Simic v R [2022] NZCA 592 (30 November 2022)

Last Updated: 5 December 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA131/2022 [2022] NZCA 592

	BETWEEN	ANTON STEPHEN SIMCIC Applicant
	AND	THE KING Respondent

Hearing:	31 October 2022
Court:	Miller, Muir and Gendall JJ
Counsel:	D B Stevens for the Applicant B J Thompson for the Respondent
Judgment:	30 November 2022 at 2.00 pm

JUDGMENT OF THE COURT

1. The application to adduce further evidence on appeal is declined.
2. The application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

• [1] Having pleaded guilty to 13 charges involving possession and the supply of methamphetamine, MDMA, cannabis, and also firearm offences, the applicant Mr Simcic was sentenced in the District Court at Wellington on 1 December 2020.^[1]
• [2] His guilty plea followed a sentence indication by Judge Barry, after which the Judge imposed a final sentence of nine years’ imprisonment on the lead methamphetamine charges. Concurrent sentences were imposed on the charges relating to cannabis, MDMA, and unlawful possession of firearms.
• [3] Some 15 months out of time, Mr Simcic has applied for an extension of time to appeal against his sentence. The Crown opposes extending time for this appeal.

Extension of time

• [4] Having been sentenced on 1 December 2020, Mr Simcic did not file his notice of appeal until 18 March 2022. The time for filing his appeal expired in January 2021. Given the appeal is 15 months out of time, an extension of time is required under s 248(4)(a) of the Criminal Procedure Act 2011 (CPA).
• [5] The test for granting an extension of time to appeal is found in R v Knight and discussed in R v Lee.^[2] This requires a balancing exercise to be undertaken which is to include the merits of the proposed appeal, the length of the delay and the reasons for it, the practical utility of the remedy sought, the impact on others affected, and the general administration of justice.^[3] The overall question is whether it is in the interests of justice, taking into account all relevant circumstances, to grant the extension.^[4]
• [6] Extension of time applications generally reduce to two questions – first, why the appeal was filed late and, secondly, what merit, if any, the proposed appeal point appears to have.^[5]
• [7] As to the first question, the reason for the delay, Mr Simcic has filed an affidavit in support of his application to appeal out of time. In this affidavit, he says that when he received his sentence in December 2020, he thought it was severe and although his lawyer at the time mentioned the possibility of an appeal, he just wanted to get on with serving the sentence. More recently, Mr Simcic maintains that on further reflection and after discussing his sentence with other prisoners and following further legal advice obtained from a different lawyer, he changed his mind and all this led to him filing the present appeal. Mr Simcic’s delay here clearly was substantial. In R v Lee this Court said:^[6]

A long delay is a major factor weighing against leave being granted and, if unexplained, would usually be decisive.

• [8] It is not generally a sufficient reason to explain delay that a prisoner has decided, after reasonably long reflection, that the sentence imposed was unjust.
• [9] It is apparent that Mr Simcic did have some discussions with his trial lawyer about an appeal shortly after he was sentenced in late 2020. Notwithstanding these discussions, he made a decision then not to appeal his sentence. His only real explanation now for the delay is his subsequent change of mind, linked in part to what he says was the significance of his personal circumstances, and consequent on new legal advice, well over a year later. Arguably that explanation in all the circumstances here may not warrant a departure from the principle of finality. While an appeal court can and will extend time to avoid miscarriages of justice, in this case we are strengthened in our view that leave should not be granted by our answer to the second appeal question, namely that this appeal lacks merit. It is to the merits of the present appeal we will turn shortly. But first, some factual background.

