Kimber v The Queen

[2020] NZHC 1053

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000017

[2020] NZHC 1053

BETWEEN

MARK KIMBER

Appellant

AND

THE QUEEN

Respondent

Hearing:

12 May 2020

Appearances:

P Kaye for the Appellant

A Pollett for the Respondent

Judgment:

20 May 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 20 May 2020 at 2:00 am

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

P Kaye, Barrister, Auckland Pollett Legal Limited, Tauranga

KIMBER v R [2020] NZHC 1053 [20 May 2020]

Introduction

[1]    Mark Gregory Kimber appeals against a sentence of three years and six months’ imprisonment imposed by Judge IDR Cameron in the District Court at Tauranga on 21 January 2020 with respect to a number of charges, to all of which Mr Kimber had pleaded guilty.1 Judge Cameron had previously given Mr Kimber a sentence indication in respect of those charges on 5 April 2019.2

[2]    Mr Kimber says that Judge Cameron erred in adopting too high a starting point in respect of both the kidnapping and methamphetamine related offending for which he was being sentenced. The appellant also says the Judge erred in not affording him discounts or otherwise taking account of his poor mental and physical health, addiction issues and remorse. He also says the discount allowed for rehabilitative efforts was insufficient. As a result of these errors, the appellant says, the sentence imposed was manifestly excessive.

Background

[3]Mr Kimber pleaded guilty to:

(a)two charges of assault with a weapon;3

(b)two charges of male assaults female;4

(c)one charge of kidnapping;5

(d)one charge of unlawful possession of a firearm;6

(e)two charges of unlawful possession of explosives (ammunition);7

1      R v Kimber [2020] NZDC 1271.

2      R v Kimber (Sentencing Indication of Judge IDR Cameron) DC Tauranga CRI-2018-070-653, 5 April 2019.

3      Crimes Act 1961, s 202C. Maximum penalty 5 years’ imprisonment.

4      Section 194(b). Maximum penalty 2 years’ imprisonment.

5      Section 209. Maximum penalty 14 years’ imprisonment.

6      Arms Act 1983, s 51. Maximum penalty 3 years’ imprisonment or a fine not exceeding $4000.

7      Section 45(1). Maximum penalty 4 years’ imprisonment or a fine not exceeding $5000.

(f)one charge of possession of utensils for the consumption of methamphetamine;8 and

(g)one charge of possession of methamphetamine for supply.9

[4]    The summary of facts, on the basis  of  which  Judge  Cameron  had  given Mr Kimber his sentence indication, records the following.

[5]    Mr Kimber had been in a relationship with the victim of the violence offending for seven years prior  to  the  offending.  At  some  point  in  July or August  2017, Mr Kimber and the victim were at their home address when Mr Kimber became angry. He tried to hit the victim in the head with the crutch he had used for mobility since a motorcycle accident in 2008. She blocked his swing, causing the crutch to instead hit her elbow, causing nerve damage in her arm.

[6]    On 12 January 2018,10 Mr Kimber and the victim were in a house bus owned by Mr Kimber, at a property in Poike, Tauranga. He hit the victim across the back of her head with his knuckles because, he told her, she was “stressing him out.” This caused the victim to experience a headache as well as soreness for several weeks in the area where she had been hit.

[7]    A further incident came on the morning of 20 January 2018. At about 6.00 am Mr Kimber arrived at an address in Tauranga where the victim had been staying. He found the victim in the bedroom of one of her associates. Mr Kimber “whacked” the victim with a crutch, causing her to fall down. He stood over the victim, who was unable to stand because of pain in her leg. The associate told him to stop. He picked the victim up, put her on his shoulder, and carried her up the driveway. He put her down somewhere near his car and told her to get inside. Afraid for her safety, the victim got into Mr Kimber’s car and he took her away.

