FELL v NEW ZEALAND POLICE [2019] NZHC 333

FELL v NEW ZEALAND POLICE [2019] NZHC 333 [10 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-431[2019] NZHC 333BETWEEN KEN FELLAppellantAND NEW ZEALAND POLICERespondentHearing: 11 March and 10 May 2019Counsel: S Fernando for AppellantR Ching and Thompson for RespondentJudgment: 10 May 2019[REDACTED] JUDGMENT OF WHATA JThis judgment was delivered by me on 10 May 2019 at 4.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Mr Fell pleaded guilty to one charge of possession of a firearm. He wassentenced to 60 hours community work. He appeals against Judge A-MJ Bouchier'srefusal to discharge without conviction.Facts[2] On 29 November 2017, police attended Mr Fell's residence to remove afirearm following a reported suicide attempt by N, a boarder there. The policeevidence is that N in fact told health care providers about the firearm and that theyreported to police there was a firearm in the house. After conducting a search, policefound a firearm leaning against a wall within the house with the bolt attached. Thefirearm was disabled and there was no ammunition in it.[3] When police spoke to Mr Fell, he admitted that the firearm was his and it hadbeen in the room for five years. He also reportedly stated that the "matter was not aserious one." Police established that Mr Fell was issued with a type "A" standardfirearms licence on 4 May 1988 which had expired on 1 May 2002, and that the licencewas revoked on 1 June 2007 after Mr Fell failed to respond to calling in of the licence.The evidence[4] In his affidavit in support of a discharge without conviction, Mr Fell stated thatthe firearm in question had been locked in a secure box hidden under the floorboardsat his mother's house for over 20 years. He had forgotten about it. He suggested thatN may have found the gun while searching for items to steal, and that N had contactedthe police to "get back" at Mr Fell for asking him to leave the residence.[5] Mr Fell also explains that, as an agricultural contractor, he is required to travelto Australia and that he has family is resident in the United States.[6] Ms Fernando (Mr Fell's counsel) further advised that Mr Fell had triedpreviously to renew his licence, but his workload was such that he was unable tocomplete the application process. He has also since sat and passed the licence examand obtained a favourable recommendation from a vetting officer.The Judge's decision[7] The Judge assessed the gravity of the offending as at the low end of thespectrum, but noted it was an offence that should be taken seriously. As toconsequences, the Judge identified:(a) Mr Fell's inability to have his firearms licence reinstated;(b) The potential barrier to international travel (which Mr Fell said was anissue because he must travel to Australia during harvesting season tocarry out work as an agricultural contractor, and because he has familyhe visits in the United States); and(c) The embarrassment, shame and potential stigma of a conviction.[8] The Judge was not, however, satisfied there was a clear and appreciable riskthat these consequences would occur. The application for discharge withoutconviction was declined.The threshold[9] The threshold for discharge without conviction is now reasonably well settled.Section 107 of the Sentencing Act 2002 states:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[10] The Court of Appeal has set out a three-step test in relation to s 107.1 A Judgemust consider:(a) the gravity of the offending;(b) the consequences of a conviction; and1 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].(c) whether the consequences of a conviction would be out of allproportion to the gravity of the offending.[11] The Court of Appeal in Z (CA447/12) v R summarised the approach in thisway:2 when considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).(footnotes omitted)[12] The Court of Appeal has also noted that there needs to be a "real andappreciable risk" that the consequences of the conviction will occur.3[13] As the steps set out in relation to s 107 do not involve an exercise of the Court'sdiscretion, ordinary appellate principles apply on appeal, and the appellant is entitledto have the decision evaluated afresh.4 I will therefore examine the s107 thresholdcriteria again.Gravity[14] The Judge correctly located the offending at the lower end of the spectrum foroffending of its kind. The firearm was disabled and not loaded. The nature of theoffending was, nevertheless, as the Judge noted, moderately serious. However, I agreewith Ms Fernando, it appears the Judge did not consider personal factors that furthermitigated the gravity of the offending, including:(a) his age (51);2 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].3 DC (CA47/2013) v R [2013] NZCA 255 at [43]; citing Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].4 R v Hughes, above n 3, at [65]-[66].(b) his guilty plea;(c) his sense of remorse;(d) his acceptance of responsibility;(e) his lack of any relevant previous convictions; and(f) the steps he has taken post-offending to reinstate his firearms licence.[15] Taken together, the risk of reoffending presented by Mr Fell at the time of theoffending and now appears very low. But even so, these factors do not reduce thegravity of the offending to minor or insignificant. The wider context of the offendingis relevant. This was not about a moment's inattention or lapse in judgment. The riflewas unlicensed for more than 15 years and located at Mr Fell's mother's house. Thisis a significant breach of licencing regulation exacerbated by the fact that he did notretain direct control and oversight of the firearm. There is then the evidence that thegun came to the attention of the police via a report from health providers followingN's suicide attempt. This serves to illustrate the importance of both licencing andmaintaining oversight of firearms.[16] I accept that the storage of the firearm, without ammunition, in a secure boxunder the floorboards mitigated the risk of harm, as did the fact it was disabled. Butmaintaining a licence is part of a scheme of control designed to ensure that what infact transpired does not happen. Illustrative of this point, Mr Fell admits he hadforgotten about the existence of the gun, no doubt because he had not maintained alicence in respect of it. Mr Fell's evidence that N only found it as part of an attemptedtheft, if anything, highlights the underlying risk of not maintaining strict control offirearms. It might in fact be said that, if it was part of an attempted theft, there was arisk of the firearm finding its way into the hands of persons who might have goodreason to re-arm it.[17] In my view, therefore, the gravity of the offending, having regard to Mr Fell'spersonal circumstances, is low but not insignificant.Consequences[18] The only consequence of any moment is the potential impact on Mr Fell'sability to travel for work. Any impact on an ability to re-licence and any stigma effectis a natural, foreseeable and proportionate consequence of the offending.[19] As to travel impact, the evidence of material impact was weak at the firsthearing and at the hearing before me. I granted leave to Ms Fernando to obtainevidence about the likely impact of the conviction. This was opposed by therespondent, but I preferred to proceed on a properly informed basis. That evidencerefers to various grounds for prohibition in terms of entry into the United States. Mostrelevantly, a person who has combined sentences of more than five years or more isprohibited from entry. Mr Fell does not have aggregate sentences of this level. I amtherefore not satisfied that there is a real and appreciable risk of exclusion from theUnited States if conviction is not discharged.Proportionality[20] I am not persuaded that the conviction is grossly disproportionate to the gravityof the offending. Mr Fell retained possession of an unlicensed firearm for many years.This is not an insignificant breach of a regulation designed to protect the public. Thelack of direct oversight also carried the risk that it could come into the possession ofsomeone who might use it unlawfully and, in a way, that is dangerous to the public.While Mr Fell did not appear to present this type of immediate risk, the object of theFirearms Act clearly demands better protection of the public by those who possessfirearms.[21] Accordingly, the impact on travel, to the extent there is any, is not out of allproportion to the gravity of the offending.[22] The appeal is therefore dismissed.