[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…

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 The Queen

Details

AGLC: Solomon v The Queen [2019] NZHC 2916
Case: [2019] NZHC 2916
Decision Date: 8 November 2019

CaseChat Overview and Summary

The appellant, Dillon Robert Solomon, appeals his sentence of two years and five months' imprisonment, imposed by Judge Adeane in the District Court at Napier on 30 September 2019. Solomon was convicted of injuring with intent to injure and male assault female. The appeal is on the basis that the starting point for the lead charge was too high; the uplift applied to that starting point was excessive; the discounts for mitigating factors were inadequate; and in the circumstances, the final sentence was manifestly excessive. The appeal raises questions about the starting point for the lead offence, the uplift applied to that starting point, the discounts for mitigating factors, and the disparity between the sentences imposed on Solomon and his brother, Harris Solomon.

The court considered that the starting point adopted by the Judge was within range, even taking into account the aggravating factors such as multiple attackers, attack to the head, and serious injuries caused. The court also found that an uplift was justified for Solomon's prior conviction, but the magnitude of the uplift was disproportionate to the starting point of 30 months' imprisonment. The court concluded that an uplift of five months was more appropriate in the circumstances. The court found that the Judge erred by failing to apply a discreet discount for Solomon's voluntary rehabilitative efforts, and a discount of two months would have been appropriate.

The court found that the disparity between the sentences imposed on Solomon and his brother, Harris Solomon, was adequately explained by the aggravating and mitigating factors personal to the respective brothers. However, the court concluded that Solomon's sentence was manifestly excessive, and the appropriate sentence was one of 24 months' imprisonment.

The appeal is allowed. The sentence of two years and five months' imprisonment is quashed and substituted with a sentence of two years' imprisonment.

Orders