Background

• [10] The charges against Mr Simcic arose out of searches of his home on 15 March 2019 and 19 June 2019 and a subsequent search of a storage unit belonging to him.
• [11] In the first search of the main house at Mr Simcic’s address, police found 2.4 grams of methamphetamine, resealable “point bags”, digital scales, 26.6 grams of cannabis plant material, 7.26 grams of cannabis seeds, a satchel containing an extensive “tick list”, and a .25 calibre semi-automatic pistol loaded with live ammunition. A taser and can of pepper spray, both restricted weapons, were also found in a plastic container inside one of the bedrooms.
• [12] Analysis of the tick list located in this first search indicated that, over a seven‑month period, Mr Simcic had recorded transactions including:

(a) the sale of at least 1.125 kilograms of methamphetamine, which generated revenue of $455,840;

(b) the sale of at least 23 ounces (652 grams) of cannabis, which generated revenue of $8,085; and

(c) further transactions totalling $219,480 that likely involved sales of small amounts of methamphetamine or cannabis.

• [13] Less than two months later on 10 June 2019, the second search was carried out. This was a search of Mr Simcic’s mobile home (separate to the main house). There, police found a glass pipe, a total of 21.27 grams of methamphetamine, zip lock bags, 163 grams of cannabis and 6.65 grams of MDMA. Also found were documents relating to a storage unit belonging to Mr Simcic.
• [14] The storage unit was subsequently searched. Police found there 2.6 kilograms of cannabis plant material, including 15 resealable bags containing about one ounce each. A military-style semi-automatic rifle was also located at the storage unit. It was loaded with a magazine full of ammunition and one in the chamber. A variety of other live ammunition was also found.
• [15] The charges of supplying methamphetamine and selling cannabis were based on police analysis of the “tick list” located during the first search. Police financial analysis of this estimated that Mr Simcic had recorded transactions totalling about $779,000 of methamphetamine and cannabis over about a year.
• [16] Mr Simcic was charged on 14 June 2019 and a five-day jury trial set down for 22 February 2021.
• [17] On 24 August 2020, 14 months after being charged, Mr Simcic requested and received the sentence indication from the Judge.^[7] On 8 September 2020 he accepted that sentence indication. It provided for a final sentence of nine years’ imprisonment. On this basis he entered guilty pleas to all 13 charges and on 1 December 2020 he was sentenced by Judge Barry. His notice of appeal, as we have noted, was not filed until 18 March 2022.

Sentence indication and sentencing decision

• [18] In his sentencing indication, the Judge first considered the lead charge of supplying methamphetamine. There was no dispute that Mr Simcic’s offending fell within band 4 of Zhang v R.^[8] Band 4 applies to quantities between 500 grams and two kilograms and provides for a starting point of between eight and 16 years’ imprisonment.^[9]
• [19] Although the Judge accepted that Mr Simcic’s role was a “leading” one, he did note the offending had the hallmarks of a one-person enterprise rather than an undertaking by some larger criminal organisation. As a result he set the initial starting point at 11 years’ imprisonment.^[10]
• [20] In relation to the other drug offending (possession of MDMA for supply and possessing and selling cannabis) the Judge noted the cannabis dealing charges were the more significant and had the hallmarks of a profit-driven enterprise. A starting point of three years was adopted. The Judge considered this would be appropriate for those charges, together with the possession for supply of MDMA charge.^[11]
• [21] For the loaded semi-automatic firearms and restricted weapons (a taser and pepper spray) charges, the Judge considered a starting point of four years would apply.^[12]
• [22] Applying the totality principle, the Judge then reduced these uplifts to 18 months for the cannabis and MDMA charges and two years for the firearms and weapons charges, leaving an adjusted starting point of 14 and a half years’ imprisonment.^[13]
• [23] From that point, the Judge said he was prepared to apply the full 25 per cent credit for guilty pleas, which he “rounded out to three and a half years” (equivalent to 24.1 per cent).^[14] For time spent on EM bail (estimated to be 15 months by the time of sentencing) a further one-year reduction was allowed. This led to a nominal end sentence of 10 years’ imprisonment.^[15]
• [24] At sentencing, Judge Barry also had the benefit of a PAC report, and an alcohol and drug assessment. These documents persuaded him that:^[16]

Mr Simcic is clearly an intelligent and mature man who has fallen into this trap of habituation to methamphetamine, in particular, which has led into a high-level dealing enterprise.

