Solomon v The Queen
[2019] NZHC 2916
•8 November 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-000035
[2019] NZHC 2916
BETWEEN DILLON ROBERT SOLOMON
Appellant
AND
THE QUEEN
Respondent
Hearing: 5 November 2019 Appearances:
M J Phelps for the Appellant
A D H Colley for the Respondent
Judgment:
8 November 2019
JUDGMENT OF DOOGUE J
Introduction
[1] Mr Dillon Solomon appeals against a sentence of two years and five months’ imprisonment imposed by Judge Adeane on 30 September 2019 in the District Court at Napier.1 The charges were injuring with intent to injure2 and male assault female.3
[2] Mr Solomon appeals on a number of grounds: that the starting point for the lead charge was too high; that the uplift applied to that starting point was excessive; that the discounts for mitigating factors were inadequate; and that in the circumstances, the final sentence was manifestly excessive.
1 R v Solomon [2019] NZDC 17056.
2 Crimes Act 1961, s 189(2); maximum penalty of five years’ imprisonment.
3 Section 194(b); maximum penalty of two years’ imprisonment.
SOLOMON v R [2019] NZHC 2916 [8 November 2019]
Background
[3] On 25 November 2017, Mr Solomon, 26, was drinking with his brother, Harris Solomon, 19, and the victims in this case at an address on Ardrossan Avenue in Flaxmere, Napier. The victims are the Solomon brothers’ cousins, or friends of their cousins. To avoid confusion, I refer to the two brothers by their full names in outlining the factual and procedural background.
[4] During the night, Mr Dillon Solomon was encouraging Mr Harris Solomon to start a fight with Karum Te Whare, one of the people present at the Flaxmere address. One of the hosts, Desiree Te Whare, attempted to usher Mr Te Whare inside to avoid an incident. As the two moved towards the back door, Mr Harris Solomon began punching Mr Te Whare to the body. A number of punches connected.
[5] In response, one of the residents at the Flaxmere address, Samantha Araia, turned off the music and asked everyone to leave the address. The Solomon brothers did not leave. Instead, Mr Harris Solomon pushed Ms Araia out of the way to continue his assault on Mr Te Whare.
[6] Ms Araia’s sisters, Moeroa Araia, and Matangaro Teariki, also told the Solomon brothers to leave, but again, they did not do so. Ms Moeroa Araia and Ms Teariki then attempted to physically remove the Solomon brothers from the property, who pushed back. Mr Harris Solomon pushed Ms Moeroa Araia so hard that she fell into a garden area and he then threw a wooden chair in her direction.
[7] At this stage, Ms Te Whare, one of the people present at the Flaxmere address, came out of the house and was confronted by Mr Dillon Solomon before he walked away. Without warning, Mr Harris Solomon then directed his aggression at Ms Te Whare, punching her about 10-15 times in the head and kneeing her.
[8] The fracas continued at the end of the driveway and Ms Teariki was grabbed and pulled to the ground by the Solomon brothers. The brothers punched her several times to the face as she attempted to protect herself on the ground, and they were seen to aim a kick at her. At some point during this assault, Ms Teariki lost consciousness though this does not seem to have deterred the Solomon brothers. Ms Moeroa Araia
intervened whereupon she was punched in the left cheek by Mr Dillon Solomon. She fell backwards onto the road.
[9] In respect of the victims’ injuries: Ms Teariki suffered a broken nose, fractured cheek bone, swelling to her face, grazing to her knee and general soreness to her body; Mr Te Whare suffered a swollen, bleeding nose and soreness to his face and body; Ms Moeroa Araia suffered swelling and bruising to her left cheek and under her left eye, and general soreness to her body; Ms Te Whare received a cut to the inside of her mouth together with swelling and soreness to that area; and Ms Samantha Araia suffered no injuries.
District Court decision
[10] The Judge outlined the facts as above, observing “it’s worthy of note that inside the house at the time were young children, including a new-born baby”.4 Referring to Ms Samantha Araia turning the music off and telling everybody to leave, the Judge observed that she stood in the doorway to obstruct the Solomon brothers’ entry into her home. Mr Harris Solomon used both hands to shove her out of the way to gain entry.
