Solomon v Police
[2025] NZHC 2225
•8 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000171
[2025] NZHC 2225
BETWEEN DANIEL SOLOMON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 July 2025 Appearances:
G Burns for Appellant
O Kazmierow for Respondent
Judgment:
8 August 2025
JUDGMENT OF MOUNT J
Appeal Against Sentence
This judgment was delivered by me on 8 August 2025 at 12 pm,
………………………………… Registrar/Deputy Registrar
Solicitors/Counsel: Meredith Connell Verus Chambers
SOLOMON v NEW ZEALAND POLICE [2025] NZHC 2225 [8 August 2025]
Introduction
[1] On 8 April 2025, Judge Guthrie sentenced Daniel Solomon to a total of two years and 11 months’ imprisonment for:1
(a)four burglaries;
(b)eleven other minor dishonesty offences (obtaining by deception, three charges of receiving stolen property and seven charges of theft); and
(c)five minor drug offences (possessing methamphetamine, two charges of possessing cannabis, and two charges of possessing utensils).
[2] Mr Solomon had pleaded guilty to all charges. He appeals on the grounds that the sentence was manifestly excessive. He submits the starting point was too high, and that the Judge erred in double counting personal aggravating factors.
Background
[3] On 20 January 2024,2 the appellant sold a Stihl leaf blower and a measuring wheel to Cash Converters in Takanini for $70. Someone had stolen these items from a vehicle in New Lynn the preceding night. The appellant pleaded guilty to receiving stolen goods (under $500) and causing loss by deception (under $500).
[4] Later that evening, the appellant entered the garage of a residential home. He searched through cupboards and shelves and took around 10 fishing rods, work tools, a gas cooker, a level and a sash clamp. He pulled out some carpet cleaner and left it on the floor and left a fishing reel on the bonnet of the car in the garage. He also entered the car and stole an iPod and cash from the centre console and sunglasses from the glovebox. In total, he stole approximately $4,800 worth of property. Over the next two days he sold many of the items to Cash Converters in Henderson and Mount Roskill. He pleaded guilty to burglary.
1 Police v Solomon [2025] NZDC 4030; and Police v Solomon [2025] NZDC 5533.
2 The summary of facts and the Judge’s notes say January 2023, but the charging document says 2024, which appears to be correct.
[5] On 14 March 2024, police searched the appellant’s car, which had been left hanging over a commercial driveway and a grass verge. In a wallet in the appellant’s backpack there were several stolen identity cards. On 18 March 2024, police arrested and searched the appellant. He had a glass pipe for smoking methamphetamine and more stolen identity cards and bank cards. He pleaded guilty to two charges of receiving stolen property (under $500) and possessing utensils for the use of methamphetamine.
[6] The appellant admitted he stole the items from the garage but said he did not remember how much as he was probably high on drugs or alcohol. He remembered selling the fishing rods to Cash Converters, and admitted selling the leaf blower and measuring wheel. He admitted the glass methamphetamine pipe was his. He said other people gave him the bank and identity cards and he knew they were probably stolen. He admitted that most of the property he sold to pawn stores was stolen, but said he did not care.
[7] Police filed the above charges in the Waitakere District Court. On 19 April 2024, the appellant appeared in the Auckland District Court for sentence on a charge of unlawfully taking a motor vehicle on 22 January 2024. Judge Winter sentenced him to 10 and a half months’ imprisonment.3 The appellant spent the next five months in prison. He was released on 15 September 2024, and granted bail on the current charges on 16 September 2024.
[8] Having been granted bail on 16 September 2024, the appellant continued to offend. Between 11 October and 9 November 2024, he committed six petrol drive-offs resulting in six charges of theft (under $500) as follows:
(a)On 11 October 2024 he stole $55.30 worth of petrol from BP on Fanshawe Street.
(b)On 17 October 2024 he stole $98.76 worth of petrol from Mobil Mount Eden.
3 Police v Solomon [2024] NZDC 9773.
(c)On 1 November 2024 he stole $31.58 worth of petrol from BP Dairy Flat.
(d)On 7 November 2024 he stole $46.60 worth of petrol from Z Energy Waiouru.
(e)On 8 November 2024 he stole $74.30 worth of petrol from BP Paraparaumu.
(f)On 9 November 2024 he stole $41.89 from Mobil Karapiro.
[9] On 8 November 2024, while in the Wellington area, the appellant was outside a Liquorland in Porirua. He saw a woman enter the store leaving her vehicle unlocked. He opened the passenger door and stole her wallet, including her driver licence. He pleaded guilty to theft (under $500).
