Solomon v Police - [2020] NZHC 1674

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-000014

[2020] NZHC 1674

IN THE MATTER OF an appeal against sentence

BETWEEN

NATHAN SOLOMON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 July 2020

Counsel:

J Scott for the Appellant

J Johnson-Aufai for the Respondent

Judgment:

13 July 2020

(ORAL) JUDGMENT OF EDWARDS J

Solicitors: Thode Utting, Auckland
Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei

SOLOMON v POLICE [2020] NZHC 1674 [13 July 2020]

[1] Mr Solomon was convicted of 15 charges of burglary, one charge of possession of cannabis for supply, and one charge of possession of methamphetamine. He was sentenced to three years five months’ imprisonment.1 Mr Solomon appeals from that sentence on the grounds that insufficient discounts were given for personal mitigating features, and the calculation of the 25 per cent discount for guilty pleas was in error.

Offending

[2] Mr Solomon was stopped by police on 9 November 2019. He had been driving a car which had been sought by police in relation to a number of burglaries in the Ruakākā area. On the back of the vehicle was a brown couch which had been taken from a property in the area.

[3] Police searched the vehicle and found approximately 20 grams of cannabis, digital scales, and plastic bags. Additionally, police found .22 grams of methamphetamine in Mr Solomon’s wallet.

[4] On 9 November police executed a search warrant at Mr Solomon’s home address. They located various items of property that had been stolen from numerous addresses in the area over the previous 13 months. The sentencing Judge valued the items at approximately $20,000. They had been taken from commercial premises, storage units, and construction sites.

Was the end-sentence manifestly excessive?

[5] The appeal proceeds under s 250 of the Criminal Procedure Act 2011. The Court must allow the appeal if it is satisfied that for any reason there is an error in the sentence imposed, and a different sentence should be imposed. The focus is on the end-sentence imposed rather than the process by which it was reached.2

[6] There is no challenge to the starting point of three years, six months adopted by the Judge, nor the 12 month uplift he applied for previous convictions and the

1 Police v Solomon [2020] NZDC 7634.
2 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].

cannabis offending. The primary ground for appeal is that the Judge erred in failing to provide a discount for personal mitigating factors.

[7] The Judge had the benefit of a s 27 report. As recorded in that report, Mr Solomon is 38 years old. He was born in New Zealand to a Pākehā mother and a father from the Chatham Islands. Mr Solomon did not know his birth father. The report writer observed that Mr Solomon’s severe disconnection from the culture of his birth father affected Mr Solomon’s sense of belonging in the world…

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 Solomon v Police

Details

AGLC: Solomon v Police [2020] NZHC 1674
Case: [2020] NZHC 1674
Decision Date: 13 July 2020

CaseChat Overview and Summary

In Solomon v Police, the appellant, Nathan Solomon, appealed against his sentence of three years and five months' imprisonment, imposed after being convicted of multiple charges of burglary, and possession of cannabis and methamphetamine. The appellant argued that the sentence was manifestly excessive due to the sentencing judge's failure to sufficiently discount for personal mitigating factors and an error in the calculation of the discount for his guilty pleas. The High Court of New Zealand was required to determine whether the sentence imposed was manifestly excessive and whether there were any errors in the sentence calculation.

The court noted that the appellant had a history of substance abuse and that his addiction appeared to be a primary driver of his offending. The court accepted that the appellant's addiction warranted a discount of around 15 per cent from the starting point. However, the court did not find sufficient evidence to support a discount for mental health issues, as the appellant had not disclosed his anxiety and depression to anyone, and there was no link between his condition and his offending. The court also found that the alleged error in the application of the guilty plea discount was not an error, but a consequence of rounding, and was not substantive at all.

The court concluded that the sentence imposed was manifestly excessive because it failed to reflect the impact of the appellant's addiction as a cause of the offending. The court allowed the appeal and substituted the sentence of three years and five months with a sentence of two years and ten months' imprisonment.

This case highlights the importance of considering personal mitigating factors, such as addiction, in sentencing, and the need for persuasive evidence to support such claims. It also demonstrates the court's willingness to adjust sentences where there are errors in the calculation of discounts.

Orders