• [25] In referring also to Mr Simcic’s acceptance of responsibility, remorse, and motivation to rehabilitate, the Judge allowed a further one-year discount from his nominal end sentence indication. This brought the final end sentence to one of nine years’ imprisonment.^[17]

The appeal grounds sought to be advanced

• [26] Mr Simcic appeals his end sentence of nine years’ imprisonment imposed on the lead methamphetamine charges contending that it is manifestly excessive. In summary he submits:

(a) the overall starting point for this offending of 14 and a half years’ imprisonment which included the uplifts for other charges was wholly out of proportion to the gravity of the offending; and

(b) additional credit should have been given to reflect factors personal to Mr Simcic, in particular his background, his addiction at the time of the offending, and his remorse and rehabilitative prospects.

• [27] We review each of these issues in turn.

Starting point

• [28] On appeal, Mr Simcic does not challenge the starting point of 11 years’ imprisonment adopted for the lead methamphetamine charges and accepts this was within range. The focus of this aspect of his appeal is on the uplifts the Judge applied for the other charges.
• [29] It is, of course, the end sentence imposed that matters, rather than the process by which it is reached.^[18] Before us, the Crown accepted that in this case there is some force to submissions advanced for Mr Simcic that the uplifts applied were reasonably high. Mr Thompson, for the Crown, argued, however, that these matters were more than balanced out in the end sentence by:

(a) the Judge adopting a starting point in his sentencing which was at the lower end of the available range; and

(b) generous discounts being allowed for time spent by Mr Simcic on EM bail and for his guilty pleas not entered at the earliest possible opportunities.

At the outset we note our overall finding that there is merit in those arguments advanced by Mr Thompson.

• [30] As to the initial starting point adopted, Mr Simcic’s methamphetamine offending here was serious given it involved a significant commercial enterprise. Mr Simcic had a leading role in what appears to have been a “one man” commercial methamphetamine dealing operation. Analysing his tick lists revealed he had supplied at least 1.125 kilograms of methamphetamine over a period of seven months, providing revenue of $455,840. The Crown says the actual amount supplied was likely to have been higher, and as we have noted, police analysis estimated about one year’s methamphetamine and cannabis sale transactions undertaken by Mr Simcic at $779,000. He was also found to be in possession of a total of 23.67 grams of methamphetamine.
• [31] We are satisfied, based on other decisions of this Court and the High Court, that a higher starting point than the 11 years adopted by the Judge in this case was available and appropriate.^[19]
• [32] In our view, a starting point here of 12 years or even marginally higher (which was the starting point upheld in both Martin v R and Tai v R in not dissimilar circumstances — although each involved significantly less quantities of methamphetamine) would have been within range in the present case.
• [33] As to the uplifts imposed by the Judge in his decision, these amounted to two years for the firearms and restricted weapons charges, and 18 months for the cannabis and MDMA offending. The total uplifts, therefore, were three and a half years which Mr Thompson has accepted were at the higher end.
• [34] So far as the firearms and weapons charges are concerned, this Court has regularly endorsed uplifts of between 12 and 18 months for those found in possession of firearms in association with drug offending.^[20] Mr Thompson accepted that an uplift of at least 18 months here for these charges would have been appropriate. We agree. The firearms in the present case, both being loaded semi-automatics, presented a significant and potentially immediate risk to life.
• [35] And, as to the cannabis and MDMA charges, the Judge applied an uplift of 18 months’ imprisonment for these.
• [36] It appears to be accepted here that if the cannabis offending was being dealt with on a standalone basis, a starting point in the middle of category 2 of R v Terewi would have been available.^[21] Category 2 encompasses small-scale offending for a commercial purpose to derive profit, with a starting point range from two years to four years’ imprisonment.^[22] Here, Mr Simcic, over a period of seven months, had sold at least 652 grams of cannabis for a total greater than $8,085. He was also in possession of 2.79 kilograms of cannabis plant material and 6.65 grams of the Class B controlled drug MDMA for supply.
• [37] We accept the uplift the Judge applied for the cannabis and MDMA charges of 18 months’ imprisonment was probably at the upper end of the available range, although at least 12 months’ imprisonment would have been appropriate here.
• [38] Adding this to the 18 months’ uplift for the firearms charges, then an overall uplift of two and a half years’ imprisonment may have been more appropriate, taking into account totality. This would comprise 18 months for the firearms/weapons charges and 12 months for the other drug offending.
• [39] When added to the higher available starting point of 12 years’ imprisonment, the suggested lower uplifts would result in a nominal sentence of 14 and a half years’ imprisonment, which is consistent with where the Judge reached.

