BURNS v NEW ZEALAND POLICE [2021] NZHC 1589

BURNS v NEW ZEALAND POLICE [2021] NZHC 1589 [30 June 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2021-443-20[2021] NZHC 1589KENNETH JOHN BURNSvNEW ZEALAND POLICEHearing: 30 June 2021Appearances: J M Woodcock for Mr BurnsL A Blencowe for CrownJudgment: 30 June 2021JUDGMENT OF COOKE J[1] Kenneth Burns appeals against the sentence of two years and three months'imprisonment imposed by the District Court on one charge of unlawfully possessingof a firearm,1 one of unlawfully possessing ammunition,2 one of unlawfully possessinga magazine,3 and two charges of theft4 and trespass5 following his guilty pleas.[2] Judge A S Greig adopted a starting point of 27 months' imprisonment on thefirearms charges, and then uplifted the sentence by three months for the theft andtrespass charges, and then a further six months because of previous convictions. He1 Arms Act 1983, s 45; $5,000 fine and/or 4 years imprisonment.2 Section 22B; $10,000 fine.3 Section 22A; $10,000 fine.4 Crimes Act 1961, s 223(d); 3 months imprisonment.5 Trespass Act 1980, ss 3, 4 and 11; $1,000 fine or 3 months imprisonment.then reduced the sentence by nine months for the guilty pleas leading to the endsentence of 27 months.6[3] The appellant contends that the end sentence is manifestly excessive. Therespondent accepts that the end sentence was stern, and in particular that a startingpoint of 24 months' imprisonment for the firearms offending was more appropriate,but argues that a difference of approximately three months would not make the overallsentence manifestly excessive.Facts[4] The relevant facts begin with the theft and trespass charges. On 29 October2020 the appellant was trespassed from The Warehouse at Bell Block Court,New Plymouth. On 8 January 2021 the appellant and a female associate entered TheWarehouse. The appellant wore sunglasses in an apparent attempt to conceal hisidentity. He took two pairs of trousers to the fitting rooms. He only paid for one pairwhen leaving the shop having concealed the other pair in a bag. They were worth $69.This gave rise to one theft and one trespass charge.[5] On 29 January 2021 the appellant and a male associate entered The Warehouseagain. This time the appellant selected multiple items of clothing and went into thefitting rooms. He left the singlet he was wearing in the fitting room and exited wearinga different black singlet with a grey shirt over his shoulder. Members of the staffrecognised the appellant and asked him to return the items he had taken but hecontinued to walk away and left the store. The items were valued at $102. This gaverise to a second theft and trespass charges.[6] On 10 March 2021 the police executed a search warrant at the appellant'saddress. The warrant was sought after information that the appellant was in possessionof firearms was received. At the time the appellant and his partner were the primaryoccupants of the address and were at the property at the time of the search. During thesearch the police found a backpack in the corner of the appellant's bedroom. Insidethe backpack was a cut down 12–gauge double barrelled shotgun with a wooden stock,6 New Zealand Police v Kenneth John Burns [2021] NZDC 8114.and a black pouch with four live rounds of 9 mm ammunition and 16 live rounds of.22 calibre ammunition. On the bedroom floor was a live 12–gauge shotgun cartridge.On the living room table was a Ruger 10 shot magazine which held three live .22rounds. A further .22 round was found on the same table. This gave rise to the chargesof unlawful possession of a firearm, unlawful possession of ammunition, and unlawfulpossession of a non-prohibited magazine.[7] Ms Blencowe for the Police accepts that the Judge adopted a stern approach insentencing, particularly with respect to the starting point on the firearm charge. TheJudge was plainly influenced by the personal circumstances of Mr Burns. He said:[8] It is easy to say we all make choices. To a certain extent, we are aprisoner of our upbringing in the choices that we make. I would always extendleniency to any man or woman who really wants to change, but I do not see itin you, Mr Burns. I think at the moment you are choosing a path; you areenmeshed in gang culture and I do not think you could see your way to leadingan offence-free lifestyle at the moment. It is going to take a lot of work. Whenthe time comes, you will certainly get whatever help I can give you from here.If you do not believe me, ask those people who have had really lenientsentences. But I am afraid that is not for you today.Appeal[8] The appeal is brought under s 244 of the Criminal Procedure Act 2011.7 Unders 250(2) the appeal must be allowed if the court is satisfied that there is an error in thesentence imposed on conviction, and that a different sentence should be imposed.8The focus is on the ultimate end sentence, and whether it is manifestly excessive,rather than the steps taken in the sentencing process.9[9] When imposing the starting point the Judge considered the decision of the HighCourt in Herewini v Police.10 In that case the appellant was found with a loaded sawn-off shotgun, two large hunting knives and a crossbow, as well as a 15 cm dagger anda glass pipe used for the consumption of methamphetamine. The High Court uphelda starting point of two years and six months imprisonment. Moore J identified that thegeneral trend was that a starting point of two years' and two and a half years7 Criminal Procedure Act 2011, s 244(1).8 Section 250(2).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].10 Herewini v Police [2014] NZHC 2396.imprisonment for cases involving possession of a sawn-off shotgun.11 He recordedthat the "fact that the weapon was a sawn-off shotgun makes the offending moreserious than if the offending had been unmodified".12 This, coupled with the fact thatthe shotgun was loaded, readily accessible, and present inside a car that was in aresidential area made the offending more serious.