriate. The respective adjusted starting points reflect the difference in offending. Following proportionately equivalent and appropriate  discounts  that  did  not   distinguish   between   their   circumstances, the differential between Mr Simpson’s 19 months’ imprisonment and his brother’s  15 months’ imprisonment was four months’ imprisonment. Then, on the basis that Mr Simpson fired the shot, Mr Simpson’s sentence remained 19 months’ imprisonment whereas his brother received seven and a half months’ home detention. As Mr Djurich submitted and Ms Stewart accepted, the Judge was entitled to take into account Mr Simpson’s role in both setting a starting point and in choosing between the two forms of sentence. To do so is not double counting. But I consider the additional effect of that one difference in the facts of the offending on the respective ultimate sentencing outcomes creates a parity issue. There is a marked difference in the end sentences that is not explained by reference to the accepted four month differential before the brother’s sentence was commuted. A reasonably minded independent observer aware of all the circumstances would think something has gone wrong.25

[51]   Thirdly, while the fact that Mr Simpson fired the shot was of course relevant when applying the purposes and principles of sentencing to choose between the two forms of sentence, it was not the only relevant factor. Fairbrother requires the factors that really count to be identified and weighed.  Here, the seriousness of the offending

– which is not to be downplayed – needed to be weighed against Mr Simpson’s youth, absence of any convictions or prior experience with any custodial environment, insight into his offending, being in gainful employment, family support in the community and associated prospects of rehabilitation. The further evidence on appeal adds weight to the importance of Mr Simpson’s rehabilitation and reintegration, and of avoiding imprisonment as far as possible. It also reinforces Mr Simpson’s insight into his offending, insight which Mr Djurich acknowledged, as well as the pre-sentence report

25     Lawson v R [1982] 2 NZLR 210 (CA) at 223.

writer’s ultimate recommendation of home detention. Affidavits from both parents confirm Mr Simpson’s family support.

[52]   Overall, having regard to the further evidence on appeal, I consider that the purposes of denunciation and deterrence can be achieved by a sentence of home detention and that home detention is the least restrictive sentence available in the circumstances. Accordingly, the end sentence of 19 months’ imprisonment was manifestly excessive. A sentence of home detention also better reflects parity between Mr Simpson and his brother. Ten months’ home detention would have been appropriate, but adjustment is now required given that Mr Simpson has spent over two and a half months in custody. An adjustment of twice the time spent in custody is sometimes given but, in all the circumstances including parity, I consider a replacement sentence of seven months’ home detention is appropriate.

Result

[53]   The appeal is allowed. The sentence of 19 months’ imprisonment is quashed and replaced with a sentence of seven months’ home detention on the terms and conditions in the pre-sentence report dated 9 February 2021.

Gault J