WARD v POLICE [2022] NZHC 1051

WARD v POLICE [2022] NZHC 1051 [13 May 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-162[2022] NZHC 1051BETWEEN TIM AIDEN WARDAppellantAND NEW ZEALAND POLICERespondentHearing: 12 May 2022Appearances: A J Bailey for AppellantL Fiennes for RespondentJudgment: 13 May 2022JUDGMENT OF MANDER JThis judgment was delivered by me on 13 May 2022 at 3.30 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Mr Tim Ward pleaded guilty to two charges laid pursuant to the Arms Act 1983.The first was an allegation that he, together with two other persons, was unlawfully inpossession of three shotguns and a .22 rifle. The second charge concerned his unlawfuljoint possession of ammunition. On these charges he was sentenced by Judge Crosbiein the Christchurch District Court to 27 months' imprisonment. On charges ofpossessing methamphetamine and breaching his bail he was convicted anddischarged.1 Mr Ward now appeals his sentence.Factual background[2] In the early hours of 2 December 2020, police searched a motor vehicleoccupied by Mr Ward and two other persons. A number of 12-gauge shotgun roundshad been viewed in plain sight on the rear seat of the vehicle. A search of the vehiclelocated two cut-down 12-gauge shotguns under the front seats. A further cutdown 12-gauge shotgun was located on the rear passenger seat. A .22 pistol was located on theroad directly under the vehicle. A magazine containing 10 rounds of .22 ammunitionwas found in the front passenger footwell and a further 50 rounds of 12-gaugeammunition were located on the rear passenger seat.[3] When Mr Ward was searched a shotgun round and 2 grams ofmethamphetamine were located in his hooded fleece.District Court sentence[4] The sentencing Court was provided with an affidavit from one of Mr Ward'sco-defendants, Ramon Turner, which acknowledged the guns and ammunition locatedin the vehicle belonged to him and had already been in the car when Mr Ward got intoit.2 The Judge accepted that, while Mr Ward's offending should be viewed as lessserious than Mr Turner's, the distinction to be drawn was modest and that a condignsentence should be imposed.1 Police v Ward [2021] NZDC 21934.2 Mr Turner, who also pleaded guilty, was sentenced by the same Judge to 33 months' imprisonmenton the two Arms Act charges and further charges of possessing a drug utensil and MDMA.[5] Judge Crosbie identified the aggravating features as being the number offirearms found in the vehicle, the presence of two other individuals with gangassociations, ammunition for the firearms being directly accessible and the fact thisoccurred in the early hours of the morning. The Judge remarked that the presence offirearms in those circumstances, which were ready and able to be used, was a "recipefor disaster". It was observed that the inference to be drawn from the circumstancesof the occupants' possession of the firearms was that they had them for a criminalpurpose and that the starting point should approach the maximum penalty.[6] After taking into account Mr Ward's previous convictions, a starting point of42 months' imprisonment was adopted. From that a 15 per cent discount was appliedfor matters canvassed in a s 27 cultural report and a 20 per cent credit afforded toMr Ward for his guilty plea. This resulted in the sentence of two years and threemonths' imprisonment (27 months).Appeal[7] Mr Ward challenges the starting point of 42 months' imprisonment as beingmanifestly excessive. On his behalf, it was argued the Judge's assessment of thecircumstances of the offending did not take into account that the shotguns had beendisassembled and that the .22 firearm and magazine for that weapon were located inseparate places. It followed in counsel's submission that none of the firearms wereavailable for immediate use as they would have to be assembled and loaded. It wasfurther stressed that Mr Turner had accepted ownership of the firearms and that theyhad already been in the car when Mr Ward entered the vehicle.[8] It was argued that the District Court had erred in its conclusion that it wasdifficult to think of a case more serious than this one. In that regard, it was noted therewas no evidence Mr Ward or his associates had any specific criminal purpose in mindat the time they were found in possession of the firearms and, in the absence of thembeing fully assembled, loaded and available for immediate use, the offending couldobviously have been more serious. In further support of that submission, it was notedthe firearms were not ones prohibited under the Arms Act.3 Finally, it was argued the3 Arms Act 1983, s 2A.Judge had failed to take into account Mr Ward's lesser involvement, which ought notto have attracted a starting point approaching the maximum penalty.