ZIMMERMAN v NEW ZEALAND POLICE [2021] NZHC 1762

ZIMMERMAN v NEW ZEALAND POLICE [2021] NZHC 1762 [13 July 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2021-443-000023[2021] NZHC 1762CODY ZIMMERMANvNEW ZEALAND POLICEHearing: 13 July 2021Appearances: J M Woodcock for the AppellantG N Milne for the RespondentJudgment: 13 July 2021JUDGMENT 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 thefollowing charges:(a) assault with intent to injure;2(b) assault of a person in a family relationship; 3(c) threatening to kill;41 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.(d) intentional damage;5 and(e) wilful damage.6Factual background[2] The appellant and the victim of his offending had been in a relationship forthree months. The offending was the first reported family harm incident betweenthem.[3] On 28 August 2020 the two were on Devon Street East in New Plymouth. Theappellant got into an argument with another male, which evolved into the two havinga fight. The victim put herself between the two, which angered the appellant. Hegrabbed her cell phone and threw it onto the footpath, smashing it. The appellant thenswung his fist back at her and hit her under the chin. The blow was struck with suchforce that she was knocked backwards and she landed on the road. The appellantpicked her up and she ran away. The damage to the cellphone gave rise to the wilfuldamage charge, and the punch gave rise to the charge of assault on a person in a familyrelationship.[4] On 5 September 2020 at 12.30 am the appellant and the victim as well as familymembers were all drinking and having a party at Devon Road. The appellant seemedto be upset and went outside. The victim asked everyone to go home. She then wentto her room where the appellant was laying on the bed. The two began to argue aboutthe events of the evening and the appellant became angry. He proceeded to smash upher room and destroyed bedroom furniture when he did so, as well as throwing thevictim's personal items all over the floor. Outside, the appellant threw a gardenornament through her windscreen. The appellant punched the victim on the face andneck, which caused her bruising and a black eye. The property damage gave rise to acharge of intentional damage. The punches gave rise to the lead charge of assault withintent 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 wherehe said he was going to "take her out", referring to the victim. His brother relayed thisto the victim. The appellant then contacted her and told her he was going to kill hisbrother 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 wereentered.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 theoffending in the top of band 1 and bottom of band 2 to find a starting point of twoyears and two months.7 He then applied a six month uplift for the assault of a personin a family relationship charge. He also applied a further four months for the offenceof wilful damage and threatening the victim, and two months for his previousconvictions.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 endsentence imposed was only two years and six months' imprisonment.Appeal[8] The appellant brings the appeal under s 244 of the Criminal Procedure Act2011. The ground of appeal is that the Judge made an error in imposing the sentencebecause the starting point for the lead charge of assault with intent to injure was toohigh, the Judge did not fully consider the totality principle when imposing thesentence, and also failed to give credit for two months the appellant had spent onelectronic (EM) bail.[9] An appeal against sentence will only be successful if the appellant can point toan error, "either intrinsic to the Judge's reasoning, or as a result of additional materials7 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 ofAppeal held in Tutakangahau v R, the focus is on whether the end sentence was withinavailable range, rather than the process by which it was reached.11[10] It is submitted with reference to comparable cases that the more appropriatestarting point was 18 months' imprisonment. Further, the combined uplift of tenmonths for the assault of a person in a family relationship, wilful damage and threatto kill is submitted to be too high. Instead, an uplift of no more than six months wasjustifiable. The overall sentence should have been 24 months with an adjustment of amonth to recognise time on EM bail and the guilty plea discount. That would bringthe appellant within home detention range.[11] The respondent submits that the starting point was within range, and that theuplift 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 ofAppeal's approach in Nuku v R.12[13] The Court of Appeal indicated in Nuku that its decision was a new guidelinejudgment to be applied for the offences of injuring with intent to injure,13 woundingwith intent to injure,14 and aggravated wounding or injuring.15 The maximumpenalties 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 ofthe offences referred to in Nuku, and which has a lower maximum penalty of three9 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 thelower 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 theoffending is different.16 It is also notable that other Court of Appeal decisions whichconcerned 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 thatreference to the guideline judgments, including Nuku, could be of assistance on thecharge of assault with intent to injure.18 That is so given that these guideline judgmentsseek to identify offending by reference to particular aggravating features. But it isimportant when such guideline judgments are referred to take into account thatdifferent 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 tothe Nuku bands (placing it in the top of band one or the bottom of band two) withoutconsideration of the fact that it was being applied in relation to a charge where themaximum penalty was only three years' imprisonment.[15] The Judge has then lifted the starting point of two years two months by a furthersix months for the assault of a person in a family relationship. An uplift of a furtherfour 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 prioroffending. 