Reductions for personal mitigating factors

• [40] The Judge applied reductions of five and a half years from his sentencing starting point on the following basis:

(a) one year for matters set out in the PAC report and the drug and alcohol report, including addiction and remorse;^[23]

(b) one year for time spent by Mr Simcic (15 months) on EM bail;^[24] and

(c) three and a half years for his guilty pleas.^[25]

• [41] No issue is taken by Mr Simcic here with the three and a half years (being slightly less than 25 per cent) discount applied for guilty pleas and the 12-month discount for time spent on EM bail.
• [42] Mr Stevens submits, however, that a combined discount of at least 15 per cent should be applied for matters relating to Mr Simcic’s personal background, addressed in a new s 27 report (which he has endeavoured to place before us), Mr Simcic’s addiction issues and his remorse and rehabilitative prospects. Mr Simcic seeks leave to adduce this new cultural report under s 27 of the Sentencing Act 2002. The report prepared by Ms Shelley Turner, the director of Cultural Reports NZ Limited on 31 July 2022.
• [43] On a number of occasions this Court has said that generally s 27 reports should not be submitted as here for the first time on appeal.^[26]
• [44] However, if the information in a s 27 report is cogent then we accept sometimes it will be appropriate for it to be considered by a Court on appeal.^[27]
• [45] Ms Turner’s s 27 report discusses Mr Simcic’s upbringing and a number of traumatic events in his life (the breakdown of Mr Simcic’s marriage and a home invasion). These are said to have contributed to his substance abuse. It also addresses Mr Simcic selling drugs to support his drug habit and to otherwise meet his financial needs, and his remorse and rehabilitative efforts undertaken since being imprisoned. Last, it discusses what is said to be family support available for Mr Simcic to prevent his re-offending.
• [46] Mr Simcic was sentenced on 1 December 2020, some 20 months before Ms Turner’s s 27 report. In our view, this report adds little to the information that was available to the Judge. Before him was the PAC report and the alcohol and drug assessment report from Roger Brooking, the experienced clinical manager of an alcohol and drug assessment and counselling service. The report from Mr Brooking was particularly detailed. It addressed each of the areas now discussed in the s 27 report. We have considered the s 27 report but as we see the position it adds little here and we decline to admit it. Nevertheless, for completeness we will go on to briefly consider Mr Stevens’ arguments relating to issues over Mr Simcic’s personal background.
• [47] Both the s 27 report and Mr Brooking’s alcohol and drug assessment report describe Mr Simcic’s childhood generally as traumatic, featuring intimidation and emotional abuse. At age 12 Mr Simcic was taken away from his family home and placed in the care of his aunt. He began using alcohol and cannabis regularly as well as amphetamines and LSD. He left school at age 15 and later became dependant on cannabis.
• [48] Mr Simcic married at age 25 and had three children. Subsequently, his marriage broke down and Mr Simcic says he turned to methamphetamine to cope, using the substance addictively. He then suffered a home invasion in which he maintains he was badly injured and as a result he says he continued to self-medicate with illicit substances.
• [49] Ms Turner, in her report, contends that Mr Simcic was particularly vulnerable to drug dependence due to genetics, early exposure to alcoholism and ongoing use of cannabis, he having been for a long time a cannabis user. We accept too this substance abuse was normalised from a young age. Since 2016 when Mr Simcic began using methamphetamine, it is said he rapidly became addicted, using it on a daily basis.
• [50] Here, the Crown acknowledges that the approximate seven per cent reduction provided by the Judge for the matters set out in the PAC report and the drug and alcohol report was at the lower end of the available range.
• [51] Mr Brooking’s alcohol and drug assessment report noted, however, that Mr Simcic had not attended any alcohol or drug counselling (although it seems he has since engaged in these programmes while imprisoned) and therefore no additional discount for rehabilitative efforts is warranted.
• [52] On the question of the appropriate level of discount for Mr Simcic’s addiction issues and remorse, as we see it the present case is very similar to that considered by this Court in To’a v R.^[28] Mr To’a’s offending resembles that of Mr Simcic and he, too, was addicted to methamphetamine at the time. In considering the appropriate reduction to reflect this fact, this Court held:^[29]

