R v Timmerman

[2021] NZHC 3287

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