[11]In describing the lead charge, the Judge said:5
Both the defendants then turned their joined attention to Matangaro who they flung to the ground, attacked with closed fists to the face, each threw several punches to either side of her head and both kicked her so that she was left lying unconscious on the ground. This is the lead charge, charge 4 of injuring with intent to injure.
[12] The Judge noted that the Solomon brothers were “equal participants” in the offending which constituted the lead charge and were “fully active and complicit in that offending”.6
4 R v Solomon, above n 1, at [3].
5 At [6].
6 At [7] and [9].
[13] In respect of the male assaults female charge committed against Ms Teariki, the Judge observed that Mr Dillon Solomon “punched her to the cheek with such force that she was also knocked to the ground.”7
[14] Referring to the Department of Corrections’ Provision of Advice Report to the Court (PAC Report), the Judge said the following in respect of Mr Dillon Solomon:8
The probation report for Dillon refers to an acknowledged violence propensity and a previous substantial term of imprisonment in Australia for violence there followed by deportation back to New Zealand. He has no other convictions in New Zealand...
[15] Turning to the starting point, the Judge referred to Nuku v R,9 the tariff case for injuring with intent to injure, and R v Taueki,10 the tariff case for causing grievous bodily harm with intent to cause grievous bodily harm. The critical paragraphs of the Judge’s decision are as follows (footnotes omitted):
[13] Nuku and Taueki bear on sentence so far as charge 4 is concerned. There were a number of aggravating features from which defence counsel do not shy away. This is a case of multiple attackers, vulnerable female victims, an attack to the head and severe of [sic] injuries resulting. It also has strong overtones of a home invasion where the women attempted to retreat inside the house to avoid violence and you two would not permit them to do so.
[14] In my view the starting point for this offence charge 4 cannot be less than two and a half years' imprisonment...
[16] The Judge then turned to factors which warranted an uplift to the starting point of two years and six months’ imprisonment, noting the following:11
So far as Dillon is concerned there is the fact that he has previous violence convictions, that he was also involved in a second assault on a female this evening and that it was he, at 26 years of age, who offered incitement to his younger brother to become involved in the violence in the first place. Again, an uplift of nine months is appropriate with the result that the starting point for each of you is three years and three months' imprisonment.
[17] The Judge then swiftly completed the sentencing exercise for Mr Dillon Solomon in the following way:
7 At [6].
8 At [9].
9 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
10 R v Taueki [2005] 3 NZLR 372 (CA).
11 R v Solomon, above n 1, at [14].
[15] Dillon’s sentencing exercise is from that point relatively uncomplicated. I allow a discount of 20 percent for the guilty plea and two months for the restrictive bail and impose a sentence of 29 months’ imprisonment.
[18] In contrast, Mr Harris Solomon was sentenced to 15 months’ imprisonment by virtue of the fact he received a further discount of 15 per cent for youth and suggestibility as well as a further discount of 10 per cent for lack of previous convictions.12 The Judge also applied a discount of six months to acknowledge Mr Harris Solomon’s rehabilitative prospects.13
Principles on appeal
[19] An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.14 An appeal court will not intervene where the sentence is within the range available to the sentencing Judge.15 It is only appropriate for this Court to intervene and substitute its own views if the sentence is “manifestly excessive” and cannot be justified upon the application of the relevant sentencing principles.16
The appeal
[20] Mr Solomon appeals his sentence on the basis it is manifestly excessive. He submits the Judge erred in his setting of the starting point, the uplift applied to that starting point for previous convictions and the discounts applied for personal mitigating factors. He also submits that his sentence cannot be reconciled with that of his brother.
[21]Mr Solomon’s appeal can be summarised by the following questions:
(a)Was the starting point of two years and six months’ imprisonment excessive?
12 At [16].
13 At [17].
14 Criminal Procedure Act 2011, ss 250(2) and 250(3).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
16 Ripia v R [2011] NZCA 101 at [15].
(b)Was the uplift to the starting point proportionate relative to the discount applied for his guilty plea?
