Fitzsimmons v The Queen

[2021] NZHC 3192

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 along The Mall in Mount Maunganui. The police found the vehicle parked at the end of the street and were able to establish that Mr Fitzsimmons had been driving it. Breath testing procedures revealed that the level of alcohol in his breath was 738 micrograms per litre of breath.

The sentence

[9]    The Judge took a starting point of three years imprisonment on the burglary charge. This reflected his understanding that it was committed during night time hours and in circumstances where the residents of the address were a short distance away. He noted that the offending also involved two intruders.

[10]   The Judge added an uplift of six months to reflect the charge of common assault and a further uplift of nine months to reflect the charges of driving whilst disqualified and with excess breath alcohol.

[11]   From the resulting sentence of 54 months imprisonment the Judge applied a discount of 25 per cent to reflect guilty pleas and a further reduction of 25 per cent to reflect issues identified in a report tendered to the Court under s 27 of the Sentencing Act 2002. This resulted in the end sentence of 27 months imprisonment.

The appeal

Starting point on the burglary charge

[12]   At sentencing in the District Court Mr Fitzsimmons’ counsel accepted that the available range for the starting point on this charge was between two and a half and three years imprisonment. The Judge accepted this submission but selected a starting point at the top of the suggested range. The argument on appeal is that this was too high.

[13]   I accept this submission because in fixing the starting point the Judge took into account aggravating factors that were not contained in the summary of facts. The summary does not make any mention of two persons being involved in the burglary and there is nothing to suggest other persons were placed at risk by it. It seems to have been opportunistic offending of very short duration.

[14]   I consider this was a burglary at the lower end of the range in terms of culpability. Importantly, however, it resulted in the theft of a valuable vehicle and a watch. I therefore accept the appellant’s submission that it warranted a starting point of no more than two years six months imprisonment.

Uplift for common assault

[15]   Mr Nabney contends that the uplift of six months for the charge of assaulting his partner was too high. I disagree because I consider Mr Fitzsimmons was very fortunate that the police ultimately elected to lay a charge of common assault under the Crimes Act 1961. This calls for a maximum sentence of 12 months imprisonment.2 He had originally been charged with assaulting a person with whom he was in a family relationship, a charge carrying a maximum penalty of two years imprisonment. The police elected to withdraw that charge and lay the charge of common assault.

[16]   The aggravating feature of this offending is that it was preceded by forced entry to the victim’s bedroom. The assault itself involved numerous blows to the head. It resulted in injury to his partner, although fortunately not serious. A charge of assault

2      Crimes Act 2000, s 196.

with intent to injure or injuring with intent to injure could easily have been justified. Had that occurred it would probably have been the lead, or most serious, charge. The assault was certainly at the very upper end of the scale in terms of seriousness for offending of its type. I consider it justified an uplift of twelve months imprisonment even taking totality principles into account.

[17]   It follows that I accept Mr Douglas’s submission that the starting point for the burglary charge should not have been greater than two years six months. However, I consider the uplift for the assault charge should have been the maximum available of twelve months. Added to these are the uplifts of nine months to reflect the driving charges and three months to reflect previous convictions for offending involving dishonesty. Mr Fitzsimmons takes no issue with these. This means end starting point of four years six months imprisonment was not outside the available range.

Mitigating factors

[18]   Mr Douglas contends the Judge ought to have applied a discount of at least 25 per cent to reflect the issues identified in the cultural report and a further 10 per cent to reflect other mitigating factors. These included the fact that Mr Fitzsimmons attended a restorative justice conference with his partner at which he agreed to pay her reparation in the sum of $600 to meet the cost of repairing the window he damaged when he entered her bedroom.

[19]   I do not accept this submission. Another Judge may well have given a discount of 15 per cent to reflect the factors identified in the cultural report along with ten per cent to reflect other mitigating factors. I therefore consider a discount of 25 per cent was adequate to reflect mitigating factors other than the pleas. An overall discount of 50 per cent was also adequate to recognise all mitigating factors. Mr Nabney’s suggested overall reduction of 60 per cent for mitigating factors would be too great.

Result

[20]The appeal against sentence is dismissed.

Lang J