Solomon v Police

[2019] NZHC 2668

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-388

[2019] NZHC 2668

IN THE MATTER

of appeal against sentence

BETWEEN

SHONTAYNE SOLOMON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 October 2019
Counsel:	GW Haydn for appellant SA Rankin for Crown
Judgment:	18 October 2019

JUDGMENT OF FITZGERALD J

[As to appeal against sentence]

This judgment was delivered by me on 18 November 2019 at 3 pm.

Registrar/Deputy Registrar

Date……………

Solicitors:           Public Defence Service, Auckland

Meredith Connell, Auckland

Solomon v New Zealand Police [2019] NZHC 2668 [18 October 2019]

Introduction

[1]    Mr Solomon appeals against the sentence imposed by Judge Glubb in the District Court at Waitakere on 8 August 2019,1 of 20 months’ imprisonment for a single charge of assault with intent to rob,2 following an earlier sentencing indication given by the same Judge on 17 June 2019.3 That sentence was imposed cumulatively on a sentence of 15 months’ imprisonment, which Mr Solomon was already serving, for burglary.

[2]    Mr Solomon does not take issue with the starting point, the discounts granted or the imposition of cumulative sentences, all of which he accepts were appropriate. His sole ground of appeal is that when imposing cumulative sentences, the Judge should have had regard to the totality principle in s 85 of the Sentencing Act 2002 (the Act). He says that the Judge’s failure to do so was an error and resulted in a notional single sentence of imprisonment that is manifestly excessive.

[3]    Mr Solomon has also abandoned his appeal against the Judge’s decision to not commute the sentence of imprisonment to home detention. As advised by his counsel, the address to which he sought to be released has since become unavailable.

Background

[4]    I have been provided with the sentencing notes in relation to the burglary charge on which the earlier sentence of 15 months’ imprisonment was imposed.4 In his submissions, Mr Haydn, counsel for Mr Solomon on the appeal, described the earlier offending as a serious commercial burglary. That is a fair summary. In short,  it was part of a series of significant commercial burglaries committed by young men, though Mr Solomon was charged with only the one. That involved Mr Solomon and a group of associates going to the Westfield Albany Mall carrying long metal poles, where they proceeded to smash two glass doors and gain entry to the Mall. They then entered the Spark retail store and used further tools to open the roller door protecting it. They then kicked the internal door in and stole a number of cellphones to the total

1      R v Solomon [2019] NZDC 15559.

2      Crimes act 1961, s 236(1)(c) (maximum sentence of 14 years’ imprisonment).

3      R v Solomon DC Waitakere CRI-2019-090-000597, 17 June 2019.

4      Police v Solomon [2019] NZDC 6398.

value of $124,000. When sentencing Mr Solomon for this offending, Judge Down described it as “a very significant and determined burglary”.5 Judge Down adopted a start point on that earlier offending of 18 months but noted that “…you could not complain if a start point of two years was adopted.”6

[5]    The present charge with assault with intent to rob arose out of events which took place on 28 January 2019. At that time Mr Solomon was remanded on electronically monitored bail for the charge of burglary.

[6]    The complainants (tourists to New Zealand) arranged to sell two iPhones over Facebook Marketplace, and they agreed to deliver the phones to an address in Glen Eden.

[7]    The complainants  arrived at about 10 pm.  They were then approached by  Mr Solomon and two unknown associates, one of whom demanded that the complainants hand over their phones and money. One of Mr Solomon’s associates then held a pistol to one of the complainant’s head and repeated the demand. When the complainant did not comply with the demand, the same associate moved the pistol to point at the complainant’s stomach and punched him numerous times in the head. The complainant did not hand over the phones or any money and managed to drive away.

District Court decision

[8]On 17 June 2019, Judge Glubb gave Mr Solomon a sentencing indication of

23 months’ imprisonment.7 The Judge adopted a starting point of three years’ imprisonment.8 He granted Mr Solomon a discount of 15 per cent to recognise his youth and rehabilitative prospects (Mr Solomon was 18 at the time of sentencing), which the Judge described as generous.9 He also granted Mr Solomon a further discount of 5 per cent to recognise the efforts to reform he had been making while in

5 At [5].

6 At [6].

7      R v Solomon DC Waitakere CRI-2019-090-000597, 17 June 2019.

8 At [6].

9 At [6].

custody.10 He also granted Mr Solomon a 20 per cent discount to recognise his guilty plea.11 The Judge said he would be unlikely to convert that sentence to a community based sentence of home detention.12 However, the Judge indicated to Mr Solomon that further discounts might be available on the outcome of a cultural report pursuant to s 27 of the Act which was then still to be obtained.13