(c)Did the Judge err by failing to make adjustments for mitigating factors?
(d)Can the sentence be reconciled with the sentence imposed on Mr Harris Solomon?
[22] If, in addressing these questions, I find the Judge erred in some way, I must go on to determine whether the error is to such an extent that a different sentence should be imposed.
Starting point
[23] Mr Phelps, for Mr Solomon, submits that the starting point adopted by the Judge for the lead offending was too high. In particular, he takes issue with the Judge’s conclusion that the victim of the lead offending was vulnerable given he did not elaborate how this was so. Further, he says that the Judge stated there were strong overtones of home invasion and also made reference to the fact children were present in the house at the Flaxmere address. Mr Phelps submits that the lead offending falls towards the top of band two of Nuku, and therefore warrants a starting point of two years’ imprisonment.
[24] Ms Colley, for the Crown, submits that the starting point of two years and six months’ imprisonment adopted by the Judge was within the available range. Ms Colley further submits that the factors mentioned by the Judge, with which Mr Phelps takes issue, were not inappropriate given the facts of the offending. A lower starting point, she says, would not have reflected the level of violence inherent in the offending which constituted the lead charge, nor would it have adequately reflected the aggravating features of the offending.
[25] Nuku provides the best guidance on setting the starting point in respect of the offence of injuring with intent to injure. With reference to Taueki, the Court of Appeal in Nuku established the following bands for this type of offending:17
(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at
[31] of Taueki are present.
(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[26] The aggravating factors in Taueki to which the Court in Nuku was referring were the following:18 extreme violence; premeditation; serious injury; use of weapons; attacking the head; facilitation of crime; perverting the course of justice; multiple attackers; victim vulnerability; home invasion; gang warfare; attack on a public official; vigilante action; and hate crime.
[27] The starting point adopted by the Judge indicates he placed the offending either towards the upper end of band two, or lower end of band three.
[28] Mr Phelps submits that Bennett v R may assist the Court in determining whether the starting point adopted by the Judge was appropriate.19 The appellant in that case was found guilty at trial of two counts of injuring with intent to injure and one of assault with intent to injure. Bennett involved an altercation at a party which resulted in the appellant throwing a series of punches at a partygoer, knocking him to the ground and continuing the assault with a co-offender. The victim suffered a broken eye socket and bruising. When another partygoer attempted to intervene, she was
17 Nuku v R, above n 9, at [38].
18 R v Taueki, above n 10, at [31].
19 Bennett v R [2012] NZCA 173
elbowed in the face by the appellant and then punched to the ground, suffering facial bruising. Upon attempting to protect the second partygoer, a third partygoer was punched, and when he fell to the ground, was repeatedly kicked. That victim sustained broken ribs and facial bruising. The Court of Appeal upheld the sentencing Judge’s starting point of two years imprisonment, noting that the “cowardly and vicious assault...could well have attracted a higher starting point.”20
[29] In contrast, Ms Colley refers me to Burton v New Zealand Police21 and Hall v R22 in support of her submission that the starting point adopted by the Judge was within range.
[30] Burton concerned an appeal against sentence for an unprovoked attack on a stranger. The appellant was a passenger in a vehicle entering a carpark in the early hours of the morning when the victim, who was intoxicated, obstructed the entrance. The appellant got out of the car, pushed the victim in the chest and punched him in the chin, causing him to fall to the ground. He then kicked him a number of times in the body and legs, until the victim was unconscious. The victim suffered a split head, ripped lips, a fractured tooth and a chip in another tooth. While upholding the sentencing Judge’s starting point of two years and six months’ imprisonment, Nicholas Davidson J noted that “a starting point of up to 36 months was in principle available”.23
[31] In Hall, which was cited in Burton, the appellant punched the first victim multiple times in the head, and then, with two associates, kicked the second victim multiple times in the body and head while he was on the ground. A starting point of two years and six months’ imprisonment was adopted. Again, this was upheld on appeal though the Court of Appeal commented that the sentencing Judge “could have taken a higher starting point”.24
[32] In my view, Bennett, Burton and Hall satisfy me that the starting point adopted by Judge Adeane was within range. Even taking the aggravating factors with which
