SHEED v R [2022] NZCA 440

SHEED v R [2022] NZCA 440 [19 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA75/2022[2022] NZCA 440BETWEEN RICKY CHARLES SHEEDAppellantAND THE KINGRespondentHearing: 15 August 2022Court: Collins, Duffy and Edwards JJCounsel: E Huda for AppellantT S Simpson and P D Marshall for RespondentJudgment: 19 September 2022 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The application to adduce further evidence is granted.C The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] The appellant, Ricky Charles Sheed, appeals against his sentence of two yearsand three months' imprisonment.1 He was sentenced in the District Court following ajury trial in which guilty verdicts were delivered on two charges under the ArmsAct 1983 for possession of a .22 Webley & Scott firearm and possession of 83 rounds1 R v Sheed [2021] NZDC 24178.of .22 calibre ammunition.2 Nine of those rounds were loaded in the magazine of thefirearm when it was found by police.[2] The appeal is 13 days out of time. As the delay is short and has been explained,the Crown do not oppose an extension of time. Accordingly the extension of time isgranted.Facts[3] Mr Sheed resides in Invercargill. On 7 November 2020 his van was seizedwhile it was in Christchurch. He could not collect it until 7 December 2020. He wentto Christchurch with that purpose in mind and while there he stayed at the gang padof the Mongols. He is a patched member of that gang. While at the pad he acted as asubstitute for another member who was assigned to guard duty.[4] At approximately 7.00 am on 7 December 2020 the police conducted a raid onthe pad. They found three people present, one of whom was Mr Sheed. When thepolice arrived, he was seen coming out of a sleepout on the property. The other twopersons were in a separate building. He left the pad around 9.00 am for Invercargill.[5] Police remained on site. At approximately 10.00 am they found the .22 firearmand ammunition hidden behind a wardrobe in the bedroom of the sleepout. The nextday police went to Mr Sheed's home in Invercargill. He was arrested for possessingthe firearm and ammunition found in the sleepout. The police searched his vehicleand found a laser bore sighting tool in the glovebox. This was capable of beingattached to the .22 rifle.[6] At the time of sentence Mr Sheed was 43. He had 91 previous convictions, butnone for firearms offences and there had been no convictions since 2015. He did nothold a firearms license.2 The charge notice for the ammunition charge refers to 83 rounds however in sentencing Mr SheedJudge O'Driscoll referred to "some 74 rounds of ammunition": see R v Sheed, above n 1, at [2].This is because the charge sheet presumably includes the 9 rounds of ammunition found inside thegun. Mr Sheed was also convicted and discharged on a charge of possession of cannabis to whichhe pleaded guilty; this sentence forms no part of the appeal.Sentencing notes[7] The pre-sentence report recommended a sentence of home detention andcommunity work.[8] At sentencing the Crown argued for a starting point of three years'imprisonment, because the firearm was loaded and there was gang involvement. TheCrown correctly recognised there was no tariff for this type of offending and presentedthe Judge with comparable cases where starting points of 12 to 15 months'imprisonment had been adopted at the lower end and two years, six months'imprisonment at the upper end.[9] Defence counsel sought to distinguish Mr Sheed's case from those cited by theCrown on the basis there was no actual violence in the offending and no drug offendingas often occurred in other firearm cases. Defence counsel submitted an appropriatestarting point was between 18 to 21 months' imprisonment. The defence relied onMiller v R where a starting point of 18 months imprisonment was adopted but wasthen converted to home detention.3[10] Judge S J O'Driscoll distinguished Mr Sheed's offending from that in Miller vR on the grounds that in Miller, the sentence was imposed in 2008, there was only ahistory of minor offending and there appeared to be an issue of joint possession of thesubject firearm. Further, there was no gang connection in Miller.4[11] The Judge emphasised the need for deterrence and denunciation when it cameto the possession of firearms, and the need to protect the public. He found this wasparticularly so where firearms were involved with gangs. The Judge gave lessattention to rehabilitation