GUNBIE v NEW ZEALAND POLICE [2019] NZHC 250

GUNBIE v NEW ZEALAND POLICE [2019] NZHC 250 [25 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-410[2019] NZHC 250BETWEEN STEVE BRENT GUNBIEAppellantAND NEW ZEALAND POLICERespondentHearing: 25 February 2019Counsel: E Priest for AppellantD Dow for RespondentOral Judgment: 25 February 2019ORAL JUDGMENT OF CHURCHMAN JIntroduction[1] Mr Gunbie appeals against a sentence of 23 months' imprisonment imposed byJudge Ryan in the North Shore District Court on 9 November 2018.1 Mr Gunbie'ssentence was imposed following the entry of guilty pleas to two firearms charges,namely unlawful possession of a .22 pistol and what the Judge thought was the17 rounds of .22 ammunition.2[2] Both counsel are agreed before me this morning that the reference to the17 rounds of ammunition was in error, as it appears to have included rounds of shotgunammunition which, although found at the place Mr Gunbie resided, were not thesubject of a specific charge against him.1 New Zealand Police v Gunbie [2018] NZDC 23669.2 Arms Act 1983, s 45(1) [maximum penalty of four years' imprisonment and/or a fine notexceeding $5,000].[3] Ms Priest, counsel for Mr Gunbie, submits that Judge Ryan erred in a numberof material ways that rendered the sentence manifestly excessive. She submits thatthe sentence of 23 months' imprisonment should be quashed, and a sentence of15 months' imprisonment should be substituted. She submits that home detention isthe least restrictive outcome appropriate in the circumstances.Factual background[4] On 8 September 2018, Mr Gunbie was at his home address when policeexecuted a search warrant at his home. This was executed with the assistance of thepolice Armed Offenders Squad (AOS). Mr Gunbie was the sole occupant of theaddress. Upon arrival, police observed Mr Gunbie concealing a pistol on a deck onthe property. Police located the firearm, which was a .22 revolver pistol, fully loaded,with eight rounds of .22 ammunition.[5] Mr Gunbie was arrested and searched pursuant to the arrest. In his pockets,police located one round of .22 ammunition (of the same type and brand as theammunition inside the pistol), although Ms Priest makes a point that it was not inpristine condition and appears to have been somewhat tarnished in nature which, shesays, supports the explanation that it had been left in the pocket of the trousersMr Gunbie was wearing on that occasion.[6] When spoken to by police, Mr Gunbie admitted ownership of the single .22ammunition round in his pocket, and he claimed it must have been an old round thathad been in his pocket for some time. He denied ownership of the pistol. In respectof the ammunition located in the storage area adjoining his bedroom, this was theammunition that the Judge appears to have incorrectly included within the totalamount of ammunition in Mr Gunbie's possession, he advised that it was all "old stuff"that he had brought to the address from a previous residence.District Court decision[7] Judge Ryan began by describing the two firearms charges to which Mr Gunbiehad pleaded guilty.3 Her Honour began by briefly summarising the facts of theoffending as including the pistol, fully loaded with eight rounds of .22 ammunition.She also noted that police had located one single .22 ammunition round in Mr Gunbie'spocket, and this was the same type of the ammunition as in the loaded gun. She wenton to note that in a storeroom area adjoining his bedroom, police located seven roundsof shotgun ammunition. She also recited Mr Gunbie's explanation for the items in thestorage area as "old stuff" he had brought to this address from a previous residence.[8] She then continued by traversing Mr Gunbie's criminal history. Of this, shenoted:[6] Mr Gunbie you have, as you know, 197 previous convictions and27 Youth Court notations but those notations are a long time ago and I amnot concerned about those. You have been in prison regularly since 1995.Some of your offences include wilfully setting fire endangering life,assaulting a prison officer, possessing an offensive weapon, threateningto kill, kidnapping and what was then known as domestic assault, nowknown as family violence assault.[7] On 7 February 2006, you were imprisoned for two years sixmonths for a raft of offences including domestic assault, disorderlybehaviour likely to cause violence, wilful damage times three, non-domestic assault and some drug offences.[8] On 15 May 2006, the High Court sentenced you to four years'imprisonment with a non-parole period of two years for recklesslydischarging a firearm and unlawful possession of a pistol. Your offendingthen stopped, clearly while you were in prison, but in 2011 you began tooffend steadily again. Those offences include driving offences; drivingwhilst forbidden six times, dangerous driving four times, driving whilesuspended, driving while disqualified and failing to stop for police lights.