20 At [17].
21 Burton v New Zealand Police [2017] NZHC 664.
22 Hall v R [2015] NZCA 249.
23 Burton v New Zealand Police, above n 21, at [26].
24 Hall v R, above n 22, at [14].
Mr Phelps takes no issue (multiple attackers, attack to the head and serious injuries caused), the extent of each of these factors pushes Mr Solomon’s offending towards the upper end of band two of Nuku which warrants a starting point of up to three years’ imprisonment.
[33] However, there is the further factor of vulnerability on which Mr Phelps submitted the Judge was silent. In my view, that factor is applicable insofar as the victim of the lead offending, Ms Teariki, was rendered unconscious by the Solomon brothers’ attack and yet they continued to assault her. This factor, along with those already mentioned, more closely align Mr Solomon’s offending to that in Burton and Hall.
[34] I put little significance on the Judge’s comments about home invasion and his references to children being present at the Flaxmere address. In my view, those comments provided background information and served to contextualise the offending. I do not consider that the Judge necessarily sought to elevate those factors to aggravating factors in themselves.
[35]Accordingly, the starting point adopted by the Judge was within range.
Uplift to starting point
[36] Section 85(4) of the Sentencing Act 2002 provides that when a person is sentenced on multiple charges and concurrent sentence are to be imposed, the lead offence must “receive the penalty that is appropriate for the totality of the offending”.
[37] Mr Phelps submits that it is necessary for any uplift to the starting point to not be disproportionate to the discount available for guilty plea. He says that this did not occur in the present case given the Judge uplifted the starting point by nine months for Mr Solomon’s role in the Solomon brothers’ offending, his male assaults female charge and his previous violence conviction in Australia, but only reduced the sentence by just under 8 months to acknowledge Mr Solomon’s guilty plea.
[38] Ms Colley submits, citing R v Xie, that the fundamental tenet of the totality principle in s 85(4) is that the total sentence must represent the overall criminality of
the offender and the offending.25 She submits that the uplift imposed by the Judge reflected that principle.
[39] In Tiplady-Koroheke v R, the Court of Appeal reviewed the case law discussing the rationale for uplifting an offender’s sentence to take into account criminal history.26 The Court agreed with the observations in Beckham v R that courts must not merely increase an offender’s sentence by virtue of the fact they have previously offended, but must ensure those previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted.27 The Court went on to say “that it is also important that there be some proportionality between the starting sentence and any uplift.”28
[40] The Court in Tiplady-Koroheke overturned an uplift of six months to the starting point of two years’ imprisonment (25 per cent) on a charge of injuring with intent to injure for the appellant’s previous convictions. The Court considered that only one of two sets of previous similar offending justified an uplift of three months, therefore reducing the starting point to two years and three months’ imprisonment.
[41]The principles outlined in Tiplady-Koroheke were again noted in Te Hau v R
as follows:29
The Sentencing Act 2002 requires the Judge to take into account a defendant’s previous convictions.30 This Court has recently reaffirmed that although a prisoner is not to be punished again for past offending, nor should previous convictions be ignored “particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted”.31 Issues of deterrence and protection of the public may bear upon the uplift that may be appropriate,32 but the uplift must remain proportional to the starting point selected.33 Previous convictions may also bear upon character.34
25 R v Xie [2007] 2 NZLR 240 (CA) at [16]-[18].
26 Tiplady-Koroheke v R [2012] NZCA 477 at [22]-[25].
27 At [23], citing Beckham v R [2012] NZCA 290 at [84].
28 At [24].
29 Te Hau v R [2013] NZCA 431 at [18].
30 Sentencing Act 2002, s 9(1)(j).
31 Beckham v R, above n 27, at [84].
32 At [84].
33 Hodgkinson v R [2012] NZCA 478 at [21].
34 Beckham v R, above n 27, at [84].
[42] In Te Hau, the Court of Appeal considered that an uplift of six months (for a conviction for aggravated robbery some seven years earlier) was disproportionate to the starting point of three years’ imprisonment given the amount of time that had passed since the appellant’s prior conviction. It is on this basis that the Court of Appeal considered the sentence to be manifestly excessive.
