R v Tipple CA217/05 [2005] NZCA 430 (22 December 2005)

Last Updated: 23 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA217/05

THE QUEEN

v

TIMOTHY HOLDEN TIPPLE

Hearing: 18 October 2005

Court: Glazebrook, Panckhurst and Wild JJ Counsel: N Burley for Appellant

A Markham for Crown

Judgment: 22 December 2005

_{JUDGMENT OF THE COURT}

_{The appeal, both against conviction and sentence, is dismissed.}

REASONS

(Given by Wild J)

[1] This is an appeal against both conviction and sentence.

[2] The appellant was tried in the District Court at Christchurch over 23–25 May

_{2005 on one count of dealing with a firearm with reckless disregard for the safety of}

R V TIPPLE CA CA217/05 22 December 2005

others, contrary to s 53(3) of the Arms Act 1983. The jury found him guilty. On

2 June Judge Erber sentenced the appellant to 140 hours community work and ordered him to pay $1,050 reparation, in the form of compensation to the victim, Mr Milne.

[3] On 19 June 2004 the appellant supervised a shooting party on his parents’

30 acre deer farm at Marshlands on the outskirts of Christchurch. The party were “friends of a friend” of the appellant who were in Christchurch for a wedding. Their experience of firearms varied, some of the party having never before fired a rifle. Only the appellant held a firearms licence.

[4] The appellant provided the firearms and ammunition and explained to the group how to handle and fire the weapons. He then set up a target in a grassy paddock on the farm. This comprised a sheet of plywood slotted into a metal frame, the ‘feet’ of which were hammered into the ground. The appellant then placed a conventional paper target (bullseye and concentric circles) at the bottom of the plywood, near the ground. Beyond the paddock in which the appellant set up the target were two further paddocks separated by windbreaks of trees, one of them planted two deep. Marshlands Road lay beyond these two paddocks, approximately

600 metres distant from where the target shooting took place.

[5] The party took turns to fire at the target. They did this standing up, aiming the rifle down at the paper target from a range of between 15 and 30 metres. The direction of fire was toward Marshlands Road. It was accepted that traffic was visible on Marshlands Road, through the windbreaks of trees, above and beyond the target.

[6] One of the weapons used was a Norinco .223 rifle. That is a high velocity rifle, with a range of approximately 3,000 metres.

[7] The two complainants, Messrs Milne and Dobier, had stopped their vehicles on Marshland Road. They were standing together between the vehicles having a conversation, when a bullet from the .223 rifle hit Mr Milne’s vehicle. It went through the rear pillar, crossed the rear compartment and exited through the window

on the far side, shattering it. The bullet narrowly missed Mr Milne’s three dogs, who were in the rear of his vehicle. The two men were standing just a few metres from the point of impact. The traffic on Marshland Road at the time was described as a “continuous flow”.

[8] When first spoken to by the Police the appellant said that he was the only person who had fired the .223 rifle, to test it.

[9] When interviewed subsequently, on 1 July 2004, the appellant denied firing the .223 rifle himself. He claimed that the bullet which had hit Mr Milne’s vehicle must have been the ricochet of a shot fired by one of the shooting party, although the appellant claimed that the party had been firing downward into the soft grass covered soil of the paddock, and that he was unaware that a shot could ricochet off soft ground such as that.

[10] The appellant accepted, when interviewed, that he knew the .223 rifle had a range of about 3,000 metres (he described it as “pretty endless”) and that he was aware of the risk of bullet rise and also of lift in the rifle.

[11] A substantial amount of the evidence at trial was directed to whether the bullet which hit Mr Milne’s vehicle was a ricochet or direct shot. The views of the two Crown experts about that differed from that of the expert called by the defence.

[12] However, all three experts agreed that the situation in which the target shooting took place was inadequate. Senior Sergeant Greatorex described it as “totally unacceptable”, creating an “intolerable risk” to members of the public. The defence expert allowed that, had he been in the appellant’s position, he certainly would not have fired a shot.

[13] Ultimately the Crown case was put to the jury on the basis that, regardless of whether the bullet which hit Mr Milne’s vehicle was a ricochet or direct hit, it was reckless to discharge the .223 rifle at all in the place where the target shooting occurred.

[14] Section 53 of the Arms Act provides:

53 Careless use of firearm, airgun, pistol, or restricted weapon

(1) Every person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who causes bodily injury to or the death of any person by carelessly using a firearm, airgun, pistol, or restricted weapon.