[25] In Zhang, this Court explained that addiction may be a mitigating factor where there is a causal link between a defendant’s offending and his or her addiction...addiction is, however, unlikely to be genuinely causative of offending that takes place on a commercial scale. This is because addiction in cases involving large quantities of methamphetamine is: “Likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence.”

[26] ... Mr To’a was genuinely addicted to methamphetamine at the time of his offending. The magnitude of his offending, however, greatly exceeded the amounts of methamphetamine and money he required to support his addiction. Thus, while we accept a modest discount was warranted to reflect Mr To’a’s addiction, this was not a case in which any significant discount was justified to recognise Mr To’a’s addiction issues. In our assessment, a discount of five per cent, to reflect Mr To’a’s addiction was all that could be justified.

• [53] In To’a, this Court also accepted that Mr To’a was genuinely remorseful and confirmed the allocation of a discrete discount of five per cent to reflect that.^[30] In our view, a similar approach is appropriate for Mr Simcic’s acknowledged remorse here. This will result in an overall discount being allowed for addiction and remorse issues of 10 per cent. This is marginally higher than the approximate seven per cent allowed by the sentencing Judge. In our view, that is appropriate for these personal mitigating factors.
• [54] We turn now to the one-year discount allowed by the Judge as an appropriate reduction for the time Mr Simcic spent on EM bail. By the time of his sentencing, Mr Simcic had been on EM bail for approximately 17 months. The one-year discount allowed by the Judge was equivalent to 70.6 per cent of the time spent on EM bail. In our view, this was generous.
• [55] Recently, this Court considered the usual discounts to be provided for time spent on EM bail in Paora v R,^[31] and said:^[32]

There is no guideline about the discount which should be afforded to a defendant for time spent on EM bail in New Zealand, although percentages ranging between 30 and 50 per cent are often used, and this Court recently noted that an allowance of up to 50 per cent is not uncommon. That is not an upper limit. As we have explained, the assessment of credit is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case. Courts have sometimes considered it appropriate to award a discount of more than 50 per cent of time spent on EM bail to reflect its restrictive conditions.

• [56] Here, we have been provided with Mr Simcic’s original bail decision from the District Court. This set out standard conditions apart from a requirement that he not possess a phone. Although it is not entirely clear to what extent Mr Simcic was able to leave his house, in our view his time spent on EM bail did not warrant any greater discount than 50 per cent. We reach this position also bearing in mind the context of the COVID-19 Alert Levels in place in New Zealand for much of the period Mr Simcic was on bail, which had the effect of restricting the general freedom of movement of the entire country.
• [57] The 50 per cent EM bail discount we find appropriate here would amount to eight and a half months, rather than the 12 months allowed by the Judge.
• [58] Last, we turn to the guilty plea discount issue. Mr Simcic pleaded guilty on 8 September 2020, almost 15 months after originally being charged, having received a sentence indication. Nevertheless, the Judge said he was allowing:^[33]

...full credit of 25 per cent (bearing in mind the troubled times we live in now lend themselves to delay; I am not going to quibble about that) to a credit rounded out to three and a half years.