[43] I also note the recent decision of Orchard v R in which the Court of Appeal commented that uplifts for previous convictions ought to be proportionate to the sentence imposed.35 Uplifts of this nature are mandated by s 9(1)(j) of the Sentencing Act 2002 but limited by s 26(2) of the New Zealand Bill of Rights Act 1990, which provides that no one who has been finally convicted of an offence shall be punished for it again. The Court in Orchard went on to observe that an uplift is unlikely to be proportionate if it exceeds the prior sentence for the relevant offence.36
[44] In light of the authorities to which I have referred (bar Orchard), Mr Phelps submits that an uplift of only a few months was warranted to take into account Mr Solomon’s prior conviction which, he says, was less serious than that in Tiplady- Koroheke (three counts of wounding with intent to injure). He also submits that the starting point for the lead offence “had sufficient capacity to absorb both the lead offence and the male assaults female charge”. Further, he says that there was no basis upon which to uplift Mr Solomon’s starting point to reflect the fact he incited his brother to engage in violence.
[45] First, there is no question that an uplift was justified for Mr Solomon’s prior conviction for which he was sentenced to three years and six months’ imprisonment in Australia. However, it is not possible to discern the exact uplift that was applied by the Judge given he applied a nine-month uplift in total. I will return to this point.
[46] Second, I do not agree that the starting point for the lead offence could have absorbed the second charge Mr Solomon faced, being male assaults female. The Judge considered the offending separately and was minded to impose concurrent sentences.
35 Orchard v R [2019] NZCA 529 at [41].
36 At [41], citing Patel v R [2017] NZCA 234 at [61]; Julian v R [2012] NZCA 453 at [17]; and
Taylor v R [2014] NZCA 561 at [13].
If, given his approach, he had not imposed an uplift to the starting point for the lead offence, Mr Solomon would have essentially been convicted and discharged on the male assaults female charge. Consequently, the final sentence would have offended the totality principle.
[47] Third, in respect of the uplift given for Mr Solomon’s encouragement of his brother to start the violence, there is some force in Mr Phelps’ submission that it ought not have attracted a discreet uplift. This is because the Judge considered the Solomon brothers to have been equal participants in committing the lead offence. In the ordinary course, an offender’s culpability is reflected in the starting point for the offence in question. That is not to say, however, that it cannot be expressed as an uplift in order to arrive at the “end starting point”. This would not be an error per se, particularly because the focus is the end sentence rather than the starting point.
[48] As I have noted, the Judge imposed a global uplift of nine months to reflect the aforementioned factors. In my view, the magnitude of this uplift was disproportionate to the starting point of 30 months’ imprisonment given it represented an increase of 30 per cent. While I do not agree that an uplift should be pinned to uplifts imposed in other cases given the size of any uplift is constrained by the maximum sentence available, the starting point adopted and the number and nature of factors warranting an uplift, an uplift of five months seems more appropriate in the circumstances.
Discounts for mitigating factors
[49] Mr Phelps submits that the Judge erred by failing to apply a discreet discount for Mr Solomon’s remorse and his rehabilitative prospects, including his voluntary rehabilitation and his offer to attend a restorative justice conference. Ms Colley submits that it was within the Judge’s discretion to decline to apply a discount for these factors, though acknowledges the case is stronger for a small discount in respect of Mr Solomon’s voluntary rehabilitation.