[9]    Sentencing took place on 8 August 2019.14 The Judge noted the aggravating features of the offending as planning and premeditation; the use of a weapon; the actual violence used; the number of offenders; and the impact on the victims.15 The Judge also noted that Mr Solomon’s criminal history was an aggravating factor as was the fact that he committed the offence while on EM bail for the unrelated charge of burglary.16

[10]   The Judge took into account Mr Solomon’s s 27 report, and as he had indicated during the sentencing indication, he granted an additional discount of 10 per cent to the sentence of 23 months he had already reached, resulting in an end  sentence  of 20 months imprisonment.17

[11]   The Judge did not think there was sufficient prospect Mr Solomon would comply with a sentence of home detention, and he also did not think that the purposes for which he was required to impose sentence could be satisfied by any less of a restrictive sentence than imprisonment.18

[12]   The Judge said the sentence was to be served cumulatively on the sentence of imprisonment Mr Solomon was already serving for the charge of burglary.19

10 At [7].

11 At [7].

12 At [8].

13 At [9].

14     R v Solomon [2019] NZDC 15559.

15     At [4] – [6].

16     At [7] and [10].

17     At [23] – [24].

18     At [25] – [26].

19 At [27].

Approach on appeal

[13]   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.20

[14]   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.21 The appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.22

The totality principle

[15]Section 85 of the Act relevantly provides:

85       Court to consider totality of offending

(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[16]   While a sentencing Judge is required to have regard to the totality principle when, as in the present case, cumulative sentences are being imposed, as Mr Hayden acknowledged, the failure of the Judge to explicitly refer to the totality principle is of no moment if the sentence imposed was not out of proportion to the gravity of the overall offending.23

20     Criminal Procedure Act 2001, ss 250(2) and (3).

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

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

23     Kite v R [2018] NZCA 485 at [21]. See also Foster v R [2012] NZCA 575 at [15].

The appellant’s submissions

[17]   Mr Haydn, relying on the decisions of the Court of Appeal in Opetaia v R and R v Fidow,24 and the High Court decision of R v Naea,25 submits that a range in reductions, from approximately 10 to 20 per cent, to satisfy the totality principle are available to the Court.

[18]   Mr Haydn submits that the present circumstances are most analogous to those in Fidow, given the charges dealt with and the ultimate sentences imposed (prior to adjustment for totality having been made). In Fidow, the Solicitor-General successfully appealed against manifestly inadequate cumulative sentences imposed in the District Court of nine months’ and two months’ home detention on charges of aggravated robbery and burglary respectively. At the totality stage, having arrived at a cumulative end sentence of two years and eight and a half months’ imprisonment,26 the Court of Appeal adopted a three-month discount to ensure that the total period of imprisonment was not wholly out of proportion to the gravity of the offending.27

[19]   Despite the suggested analogy, Mr Haydn submits that the offending in Fidow was of a higher gravity than that of Mr Solomon’s, given the central involvement on Mr Fidow’s part, where he pushed an elderly lady to the ground and stole a handbag that she was carrying over her shoulder.28 The victim suffered a broken hip that required surgery, a broken wrist, bleeding and facial bruising.29 She was in hospital for approximately one month, and the victim impact statement described her as having permanently lost her independence as a result of the offending.30

[20]    In all the circumstances, and by reference to percentage discounts given in other cases, Mr Haydn submits that a discount of 10 per cent would be appropriate in this case to ensure that the end sentence is not wholly out of proportion to the gravity of Mr Solomon’s offending.

24     Opetaia v R [2013] NZCA 434 and R v Fidow [2013] NZCA 209.

25     R v Naea HC Auckland CRI-2006-092-4989, 20 September 2007.

26     Being two years and one and a half months’ imprisonment on the charge of aggravated robbery, and seven months’ imprisonment on the charge of burglary.

27 At [45].

28 At [2].

29 At [2].

30 At [3].

Crown submissions

[21]   Mr Rankin for the Crown submits that while there was no explicit mention of totality by the sentencing Judge, the cumulative end sentence of 35 months’ imprisonment imposed on Mr Solomon for all of his offending cannot be said to be manifestly excessive and is in fact well within range.

[22]   Mr Rankin says the starting point adopted by Judge Glubb of three years for the charge of assault with intent to rob was at the lower end of the range available for offending of that type. He refers to the Court of Appeal decision of Foster v R, where the Court adopted a two-year, six month start point on a charge of assault with intent to rob, given the appellant’s “secondary role”.31

[23]   Mr Rankin further says that the discounts granted to Mr Solomon by the District Court Judge were generous, and were rightly described by the Judge as such.

[24]   Mr Rankin also submits that the Judge implicitly took into account the totality principle when he arrived at the end sentence on the charge of assault with intent to rob.

