Zimmerman v Police - [2021] NZHC 1762

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…

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 Zimmerman v Police

Details

AGLC: Zimmerman v Police [2021] NZHC 1762
Case: [2021] NZHC 1762
Decision Date: 13 July 2021

CaseChat Overview and Summary

Cody Zimmerman appealed against a sentence of two years and six months' imprisonment imposed by the District Court. The sentence was imposed on charges including assault with intent to injure, assault of a person in a family relationship, threatening to kill, intentional damage, and wilful damage. The court had to decide whether the District Court judge made an error in imposing the sentence by setting an inappropriate starting point for the lead charge, not fully considering the totality principle, and not giving credit for time spent on electronic monitoring bail. The Court of Appeal held that the starting point for the lead charge was too high, and the uplifts for the other charges were excessive. The overall sentence was too high, and the appropriate starting point should have been two years and six months' imprisonment. The appeal was allowed, and the sentence was reduced to two years and two months' imprisonment.

The Court found that the District Court judge erred in imposing the sentence by setting an inappropriate starting point for the lead charge and not fully considering the totality principle. The starting point of two years and two months' imprisonment was too high, and the uplifts for the other charges were excessive. The overall sentence was too high, and the appropriate starting point should have been two years and six months' imprisonment. The Court considered comparable cases and found that the starting point of 26 months, the uplift of six months, and the further uplift of four months were too high. The overall sentence prior to the guilty plea discount was too high notwithstanding that it was mitigated by the two-month mathematical error. The Court held that a sentence of two years and eight months' imprisonment for this overall offending was within range. The discount applied by the District Court judge of six months was not inappropriate, which gave rise to a final sentence of imprisonment of two years and two months. The Court did not find any error in not giving credit for a short period of electronic monitoring bail.

Orders