Remorse
[50] In sentencing an offender, the Court must take into account any remorse shown by that offender,37 or any offer, agreement, response, or measure to make amends.38 In deciding whether and to what extent any offer, agreement, response or measure to make amends should be taken into account, the Court must also take into account whether or not it was genuine and has been accepted by the victim as expiating or mitigating the wrong.39
[51] There is considerable appellate court authority on the extent to which discounts should be applied for remorse. In Hessell v R, the Supreme Court noted that where a “proper and robust evaluation of all the circumstances” demonstrates a defendant’s remorse, “sentencing credit should properly be given separately from that for the [guilty] plea.”40 The Court of Appeal has since noted that “an assessment of whether any expression of remorse conveyed for the purposes of sentencing is indeed genuine is quintessentially for the sentencing Judge”41 and that an appellate court should “not lightly interfere with the assessment of mitigating factors such as remorse.”42
[52] I turn then to the evidence of Mr Solomon’s remorse on which Mr Phelps relies in support of his submission.
[53] First, Mr Phelps points to Mr Solomon’s offer to attend a restorative justice conference. I note that the conference ultimately did not go ahead as only one of the victims could be contacted and that victim did not wish to attend.
[54] Second, Mr Phelps submits that the PAC Report revealed that Mr Solomon showed insight into his offending. The report writer noted that when spoken to about his violence, Mr Solomon stated that “it is like something triggers in my head and tells me to do things”. The report writer went on to note that Mr Solomon reported feeling embarrassed by his actions and that he was not proud of his behaviour, having been
37 Sentencing Act 2002, s 9(2)(f).
38 Section 10(1).
39 Section 10(2).
40 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
41 Edri v R [2013] NZCA 264 at [28].
42 Rihia v R [2016] NZCA 90 at [27].
raised to treat females in a positive way. He stated that if he could change the situation he would and would also apologise. Finally, the report writer noted that Mr Solomon did not wish to make excuses for his behaviour.
[55] In addition to the evidence already mentioned, Mr Phelps submits that the report writer was very experienced, implying that the Court could be assured of his or her assessment of the genuineness of Mr Solomon’s remorse.
[56] In Henare v R, Nation J observed that “there is no requirement on a sentencing Judge to provide a discount for an offer to attend restorative justice.”43 The Judge went on to say:44
With the Criminal Procedure Act now allowing for involvement in the restorative justice process as a matter of course, a mere indication that someone is willing to participate in the process may, of itself, mean little. That willingness is to be given more weight when it is coupled with other evidence that shows an offender has taken responsibility for his offending and wishes, in a meaningful way, to atone for it as best he can. A mere indication that he will participate in the process may reveal little of this.
[57] Further, Nation J stated that it is “not incumbent on the Judge to provide a discount for a ‘positive pre-sentence report’”.45
[58] Overall, I do not consider that the Judge erred in failing to apply a discreet discount for remorse. This is because I do not consider that Mr Solomon’s offer to attend a restorative justice conference, nor the information outlined in the PAC Report warrant such a discount. In this regard, it is relevant that the restorative justice conference did not go ahead. It is also relevant that Mr Solomon has relatively recently returned from incarceration in Australia for violent offending against women. In R v Ngamo, the Court of Appeal noted that little weight may be placed even on genuine expressions of remorse in circumstances of recidivist offending.46 While the offender in that case had an extensive criminal history, the proximity of Mr Solomon’s previous conviction to the current offending justifies the Judge’s approach.
43 Henare v R [2017] NZHC 2397 at [17].
44 At [17].
45 At [18].
46 R v Ngamo [2009] NZCA 512 at [9].
Rehabilitative prospects
[59] In respect of Mr Solomon’s rehabilitative prospects, the PAC Report notes that he voluntarily engaged with Te Taiwhenua O Heretaunga to attend both drug and alcohol as well as anger management counselling. By 13 August 2019, he had attended all 10 sessions of the non-violence programme at Te Tohu Raukura, the domestic violence/family harm unit of Te Taiwhenua O Heretaunga. Evidence of this attendance was before the Judge though was not mentioned in the Judge’s sentencing notes.
[60] The letter to the sentencing Judge from Te Taiwhenua O Heretaunga notes that Mr Solomon “is willing to make positive changes in his personal life” and that “he has been able to take responsibility for this anger and violence”. In particular, he has “stopped blaming others and has acknowledged that he has to work on himself for a better and safer future for his family.”
