R v Timmerman
[2022] NZHC 226
•18 February 2022
NOTE: SUPPRESSION ORDERS EXIST: SEE [28] IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-063-917
[2022] NZHC 226
THE QUEEN v
CORNELIUS CHRISTIAAN TIMMERMAN
Hearing: 18 February 2022 Appearances:
B Vaili for Crown
J Gurnick for Defendant
Sentence:
18 February 2022
SENTENCING REMARKS OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v TIMMERMAN [2022] NZHC 226 [18 February 2022]
[1] Mr Timmerman, you appear for sentence today having pleaded guilty to two charges of being in unlawful possession of prohibited firearms, four charges of unlawful possession of prohibited magazines for firearms, two charges of being in unlawful possession of explosives (ammunition) and one charge of trespass.
[2] The most serious charges are those relating to the unlawful possession of prohibited firearms which carry maximum sentences of five years imprisonment. The charges of being in unlawful possession of ammunition carry maximum sentences of four years imprisonment. The remaining charges other than the charge of trespass carry a maximum sentence of two years imprisonment. The trespass charge carries a maximum sentence of three months imprisonment or a fine not exceeding $1,000.
[3] You entered your guilty plea after I gave you a sentence indication on 2 December 2021.1 I do not propose to repeat the matters contained in the sentence indication. They inform the basis on which I selected a starting point for the sentence to be imposed and the discounts I gave at that stage for mitigating factors. My sentence indication will be appended to these sentencing remarks and will form part of them.
Background
[4] You pleaded guilty on the basis of an agreed summary of facts. This records that on 10 March 2020 you went to Rotorua Police Station and asked to speak to a police officer who was either not there or was unavailable. When you were told you were not able to speak to the police officer, you became angry and began to act in a disorderly manner. The police asked you to leave the police station on several occasions. When you refused to do so you were arrested and charged with trespass. You began resisting arrest and you were charged with that as well. You were then held in custody at the police station until your first appearance in Court the following day.
[5] Overnight the police obtained a search warrant in relation to a campervan you had left parked outside the police station. When they searched the campervan, they found a prohibited AR15 semi-automatic rifle, a prohibited 30 round magazine and four live .223 calibre rounds of ammunition. Two days later, the police obtained a
1 R v Timmerman [2021] NZHC 3287.
further search warrant to search an address where you had been living in a caravan. In a shipping container at the address they found another AR15 semi-automatic rifle. They also found three prohibited firearm magazines and a substantial quantity of .223 and .22 calibre ammunition.
[6] It is now common ground that both automatic rifles belonged to an associate of yours, a Mr Simonsen. The exact circumstances in which you came into possession of the firearms is unclear, but the Crown accepts they did not belong to you at the time they were found in your campervan and in the shipping container.
[7] The firearm that was found in your campervan had originally been given to your partner by the owner of the address where you were parking your caravan. That person is a firearms dealer. He gave your partner the firearm in September 2017 in exchange for repair work you had carried out on one of his motor vehicles. He also subsequently gave you and your partner lessons, or instructions, as to how to use the firearm. Your partner no longer wanted to keep the firearm once the Government announced its intention to pass legislation making semi-automatic firearms illegal following the Christchurch terror attacks in March 2019. On 26 March 2019 she gave the firearm to Mr Simonsen. The circumstances in which it came to be in your campervan on 11 March 2020 are unclear.
The sentence indication
[8] I considered the aggravating feature of your offending lay in the fact that you were prepared to store two prohibited semi-automatic weapons in your campervan and the shipping container on Mr Simonsen’s behalf. You did so knowing the firearms were illegal.
[9] The Crown had suggested a starting point of around five years imprisonment. I accepted that such a starting point may have been appropriate if the firearms had belonged to you. However, I considered a significant reduction was required to reflect the fact that you were merely storing them for Mr Simonsen. Furthermore, there was no evidence that the firearms had ever been used for a purpose other than when you were receiving lessons or instructions from the previous owner. This occurred on a firing range the was just a few metres away from your caravan and the shipping
container. I therefore adopted a starting point of two years six months imprisonment on the firearms charges.
[10] I applied an uplift of three months to reflect the fact that prohibited magazines and substantial quantities of ammunition had been found in both the campervan and shipping container. I did not apply an uplift to reflect the charge of trespass. The indicated sentence was therefore one of two years nine months imprisonment before taking into account aggravating and mitigating factors personal to you.