[9] You also possessed a cannabis plant and permitted premises forthe manufacturing of drugs. You received over $1000, unlawfully took amotor vehicle and committed burglary. Your more violent offences sinceyou were released from prison include intention damage times two,3 New Zealand Police v Gunbie, above n 1. Judge Ryan erroneously describes the charge forunlawful possession of explosives (the second charge relating to the ammunition) as carrying amaximum penalty of "four years' imprisonment and/or a $2000 fine" at [1]. I note that themaximum penalty for this offence is four years' imprisonment and/or a $5000 fine: Arms Act, s45(1). This appears to be a typographic error and I don't view that it created any error in herHonour's approach to the sentence.unlawful possession of a firearm, offensive behaviour, threatening to killor cause grievous bodily harm with a stabbing or cutting weapon,possessing a knife in a public place and assaulting police.[9] Judge Ryan then went on to discuss the pre-sentence report, highlighting thatthis offending occurred while Mr Gunbie was serving a sentence of home detention.4At the time of the sentencing decision, Judge Ryan noted that the sentence of homedetention had "subsequently been cancelled". Ms Priest explained in her submissionsthis morning that it appears that all but one month of that sentence had been completedas at the time of cancellation.[10] The PAC report writer noted that features of Mr Gunbie's offending includedhis attitude and that he had "offending-supportive" associates. Further, Mr Gunbiehad been referred to a Department of Corrections psychologist during his homedetention sentence but had refused to engage. The Judge had information before herthat Mr Gunbie had been receiving counselling and she noted her acceptance of that,despite having nothing before her explaining what that counselling was for, how longit had been going on or what progress was being made.[11] The PAC report writer assessed Mr Gunbie as unsuitable for home detention,given that the present firearms offending occurred while he was serving a sentence ofhome detention. This was also due to health and safety concerns posed to CommunityCorrections staff and monitoring company staff. A sentence of imprisonment wasrecommended. However, Mr Gunbie still proposed an EM address of a friend in theTasman district that was assessed for suitability.[12] The Judge recorded that Mr Gunbie was in what appeared to be a stablerelationship. She also noted that Departmental records indicated that Mr Gunbie is apatched member of the Mongrel Mob, although Mr Gunbie asserted he had noconnection with the gang except for visits from friends and family who are gangaffiliated. He sought home detention.[13] Judge Ryan then turned to consider counsels' submissions. She started byrecording defence counsel's concern about the guilty pleas but noted her view that4 Mr Gunbie was sentenced to six months' home detention in April 2018 for one charge of burglary.Mr Gunbie's pleas were appropriate: he knew what the firearm and ammunition was,where it was, it was close to him, he was able to pick it up, take it somewhere or hideit. She accepted it appears he was in possession and noted that she takes into accounthis guilty pleas.[14] Counsel for Mr Gunbie accepted that his criminal history demonstrated the"serious antisocial issue and bad behaviour" but made the submission that he was at astage in his life (now 40 years old) where he wanted to "turn [his] life around".Counsel accepted that imprisonment was the most likely outcome, but urgedJudge Ryan to "give Mr Gunbie another chance and to give him home detention"because Mr Gunbie was now "of an age where he would respond to it well".[15] In terms of starting points, it appears defence sought a starting point of around18 months' imprisonment while the Crown submitted that High Court authoritiesbound Judge Ryan to accept the starting point of between two years and two and a halfyears' imprisonment.[16] Judge Ryan was particularly guided by the High Court decision in Herewini vPolice in setting the starting point.5 After traversing a number of cases, her Honourconcluded that a starting point of two years' imprisonment was appropriate forpossession of the loaded pistol. A further three-month uplift was given for possessionof the ammunition. This left the Judge with a 27-month starting point.[17] Her Honour then noted that the violent and firearms related offence inMr Gunbie's history required a four-month uplift. The offences she referred toincluded "violence, kidnapping, possession of an offensive weapon, unlawfulpossession of a firearm, threatening to kill, assaulting police and assaulting a prisonofficer."