8      Misuse of Drugs Act 1975, s 13(1)(a). Maximum penalty 1 year’s imprisonment or a fine not exceeding $500.

9      Sections 6(1)(f) and 6(2). Maximum penalty life imprisonment.

10 The summary of facts, and the Judge in sentencing, recorded the date of this offending as 12 January 2017. Having regard to the chronology of the matter as a whole, I have inferred this was an error and these events took place on 12 January 2018. In any case, it makes no difference to the disposition of the appeal whether these events took place on 12 January 2017 or 12 January 2018.

[8]    Another serious incident occurred on 12 March 2018 at Mr Kimber’s house- bus address. Mr Kimber saw the victim using her phone. He demanded to see her messages, believing she was contacting another male. Thinking she had deleted the messages rather than allowing him to see them, “in a fit of jealousy” Mr Kimber struck the victim in her right eye with his fist. This caused immediate swelling of the eye. Following this incident, the victim was “taken to a place of refuge” by a relative.

[9]    At about 2.30 pm that day, 12 March 2018, the police arrived at Mr Kimber’s Poike address to speak with him. He was arrested immediately upon exiting the house- bus. He told the constables nobody else was on the bus. Hearing movement from inside, the officers searched the bus and found the victim naked. She had been hidden under off-cuts of carpet by Mr Kimber.

[10]   During their search of Mr Kimber’s house-bus, the Police also located, giving rise to the non-violence-related charges:

(a)a semi-automatic .223 calibre assault-rifle fitted with a suppressor, and two loaded magazines of ammunition for the same;

(b)a further quantity of live .223 ammunition;

(c)live .22 ammunition;

(d)9.956 grams of methamphetamine concealed behind a tail light, which is noted to have been of “high purity”; and

(e)a glass pipe, a gas burner, and cut straw, all methamphetamine utensils.

[11]Mr Kimber did not hold a firearms licence at the time of the search.

District Court Decision

[12]   Having recited the above facts, the Judge noted Mr Kimber’s previous convictions for violent offending. These relate to events dating from 1989 through to 2011 and include kidnapping and wounding with intent to injure in 2003, resulting in

a term of imprisonment of six years and six months; wounding with intent to commit grievous bodily harm in 1998, which resulted in imprisonment of four years and nine months; and injuring with intent to injure in 1993, for which a sentence of two years’ six months’ imprisonment was imposed. Additionally, the Judge noted, Mr Kimber was convicted of male assaults female in 2003 and common assault in 1990 and 1992.

[13]   The Judge noted Mr Kimber’s similarly extensive history of drug offending, noting that he has four previous convictions for possessing methamphetamine between 2009 and 2015; two convictions for possessing methamphetamine utensils in that same period; and one charge of cultivation of cannabis dating from 1993 together with convictions for other less serious cannabis-related offending in the 1990s.

[14]   The Judge then turned to consider Corrections’ pre-sentence report. The author assessed Mr Kimber as presenting with a moderate risk of re-offending and a high risk of causing harm to others, and as having admitted to consuming methamphetamine regularly at the time of the offending. Mr Kimber had expressed remorse to the report writer and had written a letter of remorse to the victim. He is also noted as having offered an emotional harm payment of $2000 to the victim, which was said to be payable immediately. The Judge noted that the victim, while having described herself as anxious following the offending, had accepted an apology from Mr Kimber during a restorative justice conference.

[15]   With the exception of the one matter related to the methamphetamine offending discussed below, the Judge followed his earlier sentencing indication in adopting kidnapping as the lead charge and taking a starting point of two years’ six months’ imprisonment in respect of that charge. Together with an uplift of six months for the other violence offending on a totality basis, this produced a starting point of three years’ imprisonment in respect of the violence offending.

[16]   In respect of the methamphetamine offending, the Judge adopted a starting point of two years’ imprisonment, considering the offending to fall at the lower end of band 2 in Zhang.11 This was lower than the indicated starting point, because the decision in Zhang was handed down between the date of the sentence indication (at

11     Zhang v R [2019] NZCA 507.

which time Fatu remained the applicable tariff) and the date of sentencing. The Judge uplifted this starting point by six months on totality, based on the other offending and the fact that some of the offending occurred while the defendant was on bail.

