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…

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 R v Timmerman

Details

AGLC: R v Timmerman [2021] NZHC 3287
Case: [2021] NZHC 3287
Decision Date: 2 December 2021

CaseChat Overview and Summary

In the case of R v Timmerman, the defendant faces multiple charges related to the unlawful possession of prohibited firearms, firearm magazines, ammunition, and trespass. The case was heard in the High Court of New Zealand at Hamilton. The primary legal issue was to determine an appropriate sentence indication for the defendant should he enter guilty pleas to all charges. This indication would provide guidance on the potential sentence he would receive if he were to plead guilty.

The court examined the nature of the offences, considering the statutory penalties and previous case law regarding similar charges. The Crown argued for a starting point of three years and six months imprisonment, while the defence suggested no more than two years. Given that the firearms in question belonged to a co-defendant, the court adjusted the starting point downward, settling on two years and six months for the firearms charges. Additional factors such as the presence of prohibited magazines and ammunition led to a three-month uplift, resulting in a pre-mitigation sentence of two years and nine months. The court then considered mitigating factors, including the defendant's clean criminal record, time spent on bail, and potential guilty pleas, leading to a total discount of fifteen months. Therefore, the sentence indication stood at eighteen months imprisonment, with the possibility of a non-custodial sentence depending on further mitigating evidence presented at the sentencing stage.

The court set a deadline for the defendant to accept the sentence indication, requiring his legal counsel to advise by a specified date. Acceptance of the indication would lead to an arraignment on a set date, allowing the defendant to potentially avoid a trial by pleading guilty to the charges.

Orders