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…

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 Fitzsimons v Police

Details

AGLC: Fitzsimons v Police [2013] NZHC 2614
Case: [2013] NZHC 2614
Decision Date: 8 October 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Fitzsimons v Police addressed an appeal against a sentence imposed by the Nelson District Court. The appellant, Carl Lee Fitzsimons, challenged the two-year and one-month imprisonment sentence imposed on him for assault with intent to injure, threatening to kill, and wilful damage. Fitzsimons contended that the sentence was manifestly excessive and that home detention should have been imposed instead.

The legal issues in this case centred around the appropriateness of the sentence imposed by the District Court and whether the sentence was manifestly excessive. The appellant argued that the starting point of three years for the sentence was excessive, drawing a comparison with a previous case, R v Richardson, where a starting point of 12 months was set for similar offences. Fitzsimons claimed that the premeditation and the violent nature of the assault were not as severe as those in Richardson. The court had to determine whether the District Court's sentence was justified and whether the appellant's appeal should be upheld.

The High Court found that the District Court's sentence was justified. The court identified several factors that distinguished the present case from Richardson, including significant premeditation, worse violence, and an element of humiliation. The court held that the starting point of three years was within the appropriate range and that the overall sentence of two years and one month was not manifestly excessive. The court also considered that the serious assault on a vulnerable victim required a sentence that provided clear and unequivocal condemnation, which could not have been adequately met by home detention.

In conclusion, the High Court dismissed the appeal, affirming the District Court's sentence of two years and one month imprisonment.

Orders