[18] Judge Ryan did not consider any personal mitigating circumstances. She gavefull 25 per cent discount for the guilty plea which equated to seven and a half months,which resulted in an end sentence of 23 months and two weeks. Because this wasunder two years, she went on to consider the possibility of home detention.5 Herewini v Police [2014] NZHC 2396.[19] Her Honour noted that in favour of home detention was that the addressprovided was in the Tasman area, a long way from the area where the guns were found,he had a supportive partner and had been on home detention before. However, againsthome detention was that he had offended while on home detention and there were nosteps that could be taken to prevent him from re-offending while on home detentionbecause, as her Honour said: "Corrections cannot be with him 24/7". Further, there isa real risk to the health and safety of Corrections staff if there is a loaded weapon at aproperty they come by and check on."[20] Given these considerations, and Mr Gunbie's "history of significant offences",Judge Ryan concluded that she could not impose a sentence of home detention becauseit was unsuitable and an inadequate deterrent for this offending. She sentencedMr Gunbie to 23 months' imprisonment (rounding down the two weeks). She alsoordered destruction of the pistol and ammunition.Grounds of appeal[21] Mr Gunbie appeals this decision on the basis that Judge Ryan erred in:(a) proceeding on incorrect facts/facts inconsistent with the chargingdocuments;(b) adopting too high a starting point to reflect the totality of the offending;(c) uplifting by too much for previous convictions;(d) not granting home detention; and(e) in all the circumstances, imposed a sentence that is manifestlyexcessive.[22] Overall, Mr Gunbie submits that that an overall lower sentence should havebeen imposed and home detention is the least restrictive outcome appropriate in thecircumstances.Approach to appeal[23] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and must only be allowed ifthe Court is satisfied that, for any reason, there was an error in the sentence imposedand a different sentence should have been imposed.6 The focus is on the final sentenceand whether that was in the available range, rather than the exact process by which itwas reached.7Errors of fact[24] The summary of facts (SOF) to which Mr Gunbie pleaded guilty includes factsrelating to two other charges that appear to have been ultimately dropped (includingpossession of tools for methamphetamine and what appears to be a third and separatefirearms charge, brought under the same section (s 41(5)), which I assume related tothe shotgun ammunition found in the storage area). The notation on the SOF makes itclear that Mr Gunbie only pleaded guilty to the two charges discussed above (namelypossession of the pistol and possession of the nine rounds of ammunition).[25] Mr Gunbie submits the following facts related to the charges which weredropped and were therefore erroneously taken into account:(a) the seven rounds of shotgun ammunition found in the storage area nextto his bedroom;(b) a glass pipe commonly used for smoking methamphetamine was foundin the storage area; and(c) that this was "old stuff he had brought with him to the address from aprevious residence".[26] Ms Priest is counsel for Mr Gunbie on this appeal. She submits that when theguilty pleas were entered, defence counsel did not have access to the charging6 Tutakangahau v R [2014] NZCA 279.7 Ripia v R [2011] NZCA 101 at [15].documents and trial counsel (Mr Pani Chamberlain) advises that pleas were notentered on the basis of the specifics contained in the charging documents. Formalaffidavits have not been prepared by Ms Priest due to tight timeframes. However,given the concession made by Mr Dow, for the police, it is not necessary to resort toformal affidavits.[27] The charges were put to Mr Gunbie and his counsel by AVL, and neither himor his counsel recalls a reference to 17 rounds of .22 ammunition. As a result,Mr Gunbie was of the understanding he was pleading guilty on the basis of the SOF(ie to possession of one loaded pistol and a total of nine rounds of ammunition – eightinside the gun and one in his pocket).[28] While Mr Gunbie does not wish to vacate the guilty pleas, he wishes to proceedto sentencing on the basis upon which his pleas were entered. That is the approachthat I adopt.[29] It is clear that the Judge made an error in this regard. However, whether thisrenders the sentence manifestly excessive is a different question. The reality is thatthe Court appears to have proceeded on an incorrect factual basis in sentencing. Thefacts that the Court based the sentencing decision on were more serious than theoffending as pleaded to actually was.