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…

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 [2019] NZHC 2668
Case: [2019] NZHC 2668
Decision Date: 18 October 2019

CaseChat Overview and Summary

Mr Solomon appeals against the sentence imposed on him by Judge Glubb in the District Court at Waitakere. The appeal concerns the imposition of a 20-month sentence of imprisonment for a charge of assault with intent to rob, which was to be served cumulatively on a 15-month sentence for burglary. Mr Solomon does not challenge the starting point, the discounts granted, or the imposition of cumulative sentences, but argues that the judge should have had regard to the totality principle in s 85 of the Sentencing Act 2002 when imposing cumulative sentences. 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.

The court held that the starting point adopted by the sentencing judge was at the lower end of the range available for the offending. The discounts granted by the sentencing judge were fair and within range, if not generous. The court did not consider that the failure to apply a further 10 per cent discount for totality meant that the sentence arrived at by the judge, when considered in conjunction with the existing 15-month sentence, was wholly out of proportion to the gravity of Mr Solomon’s overall offending.

The appeal is dismissed.

Orders