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Simpson v The Queen

Simpson v The Queen

Case [2021] NZHC 2560 28 September 2021

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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…

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 The Queen

Details

AGLC: Simpson v The Queen [2021] NZHC 2560
Case: [2021] NZHC 2560
Decision Date: 28 September 2021

CaseChat Overview and Summary

Simpson appeals against his sentence of 19 months’ imprisonment imposed by Judge A M Wharepouri in the Manukau District Court, following guilty pleas to charges of commission of intentional damage with a firearm, unlawful possession of a firearm, and unlawful possession of explosives (ammunition). The appeal is against the sentence on the basis that it was not the least restrictive outcome in the circumstances and ought to have been commuted to home detention. The offending involved the discharge of a firearm on a public highway, causing significant damage to the victims’ car. The Judge identified aggravating features of the offending, including an element of planning and premeditation, the involvement of two young children, and the use of two firearms. The Judge adopted a starting point of four years’ imprisonment for the lead charge, and applied discounts for mitigating factors resulting in a final sentence of 19 months’ imprisonment. The Judge declined to commute the sentence to home detention, stating that the sentencing principles of denunciation and deterrence should prevail over others. The Court of Appeal found that the Judge erred in giving complete priority to the fact that Simpson fired the shot, and that the purposes of denunciation and deterrence can be achieved by a sentence of home detention. The Court of Appeal quashed the sentence of imprisonment and replaced it with a sentence of seven months’ home detention.

Orders