[30] Counsel submits that despite no explicit reference to the methamphetaminepipe, the Court's reliance on Herewini v Police (a case which did involvemethamphetamine) indicates that it may have been considered. In my view, thissubmission can readily be dismissed. There is no mention of the methamphetaminepipe in Judge Ryan's summary of the facts, and when discussing Herewini (and theappeal), her Honour noted that some cases that had been considered "involved druguse and that the possession of firearms accompanying drug supply is particularlysinister matter" but then noted "which is not present in your case".8[31] Ms Priest's overall submission here is that the appropriate way forward is toconsider the appropriate starting point on the accurate facts and from there, determine8 New Zealand Police v Gunbie, above n 1 at [25].whether the error caused the end sentence to be manifestly excessive (which shesubmits it was).[32] The Crown accepts that, in these circumstances, the interpretation mostfavourable to the appellant ought to be adopted. However, it is submitted that it isclear from the Judge's sentencing notes that possession of a pistol was treated as thelead offending, and she adopted a starting point of two years on that charge, upliftingit by just three months for the charge of possessing ammunition. Given there wereeight rounds inside the pistol and an identical round in the appellant's pocket, theprecise number of bullets is not a factor that has materially affected the appellant'ssentence. As the maximum penalty on the possession of ammunition charge was fouryears' imprisonment, an uplift of three months, it is submitted, is not significant,particularly given that the ammunition was located in a firearm and on Mr Gunbie'sperson. It is also submitted that the Judge did not take into account the presence of themethamphetamine pipe in her sentencing, there being no mention of it in the part ofher decision entitled "Summaries of facts".[33] It is my view that, while there has been an error made in relation to the amountof ammunition, it is not such as to have impacted on the Judge's assessment of theseriousness of the offending. As it is, only a three-month uplift was imposed on thecharge of possessing ammunition which I would say was within the available rangefor this aspect of the offence, whether the quantity involved was nine or 14 rounds.Therefore, this was not a material error.Starting point[34] Ms Priest submits that the sentencing ought to proceed on the agreed summaryof facts, namely the possession of the .22 pistol (loaded with eight bullets) andpossession of the single bullet in Mr Gunbie's pocket. She submits that the startingpoint for the offending was too high when assessing the totality of the offending andtherefore the sentence was manifestly excessive. She notes that there is no tariff forfirearms offending. While starting points can be as high as 2–2½ years, she submitsthat is usually reserved for offending where a firearm is being carried with a primafacie intention to inflict violence.[35] Ms Priest submits that the cases in which starting points of 2–2½ years wereadopted that the Judge referred to in arriving at her starting point can be distinguishedon the basis of aggravating factors not present in this case, such as the weapons beingcarried in a vehicle or taken out of a vehicle, showing a more immediate intention touse.9[36] Ms Priest brings to the Court's attention other cases said to be more analogous.First, she cites Smith v Police, where the offender was convicted for unlawfulpossession of two loaded firearms and ammunition while on parole for very similarfirearm offending.10 In that case, the Court upheld a final sentence of 11 months'imprisonment but noted that an 18-month starting point would have been appropriatefor the firearm offending.[37] Ms Priest notes Moore v Police in which a 12-month starting point was adoptedfor a .22 semi-automatic rifle, with 38 rounds of ammunition hidden in a bedroom.11While the Court on appeal viewed this as generous, it was not overturned on appeal.Ms Priest submits this supports a lower starting point for Mr Gunbie, whose offendingis of similar culpability.[38] Finally, Ms Priest referred to Long v Police in which the offender pleadedguilty to six charges of unlawful possession of a firearm, explosives and ammunition.12There were no aggravating features in this case and a starting point for the totality ofthe charges of two years' imprisonment. Ms Priest submits this case is more seriousthan the present case given the significant number of firearms.[39] Ms Priest accordingly submits that a starting point of less than 18 monthswould be justified for this offending, and a starting point of 15 months is indicatedgiven the single loaded weapon in a home setting.9 Herewini v Police, above n 5; Dewes v Police HC Christchurch A60/03, 12 June 2003; R vRichardson CA450/02, 25 March 2003.10 Smith v Police [2014] NZHC 2196 at [14].11 Moore v Police [2015] NZHC 3113.12 Long v Police HC Palmerston North CRI-2009-454-39, 8 October 2009.