[17]   Adding together these sentences cumulatively, the Judge noted he had arrived at a starting point of five years’ six months’ imprisonment. While acknowledging he had already made totality adjustments when making the uplifts, the Judge applied a further totality adjustment, producing a starting point of five years’ imprisonment.

[18]   In then considering factors personal to Mr Kimber, the Judge departed slightly from the accepted three-stage sentencing methodology. In respect of Mr Kimber’s efforts to attend various rehabilitative programmes while in prison, the Judge afforded a ten per cent discount, reducing the sentence to 54 months’ imprisonment. The Judge then afforded a guilty plea discount of 15 per cent, to 46 months’ imprisonment, before then awarding a further four-month discount, (about a further ten percent) down to 42 months, in respect of Mr Kimber’s participation in restorative justice and offer to make an immediate emotional harm payment.12

[19]   The Judge did not consider that Mr Kimber’s health problems relating to his leg warranted any discount, taking the view the medical attention provided by the prison would mean Mr Kimber would suffer no hardship as a result of his physical health problems.

[20]   The Judge therefore imposed an end sentence of 42 months’ or three years’ six months’ imprisonment, comprised of cumulative sentences of 21 months’ imprisonment in relation to the kidnapping and 21 months’ imprisonment in relation to the methamphetamine offending, with the defendant sentenced to two months’ imprisonment on all other charges concurrently with the two cumulative sentences.

12 Although standard practice is to discount first for mitigating factors and then for a guilty plea, because the Judge granted an absolute deduction of a fixed four-month period, rather than a percentage discount, the outcome is the same.

Approach on Appeal

[21]   This first appeal against sentence is brought as of right pursuant to s 244(1) of the Criminal Procedure Act 2011. As the first appeal court,13 I must allow the appeal if satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.14 The appeal must be dismissed in any other case.15

[22]   In deciding whether to impose a different sentence, I must not simply substitute my own view for that of the original sentencing Judge.16 Rather, I must be satisfied that the sentence is manifestly excessive or wrong in principle.17 That is, a sentencing appeal is “not generally a second shot at sentencing.”18 Therefore, the focus is on the result rather than the process by which the sentence was reached.19

Discussion

Wrong starting point on family violence offending through failure to consider “gloss” on summary of facts

[23]   Mr Kaye’s first point is that he produced letters at sentencing from Mr Kimber, the victim and the victim’s mother which added a significant “gloss” to the summary of facts and which should have led to a lower starting point for the violence offending than that set out in the sentence indication.

[24]   The fundamental problem with this argument is Mr Kimber accepted the sentence indication on the standard basis of an agreed summary of facts. It is not open to him to take issue with those facts now. That should have been the subject of a disputed facts hearing. I suspect further that the letters were not even relied on in this way at sentencing as the Judge makes no reference to this argument.

13     Criminal Procedure Act 2011, s 247(b)(i).

14     Section 250(1)-(2).

15     Section 250(3).

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

17     Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]–[35].

18     Polyanszky v R [2011] NZCA 4 at [17]-[18].

19     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 [36].

[25]   Further, the “gloss” Mr Kaye asks me to draw from the letters is in effect a moderation or partial withdrawal of allegations by the victim. Quite apart from that being untenable following an accepted sentence indication, the Court would always exercise particular caution in situations where the victim of family violence is seeking to retract their position. 20

[26]I am quite satisfied there is no error in this regard.

Wrong starting point on drug offending through incorrect application of Zhang

[27]   I address next Mr Kaye’s submission that the offending here is properly analysed as falling within band one in Zhang v R, not at the lower end of band two, which was the view taken by the Judge. Mr Kaye says the Judge sentenced purely on the basis of quantity and failed to take account of Mr Kimber’s limited role.