[25]   Finally, Mr Rankin says that the decisions in Naea and Opetaia are of little assistance to this Court, as they involve much more serious offending with much lengthier sentences. As to Fidow, he says that the overall offending of Mr Solomon justified a higher end sentence than that imposed upon Mr Fidow. He says that stepping back and assessing Mr Solomon’s offending as a whole, the cumulative sentences imposed are not wholly out of proportion to the gravity of his offending.

Analysis

[26]   While the starting point adopted, and the discounts applied, are not challenged on this appeal, it is still necessary to assess them before turning to consider the totality principle, in order to consider whether the end sentence actually arrived at is wholly out of proportion to the gravity of Mr Solomon’s overall offending, and therefore manifestly excessive.

31     Foster v R [2012] NZCA 575 at [33].

[27]   As noted, the Crown relies on R v Foster to support the submission that the starting point adopted by Judge Glubb was at the lower end of the range available. In Foster, the appellant had pleaded guilty to a single charge of assault with intent to rob. An associate of Ms Foster had ostensibly organised a drug deal, but instead instructed Ms Foster and two other co-offenders to rob the victim of the $6,000 meant for the purchase of cannabis. They lured one of the victims into their car and drove to another location, again ostensibly to complete the deal. Ms Foster drove the car. They stopped at a remote location and the victim was threatened with a tyre iron and told to hand over the money. However, he escaped. No actual violence was inflicted.

[28]   The three-year starting point adopted in the High Court was overturned on appeal, and a two and a half year starting point was adopted.32 The Court of Appeal noted that Ms Foster had pleaded guilty to a summary of facts that described her as a “secondary party to the offending” only, and that while she must be treated as knowing that a robbery was to be committed, her role was considered to be “minor”.33

[29]   I agree with the Crown that Mr Solomon’s role in the present offending is more serious than that of Ms Foster. At the sentencing indication, when Mr Solomon’s counsel submitted that he was little more than a secondary party with limited knowledge of what was transpiring, the Judge disagreed, finding that Mr Solomon was an “integral part” and was “the muscle deployed for the purpose of compelling compliance.”34 I  agree  with  the  Judge,  and  I  do  not  think  it  fair  to  describe Mr Solomon’s role as minor.

[30]   There are other points which justify the adoption of a significantly higher starting point than in Foster. First, actual violence was used against one of the victims, who were lured to the address under the pretence of completing a legitimate sale and purchase of mobile phones, not an illegal drug deal. Second, a weapon was also used in order to compel compliance, and that weapon, being a pistol, is more serious than a tyre iron. Third, Mr Solomon was on EM bail at the time of the offending for the earlier burglary charge.

32 At [34].

33 At [33].

34     R v Solomon DC Waitakere CRI-2019-090-000597, 17 June 2019 at [5].

[31]   In Fidow, the offending was also premeditated, though unsophisticated. The facts are summarised at [19] above. The victim was 82 years old, so particularly vulnerable. She was in hospital for one month after the offending, so more serious consequences than in this case. Mr Fidow was also on bail at the time of the offending. As noted, the sentencing Judge had adopted a start point of three years, nine months imprisonment. There was no challenge to this on appeal, and the Court of Appeal observed that given the victim’s vulnerability and the lasting impact the offending had on her, “a starting point that was higher by three months or more could not be criticised”.35

[32]   While in Fidow, the appellant had been actively involved in pushing the victim to the ground and she was a vulnerable victim, the offending in this case is arguably more sophisticated. The victims were also understandably quite traumatised by the offending against them. In all the circumstances, I accept that a starting point of three years was at the lower end of the range available to the sentencing Judge.

[33]   I consider that the discounts adopted by Judge Glubb of 20 per cent for youth and rehabilitation, together with an additional 10 per cent for the s 27 report, are fair and within range. Indeed, if anything, the discount for youth and rehabilitation was, as Judge Glubb himself acknowledged, generous.

[34]   Further, Mr Solomon’s offending on the earlier charge of burglary is concerning. As Judge Down noted, it was a commercial burglary of some considerable value. Mr Solomon was an integral part of that offending, as in the present offending. Having read the sentencing notes for that earlier offending, the ultimate sentence adopted could also not be described as at the upper end of the available range; again, primarily given Mr Solomon’s youth, Judge Down adopted a reasonably generous approach.

[35]   Accordingly, since I consider the starting point on the present offending to have been at the lower end of the range available to the Judge, and that the discounts were fair and within range (if not generous), I do not consider that failing to apply a further 10 per cent discount for totality meant that the sentence arrived at by the Judge, when

35 At [31].

considered in conjunction with the existing 15 month sentence, was wholly out of proportion to the gravity of Mr Solomon’s overall offending.

Result

[36]The appeal is dismissed.

Fitzgerald J