[11] You have no previous convictions, and therefore there was no justification for increasing the starting point to reflect aggravating factors personal to you.
[12] I indicated that I was prepared to give you credit for three factors. The first was that at 40 years of age, you have never appeared before the courts. I allowed a discount of three months, or ten per cent, to reflect this factor. In addition, I noted that if you entered guilty pleas you would have spent approximately 20 months subject to restrictive EM bail conditions up until the date of sentence. Although these were relaxed in May and July 2021, they nevertheless remained restrictive in character. I said I was prepared to allow a discount of five months to reflect this factor. Finally, I said I would allow a discount of seven months, or just over 20 per cent, to reflect guilty pleas.
Discount for additional mitigating factors
[13] The first issue I need to determine today is whether there are any other mitigating factors that would either operate to reduce the sentence further or render some other form of sentence appropriate.
[14] Your counsel has placed before me a great deal of information about your background, and the pre-sentence report provides further insight. It is now clear from a psychiatric report that your counsel obtained that you were diagnosed with autism when you were young. This was said to be mild in form. However, you have consistently reported that you suffer from post-traumatic stress disorder as a result of traumatic events that you witnessed whilst you were in the employment of an intelligence organisation controlled by the Dutch Government. These have never been
verified because the Dutch Consulate is not prepared to make information available. However, it seems clear that this has had a significant effect upon you.
[15] The Crown accepts that the mental health issues identified in this report justify recognition by the Court. I consider they can appropriately be recognised in the selection of the sentence you are to serve. I do not consider there is any need to impose a sentence that contains a punitive element. This is because of the fact that you spent more than three months in custody between March and June 2020 before you were released on electronically monitored bail. Furthermore, as I have already recorded, you have been subject to electronically monitored bail for the last 20 months. The maximum duration of a sentence of home detention is 12 months.
[16] I consider the sentence the Court should impose is one that supports your rehabilitation and reintegration into the community. This means a sentence of supervision, or intensive supervision, is the appropriate sentence for you. In reaching this conclusion I bear in mind the fact that you have not until now been before the criminal courts.
[17] A sentence of supervision or intensive supervision can only be imposed where necessary to limit the risk of further offending by the offender.2 A sentence of intensive supervision is very restrictive in nature, because it requires the offender to report weekly to the probation service during the first three months of the sentence and monthly thereafter. Alternatively, the offender must report as required by the probation service.
[18] I do not consider this level of supervision to be necessary in your case. It seems to me that your offending was driven largely by your association with Mr Simonsen. He is no longer a feature of your life, and I consider this supports your expressed desire not to become involved in activities such as this in the future. A sentence of supervision will be sufficient to ensure you do not mix with associates who may lead you to become involved in offending such as the present. I therefore accept your counsel’s submission that a sentence of supervision is appropriate and that a sentence of intensive supervision is not justified.
2 Sentencing Act 2002, ss 46 and 54C.
Suppression
[19] This leads me to the final issue, which is whether I should make an order suppressing your name and identifying particulars from publication on a permanent basis. Up until now you have been subject to interim orders suppressing these particulars from publication.
[20] The jurisdiction to order permanent suppression of name is contained in s 200 of the Criminal Procedure Act 2011. It is now well established that in considering an application for permanent suppression, the Court engages in a two-stage process. The Court must first determine whether one or more of the specified threshold pre- conditions in s 2002 have been established. If so, the Court must decide whether to exercise its discretion in favour of, or against, suppression.
[21] Your counsel submits that permanent suppression is required because you will suffer extreme hardship if your name and identifying particulars are published.3 In addition, he contends you will be in physical danger if that should occur.4 The basis for both limbs of the argument is to be found in the psychiatrist’s report you counsel has obtained. This points out that you attempted suicide on two occasions during 2020. These resulted in you coming to the attention of the mental health authorities, and placed on anti-depressants. You responded well to these forms of medication.
[22] At an early stage of the proceeding the Court also obtained a report from another psychiatrist to ascertain whether you were fit to stand trial. That report said you were on the cusp of suffering from a psychotic illness and that, although you were fit to stand trial at that time, the issue would need to be regularly reviewed. The psychiatrist’s report your counsel has obtained states that, on balance, you do not suffer from a psychotic illness. Rather, it says that the beliefs that you express reflect your social awkwardness, peer associations and fixation on beliefs due to your autistic traits. The psychiatrist says you are not functionally impaired, and that you have in the past been able to hold down a job and manage a business. You are also able to cope in society, albeit with limited social contact.
