Solomon v Police
[2020] NZHC 1674
•13 July 2020
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 from birth.
[8] Despite that disconnection, Mr Solomon described a “pretty good upbringing” without violence and without drugs. He had a good relationship with his step-father, and told the report writer that he could not blame his upbringing for his offending as his parents “hated what he had done”.
[9] Mr Solomon told the report writer that he was reliant on alcohol and cannabis from the age of 13, and says he was using methamphetamine from 18 years of age. At the age of 21 or 22, Mr Solomon moved to Brisbane and his family soon followed. He was using cocaine and ecstasy at this time.
[10] It appears that Mr Solomon was successful at mixed martial arts. He told the report writer that following a loss in 2012, he became anxious and depressed, and turned to methamphetamine again. Mr Solomon says that crime was the means of feeding his addiction and he was in and out of prison in Australia.
[11] In June 2018, Mr Solomon was deported to New Zealand. Since moving to Australia, he had only been back once. He left his son, and other family members behind, and there is little in the way of family support in New Zealand. Mr Solomon says he continued to commit crimes in order to sustain his addictions.
[12] The pre-sentence report recorded Mr Solomon’s long-standing substance abuse problems as being causative of his offending. It was noted that Mr Solomon posed a high risk of re-offending unless his addiction problems were addressed.
[13] The Judge did not consider anything in the s 27 report, nor the pre-sentence report, required a discount. He observed that Mr Solomon had a good upbringing and that there was no link between his family background and his offending. The Judge did not accept Mr Solomon’s self-report of anxiety and depression. Nor did he consider Mr Solomon’s addiction deserved recognition. He referred to aspects of the s 27 report which suggested that Mr Solomon had an ability to manage his drug-taking in a way that it did not impact on his employment. The Judge concluded that the report showed “a conscious decision” on the part of Mr Solomon to use drugs and then to commit serious offences to support his habit.
[14] The Crown submits that the Judge was correct to reject addiction as a mitigating feature in this case as there was insufficient evidence that it was causative of the offending. Although Zhang v R concerns methamphetamine offending, the statements regarding the evidence necessary to obtain a discount are nevertheless relevant here. The Court of Appeal said:3
[A] ny such discount should be based on persuasive evidence, as opposed to mere self-reporting. … Inasmuch as a stage two discount for mitigating circumstances is engaged, the onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction.
[15] The sentencing Judge in this case appears to have accepted that Mr Solomon had an addiction. That is not contested by the police. Mr Solomon’s self-report is corroborated by statements from his family members and it is consistent with his criminal history. The fact that Mr Solomon was found with .22 grams of methamphetamine when arrested by police substantiates his claims of struggles with that drug.
[16] The issue in this case is the extent of that addiction and its causative link to the offending. The Judge was correct to highlight the fact that, for periods at least, Mr Solomon appeared able to manage his addiction in a way that meant he maintained his employment. But that does not mean that the addiction was not causative of Mr Solomon’s offending. Indeed, Mr Solomon’s criminal history and the nature of the index offending suggest that it was in fact the primary driver.
3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].
[17] The impact of that addiction reduced his capacity to make rational decisions and his culpability is mitigated as a result. It is clear that prison sentences have not deterred Mr Solomon in the past, and the focus must be on treating the underlying causes of his offending to reduce the risk of re-offending.4
[18] Mr Solomon’s counsel submits that a discount of 30 per cent is available. I do not consider the evidence regarding the extent of Mr Solomon’s addiction justifies a discount of that order. In my view, Mr Solomon’s addiction warrants a discount of around 15 per cent from the starting point.
[19] As to other mitigating factors, like the sentencing Judge, I do not consider a separate discount for mental health can be established. Mr Solomon did not tell anyone about his anxiety and depression and there is nothing to establish a link between that condition and his offending. Counsel for Mr Solomon points to difficulties in getting Mr Solomon’s mental health condition assessed given he has been in custody since his arrest. However, the Court cannot fill in an evidential gap with speculation about what the assessment, if obtained, might have been. In the absence of any evidence, the Judge was right not to recognise this as a mitigating factor.
[20] In written submissions counsel for Mr Solomon referred, albeit faintly, to the observations in the s 27 report to Mr Solomon’s alienation from his birth father’s culture which affected his sense of belonging. That dislocation is acknowledged. However, and as properly accepted by counsel, the link between that dislocation and Mr Solomon’s offending is not made apparent in that report and so there is an insufficient basis to apply a discount in this case.
[21] Finally, counsel refers to the lack of support for Mr Solomon in New Zealand which, he submits, makes imprisonment disproportionately harder for him. Again, this submission is not substantiated by the evidence regarding Mr Solomon’s support structures in New Zealand. It appears that he has some support from his half-brother and a cousin. There is mention of a partner in the material before the Court, but
4 See Zhang v R [2019] NZCA 507 at [138] and [146].
nothing about the nature of that relationship. Further information would be required to justify a discount for this factor.
[22] Finally, 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. In any event, this ground of appeal has no effect given my conclusions regarding the discount for personal mitigating factors will result in a different end-sentence.
[23] To conclude, the sentence imposed is manifestly excessive because it failed to reflect the impact of Mr Solomon’s addiction as a cause of the offending. A discount of approximately 15 per cent on the starting point of four years, six months, brings the notional sentence to 46 months (applying rounding in Mr Solomon’s favour). The application of the full 25 per cent discount for guilty pleas leads to an end-sentence of 34 months or two years, and 10 months.
Result
[24] The appeal is allowed. The sentence of three years, five months is quashed and substituted with a sentence of two years and 10 months’ imprisonment.
Edwards J
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