[28]   The Court in Zhang expressly stated that it was retaining the overlapping bands seen in Fatu,21 such that cases at the margins of two bands would continue to receive broadly similar sentences. This relates to the Court’s comment that, even where the quantity of methamphetamine involved in a case falls clearly within a given band, a starting point “moving” the offender “between bands”22 should be adopted where the role played by the offender is so limited as to require a sentence only as severe as that appropriate for a lower band. The overall concern is to arrive, following an evaluative exercise, at a sentence reflecting the culpability of the offender in the particular case.23 While the amount of methamphetamine involved provides a proxy measure for assessing harm or potential harm and commerciality, being the bases of culpability,24 the extent of the offender’s involvement, the degree to which they profit from the trade

20  There is significant authority for the proposition that, in a family violence situation, the court is   not to condone the offending, even if the victim does, with it being the sentencing court’s role to determine the appropriate sentence having regard to sentencing law, not by the expressed wishes of the victim. See, for example, R v Toru [2018] NZHC 1598 at [27], applying R v Taueki [2005] 3 NZLR 372 (CA). The Australian appellate courts have adopted a similarly cautious approach, given the complex dynamics of family violence offending: R v Hester [2007] VSCA 298 at [27]; R v Glen [1994] NSWCCA 1. Practically speaking, especially given those complex dynamics, for the sentencing courts to be responsive to victims’ calls for leniency would create a concerning incentive for family violence offenders.

21 Zhang v R, above n 11, at [48] and [101].

22     At [118]

23 At [48].

24     At [103]-[104].

in illicit substances, and degree of knowledge as to the enterprise are all also highly relevant to assessing culpability.25

[29]   Here, the suggestion by the appellant is that, while a quantity of 9.956 grams of methamphetamine falls within the band two range, given that amount is so close to the bottom of band two,26 and the facts to which Mr Kimber pleaded disclose only bare possession for supply, and only then by virtue of the statutory presumption, the offending should fall into band one. Mr Kaye says there is no evidence of Mr Kimber’s role in any distribution and his history of addiction and the seizure of a number of methamphetamine utensils from his house-bus suggest he was primarily concerned with consuming methamphetamine for personal use.

[30]   Mr Jenson accepts there is limited evidence as to the extent of Mr Kimber’s involvement in any enterprise. However, he emphasises the amount of methamphetamine involved is inconsistent with purely personal use, that the drugs found were of particularly high purity, and that Mr Kimber was also found to be unlawfully in possession of firearms and ammunition, disclosing a greater level of criminality overall. On this basis, Crown counsel submits Mr Kimber’s role is incompatible with his offending being placed in band one in Zhang.

[31]   I agree as do counsel that ‘role’ has to be considered, but I do not think it makes any real difference on these facts which view of matters I adopt. As noted, the bands in Zhang intentionally overlap. Sentences for band one offending range from a community sentence to four years’ imprisonment. Sentences for band two offending range from two to nine years’ imprisonment.27 Here, the amount of methamphetamine recovered was clearly above the band-two threshold, albeit at the bottom end of that range, and the drug recovered was of particularly high purity.28 Even accepting, for the purposes of argument, that Mr Kimber’s role was de minimis, the fact remains that the starting point adopted by the Judge was at the absolute bottom of the band two range in Zhang. Even if movement from band two to band one is appropriate on the basis of minimal ‘role’ on Mr Kimber’s part, then with the quantity of drugs involved,

25     At [118] and [126]-[127].

26     Which addresses amounts of methamphetamine of between 5 and 250 grams.

27 At [125].

28 At [129].

I still do not consider this case could be placed into the lower half of band one, that being Mr Kaye’s argument. As it is, for my own part, I would agree with Mr Jenson that the circumstances in which the methamphetamine was discovered, including particularly the presence of illegally possessed firearms, provide some evidence of commerciality. If anything had turned on it, I would not have been persuaded it was appropriate on appeal to revisit the Judge’s finding that this offending was at the bottom of band two.