[40] Mr Dow, for the Crown, acknowledges that the offending in many of the casesreferred to by the Judge was somewhat more serious than the present but submits thatthis was reflected by the Judge taking a starting point of two years and three months'imprisonment, rather than two years and six months which was available in thosecases.[41] The Crown brings a further two cases to the Court's attention. Head v Policeinvolved three sets of charges, the lead offending being the unlawful possession of ashotgun, a shotgun and 22 shotgun cartridges having been located in his vehicle.13 Theother charges were possession of cannabis and family violence offending. Thesentencing Judge adopted a starting point of two years' imprisonment for the leadoffending, imposing uplifts for the other offending.[42] The other case referred to by the Crown is R v Smith, in which the offenderwas jointly charged with another person of being in unlawful possession of a firearm.14He and an associate were observed outside an address as "lookouts" in relation to agang dispute. His associate was seen by police holding a shotgun. Justice Lang,having commented that a charge of this type would generally carry a starting point ofaround 18 months' imprisonment, considered Mr Smith's offending to be more seriousdue to the likelihood of the firearm being used, but acknowledged that he was not theone carrying the weapon. The starting point adopted was 21 months' imprisonment.[43] The Crown submits that these cases illustrate that a starting point in the vicinityof two years' imprisonment is appropriate for offending of the type in this case, namelythe pistol being in easy reach of the appellant and it being loaded. It is submitted thatthe starting point could have been higher as the offending is more serious than in Headwhere the firearm was located in a vehicle and not within easy reach, so the overallstarting point of two years and three months' imprisonment cannot be said to havebeen outside the available range.[44] Taking all of these cases into account, it would seem that, on the facts of thiscase, a starting point of two years' imprisonment was somewhat harsh. Mr Gunbie13 Head v Police [2017] NZHC 1733.14 R v Smith [2016] NZHC 851.pleaded to possession of a loaded pistol and possession of ammunition, namely theone round in his pocket. His offending would appear less serious than that of Moore,where a starting point of only 12 months was adopted, although this was described asgenerous. It is my view that a starting point of 18 months would be more appropriatein this case.Uplift for ammunition charge and previous convictions[45] Ms Priest submits that no uplift for the ammunition charge is appropriate givenit is taken into account in the pistol being loaded. It is further submitted that the singleadditional bullet is of no consequence. She also notes that the Judge referred to theexistence of shotgun ammunition and submits that it seems apparent this wasconsidered in applying the three-month uplift.[46] Given the starting points adopted in the cases referred to above, I would agreethat the uplift for the ammunition charge was not justified in the circumstances of thiscase. The starting point of 18 months is sufficient to reflect the totality of theoffending.[47] As to Mr Gunbie's previous convictions, Ms Priest accepts that he has anextensive criminal history but states that a four-month uplift is not justified in thecircumstances. She submits that an uplift of a further term of imprisonment ought notbe given unless relevant and relative, relying on the Court of Appeal decision ofO'Connor v R. The Court said: "It is important that uplifts not be imposed as a matterof course but rather are a considered response to specific aspects of an offender'sprevious criminal history."15[48] Ms Priest submits that Mr Gunbie's only relevant conviction is from May 2005for possession of a pistol for which he received a sentence of one-year imprisonment.She also noted that in 2012 he received a sentence of eight months' imprisonment forunlawful possession of a restricted weapon. As to the Judge taking into account anumber of prior convictions for violence, Ms Priest submits these are not relevant asthere is no evidence of an intention to use the weapon to inflict violence, nor any prior15 O'Connor v R [2014] NZCA 328 at [41].occasions where Mr Gunbie has inflicted or threatened violence with a firearm. Thecurrent uplift of four months represents 33 per cent of the original one-year sentencereceived which it is submitted is not relative to the original sentence and manifestlyexcessive. Ms Priest submits that there should be no uplift for the previous convictionsgiven their historic nature and limited relevance.