given Mr Sheed was 43, and he had made choices andcontinued to make choices to be involved with a gang.5[12] The Judge considered the fact the firearm was loaded and located at theMongols' pad as an aggravating factor of the offending. He noted that Mr Sheed was3 Miller v R [2018] NZHC 2701.4 R v Sheed, above n 1, at [20].5 At [21].the only known occupant of the sleepout. Also a significant amount of availableammunition was found near the gun.6[13] The Judge viewed the laser bore sighting tool found in the glove box ofMr Sheed's vehicle the following day in Invercargill as proof that Mr Sheed knew ofthe existence of the firearm and had possession of the firearm.7[14] The Judge considered the case called for a stern response given Mr Sheed wasa patched member of the Mongols, he was not a young offender and he had been foundin possession of a loaded firearm and a significant amount of ammunition.8 This ledthe Judge to adopt a starting point of two years, six months' imprisonment. He reducedthat by three months to account for the gap in Mr Sheed's offending between 2015 andsentencing and the lack of previous similar convictions.9 No other mitigating factorswere before the Judge.SubmissionsAppellant[15] The starting point of two years, six months' imprisonment was the same as thatapproved by this Court in Torea v R.10 Mr Sheed's counsel, Mr Huda, sought todistinguish the present case from Torea. In that case the offender was a senior patchedgang member who visited a female friend's property to collect a firearm, someammunition and a gang patch. The police were called because of a disturbance. Theyfound Mr Torea sitting on a sofa. The firearm was under the cushion beside him. Itwas loaded with the safety catch disengaged and one of three bullets in the firingchamber. The fact he kept the firearm loaded and at his side while awaiting the arrivalof the police was treated as a serious aggravating factor.[16] Mr Huda argued that the immediate accessibility of the firearm in Torea meantthat case was different from Gunning v Police.11 In that case, the appellant was an6 At [23].7 At [24].8 At [26].9 At [28].10 Torea v R [2011] NZCA 96.11 Gunning v Police [2019] NZHC 309.associate member of the Head Hunters. The police raided the home of a more seniormember and found secreted in a wall cavity a rifle, two magazines (one of whichcontained 14 live rounds of ammunition), a suppressor and a scope. Mr Gunning saidthe items belonged to him. The sentencing Judge adopted a starting point of20 months' imprisonment and imposed an end sentence of 15 months' imprisonment.The High Court on appeal endorsed the former but commuted the latter to homedetention.[17] Mr Huda also relied on Moore v Police where the police had found a .22 semi-automatic rifle hidden in Mr Moore's bedroom and a magazine for it in his jacket,which was hanging behind the bedroom door.12 There were a further 38 rounds ofammunition hidden in a hole in the bedroom wardrobe wall. The sentencing Judgeadopted a starting point of 16 months' imprisonment for the Arms Act offending andother offending. On appeal Simon France J observed Mr Moore was fortunate not tohave received a 16 month starting point for the Arms Act offending alone.[18] Mr Huda seeks to distinguish Mr Sheed's offending on the basis the sleepoutwhere he stayed was temporary accommodation because he was only visitingChristchurch to collect his vehicle. It had four rooms, a lounge, bathroom, bedroomand a back room. The police found a bag containing Mr Sheed's wallet and otherpersonal items in the lounge and his patch and other belongings in the bedroom. Therifle and ammunition were also found in the bedroom hidden behind a wardrobe.There was no evidence Mr Sheed's fingerprints or DNA were present on either item.Mr Huda submits the most that can be said, therefore, is that Mr Sheed's possessionof the rifle and ammunition came about because of his knowledge that they were in asleepout in which he was temporarily staying.Crown[19] On the other hand, the Crown submits that the guilty verdicts are consistentwith the Crown case at trial: Mr Sheed was completing guard duty whilst staying atthe Mongols' pad in accordance with his obligations as a patched member and to doso he occupied the sleepout with access to a loaded gun. The Crown referred to the12 Moore v Police [2015] NZHC 3113.defence case at trial which was simply that Mr Sheed was staying in the sleepouttemporarily while in Christchurch and was unaware of the firearm and ammunition.He had argued that his temporary stay did not equate to legal occupation for thepurposes of s 66 of the Arms Act. The Crown submits the jury's guilty verdicts showthe defence explanation was rejected.