[9] No issue was taken with the discounts provided for the guilty pleas orMr Ward's personal circumstances. In respect to Mr Ward's previous firearmsconvictions, it was suggested a limited uplift of three months' imprisonment wouldhave been appropriate. It was accepted that an end sentence of imprisonment wasunavoidable, but that the starting point should have been no greater than between18 months to two years.The Crown's response[10] The Crown's position is that the final sentence imposed was within theavailable range of the sentencing Judge in the exercise of his discretion and cannot beconsidered manifestly excessive. The Crown submitted the Judge was correct tocategorise the offending as falling within the upper end of seriousness given thenumber of firearms located and the circumstances in which they were found. Relyingupon observations made by the Court of Appeal in Torea v R,4 the Crown submittedthe Judge was correct to impose a sentence that carried a deterrent effect.[11] Further aggravating factors included the way in which the shotguns had beensawn down to enable them to be concealed, and that they had obviously been modifiedfor a criminal purpose.5 In response to the submission the shotguns were not availablefor immediate use, the Crown pointed out that the .22 pistol had a magazine nearbyand could be easily loaded. There was also ammunition readily available in the vehicleto be used in the shotguns. In relation to Mr Turner's acceptance of ownership of thefirearms, the Crown submitted this was not a significant mitigating factor givenMr Ward's acceptance of his joint possession of the weapons, and that it was tellinghe was found with a shotgun cartridge in his pocket.4 Torea v R [2011] NZCA 96.5 Police v Cook DC Whangārei CRI-2008-088-6084, 19 May 2009; and Herewini v Police [2014]NZHC 2396.Analysis[12] The appeal centres on the correctness of the starting point adopted by thesentencing Court. There is no guideline or tariff case for sentencing for firearmoffending, and the assessment of the appropriate level of sentence will turn on thecircumstances of the individual case. The present situation must be considered asconstituting serious offending. Four firearms were located, three of which had beenmodified by being cut down, clearly for a criminal purpose, and were inherentlydangerous.6 They were not loaded but ammunition was readily to hand in the vehicle.Similarly, the firearms could easily be assembled and quickly made ready for use.Mr Ward's associates have gang connections, and the weapons were found in a vehiclein a public place and at night.[13] I accept Mr Ward's culpability is to some degree reduced as a result of theinformation provided by Mr Turner, that the firearms were owned by Mr Turner andwere already in the car when Mr Ward entered the vehicle. However, Mr Wardpleaded guilty to joint possession of the firearms and ammunition, which was anadmission that he had both knowledge of the firearms and the ability to exert controlover them. The shotgun rounds were clearly visible from outside the car and Mr Wardwould have been aware of them and the firearms when entering the vehicle. Thepresence of the shotgun cartridge in his pocket is a significant circumstance that pointsto a closer level of involvement, at least with the shotguns.[14] Both Mr Ward and the Crown relied on various sentencing decisions to supporttheir respective arguments. The most analogous cases included:(a) Rawiri v R7 – On three different occasions the offender was found inpossession of a total of five firearms, including military-style firearms.He was associated with a gang and some of the firearms were loaded.A starting point of three years and six months' imprisonment wasupheld on appeal. It was noted in this relatively recent case that wherea single firearm is located with no mitigating circumstances, a starting6 Herewini v Police, above n 5, at [27].7 Rawiri v R [2021] NZHC 1573.point in the vicinity of two to three years has been adopted by thisCourt.8(b) Keenan-Fry v Police9 – The appellant was convicted of two charges ofpossessing firearms and two charges of possessing ammunition,together with a litany of other drug and traffic offending. During thecourse of a police chase, he threw a pistol out of a motor vehicle whichwas retrieved by police. It contained a magazine loaded with three liverounds of ammunition. Another magazine was located in the vehicle.The police also found cannabis, a sawn-off double-barrel shotgun,shotgun cartridges and a methamphetamine pipe. The starting point of40 months' imprisonment, which included a six-month uplift for theappellant's previous convictions and the fact the offending took placewhile he was on bail, was not challenged on appeal.