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 cumulativesentences for acts of violence affected against the same victim can be appropriateprovided that the principle of totality is observed.19 It is the ultimate end sentence thatmatters, not the particular process followed by the District Court. So it is importantto 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 Shereturned to his home to collect her things, when another argument brokeout. The appellant grabbed her around the throat with both hands andthrew her across the room over a wooden basket, and when she got toher feet he pushed her over on a number of occasions until the appellanthead-butted her and pushed her outside. This gave rise to the assaultwith intent to injure charge. It was accompanied by a male assaultsfemale charge when the appellant kicked and pushed her outside. Thesentencing judge adopted a starting point of 24 months, increased to 28months for the second assault. The Court agreed with the sentencingJudge that this was a serious assault which involved attacks to the headand neck. The Court observed that "generally sentences of betweentwo to three years' imprisonment for domestic violence offending arenot uncommon". The ultimate end sentence of two years and fourmonths' imprisonment was not considered to be manifestly excessive.21(b) In Cunningham v R the appellant was charged with five charges whichall related to assaulting his then partner, three charges of male assaultsfemale, and two charges of assault with intent to injure.22 The leadcharge was an assault with intent to injure where the appellant strangledhis partner using a dog-chain. The Court of Appeal considered that theoffending fell into bands two and three of Nuku because it involved atleast three aggravating features — attacking the head or neck, thevictim's vulnerability and use of a weapon (the dog-chain).23 Thereforea sentence of between two to three years' imprisonment wasappropriate. A majority of the Court held that the offending was moreserious than Goodman and merited a starting point of two years, andthat the final sentence of three years six months was stern but notmanifestly excessive.2420 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 relationshipbetween the appellant and victim, who at the time was also pregnantwith his child.25 The assaults involved the appellant placing his handson the victim's throat and choking and shaking her. Here the startingpoint of 24 months was adopted by the District Court Judge. The HighCourt identified the relevant aggravating factors as attacking the headand the vulnerability of the victim.26 Another aggravating feature wasthe repetitive nature of the attacks, all of which were individuallyserious.27 Assessing other cases where there were single-instanceassault charges, the Court held that the starting point of 24 months waswithin range.28(d) In Wawatai v Police, the appellant punched his partner in the face witha closed fist. The single punch caused the victim a bleeding nose andswelling. The sentencing Judge took a starting point of 18 months'imprisonment.29 On appeal the High Court held that a starting point ofseven months was appropriate.30 The main feature of the appellant'soffending is the single punch that he struck the victim with, whichcaused her to fall to the ground.(e) In Kuhtz v Police the defendant had held a "swordfish sword" to hispartner's throat, put his foot on her head and threatened to kill her.31 Helater caused damage to her property before departing, but returned laterand attacked her by striking her with his fists, dragging her across theroom and striking her head against a wall whilst choking her. He thendragged her to another room and caused more damage, and againthreatened to kill her. Here the Judge's final sentence of 23 months wasreduced 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 separateoccasions involving significant assaults involving attacks to the head on a vulnerablevictim including an attack at her home. The property damage and the threatening tokill 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 statementmade to the defendant's brother.[17] In my view the most comparable case is Goodman where a starting point of 24months' imprisonment, uplifted to 28 months for the second assault was adopted. Inmy view the cumulative effective starting point here of three years is too highcompared with Goodman, particularly given other cases referred to at [15] above. Thestarting point of 26 months, the uplift of six months, and the further uplift of fourmonths might individually be considered to be within range. That is true also of thetwo month uplift for previous offending. But the overall sentence prior to the guiltyplea discount is too high notwithstanding that it was mitigated by the two monthmathematical error. It is also significant that the lead charge had been reduced to oneof assault with intent to injure (three year maximum), and the second charge wasassault to a person in a family relationship (two year maximum). The Judge neededto 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 twoyears and six months' imprisonment, including the uplift for the property offendingand the threat to kill. That is higher than Goodman, but the offending here is a littlemore 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 overalloffending is within range. The discount for the guilty plea becomes complicated giventhat the charges were amended, and the guilty plea followed. But the discount appliedby the District Court Judge of six months was not inappropriate. That gives rise to afinal sentence of imprisonment of two years two months.[19] Whilst the appellant contends that the Judge erred by not taking into accountthe period on EM bail, I do not think that such a discount was required here. Theperiod spent on EM bail is a mandatory mitigating factor under the Sentencing Act.32But any credit given is not the same as the credit for custodial remand.33 In Henare vR the Court did not interfere for a failure to give a discount for one month spent onEM bail.34 As with that case I do not accept there is any error in not giving credit fora short period of EM bail.[20] The appeal is allowed. The sentence of two years six months' imprisonment isreplaced by one of two years two months' imprisonment.Cooke JSolicitors:Marsland Chambers, New Plymouth for the AppellantCrown Solicitor, New Plymouth for the Respondent32 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.