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Fitzsimmons v The Queen

Fitzsimmons v The Queen

Case [2021] NZHC 3192 26 November 2021

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-141

[2021] NZHC 3192

BETWEEN
JOSEPH KONUI FITZSIMMONS

Appellant

AND

THE QUEEN

Respondent

Hearing: 26 November 2021

Appearances:

M Douglas (on behalf of W T Nabney) for Appellant B Smith for Respondent

Judgment:

26 November 2021

JUDGMENT OF LANG J

[on appeal against sentence]

Solicitors:
Crown Solicitor, Tauranga

FITZSIMMONS v R [2021] NZHC 3192 [26 November 2021]

[1] Mr Fitzsimmons pleaded guilty to charges of burglary, driving with excess breath alcohol, three charges of driving whilst disqualified in its aggravated form, common assault and intentional damage. On 5 November 2021 Judge C J Harding sentenced him to 27 months imprisonment.1

[2] Mr Fitzsimmons appeals against sentence. He submits the Judge adopted a starting point that was too high on the burglary charge and applied an uplift that was too great for the assault charge. He contends these factors resulted in the end sentence being manifestly excessive.

The charges

[3] Mr Fitzsimmons was disqualified from driving indefinitely on 20 February 2013. At approximately 2 am on 12 March 2020 he was observed driving a vehicle in Tauranga.

[4] On 9 January 2021, Mr Fitzsimmons became involved in heated telephone calls with his partner. She began ignoring his calls so he went around to her address late in the evening. He smashed a window and entered her bedroom. He then began to harangue his partner, who called out for assistance to her flatmates. They then called the police.

[5] Before the police arrived Mr Fitzsimmons and his partner left the address in his partner’s vehicle. They parked behind some shops in Te Puke. Mr Fitzsimmons then began punching his partner on numerous occasions to the face and head. This caused her nose to bleed and her left ear began ringing from the blows. He also pulled a clump of hair from his partner’s head. The police found Mr Fitzsimmons and his partner at his address the following morning. She had a bruised face, head and eye as a result of this incident. She was also visibly upset. This incident led to the charges of intentional damage and common assault.

[6] The burglary charge related to an incident that occurred on the evening of 7 March 2021 when Mr Fitzsimmons entered the reception area of a motel in a rural

1 New Zealand Police v Fitzsimmons [2021] NZDC 22190.

area. He took several sets of car keys and a watch from the office and then used one of the keys to steal a Toyota Prado motor vehicle that was parked in the motel grounds. Mr Fitzsimmons drove away in the vehicle. He was still disqualified from driving at this time.

[7] The vehicle was recovered a few weeks later. It had sustained minor damage, and the spare wheel and key remain missing. The watch was also subsequently recovered.

[8] On 30 May 2021 the police were alerted to a vehicle travelling in an aberrant manner…

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 Fitzsimmons v The Queen

Details

AGLC: Fitzsimmons v The Queen [2021] NZHC 3192
Case: [2021] NZHC 3192
Decision Date: 26 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the appeal of Joseph Konui Fitzsimmons against his sentence was heard on 26 November 2021. Mr Fitzsimmons, who had pleaded guilty to various charges including burglary, driving with excess breath alcohol, driving while disqualified, and assault, contested the sentence of 27 months imprisonment handed down by Judge C J Harding on 5 November 2021. He argued that the starting point for the burglary charge was too high and the uplift for the assault charge was excessive, resulting in an overall sentence that was manifestly excessive.

The primary legal issues in this appeal were whether the starting point for the burglary charge and the uplift for the assault charge were appropriately determined. Mr Fitzsimmons contended that the starting point of three years for the burglary was too high and should have been no more than two years and six months. He also argued that the six-month uplift for the assault charge was excessive and should have been a maximum of twelve months. The court needed to determine if these factors, along with the application of mitigating discounts, justified a lower sentence.

The court found that while the starting point of three years for the burglary charge was indeed too high, setting it at two years and six months was more appropriate. The court agreed that the uplift for the assault charge, despite being serious, was justified at twelve months. Considering the additional uplifts for other charges, the court concluded that the overall starting point of four years and six months was not outside the available range. Regarding the discounts, the court found that a 50% reduction to account for all mitigating factors was adequate. The appeal against the sentence was dismissed, and the original sentence was upheld.

In summary, the court upheld the original sentence of 27 months imprisonment for Joseph Konui Fitzsimmons, rejecting his appeal. The starting point for the burglary charge was adjusted to two years and six months, and the uplift for the assault charge was affirmed at twelve months. The court's overall discount of 50% was deemed appropriate, maintaining the original sentence.

Orders