Zimmerman v Police
[2021] NZHC 1762
•13 July 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-000023
[2021] NZHC 1762
CODY ZIMMERMAN v
NEW ZEALAND POLICE
Hearing: 13 July 2021 Appearances:
J M Woodcock for the Appellant G N Milne for the Respondent
Judgment:
13 July 2021
JUDGMENT OF COOKE J
[1] Cody Zimmerman appeals from a sentence of two years and six months’ imprisonment imposed by the District Court.1 The sentence was imposed on the following charges:
(a)assault with intent to injure;2
(b)assault of a person in a family relationship; 3
(c)threatening to kill;4
1 Police v Zimmerman [2021] NZDC 7275.
2 Crimes Act 1961, s 193; maximum 3 years imprisonment.
3 Section 194A; maximum 2 years.
4 Section 306; maximum 7 years imprisonment.
ZIMMERMAN v NEW ZEALAND POLICE [2021] NZHC 1762 [13 July 2021]
(d)intentional damage;5 and
(e)wilful damage.6
Factual background
[2] The appellant and the victim of his offending had been in a relationship for three months. The offending was the first reported family harm incident between them.
[3] On 28 August 2020 the two were on Devon Street East in New Plymouth. The appellant got into an argument with another male, which evolved into the two having a fight. The victim put herself between the two, which angered the appellant. He grabbed her cell phone and threw it onto the footpath, smashing it. The appellant then swung his fist back at her and hit her under the chin. The blow was struck with such force that she was knocked backwards and she landed on the road. The appellant picked her up and she ran away. The damage to the cellphone gave rise to the wilful damage charge, and the punch gave rise to the charge of assault on a person in a family relationship.
[4] On 5 September 2020 at 12.30 am the appellant and the victim as well as family members were all drinking and having a party at Devon Road. The appellant seemed to be upset and went outside. The victim asked everyone to go home. She then went to her room where the appellant was laying on the bed. The two began to argue about the events of the evening and the appellant became angry. He proceeded to smash up her room and destroyed bedroom furniture when he did so, as well as throwing the victim’s personal items all over the floor. Outside, the appellant threw a garden ornament through her windscreen. The appellant punched the victim on the face and neck, which caused her bruising and a black eye. The property damage gave rise to a charge of intentional damage. The punches gave rise to the lead charge of assault with intent to injure.
5 Section 269(2); maximum 7 years imprisonment.
6 Summary Offences Act 1981, s 11(1); maximum 3 months imprisonment or a fine not exceeding
$2,000.
[5] The next day at 9.30 pm the appellant sent a text message to his brother where he said he was going to “take her out”, referring to the victim. His brother relayed this to the victim. The appellant then contacted her and told her he was going to kill his brother as well. This gave rise to a charge of threatening to kill.
[6] Originally the appellant had been charged with injuring with intent to injure, which was later reduced to assault with intent to injure to which guilty pleas were entered.
District Court decision
[7] Judge Greig assessed the assault with intent to injure charge as the lead offence. When doing so he applied the Court of Appeal’s approach in Nuku v R and placed the offending in the top of band 1 and bottom of band 2 to find a starting point of two years and two months.7 He then applied a six month uplift for the assault of a person in a family relationship charge. He also applied a further four months for the offence of wilful damage and threatening the victim, and two months for his previous convictions.8 A reduction of six months was made to account for guilty pleas. Mathematically this resulted in a sentence of two years and eight months, but the end sentence imposed was only two years and six months’ imprisonment.
Appeal
[8] The appellant brings the appeal under s 244 of the Criminal Procedure Act 2011. The ground of appeal is that the Judge made an error in imposing the sentence because the starting point for the lead charge of assault with intent to injure was too high, the Judge did not fully consider the totality principle when imposing the sentence, and also failed to give credit for two months the appellant had spent on electronic (EM) bail.
[9] An appeal against sentence will only be successful if the appellant can point to an error, “either intrinsic to the Judge’s reasoning, or as a result of additional materials
7 Police v Zimmerman, above n 1, at [14].
8 At [17].
submitted on appeal, that vitiates the lower Court’s sentencing discretion”.9 As such, there must be a material error for the Court to intervene. Such an error would occur if “the end sentence is manifestly excessive or wrong in principle”.10 As the Court of Appeal held in Tutakangahau v R, the focus is on whether the end sentence was within available range, rather than the process by which it was reached.11
[10] It is submitted with reference to comparable cases that the more appropriate starting point was 18 months’ imprisonment. Further, the combined uplift of ten months for the assault of a person in a family relationship, wilful damage and threat to kill is submitted to be too high. Instead, an uplift of no more than six months was justifiable. The overall sentence should have been 24 months with an adjustment of a month to recognise time on EM bail and the guilty plea discount. That would bring the appellant within home detention range.
