Fitzsimons v Police

[2013] NZHC 2614

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2013-442-10

[2013] NZHC 2614

CARL LEE FITZSIMONS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:

8 October 2013

Counsel:

M J Vesty for Appellant

E J Riddell for Respondent

Judgment:

8 October 2013

ORAL JUDGMENT OF RONALD YOUNG J

(Appeal against sentence)

[1] Mr Fitzsimons is a road worker from Nelson. On 14 May 2013 he pleaded guilty to charges of assault with intent to injure, threatening to kill and wilful damage. The Judge in the District Court in August 2013 sentenced him to two years and one month imprisonment. The appellant says the sentence was  manifestly excessive and home detention ought to have been imposed.

The facts

[2] The appellant and victim had been in a relationship for two and a half months prior to the offending. Shortly before the offending they had found out that the victim was pregnant. On 30 March 2013 the appellant and a friend had spent a day drinking heavily. The victim had driven them from place to place.

FITZSIMONS v POLICE [2013] NZHC 2614 [8 October 2013]

[3]    At about 8.30 in the evening the appellant said to the victim “I should’ve just hit you in the fuckin stomach now, it will save us $50”. The $50 was a reference to the cost of an abortion. Eventually the victim went to bed and the appellant continued to drink.

[4]   Shortly before midnight the victim woke to find the appellant standing over her demanding she take her clothes off. She did so to calm him down. He then abused her. The victim asked him to leave but the appellant moved close to the victim and said “I’m going to punch you in the stomach, I’ll be happy to kill it”. The appellant then grabbed the victim’s breasts (at the time she was naked) and twisted them violently in the opposite direction.

[5] The appellant then punched the victim twice, once in her lower abdomen and once slightly higher up. This was followed by a series of four to five punches to the stomach. The victim described this was being like a boxer training on a bag.

[6]   The victim tried to escape but the appellant delivered more punches causing her to fall backwards. Finally the appellant punched her in the stomach which was accompanied by further abuse.

[7]   The appellant then smashed four or five windows in the house. As a result he cut himself seriously. He then grabbed a shard of glass and held it towards the victim saying “how about I slit your throat then?”

[8] The victim was taken to hospital. She received bruising to her breasts and stomach and a possible internal injury which resulted in bleeding from her genital. She did not at that time miscarry.

[9]      The Judge at sentencing considered the following factors were relevant:

(a)serious premeditation, the first threat of affecting a miscarriage came four hours before the assault;

(b)the serious vulnerability of the victim;

(c)there was an element of indecent assault in the offending against the victim’s breasts;

(d)particular cruelty given this was targeting the stomach of a pregnant woman and the degrading nature of the assault forcing the victim to strip naked;

(e)the offending was moderately prolonged including an attempt to prevent the victim escaping;

(f)the moderately serious violence including multiple forceful punches to the stomach designed to cause a miscarriage.

[10] The Judge considered that taking account of the maximum penalty of the assault with intent to injure charge this offending was amongst the most serious cases of its type and therefore warranted a sentence near the maximum available.

[11] The Judge adopted a starting point of three years’ imprisonment including an uplift for the total offending including the intentional damage and threatening to kill charges. He then gave a discount of two months for remorse and a 25 per cent deduction for the appellant’s guilty plea. He gave no other deductions. The final sentence was one of two years and one month imprisonment. The Judge noted he did not think a sentence in any event of home detention was appropriate even if he had reduced the sentence to one of two years and below.

[12] The appellant’s submission is that the three year starting point here is manifestly excessive because the facts are very similar to R v Richardson where the starting point was 12 months on the lead charge.1 In Richardson the offender was lying on a bed with his partner and a 10 month old child. He was awoken by the child playing with his face.  He became agitated and smacked the child on the hand.

His victim remonstrated with the appellant. An argument ensued. He then removed the child from the room. She was  pregnant at the time. Mr Richardson then punched her once in the side of the stomach and flew into a rage and began smashing

1       R v Richardson [2012] NZHC 1465.

items around the house. When the victim tried to intervene he threatened to kill her and punched her two more times in the side of the stomach. He continued to punch her in the arms and legs when she fell to the ground. She was taken to hospital but not seriously injured.

[13] In my view there are a number of factors that distinguish Richardson from the facts of the present case.

[14]   In  Richardson  the  Crown  suggested  a  starting  point  of  between  12  to 15 months’ imprisonment. But in this case the offending was, in my view, more serious for a number of reasons. First, there was significant pre-meditation. There was none in Richardson. Second, the violence here was worse. The focus was on punching the victim to cause a miscarriage and that was far more serious in this case. In this case there was an element of humiliation by requiring the victim to strip naked and the assault on the victim’s breasts. In any event I consider the start sentence in Richardson to have been on the modest side.

[15] The approach here was, as the Judge identified, to identify  an  overall sentence for both the violence to the victim, the wilful damage and the threatening to kill. This was an extremely serious assault which was deliberately designed to try and cause a miscarriage. The violence was premeditated and as I have previously noted accompanied by humiliation and a violent assault on the victim’s breasts. I accept that the assault itself could not be said to have been prolonged but the combination of the threat and the assault was over some hours.

[16] Further, the threat to kill was also very serious. It was not obviously an empty threat. A weapon was used and the appellant was in close proximity to the victim at the time. Even without the serious assault that would have justified a sentence of imprisonment, at least as a start sentence. And finally there was the wilful damage which involved significant destruction of property.

[17] The start sentence, therefore, was not a start sentence of the maximum for the assault with intent to injure. It was a three year start sentence based on, as I have said, all of the offending.  The Judge could, as an alternative, have identified the

individual elements of the start sentence, for example, two years and three months for the assault, nine months for the threatening to kill charge although that would have been somewhat unusual in the context of an appropriate sentencing process. By itself the violent assault justified a start sentence at the very high end of the three year range for the very reasons identified by the Judge in the District Court save the prolonged assault aspect. I am satisfied, therefore, that the start sentence was well within the appropriate range available to the Judge.

[18] The appellant had a reduction in the charge from injuring with intent to cause grievous bodily harm to assault with intent to injure. This involved a significant reduction in the maximum penalty available. This is relevant to any discount for a guilty plea. The appellant frankly can count himself fortunate to have received a 25 per cent discount. As well the discount for remorse was also generous in the circumstances and in my assessment difficult to justify. And so the overall sentence, in my view, of two years and one month sentence is not manifestly excessive. A higher sentence could easily have been justified.

[19] I agree with the Judge that even if the sentence had been reduced to one of below two years, this serious assault on a vulnerable victim required clear and unequivocal condemnation which would not have been adequately met by a sentence of home detention.

[20]    The appeal will be dismissed.

Ronald Young J

Solicitors:

Bamford Law, Nelson

O’Donoghue Webber, Crown Solicitors, Nelson