Simon v Police [2012] NZHC 2384 (14 September 2012)

Last Updated: 24 September 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-51 [2012] NZHC 2384

TOBY SIMON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 14 September 2012

Counsel: T Barclay for Appellant

L Owen for Respondent

Judgment: 14 September 2012

_{JUDGMENT OF TOOGOOD J}

Solicitors:

T Barclay, Rotorua.

L Owen, Gordon Pilditch, Rotorua.

SIMON V NEW ZEALAND POLICE HC ROT CRI-2010-463-51 [14 September 2012]

[1] Toby Simon was sentenced by Judge Weir in the District Court at Rotorua on

29 August 2012 on what the Judge described as “a raft of different charges all of which really hinge upon (his) abuse of methamphetamine.” The convictions which were entered following the appellant’s guilty pleas arose from three separate incidents. On 1 March 2012 the appellant was observed by Police riding his motorcycle at a speed which seemed to exceed the applicable 60 kilometre per hour limit. When the Police activated their siren and lights, the appellant sped away at high speed, at times in excess of 130 kmh. He continued into a 50 kmh area where he travelled at over 100 kmh veering across both sides of the road and the footpath. While on the footpath he lost control and fell off his bike which crashed into a power pole.

[2] After the appellant was taken to hospital, the Police found methamphetamine in his clothes while attempting to locate some form of identification. Several snap lock bags, one of which contained one gram of methamphetamine, were found. After appearing in court on the charges arising from those circumstances, the appellant was remanded at large.

[3] On 14 May 2012, the Police arrested the appellant at his house on another matter. While they were there they found snap lock bags, two of which contained small quantities of methamphetamine (0.5 grams and 0.85 grams respectively). There was also a sawn-off shotgun with the firing pins removed. On 14 May 2012, the appellant was issued a notice suspending him from driving for three months due to an accumulation of demerit points. He was remanded on bail for sentence on the charges arising from the 14 May incident.

[4] The last offending occurred on 20 July 2012. Following an altercation with his partner at her house in the early afternoon, the appellant was told by his partner’s sister to leave. He got into his partner’s car and reversed out of the driveway at speed. Police had been summoned and they arrived as the appellant drove off. He was stopped a short distance away. As he was getting out of the vehicle the appellant was seen rummaging in the driver’s door pocket. A large kitchen knife, about

35 centimetres long, was found there. After his arrest, the appellant was searched

and a snap lock bag containing .25 grams of methamphetamine was found in his pocket. The appellant refused to undergo a compulsory impairment test and was consequently required to permit a blood sample to be taken. He refused. The appellant was on bail at the time of this offending.

[5] The appellant is a 40 year-old man with an extensive history of drug and driving related offending. He is currently unemployed and has a harmful pattern of methamphetamine use.

[6] Judge Weir was faced with the task of sentencing the appellant on a range of different charges which revealed a pattern of offending consistent with each other and with his history of offending. In achieving what the Judge considered to be the total appropriate effective end sentence of 13 months’ imprisonment, with the imposition of special release conditions, the Judge could have chosen any number of different routes. He elected to treat the possession of methamphetamine as the lead offending, primarily because he regarded the abuse of that drug by the defendant as being the cause of the other offending. Given that the maximum sentence on the possession charges was only six months’ imprisonment, however, it would have been open to him to treat the driving charges as the lead offences for sentencing purposes, bearing in mind that the maximum penalty on each was one of two years’ imprisonment.

[7] Nevertheless, as the Court of Appeal has said on numerous occasions, arguable errors in the method adopted by a Judge in determining the appropriate end sentence may be put to one side if the effective end sentence is appropriate to reflect the totality of the offending overall.[1] Mr Barclay was critical of the imposition of cumulative sentences on the methamphetamine charges, bearing in mind their similarity and relative proximity in time, and he submitted that the approach taken resulted in a clearly excessive sentence. Among the errors he pointed to was the imposition by the Judge, on the charge of possessing methamphetamine on

20 July 2012, of imprisonment for the maximum term of six months’ when he was obliged to provide a discount to the appellant for his plea of guilty and said he had done so.

[8] It is convenient to test the overall appropriateness of the effective end sentence by deconstructing the end sentence, adopting an approach which is the reverse of that described in R v Clifford,[2] the leading decision of the Court of Appeal on the structure of the sentencing process. Assuming, as indicated, that a discount of

25 percent was afforded to the appellant on account of his guilty pleas, it can be assumed that a sentence of approximately 17 months’ imprisonment was considered appropriate by the Judge to reflect the totality of the offending and to allow for an appropriate uplift on account of the aggravating personal feature of the appellant’s prior conviction history.

[9] The appellant began offending in his early 20s, beginning with shoplifting and receiving charges. He was then fined for driving with excess breath alcohol and possessing a cannabis plant for supply. He received periodic detention for burglary offending committed in 1997, and his first sentence of imprisonment was in 2001 when he received 15 months for selling cannabis. Since then the appellant has received a variety of community-based sentences, a number of which were breached.

[10] In those circumstances, an uplift of at least five months’ imprisonment was justified on account of the previous history; not to resentence the appellant for his earlier offending but to mark the need to deter the appellant from continuing to offend in this way and community protection.

[11] Again working backwards, that leaves 13 months’ imprisonment as the term imposed to reflect the seriousness of the offending overall, before the uplift and the plea discount.

[12] As to that, the charges of possessing methamphetamine and the driving charges were separate in character and, in respect of the driving offences, of some seriousness, carrying maximum terms of two years’ imprisonment. In my view it would have been appropriate to impose a term of six months’ imprisonment on the driving charges and to construct a total sentence of six months’ imprisonment on the three methamphetamine charges, bearing in mind that one of them was committed while on bail. Possession of a kitchen knife in public while in possession of

methamphetamine has a sinister overtone and that would be reflected in a sentence of that kind. From that total of 12 months’ imprisonment, the uplift would be added.

[13] In the circumstances, looked at in that way, a total sentence of 12 months’ imprisonment uplifted by five months on account of previous history and then discounted by 25 percent for the guilty pleas was in my view an entirely appropriate outcome. The appellant had plainly not responded positively to the earlier community-based sentences and the short term of imprisonment imposed by the Judge entitled him to take the proactive step of imposing special release conditions designed to address the underlying cause of the appellant’s offending. Although the appellant may not recognise it, the Judge was trying to help him.

[14] In my view, the outcome achieved by the Judge was entirely right and I

dismiss the appeal.

.........................................

Toogood J

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[1] R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].
[2] R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23