[11] The respondent submits that the starting point was within range, and that the uplift of six months for assault on a person in a family relationship was lenient. Overall it is submitted that the end sentence is not manifestly excessive.
Whether the starting point for the lead charge was too high
[12] In finding the appropriate starting point, the Judge applied the Court of Appeal’s approach in Nuku v R.12
[13] The Court of Appeal indicated in Nuku that its decision was a new guideline judgment to be applied for the offences of injuring with intent to injure,13 wounding with intent to injure,14 and aggravated wounding or injuring.15 The maximum penalties for those offences are five years, seven years and seven years respectively. Here the lead charge was assault with intent to injure under s 193, which is not one of the offences referred to in Nuku, and which has a lower maximum penalty of three
9 Tamihana v R [2015] NZCA 169.
10 At [14].
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [15].
12 Nuku v R [2012] NZCA 584.
13 Crimes Act 1961, s 189(2).
14 Section 188(2).
15 Section 191(2).
years’ imprisonment. It is also relevant the initial lead charge was amended to the lower charge to which the guilty pleas were then entered.
[14] The Nuku guidelines are accordingly not directly applicable. In Waitohi v R, the Court of Appeal indicated that Nuku did not apply where the mens rea for the offending is different.16 It is also notable that other Court of Appeal decisions which concerned assault with intent to injure, such as Goodman v R do not refer to the Nukuguidelines.17 But in Tamihana v R the Court of Appeal nevertheless considered that reference to the guideline judgments, including Nuku, could be of assistance on the charge of assault with intent to injure.18 That is so given that these guideline judgments seek to identify offending by reference to particular aggravating features. But it is important when such guideline judgments are referred to take into account that different charges with a lower maximum period of imprisonment can be involved. Here the Judge has used a starting point of two years and two months by reference to the Nuku bands (placing it in the top of band one or the bottom of band two) without consideration of the fact that it was being applied in relation to a charge where the maximum penalty was only three years’ imprisonment.
[15] The Judge has then lifted the starting point of two years two months by a further six months for the assault of a person in a family relationship. An uplift of a further four months was then applied for the property offending and the threatening to kill. That is an effective starting point for the offending overall of three years’ imprisonment. The Judge has also then uplifted the sentence by two months for prior offending. By itself this does not mean the sentence is manifestly excessive, however. As Ms Milne submitted the Court of Appeal indicated in R v Clarke that cumulative sentences for acts of violence affected against the same victim can be appropriate provided that the principle of totality is observed.19 It is the ultimate end sentence that matters, not the particular process followed by the District Court. So it is important to consider comparable cases:
16 Waitohi v R [2014] NZCA 614 at [15]–[17].
17 Goodman v R [2016] NZCA 64.
18 Tamihana v R, above n 9 at [16]–[19].
19 R v Clarke CE128/06, 6 June 2006 at [14].
(a)In Goodman v R the appellant had an argument with his partner.20 She returned to his home to collect her things, when another argument broke out. The appellant grabbed her around the throat with both hands and threw her across the room over a wooden basket, and when she got to her feet he pushed her over on a number of occasions until the appellant head-butted her and pushed her outside. This gave rise to the assault with intent to injure charge. It was accompanied by a male assaults female charge when the appellant kicked and pushed her outside. The sentencing judge adopted a starting point of 24 months, increased to 28 months for the second assault. The Court agreed with the sentencing Judge that this was a serious assault which involved attacks to the head and neck. The Court observed that “generally sentences of between two to three years’ imprisonment for domestic violence offending are not uncommon”. The ultimate end sentence of two years and four months’ imprisonment was not considered to be manifestly excessive.21
(b)In Cunningham v R the appellant was charged with five charges which all related to assaulting his then partner, three charges of male assaults female, and two charges of assault with intent to injure.22 The lead charge was an assault with intent to injure where the appellant strangled his partner using a dog-chain. The Court of Appeal considered that the offending fell into bands two and three of Nuku because it involved at least three aggravating features — attacking the head or neck, the victim’s vulnerability and use of a weapon (the dog-chain).23 Therefore a sentence of between two to three years’ imprisonment was appropriate. A majority of the Court held that the offending was more serious than Goodman and merited a starting point of two years, and that the final sentence of three years six months was stern but not manifestly excessive.24