[20] The Crown relies on Torea v R and argues that Mr Huda's attempt to distinguishTorea v R relies on fine distinctions as to how immediately accessible the respectivefirearms were. However, when looked at more broadly in both cases the firearms wereloaded and they were easily accessible to the appellants.[21] Further, the Crown submits that the evidence in Mr Sheed's trial established hehad ready access to a loaded weapon as well as at least 74 rounds of ammunition whenpolice arrived at the gang pad. As with Torea v R the offending here was gang related.The Crown submits that the exact location in which the firearms were concealed isirrelevant. The fact Mr Sheed tried to distance himself from the weapon when policearrived does not mitigate from the seriousness of the offending. As to Mr Sheed'sattempt to suggest a distinction in sentencing between cases where a firearm isimmediately accessible compared to where firearms are stored somewhere on aproperty the Crown submits this Court rejected such a distinction in Byles v R.13Section 27 report[22] For the purpose of the appeal Mr Sheed obtained a report under s 27 of theSentencing Act 2002. The report outlines the difficult and deprived childhoodMr Sheed experienced.[23] The Crown was critical of the attempt to introduce the report for the first timeon appeal and argues the report does not establish an error in the sentence imposed. Itsubmits the material in the report may not have warranted any discount in sentencingbecause it does not establish a demonstrative nexus between any deprivation inMr Sheed's background and his offending such that his choices can be consideredconstrained and his moral culpability diminished.13 Byles v R [2013] NZCA 18.[24] The report causes no prejudice to the Crown, and we grant leave to adduce itas further evidence.Analysis[25] We do not accept the circumstances of this offending are less serious than thosein Torea v R. Whilst the firearm in Torea v R was more immediately to hand than inthis case, here there was considerably more ammunition immediately available.Further the circumstances of its possession, namely Mr Sheed being on guard duty ata gang pad, suggest to us that had there been an intrusion that was seen to warrantdefensive action the loaded firearm and ammunition were readily available. Weconsider that such circumstances should be strongly denounced and deterred.14[26] The jury's rejection of the defence case at trial must be taken to mean it wassure Mr Sheed knew the firearm and ammunition was available to him.[27] We are satisfied that a starting point of two years and six months' imprisonmentwas available.[28] We accept the Crown's submission that the s 27 report adds little to thesentencing considerations and we see no basis for an additional discount based on thisreport. Mr Sheed is a mature man in his early 40s, who has later in life chosen to joina gang. It is notable that the s 27 report records that in his younger years he refrainedfrom joining a gang like his relative had done because of the disapproval of othersclose to him. If he could resist joining a gang when younger, we consider his laterdecision to join a gang reflects his personal choice rather than being the result of hiscircumstances. Whilst he deserves credit (which was given) for the period of non-offending since 2015 the maturity that supported such a change in lifestyle has notbeen enough to cause him to turn away from the gang life and what it entails, includingthe seeming need for guards with firearms available to them.[29] It is well settled that this Court will not interfere with a sentence on appealunless the end sentence is manifestly excessive or there is some other material error14 See R v Richardson CA450/02, 25 March 2003 at [33]; R v McLean [2009] NZCA 465 at [24];and Torea v R, above n 10, at [15].of sentencing process.15 Here there is none. For this type of offending and offenderan end sentence of two years, three months' imprisonment cannot be viewed asmanifestly excessive.Result[30] The application for an extension of time is granted.[31] The application to adduce further evidence is granted.[32] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].