[10] Later that day at approximately 9.46 pm, the appellant entered a residential home through an open ranch slider. The occupant of the house was not home at the time. The appellant looked around the kitchen and tried to open the fridge but it was locked. As he was leaving the house, he picked up an air fryer from the kitchen bench and left it in his car. He pleaded guilty to burglary.
[11] Police pulled the appellant over in the early hours of the morning and searched his car. They found a container of cannabis weighing 4.06 grams. There was also a bag containing methamphetamine weighing 0.38 grams. He pleaded guilty to possession of cannabis and methamphetamine.
[12] On 14 November 2024, Mr Solomon drove down the driveway of a home in Mount Roskill, parked outside the house and stole the occupant’s luggage from outside the front door. The occupant was home and had left their luggage outside for a few minutes. The appellant pleaded guilty to burglary.
[13] On 26 November 2024, around 1.30 pm the appellant entered another property through an open gate. The homeowner was at home asleep. The appellant used a pair of bolt cutters to break the lock on a door into the space under the house. The appellant
stole a weed eater and petrol container. Police stopped his vehicle in the Northcote area and searched the car. They found two glass pipes and 2.4 grams of cannabis. The appellant pleaded guilty to burglary, possession of cannabis and possession of utensils.
[14] Police did not provide any victim impact statements to the court. However, the Judge accepted it was inevitable that there would have been a significant effect on the victims. In one case, an occupant was home at the time of a burglary, albeit that the appellant stole items from under the house rather than inside. More generally, the Judge accepted that burglary offending inherently leaves victims with a loss of the sense of security through the invasion of personal space and the loss of property. There is a note on the file that a referral for restorative justice did not proceed because the victims wished to see the appellant dealt with by the court.
[15] The appellant is 41 years old. He has a long criminal history, including repeated breaches of court orders. The pre-sentence report writer said the appellant has exhibited a consistent pattern of antagonism towards authority. He tends to justify his actions and believes his circumstances excuse his criminal choices. His mindset lacks empathy for the victims and perpetuates the cycle of offending, as he tends to prioritise his immediate gratification. He has a long history of substance abuse, primarily methamphetamine, and downplays the impact of this drug use indicating a lack of insight into the extent of the problem. His criminal history includes theft and property crimes as well as possession of drugs. He has few meaningful relationships in his life but told the report writer he turns to the bible for comfort during difficult times. The report concluded the appellant has a high risk of offending due to entrenched pro-criminal attitudes, substance abuse, and ongoing offending.
District Court sentence
[16] Judge Guthrie was presented with a difficult sentencing exercise. There were two groups of offences. The first took place between January and March 2024; the second between October and November 2024. The six-month gap between the two groups reflected the period when the appellant was in custody, first on remand and then serving a sentence.
[17] The Judge opted to construct the sentence by treating each group of offences separately, with penalties cumulative on each other. That was an appropriate methodology, particularly given that the second set of offences occurred while the appellant was on bail. It was also necessary to consider the impact of Judge Winter’s sentence, which was for an offence committed during the same time period as the first group of offences.
[18]Judge Guthrie constructed the sentence in the following way:
(a)On the first set of offences, she took a starting point of 16 months’ imprisonment, uplifted it by two months for previous convictions and reduced it by 30 per cent for the appellant’s guilty pleas and addiction. That brought the sentence to 13 months’ imprisonment. She then uplifted the sentence by a further one month to reflect the offending sentenced by Judge Winter, bringing the sentence to 14 months’ imprisonment.
(b)On the second set of offences, she took a starting point of 30 months’ imprisonment, uplifted it by two months for offending on bail and three months for previous convictions. Again, she reduced the sentence by 30 per cent for personal factors resulting in a sentence of 24 months’ imprisonment.
(c)The Judge assessed the cumulative total of 38 months’ imprisonment and reduced it to 34 months on a totality basis. Finally, she added a further month after remitting the appellant’s fines. That led to a final sentence of 35 months’ or two years and 11 months’ imprisonment.
Approach to sentencing
[19] The appellant submitted there were two material errors in the Judge’s approach to sentencing:
(a)The Judge should have sentenced the burglary charges concurrently, not cumulatively given they were of similar kind and committed during the same calendar year.
(b)The Judge double counted personal aggravating factors. She uplifted the sentence on the first set of offences by two months for previous convictions, and a further three months for previous convictions on the second set of offending. Together with the uplift for offending on bail, this resulted in a total uplift of seven months or approximately 20 per cent, which the appellant submitted was disproportionate.