3 Criminal Procedure Act 2011, s 200(2)(a).
4 Section 200(2)(e).
[23] The psychiatrist’s report records that you have an “unshakeable belief” that you will be in physical danger if your name is published. I am not sure whether this refers to physical danger from others due to your involvement in the past with the Dutch intelligence services, or that you will be a danger to yourself. If the former, I see no rational basis on the evidence before the Court that you are likely to be in danger from any third party. The only realistic danger you may face is from yourself. I note, however, that you responded well to the anti-depressant medication that you were administered following your suicide attempts in 2020.
[24] Furthermore, the legal landscape has changed significantly since that time. At that time you had been recently charged with a large number of charges. You had spent three months in prison. You then faced the prospect of a lengthy remand on EM bail until trial.
[25] Matters have moved on significantly. Many of the charges that you faced were dismissed on the basis that a properly directed jury could not reasonably convict you on them. The charges to which you have entered guilty pleas are much less serious in nature. You now know the charges on which you have been convicted and you also know you will be subject to a non-custodial sentence. I consider these factors mean you are not realistically at risk of committing suicide in the near future. I accept, however, that the Court needs to give you some time to come to terms with the fact that your name will eventually be published. This will also enable you to seek help to enable you to come to terms with this fact.
[26] I therefore decline to grant permanent suppression of name. I direct, however, that the interim orders the Court has already made are to remain in force until 31 March 2022.
Sentence
[27] Mr Timmerman, on all charges other than the charge of trespass you are sentenced to nine months supervision. On the charge of trespass, you are convicted and discharged.
[28] The interim orders suppressing your name and identifying details from publication will remain in force until midnight on 31 March 2022.
Forfeiture order
[29] I also make an order under s 69 of the Arms Act 1983 that the firearms and ammunition that were found in your campervan and in the shipping container are to forfeited to the Crown.
Lang J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-063-917
[2021] NZHC 3287
THE QUEEN v
CORNELIUS CHRISTIAAN TIMMERMAN
Hearing: 2 December 2021 Appearances:
B Vaili for Crown
J Gurnick for Defendant
Judgment:
2 December 2021
SENTENCE INDICATION OF LANG J
Solicitors:
Hamilton Legal, Hamilton
[1] Mr Timmerman faces two charges of being in unlawful possession of a prohibited firearm, three charges of being in unlawful possession of firearm magazines and two charges of being in unlawful possession of ammunition. He also faces a charge of trespass. He and his co-defendant, Mr Simonsen, were due to stand trial in August and November 2021 but the trials had to be adjourned due to the most recent onset of the COVID-19 pandemic. No date has yet been allocated for a new trial.
[2] Mr Timmerman now seeks a sentence indication. This is an indication of the sentence he would receive if he was to enter guilty pleas to all charges in the near future. If he does not accept the indication and is convicted at trial, the indication will be of no further force or effect. In that event the trial Judge will sentence him on the basis of the facts as the Judge finds them to be.
The offending
[3] On 10 March 2020 Mr Timmerman went to the Rotorua Police Station and asked to speak to a police officer who was either not there or was unavailable. Mr Timmerman did not accept this advice gracefully and began to act in a disorderly manner. This resulted in him being asked to leave the police station on several occasions. When he refused to do so he was arrested and charged with trespass. He resisted arrest and was charged with that as well. He was then held in custody pending his first appearance in Court.
[4] On the following day the police executed a search warrant they had obtained in relation to a campervan Mr Timmerman had left parked outside the police station. When they searched the campervan they found a prohibited AR15 semi-automatic rifle that belonged to Mr Simonsen, a prohibited 30 round magazine and four live .223 calibre rounds of ammunition.
[5] Two days later the police obtained a search warrant to search an address where Mr Timmerman had been living in a caravan. In a shipping container at the address they found another AR 15 semi-automatic rifle that also belonged to Mr Simonsen. They also found three prohibited magazines and a substantial quantity of .223 and .22 calibre ammunition.