[49] Mr Dow counters these submissions by pointing out that Mr Gunbie hasconvictions for assaulting police, threatening to kill, cause grievous bodily harm andpossessing a knife in a public place on two dates in April 2015. Along with thesentence of imprisonment for possession of a firearm in 2012, he also has convictionsfor unlawfully possessing a pistol and recklessly discharging a firearm on two differentdates in 2005. He has a conviction for possession of an offensive weapon from 2003.In addition to this, he has an extensive criminal history. The Crown submits that, whilesome of these convictions may be considered historic, Mr Gunbie has a clear patternof offending involving possession of weapons. This, coupled with his concerninghistory of violent offending, it is submitted, warranted an uplift and the Judge was notin error by uplifting his sentence by four months.[50] The Crown also notes that no uplift was imposed for the fact that the offenceswere committed while Mr Gunbie was subject to a sentence of home detention and afurther uplift could well have been imposed to reflect that aggravating factor.[51] It is my view that Mr Gunbie's history of violent offending, coupled with hishistory of unlawfully possessing weapons, is of concern, although an uplift of fourmonths would be excessive, given my adoption of a starting point of 18 months. Inthe circumstances, an uplift of two months would be more appropriate.Home detention[52] I now address the issue of home detention.[53] Ms Priest submits that the Court erred in sentencing Mr Gunbie toimprisonment and home detention should instead have been granted. She submits thatthe question is whether the Judge erred in exercising her sentencing discretion: that is,did she apply an incorrect principle, give insufficient or excessive weight to aparticular factor, or was she plainly wrong?16[54] Ms Priest submits that the Judge erred in not granting home detention due toplacing too much weight on Mr Gunbie's previous offending and failing to properlytake into account:(a) Mr Gunbie's prospects of rehabilitation, and the lack of rehabilitativeresources within prison; and(b) Mr Gunbie's vulnerability in prison due to ex-gang affiliations.[55] Mr Dow submits the Judge gave due consideration to the relevant principlesand principles of sentencing, and was correct not to find any special circumstancesthat would warrant a sentence of home detention. It is noted that the Judge considered,amongst other things, that Mr Gunbie offended whilst on home detention and he hasconvictions for breaching release conditions.[56] Ms Priest advanced the justification for a sentence of home detention primarilyon the basis that if Mr Gunbie was sentenced to a term of imprisonment, as a result ofprior record, he would be unable to access the various programmes he needs for hisrehabilitation. It was submitted that if a home detention sentence was imposed, thatwould allow him to access the services of the private psychologist which he was saidto have engaged with during his prior sentence of home detention.[57] I note that the address posed for home detention in this case is the TadmoreValley in the Nelson region. That is a remote rural area far from any easy access tofacilities such as psychologist or other forms of counselling. It is possible that someform of counselling may be able to be accessed via Skype should Skype facilities beavailable. Now there is no clear evidence available to me as to exactly what particularproblem Mr Gunbie has which can beneficially result in improvement by way ofaccess to psychological services. Most submissions was, all people who commit the16 James v R [2010] NZCA 206 at [17].sort of criminal offending that Mr Gunbie has over the years, clearly would benefitfrom some form of psychological counselling.[58] I am unconvinced that there is any particular nexus between this type ofoffending and the psychological counselling which might be available to Mr Gunbie.I am also strongly influenced by the fact that he committed this offending while on asentence of home detention, and I also agree with the Judge that it was appropriate toconsider the safety of those personnel required to monitor and enforce the sentence ofhome detention.[59] It is my view that the Judge did not err in electing not to grant home detention.She took into account factors that were of relevance and the decision was one that wasopen to her on the facts of this case.Result[60] The appeal is allowed in part.[61] The sentence of 23 months' imprisonment is quashed and substituted by asentence of 15 months' imprisonment. It is based on the starting point of 20 monthsand a 25 per cent discount for a guilty plea.Churchman JSolicitors:Blackstone Chambers, Auckland for AppellantCrown Solicitor, Auckland for Respondent