[20] The respondent submitted the Judge was correct to take a cumulative approach given the separation in time between the offences and the lack of any other connection between them. The respondent accepted the sentencing judge’s methodology did not strictly follow Moses, and that personal aggravated factors were double counted “in a literal sense” but submitted the end sentence was not manifestly excessive.4
[21] In my view, the Judge was correct to sentence on a cumulative basis for the second set of offences, particularly given they were committed while the appellant was on bail and separated in time by more than nine months. There was no other connection that required concurrent sentencing in my view. However, in my view it would have been appropriate in this case to address personal factors once, in relation to an overall adjusted totality starting point, to avoid any issue of double counting for personal factors.
Starting point
The first set of offences
[22] The first set of offences from January to March 2024 included a domestic burglary, receiving, and causing loss by deception in relation to the items sold to Cash Converters in Takanini, receiving stolen identity cards and bank cards, plus possession of a pipe for smoking methamphetamine. There was also the theft of a
4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583. See also Mo’unga v R [2023] NZHC 1967.
motor vehicle on 22 January 2024, for which Judge Winter sentenced Mr Solomon to 10 and a half months’ imprisonment, with a starting point of 10 months.
[23] In my view, the appropriate approach is to consider the starting point that would have applied if the appellant had come before the court on all the offences including the motor vehicle theft sentenced by Judge Winter.5
[24] There is no tariff for burglary offending. In Arahanga v R, the Court of Appeal said that dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months’ imprisonment.6 I have also considered the cases cited by the appellant and respondent.7
[25] In my view, an appropriate starting point for the first set of offending is two years’ imprisonment. This represents an additional 14 months on top of the 10-month starting point adopted by Judge Winter.
The second set of offending
[26] The second set of offending included three more burglaries, including one where the occupant was at home asleep, as well as possession of small amounts of cannabis and methamphetamine, theft of a wallet from a motor vehicle and six petrol drive-offs. In my view, a totality starting point for these offences is two and a half years’ imprisonment.
[27] On a cumulative basis, that produces an adjusted starting point of 44 months’ imprisonment allowing for the sentence imposed by Judge Winter.
5 See, for example Piao v R [2020] NZCA 607 at [22].
6 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
7 Stepanicic v R [2015] NZCA 211; Waipouri v R [2015] NZHC 2029; Swinburne v R [2010] NZCA 568; R v Columbus [2008] NZCA 192, Tuifua v Police [2015] NZHC 2426; and Taylor v Police HC Whangarei CRI-2006-488-37, 29 August 2006.
The totality starting point
[28] In my view, it is generally appropriate to consider the totality principle in relation to the adjusted starting point at step one of the Moses sentencing process. As the learned authors of Hall’s Sentencing note, there is no invariable practice but the adjustment is typically made at the end of step one.8 That was, for example, the approach adopted by the Court of Appeal in Polaapau v R.9
[29] Here, in my view, the adjusted starting point of 44 months’ imprisonment is consistent with the totality principle. Counsel for the appellant submitted a “global starting point” of 42 months was appropriate, and the respondent submitted an adjusted starting point of 46 months was appropriate. In my view the pre-sentence report author correctly identified the features of the appellant’s offending that place it in a serious category, which is reflected in the starting point.
Personal factors
[30] The Judge appears to have applied a reduction of 30 per cent to reflect the appellant’s guilty pleas, the role of addiction in his offending and remorse. A total reduction of 30 per cent for personal factors might well be seen as generous but was within the range available to the Judge.
[31] In the period before 2024, the appellant accumulated 49 convictions. These included two thefts by a person in a special relationship, four prior drug related convictions, 11 family violence related convictions, together with numerous other public order or miscellaneous offences. In my view, an uplift of four months was appropriate to reflect the appellant’s long history.
[32] Applying those adjustments for personal factors results in an end sentence of up to 35 months’ imprisonment (with appropriate rounding). For completeness that sentence does not offend the totality principle in my view.
8 Geoff G Hall Hall’s Sentencing (online ed, LexisNexis) at [SA85.1(a)].
9 Polaapau v R [2020] NZCA 227 at [44].
[33] The end point of 34 months’ imprisonment adopted by the Judge was therefore within range. She uplifted that by a further one month to reflect the remission of fines, resulting in a final sentence of 35 months.
Overall assessment
[34] An end point of 35 months’ imprisonment is also within range on a totality basis. There is therefore no basis to disturb the end sentence, even though I have arrived at that conclusion via a slightly different route.
Result
[35]For these reasons, the appeal is dismissed.
Mount J
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