[61] In Hansch v New Zealand Police, Thomas J applied a discreet two-month discount to a starting point of 12 months’ imprisonment for rehabilitative prospects given the appellant’s self-referral to the Alcohol and Other Drug Treatment Court.47 Though the appellant’s application was unsuccessful, it was because his problems were not perceived as being serious enough to require acceptance into that Court rather than through any fault of his own. However, certain recommendations were made by the psychologist who considered the appellant’s application and the appellant showed a willingness to go through with them.
[62] Mr Solomon’s case differs slightly to Hansch in that he has already attended a “living without violence programme” while in Australia. The report writer expressed a concern that Mr Solomon may not have benefitted completely from that programme. Nevertheless, I do not consider Mr Solomon’s past attendance at a programme to preclude him from benefitting from receiving acknowledgment by way of discreet discount for self-referral to another programme. While a pattern of such self-referral could negate the mitigating effect of such a factor, I do not consider that to be the case here.
47 Hansch v New Zealand Police [2014] NZHC 2438 at [16]-[19].
[63] In my view, a discreet discount should have been applied for Mr Solomon’s voluntary referral to Te Taiwhenua O Heretaunga. That Mr Solomon’s rehabilitative efforts were not at all acknowledged is an error. A discount of two months would have been appropriate.
Parity
[64] The final ground of appeal is that there is an unjustifiable or “gross” disparity between Mr Solomon’s sentence and that of his younger brother, Mr Harris Solomon, who was sentenced to 15 months’ imprisonment. Mr Phelps submits, relying on R v Lawson, that the disparity would lead a “reasonably minded independent observer” to believe that “something had gone wrong with the administration of justice”.48 Ms Colley, on the other hand, submits that the disparity is adequately explained by the aggravating and mitigating factors personal to the respective brothers.
[65] In R v K (CA345/02), the Court of Appeal outlined the appropriate approach to sentencing co-offenders:49
[20] Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender's culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
[66] I do not consider Mr Solomon’s appeal can succeed on the grounds of disparity of sentence with his brother. While Mr Harris Solomon pleaded guilty to more charges, he was entitled to greater discounts for personal mitigating factors, being his youth and lack of previous convictions. On the contrary, Mr Solomon received an uplift for his greater culpability in respect of the offending and his past conviction for violence. However, where parity was appropriate such as in setting the starting point on the lead charge and rewarding a discount for guilty plea, the principle was applied.
48 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
49 R v K (CA345/02) (2003) 20 CRNZ 62 (CA).
Manifestly excessive?
[67] Despite the foregoing discussion, the question however remains whether Mr Solomon’s sentence was manifestly excessive. I am of the view that it was.
[68] In my view, the appropriate sentence was one of 24 months’ imprisonment, broken down in the following way:
(a)a starting point of 30 months’ imprisonment;
(b)an uplift of five months to reflect Mr Solomon’s culpability, his previous conviction and the male assaults female charge;
(c)a discount of two months to reflect his voluntary rehabilitative efforts;
(d)a discount of 20 per cent (7 months) for Mr Solomon’s guilty plea; and
(e)a discount of two months for the time Mr Solomon spent on restrictive bail.
[69] I consider the difference in an end sentence of five months’ imprisonment to be sufficiently large to characterise the original sentence as manifestly excessive.
[70] Finally, I note that although I have reached a sentence within the jurisdiction for consideration of home detention, it is neither appropriate in the circumstances nor is it sought on behalf of Mr Solomon.
[71] For completeness, I also note that the two-month deduction to acknowledge Mr Solomon’s voluntary rehabilitative efforts also applies to his brother, Mr Harris Solomon. However, I do not consider that it would lead to a successful appeal in the younger brother’s case. This is because Mr Harris Solomon received an additional reduction for his rehabilitative prospects, which I consider sufficient to take into account his self-referral to the same programmes at Te Taiwhenua O Heretaunga as those attended by Mr Dillon Solomon.
Result
[72]The appeal is allowed.
[73] The sentence of two years and five months’ imprisonment is quashed and substituted with a sentence of two years’ imprisonment.
Doogue J
Solicitors:
Crown Law Office, Wellington
18
0