[10] A consideration of other firearms related sentences referred to byMs Woodcock suggest that the approach adopted by the Judge here was higher thanthe normal range, however. Two Court of Appeal decisions in particular provideguidance:(a) In Torea v R the Court upheld a starting point of two years and sixmonths imprisonment.13 In that case police had been called to anaddress and when they arrived a loaded pistol was found underneath apillow next to where the appellant was sitting. The safety catch hadbeen disengaged and a bullet was in the chamber. The appellant hadgang associations with the potential use of weapons in that context. TheCourt of Appeal observed that the gang connections and the possessionof a loaded firearm would require "a sentence which will be an effectivedeterrent to the offender and to others who may be similarly minded".14(b) The Court referred to its earlier decisions, including that in R vRichardson. In that case the appellant was found to be in possession ofa sawn-off shotgun which was found under his bed, as well aspossession of another shotgun found loaded in the boot of his car. TheCourt approved of a starting point of two years' imprisonment.15[11] These cases suggest that the starting point of 27 months — only three monthslower than Torea, and three months higher than Richardson is not appropriate. Thatis confirmed by other High Court cases:11 At [23]–[26]12 At [27].13 Torea v R [2011] NZCA 96 at [5]–[6].14 At [15].15 R v Richardson CA450/02, 25 March 2003 at [34].(a) In Miller v Police the appellant was charged with a number of offencesincluding three offences under the Arms Act, along with charges ofthreatening to kill and possession of cannabis.16 A starting point of 23months' imprisonment was adopted. The High Court found on appealthat the Judge did not err in adopting that starting point.17(b) In Long v Police the defendant was found with two stolen rifles, ahomemade pistol, 190 rounds of ammunition, a smoke grenade, another610 rounds of ammunition, and various firearms parts.18 In that casethe starting point of 20 months' imprisonment was adopted.[12] Having regard to the comparable cases, and the trend of cases, in my view astarting point of 20 to 24 months' imprisonment could be regarded as within range forthis offending. I agree with the submissions that a starting point of above 24 monthsis outside the range. The aggravating feature in the present case is that the shotgunwas sawn-off, and accordingly properly regarded as enhanced for the purposes ofpotential offending. But on the other hand it was not found in a public place, or a car,but in a private bedroom, and it was not loaded. So it was not possessed for immediateuse. The presence of ammunition and associated equipment reiterates that thismaterial was possessed for potentially unlawful purposes, but it does not put this caseto the same kind of level as cases where the higher starting points have been adopted.It appears that the appellant has gang connections, and this was referred to by theJudge. But I note that this was not referred to in the summary of facts. So by itself itmay not have been appropriate to consider it as an aggravating feature.[13] I accept Ms Blencowe's submission that adopting a starting point three monthshigher than what might be regarded as the available range may not by itself lead to amanifestly excessive sentence, particularly if further steps are then taken in thesentencing process that ameliorate any erroneous starting point. The focus should bethe end sentence rather than the particular steps taken in the sentencing process. But16 Miller v Police [2021] NZHC 1104 at [24].17 At [31].18 At [29]; Long v Police HC Palmerston North CRI-2009-454-39, 8 October 2009.here the subsequent uplifts made by the Court re-emphasised the error in the startingpoint, and it has led to a sentence that is manifestly excessive.[14] The Judge adopted a three month uplift for the theft and trespass offending,and then a further six month uplift given the appellant's previous convictions. He thengave a nine month discount for the guilty plea so that the end sentence correspondedwith the starting point. In other words the uplifts cancelled out the effect of the guiltyplea discount. The Judge noted, but did not factor in, that the appellant had had adifficult background. Some care is required before uplifts are imposed for otheroffending and prior history which eliminate the effect of a guilty plea discountaccompanying an offender's acknowledgment of the offending.[15] The three month uplift for the theft and trespass offending cannot be criticised.The fact that this was repeated offending on two occasions meant that such an upliftwas justified. But the further uplift for previous offending can be legitimatelyquestioned. On a starting point of 27 months' imprisonment this is approximately a22 per cent uplift. By comparison in Miller v Police an uplift of 15 per cent wasapplied for personal aggravating factors.19 In Smith v Police an uplift of six monthswas applied where the appellant had eight previous firearm convictions.20 WhilstMr Burns has a lengthy history he does not have firearms related convictions. I notethat there is previous aggravated robbery offending, but I have no details of thatoffending and whether firearms were involved. Overall in my view an uplift of afurther three months for the previous history would be more appropriate.[16] The cumulative effect of the approach adopted seems to me to lead to amanifestly excessive sentence. In my view a starting point of 22 months'imprisonment is more in line with comparable cases, with an uplift of three monthsfor the theft and trespass charges, and a further three months for the previousconvictions. That leads to 28 months. The 25 per cent discount for the guilty pleathen amounts to a seven month discount. This results in an end sentence of 21 months'imprisonment.19 Miller v Police, above n 16 at [37].20 Smith v Police [2014] NZHC 2196.[17] The appeal will be allowed and the sentence of 27 months' imprisonmentreplaced with a sentence of 21 months' imprisonment. In all other respects thesentence imposed by the District Court will remain.Cooke JSolicitors:Marsland Chambers, New Plymouth for AppellantCrown Solicitor, New Plymouth for Respondent