20 Goodman v R, above n 17.
21 At [25].
22 Cunningham v R [2019] NZCA 622.
23 At [18].
24 At [20], and [34]–[36].
(c)In Hansen v R the charges arose over the course of the relationship between the appellant and victim, who at the time was also pregnant with his child.25 The assaults involved the appellant placing his hands on the victim’s throat and choking and shaking her. Here the starting point of 24 months was adopted by the District Court Judge. The High Court identified the relevant aggravating factors as attacking the head and the vulnerability of the victim.26 Another aggravating feature was the repetitive nature of the attacks, all of which were individually serious.27 Assessing other cases where there were single-instance assault charges, the Court held that the starting point of 24 months was within range.28
(d)In Wawatai v Police, the appellant punched his partner in the face with a closed fist. The single punch caused the victim a bleeding nose and swelling. The sentencing Judge took a starting point of 18 months’ imprisonment.29 On appeal the High Court held that a starting point of seven months was appropriate.30 The main feature of the appellant’s offending is the single punch that he struck the victim with, which caused her to fall to the ground.
(e)In Kuhtz v Police the defendant had held a “swordfish sword” to his partner’s throat, put his foot on her head and threatened to kill her.31 He later caused damage to her property before departing, but returned later and attacked her by striking her with his fists, dragging her across the room and striking her head against a wall whilst choking her. He then dragged her to another room and caused more damage, and again threatened to kill her. Here the Judge’s final sentence of 23 months was reduced to 20 months on appeal by the High Court.
25 Hansen v R [2020] NZHC 2129.
26 At [21].
27 At [22].
28 At [32].
29 Wawatai v Police [2015] NZHC 406 at [2].
30 At [9].
31 Kuhtz v Police [2013] NZHC 111.
[16] In the present case the key factors are that this offending involved two separate occasions involving significant assaults involving attacks to the head on a vulnerable victim including an attack at her home. The property damage and the threatening to kill offending involving the same victim warrants an uplift from the starting point, albeit that the latter did not involve a threat made to the victim herself, but a statement made to the defendant’s brother.
[17] In my view the most comparable case is Goodman where a starting point of 24 months’ imprisonment, uplifted to 28 months for the second assault was adopted. In my view the cumulative effective starting point here of three years is too high compared with Goodman, particularly given other cases referred to at [15] above. The starting point of 26 months, the uplift of six months, and the further uplift of four months might individually be considered to be within range. That is true also of the two month uplift for previous offending. But the overall sentence prior to the guilty plea discount is too high notwithstanding that it was mitigated by the two month mathematical error. It is also significant that the lead charge had been reduced to one of assault with intent to injure (three year maximum), and the second charge was assault to a person in a family relationship (two year maximum). The Judge needed to consider this when applying Nuku.
[18] There are a number of ways this overall offending could have been assessed. In my view the appropriate starting point for both these events should have been two years and six months’ imprisonment, including the uplift for the property offending and the threat to kill. That is higher than Goodman, but the offending here is a little more serious. An uplift of two months for prior offending was also not inappropriate. Put another way, a sentence of two years eight months’ imprisonment for this overall offending is within range. The discount for the guilty plea becomes complicated given that the charges were amended, and the guilty plea followed. But the discount applied by the District Court Judge of six months was not inappropriate. That gives rise to a final sentence of imprisonment of two years two months.
[19] Whilst the appellant contends that the Judge erred by not taking into account the period on EM bail, I do not think that such a discount was required here. The
period spent on EM bail is a mandatory mitigating factor under the Sentencing Act.32 But any credit given is not the same as the credit for custodial remand.33 In Henare v R the Court did not interfere for a failure to give a discount for one month spent on EM bail.34 As with that case I do not accept there is any error in not giving credit for a short period of EM bail.
[20] The appeal is allowed. The sentence of two years six months’ imprisonment is replaced by one of two years two months’ imprisonment.
Cooke J
Solicitors:
Marsland Chambers, New Plymouth for the Appellant Crown Solicitor, New Plymouth for the Respondent
32 Sentencing Act 2002, ss 9(2)(h) and 9(3A).
33 See Parata v R [2017] NZCA 48 at [11]–[12] and Bennett v R [2012] NZCA 173 at [25].
34 Henare v R [2019] NZHC 115.
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