[32]   Whichever side of the line between bands one and two the case is properly seen as falling into, I consider the starting point of two years’ imprisonment adopted in respect of this methamphetamine offending justified. That, I consider, is precisely the result the Court in Zhang intended to achieve by producing overlapping bands and emphasising an evaluative, rather than mechanical, approach to sentencing. Furthermore, I agree with Crown counsel that the overall starting point of two years’ six months’ adopted in respect of the methamphetamine, utensils, and arms offending together was generous, particularly given some of that offending was on bail.

Sentence reduction for addiction and mental health

[33]   In written submissions, Mr Kaye also refers to Zhang in contending that the Judge did not give adequate recognition to a direct causal nexus between Mr Kimber’s stated addiction to methamphetamine and poor mental health, and his offending.29 Mr Kaye submitted that, following the approach adopted in Zhang, these factors significantly reduced Mr Kimber’s culpability in respect of the offending, and ought to have produced a significant discount in his sentence.

[34]   The Court in Zhang accepted that addiction, other mental health issues, duress, and socio-cultural or economic deprivation can all be “particularly germane” to methamphetamine offending, as each can impair the rational choice to offend and reduce moral culpability. This, in turn, affects the need for emphasising deterrence in sentencing, and the harshness of any term of imprisonment.30 These considerations

29     The point, although addressed by Mr Jenson, did not seem to be advanced in Mr Kaye’s oral argument.

30     At [137]-[138].

can thereby justify a reduction in end sentence. The discount appropriately awarded could be as much as 30 per cent, if not more.31

[35]   The Court in Zhang also emphasised, however, “that any such discount should be based on persuasive evidence, as opposed to mere self-reporting”,32 and the offender must establish (to the civil standard) the extent and effect of any adverse circumstances causally related to their offending and bearing on their culpability. Crown counsel emphasises this precondition of any discount being granted and says it has not been met by Mr Kimber in this case.

[36]   Here, there is evidence of Mr Kimber’s engagement with psychologists, particularly around treatment for grief and depression related to the passing of his 21- year-old daughter in 2013, and evidence that he is a long-standing methamphetamine user.

[37]   However, I do not consider Mr Kimber has established an addiction on the balance of probabilities, mental health issues of the sort envisaged in Zhang, or a causal nexus of such to his offending. The medical records establish only, essentially, self-reporting of grief having motivated Mr Kimber to turn to drug use; self-reporting of the sort the Court in Zhang describes as insufficient. I have located no clear statements in reports by Mr Kimber in relation to drug use, addiction, or its relationship to his offending. More generally, the psychologists do not refer to any drug use, or any self-medicating, so to speak, on Mr Kimber’s part.

[38]   I also note that Mr Kimber did receive credit for his unusually high degree of willingness to engage with psychological support services while in prison and to engage in other rehabilitative programmes addressing any psychological factors related to his offending, which overlaps to some degree with this submission.

Greater discount for rehabilitation

[39]   As I say, perhaps appreciating the above points, Mr Kaye did not really advance the last argument orally. His oral submissions focused more on a related point, that

31 At [149].

32 At [148].

the credit given to Mr Kimber of a 10 per cent discount for attending rehabilitation programmes while in prison (and apparently seeking and being offered admission to Higher Ground), was insufficient. Mr Kaye says this should be at least 20 per cent. He refers inter alia to sessions Mr Kimber attended with a Dr Venning back in 2012- 2013. In my view 10 percent was ample. The 2012 counselling attendances do not seem to have been ongoing and are not relevant now. The more recent counselling and clear attempts to seek help are relevant. But it also does not strike me that Mr Kimber’s focus was on his offending so much as on his personal grief over the loss of his daughter and (another) partner’s friend. I do not discount the significance of these events, but they are not grounds for a further discount here.

Physical health discount

[40]   Mr Kaye says the Judge erred in not providing a discount for the  fact that  Mr Kimber spent a year on remand while in need of surgical intervention for a broken leg. Even after he eventually had surgery, Mr Kaye says the poor management of his health by prison authorities caused the surgical wound to become infected, resulting in Mr Kimber’s readmission to hospital.