• [59] This credit, which is equivalent to just over 24 per cent, in our view was generous in all the circumstances here. Mr Simcic was charged some nine months before any COVID-19 restrictions came into effect and we accept that it cannot be said that his guilty plea was entered at the earliest opportunity. In our view a guilty plea discount of between 15 and 20 per cent would have been more appropriate.

Result

• [60] The net result is that, while the ultimate sentence we would have imposed would not have been materially different from the nine years’ imprisonment reached by the Judge. By way of explanation, an alternative means of constructing Mr Simcic’s sentence as we have outlined here might have been on the following basis:

(a) starting point of 12 years’ imprisonment;

(b) overall uplift of (say) between two and two-and-a-half years for the firearms/weapons and other drug offending;

(c) reduction of 10 per cent (17 months) for addiction and remorse;

(d) reduction of nine months (50 per cent of 17 months rounded up) for time spent on EM bail; and

(e) reduction of 15 to 20 per cent (26 – 35 months) for guilty pleas.

• [61] This would have resulted in an end sentence between eight years and 11 months and 10 years two months’ imprisonment. This falls broadly around the nine-year range, which cannot be said to be manifestly excessive.
• [62] Whether the proposed grounds of appeal argued for Mr Simcic are considered separately or cumulatively, in our view they do not establish a substantial risk that any miscarriage of justice may have occurred. Mr Simcic has not been able to identify any reasonably arguable error in the sentence imposed upon him by the Judge, such that his sentence here could be considered manifestly excessive.
• [63] We find the merits of this appeal are not strong. Also, on the face of it, we are satisfied Mr Simcic has been unable to adequately explain the delay in bringing this appeal. It follows that the interests of justice do not require an extension of time to be granted.
• [64] The application for an extension of time to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Simcic [2020] NZDC 25599 [Sentencing notes].

^[2] R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) and R v Knight [1998] 1 NZLR 583 (CA).

^[3] R v Lee, above n 2, at [95]–[99]; and R v Knight, above n 2, at 589.

^[4] R v Knight, above n 2, at 587.

^[5] Mikus v R [2011] NZCA 298 at [26]; and R v Slavich [2008] NZCA 116 at [14].

^[6] R v Lee, above n 2, at [115].

^[7] R v Simcic DC Wellington CRI-2019-091-1286, 24 August 2020 [Sentencing indication].

^[8] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[9] At [125].

^[10] Sentence indication, above n 7, at [19]–[20].

^[11] At [21].

^[12] At [22].

^[13] At [24].

^[14] At [26].

^[15] At [27].

^[16] Sentencing notes, above n 1, at [8].

^[17] At [18].

^[18] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

^[19] See Martin v R [2020] NZCA 318 at [26]; Taui v R [2022] NZCA 128 at [80]–[85]; Tai v R [2022] NZCA 403 at [23]; and Pomale v R [2022] NZCA 343 at [19].

^[20] To’a v R [2020] NZCA 187 at [19].

^[21] R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

^[22] At [4].

^[23] Sentencing notes, above n 1 at [18].

^[24] Sentencing indication, above n 7, at [27].

^[25] At [26].

^[26] Laipato v R [2021] NZCA 562 at [16] and [13], citing Carroll v R [2019] NZCA 172 at [8] and Clarke v R [2021] NZCA 96 at [14].

^[27] At [16].

^[28] To’a v R, above n 20.

^[29] Footnotes omitted.

^[30] At [28].

^[31] Paora v R [2021] NZCA 559 at [39]–[62].

^[32] At [53] (footnotes omitted).

^[33] Sentencing indication, above n 7, at [26].