[6] The firearm that was found in Mr Timmerman’s campervan had originally been given to his partner by a Mr Gilbert, the owner of the address where Mr Timmerman had parked his caravan. Mr Gilbert is a firearms dealer. He gave Mr Timmerman’s partner the firearm to Mr Timmerman’s partner in September 2017 in exchange for repair work Mr Timmerman had carried out on one of Mr Gilbert’s motor vehicles. Mr Gilbert subsequently gave Mr Timmerman and his partner lessons or instructions as to how to use the firearm.
[7] Mr Timmerman’s partner no longer wanted to keep the firearm once the Government announced its intention to pass legislation making semi-automatic firearms illegal following the Christchurch terror attacks in March 2019. On 26 March 2019 she gave the firearm to Mr Simonsen. The circumstances in which it was found in Mr Timmerman’s campervan on 11 March 2020 are unclear. However, it appears to be common ground that Mr Simonsen was the owner of the firearm as at that date.
Starting point
[8] The maximum penalty for the lead charges of being in unlawful possession of a prohibited firearm is five years imprisonment. Both counsel have cited several authorities in support of their respective submissions as to the appropriate starting point on these charges. The Crown contends a starting point of three years six months imprisonment is appropriate whilst Mr Gurnick contends a starting point of no more than two years can be justified.
[9] There is little point in analysing the cases because the facts in each are different to those in the present case. Furthermore, several of the cases cited relate to possession of semi-automatic weapons before such weapons became illegal in April 2019. Some also relate to offending against the Arms Act 1983 , under which the maximum penalty is four years imprisonment. In broad terms, however, the cases demonstrate that the starting point for this type of offending will generally lie between 18 months and three years six months imprisonment.
[10] The aggravating feature of Mr Timmerman’s offending lies in the fact that he was prepared to store two prohibited semi-automatic weapons in his campervan and shipping container on Mr Simonsen’s behalf. He did so knowing they were illegal.
The starting point suggested by the Crown may well have been appropriate if the weapons had belonged to Mr Timmerman. However, given the fact that the Crown accepts they both belonged to Mr Simonsen I consider a significant reduction is required. Furthermore, there is no evidence the firearms were ever used for a purpose other than firing them on Mr Gilbert’s firing range. This was located just a few metres away from Mr Timmerman’s caravan and shipping container. I would therefore adopt a starting point of two years six months imprisonment on the two firearms charges.
[11] A modest uplift is required to reflect the prohibited magazines and ammunition found in the campervan and shipping container. I would apply an uplift of three months to reflect this factor. No uplift is required to reflect the charge of trespass.
[12] This means the sentence is one of two years nine months imprisonment before taking into account aggravating and mitigating factors personal to Mr Timmerman.
Aggravating factors
[13] At 40 years of age Mr Timmerman has no previous convictions. No uplift is therefore required to reflect aggravating factors personal to him.
Mitigating factors
[14] Mr Timmerman is entitled to credit for the fact that he has never appeared before the Courts before. I would allow a discount of three months, or ten per cent, to reflect this factor.
[15] By the time he is sentenced early next year Mr Timmerman will also have spent approximately 20 months subject to EM bail conditions. From 5 May 2021 his bail restrictions were relaxed to enable him to travel to Auckland for work purposes during daylight hours. They were then relaxed further in July 2021. I would allow a discount of five months to reflect this factor.
[16] Mr Timmerman would also be entitled to credit for guilty pleas, although these would not be entered at an early stage. Mr Gurnick points out that until recently Mr Timmerman faced a significant number of other charges. He applied successfully to
be discharged on these last month. However, there was nothing to prevent Mr Timmerman from entering pleas to the present charges at a much earlier stage. I would allow a discount of seven months, or just over 20 per cent, to reflect guilty pleas.
[17] Identified discounts therefore total 15 months and reduce the sentence to one of 18 months imprisonment. If Mr Timmerman accepts this indication he may be able to point to further material entitling him to additional discounts at sentencing. These may include the extent to which underlying mental health issues may have contributed to the present offending.
[18] This obviously means a non-custodial sentence may well be available. Whether or not this is appropriate will depend on the material available at sentencing. If a non-custodial sentence is imposed I would make a further allowance to reflect the fact that Mr Timmerman spent three months in custody following his arrest on the present charges.
Time for acceptance
[19] Mr Gurnick is to file and serve a memorandum no later than Thursday 9 November 2021 advising whether Mr Timmerman accepts this indication. If he does, he will be arraigned in the criminal callover on Tuesday 14 December 2021 at 9 am.
Lang J
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