(c) Bowring v Police10 – The police located a 12-gauge shotgun andammunition belt containing 10 rounds of shotgun ammunition. It wasnot assembled when found, but when put together was capable of beingfired. While on bail for these charges, a cut-down firearm and fiverounds of ammunition for that weapon was found in the appellant'spossession, together with 13 grams of cannabis oil and three bongs.The appellant had gang connections. A starting point of 22 months'imprisonment for the first offending was uplifted by 14 months' for thesecond episode of offending and upheld on appeal.(d) Aspinall-Su'a v Police11 – The appellant was found in possession of asawn-down single-barrel shotgun, one shotgun pistol andapproximately 24 rounds of shotgun ammunition. When the defendantwas located after absconding on bail, he was found with a loaded firingpistol designed to fire blanks which had been modified to discharge live8 Rawiri v R, above n 7, at [33]. As an example, Torea v R, above n 4, was cited, where a startingpoint of two years and six months was considered appropriate for a single loaded firearm withobvious gang overtones.9 Keenen-Fry v Police [2021] NZHC 562.10 Bowring v Police [2021] NZHC 3198.11 Aspinall-Su'a v Police [2020] NZHC 3022.rounds. He was also located with a sawn-off double-barrelled shotgunthat, while divided into two halves, could readily be assembled backtogether. Twelve 12-gauge shotgun shells were also located, togetherwith some cannabis. There was no suggestion the offending was gangrelated. A starting point of 34 months' imprisonment was upheld onappeal.(e) McMillan v Police12 – A search of the appellant's motor vehicle locateda stolen rifle and a loaded semi-automatic shotgun which had been cutdown. The possession of these firearms took place in the context ofdrug offending involving methamphetamine. A starting point of20 months' imprisonment was upheld on appeal.[15] The circumstances of each case will invariably differ and care is required whendrawing comparisons with other sentencing decisions. The aggravating features ofMr Ward's offending are readily apparent given the number of firearms (four), theirmodification, the accessibility of appropriate ammunition, the fact they were locatedin a car with people with gang affiliations in the early hours of the morning, and theirobvious possession for criminal purposes. The fact Mr Ward was in possession ofmethamphetamine only added to the dangerous situation.[16] These factors notwithstanding, when compared with other cases, I accept the42-month starting point was excessive, although it likely reflected the Court's concernat the growing prevalence of firearms and the public's disquiet about their use forcriminal offending. Based on relevant authority, I consider a three-year starting pointwould have been more consistent with broadly analogous cases in the particularcircumstances of Mr Ward's offending.[17] From this starting point of three years, I consider an uplift of three months torecognise Mr Ward's prior criminal involvement with firearms would have beenappropriate. The present offending occurred only four months after he was convictedfor like offending. This would bring the final starting point to three years and threemonths' imprisonment (39 months' imprisonment). After applying the 20 per cent12 McMillan v Police [2019] NZHC 3323.discount for Mr Ward's guilty pleas and the 15 per cent discount for his personalbackground, the final sentence would be one of 25 months' imprisonment, only twomonths less than that imposed by the District Court.[18] This minimal difference indicates the final sentence imposed by the DistrictCourt was one that fell within the exercise of judicial discretion and was not manifestlyexcessive. In reaching that conclusion, I note the Judge's legitimate objective toimpose a deterrent sentence. An appeal court will not intervene where the sentence iswithin range and can properly be justified by accepted sentencing principles.13 In thepresent case, any alteration to the sentence would amount to mere tinkering.Result[19] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at[15].