[41]   I consider it clear that Mr Kimber is not in good physical condition and had health issues associated with his leg in particular, though these seem to have been improved by the treatment so far received.

[42]   Under s 8(h) of the Act, in sentencing an offender, the court “must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe.”

[43]   The Court of Appeal has observed that discounts for ill health have ranged between about ten per cent to one third, depending on the severity of the condition and its impact on life-expectancy.33 A discount of about 30 per cent was given to a prisoner who was in renal failure, required regular dialysis, and who had no more than two to three years to live, given the high proportion of his remaining life expectancy that a

33     Hastie v R [2011] NZCA 498 at [40], citing R v Verschaffelt [2002] 3 NZLR 772 (CA)..

sentence of imprisonment represented.34 Similarly, a twelve month sentence was reduced by over half on appeal in R v Gallagher to allow the immediate release, “in the interests of humanity”, of a 70 year old offender with numerous serious medical conditions who would have required significant medical intervention to achieve even a moderate level of health.35 Twenty per cent was deducted from the sentence of a prisoner with hernia and severe hypertension for whom prison represented an unusual danger.36

[44]   For different reasons, a significant discount was allowed where the offender was so morbidly obese that, taken together with their psychological difficulties, meant complying with prison management requirements posed real difficulty.37 Less dramatically, the Court of Appeal granted a discount of about twenty percent to an offender who was confined to a wheelchair following repeated hospitalisation, reflecting the difficulty in complying with prison discipline that his extremely limited mobility represented.38

[45]   This is  a  quite  different  case.  Mr  Jenson  says  that  the  problem  with  Mr Kimber’s leg had preceded his arrest on these charges by at least a year, which Mr Kaye did not refute. If that is correct then during that time Mr Kimber was using a crutch to effect assaults on the victim, and whatever physical difficulties he faced, they were difficulties  he  had  more  than  coped  with  for  some  time.  In  any  event  Mr Kimber’s accepted health issues were not difficulties in the category I have noted. While there may have been delays, he received surgery as well as extensive other medical attention while on remand. Though he had to be hospitalised again because of an infection, that was brought under control and was not caused by the prison system. As Mr Kaye accepted, there was no evidence of any particular ongoing physical disadvantage after that time.

[46]   I do not consider this case falls into the limited group of cases referred to above, nor that Mr Kimber should receive any discount in this regard.

34     R v Luce [2007] NZCA 476.

35     R v Gallagher (1993) 9 CRNZ 421 (CA).

36     R v B [2007] NZCA 292.

37     R v Lavea [2007] NZCA 421.

38     R v Hall CA412/05, 17 May 2006.

Greater discount for remorse

[47]   Finally Mr Kaye says there should be a discount for remorse, on the basis of the letters Mr Kimber wrote to the Court; on the basis he started a charity and held an auction for children who have lost their parents; and because of his efforts to pursue restorative justice, which was ultimately successful and Mr Kimber offered to pay the victim $2,000.

[48]   Mr Kaye said that the Judge did not mention remorse, but the last two points were the express basis on which the Judge deducted four months from the prison sentence. The starting of the charity really relates to rehabilitation and is somewhat disconnected to this offending. That leaves Mr Kimber’s letters which fall well short of being indicative of remorse such as to justify an additional discount. Following a series of violent offences against the victim, Mr Kimber apologised to her for being “overly protective” and “controlling”. This indicates a failure to appreciate in any way the seriousness of his actions. A distinction has to be drawn between an apology and remorse, particularly in the case of family violence. The latter requires appreciation or insight into the nature of the crime. Sadly, and not uncommonly, that does not apply here.

[49]   I also note, as Mr Jenson submitted, that standing back the Judge made two deductions for totality, and overall the sentence is a fair one for this offending and this offender.

Result

[50]For all of the above reasons, the appeal is dismissed.

Hinton J