(2) Every person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who, being a person who has in his charge or under his control a firearm, airgun, pistol, or restricted weapon loaded with a shot, bullet, cartridge, missile, or projectile, whether in its breech, barrel, chamber, or magazine, leaves that firearm, airgun, pistol, or restricted weapon in any place in such circumstances as to endanger the life of any person without taking reasonable precautions to avoid such danger.

(3) Every person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who, without reasonable cause, discharges or otherwise deals with a firearm, airgun, pistol, or restricted weapon in a manner likely to injure or endanger the safety of any person or with reckless disregard for the safety of others.

(4) It shall be no defence to the crime of manslaughter that the guilty act or omission proved against the person charged upon the indictment is an act or omission constituting an offence against this section.

[15] The Crown case proceeded on the basis that the appellant had “discharged or otherwise dealt with” the rifle, either as principal or as a party to a shot fired by one of the party. At the end of the evidence, after drawing attention to the lack of evidence as to the appellant discharging the rifle, the Judge deleted the words relating to discharge from the indictment so that it read:

The Crown Solicitor at Christchurch charges that Timothy John Holden Tipple on 19 June 2004 at Christchurch without reasonable cause otherwise dealt with a firearm with reckless disregard for the safety of others.

[16] We deal in turn with the three broad grounds on which Mr Burley advanced the appeal against conviction.

Ground 1: appellant did not deal with the rifle

[17] Judge Erber directed the jury:

[22] Here the indictment is that Mr Tipple on 19 June 2004 without reasonable cause dealt with a firearm with reckless disregard for the safety

of others. The Crown has to prove three things beyond reasonable doubt. The first is that he dealt with the rifle. Here the allegation is that he allowed other persons to use it and instructed other persons in its use and I do not think there is any dispute whatever that that is a ‘dealing with’. It is the right term. ‘Dealing with’ is a very wide term indeed and it would certainly capture the permission and instruction that Mr Tipple gave on this day.

[18] Mr Burley submitted that this was a misdirection, because it was altogether too wide. He contended that “dealing” in the context of s 53(3) carried a requirement that the appellant had some physical contact with the rifle at the time the offending shot was fired. Mr Burley accepted that the appellant was “running the day”, in that he was supervising every aspect of the shooting party, but he argued that supervision was not enough.

[19] Mr Burley claimed support from s 47, which creates offences of being in charge of, or having control of, a firearm, in certain proscribed circumstances. This different terminology, in Mr Burley’s submission, established that “dealing” with a firearm in s 53 required something more.

[20] We do not think Mr Burley’s contrast with s 47 advances his construction argument. Section 47 is essentially a “drunk in charge” provision, the firearms equivalent of s 61 in the Land Transport Act 1998. On the other hand, s 53 contains three different offences, all related to the careless use of a firearm. Whilst there is a similarity between ss 47 and 53(2), we do not consider the contrast between the wording of s 47 and that of s 53(3) assists with the construction of the latter.

[21] Both counsel accepted that, in the criminal context, “[n]owadays an approach concentrating on the purpose of the statutory provision is generally to be preferred”, the words of Lord Steyn delivering the judgment of the Privy Council in R v Karpavicius [2004] 1 NZLR 156 at [15].

[22] Nor did Mr Burley take issue with Ms Markham’s resort, as an aid to the interpretation of s 53(3), to what the Minister of Police, the Hon. P B Allen, had said to Parliament when introducing the legislation in 1964 (at (30 September 1964) 340

NZPD 2401):

Clause 6 deals with offences. The clause creates the offence of dealing with a firearm in a manner likely to injure or endanger the safety of any person or property or with reckless disregard for the safety of others. This offence is already in the Police Offences Act in somewhat similar terms. The new provision, however, includes the words ‘or otherwise deal’. Those words are included because it is thought that it should be an offence to do anything with a firearm that actually endangers people whether or not the firearm is actually discharged, and on any charge the prosecution would have to prove the discharging or otherwise dealing with the firearm and the actual danger caused thereby.

[emphasis added]

Mr Burley claimed this was still consistent with the interpretation he contended for, that is, a requirement that the offender be in physical contact with the firearm when it was discharged.

[23] Of the numerous definitions of the word “deal” in the Oxford English Dictionary (2ed 1989), we think the phrase “to act in regard to” may best capture what Parliament intended by s 53(3). But we accept Ms Markham’s argument that the words have a broad ambit, and are intended to catch a wide range of reckless conduct in regard to firearms. It is neither possible nor wise to try and delimit all the types of conduct that may come within s 53(3). Whatever the limits are, we are in no doubt that the appellant’s actions in regard to the .223 rifle brought him within s 53(3). As Ms Markham put it, in essence, the appellant handed a high powered rifle to novice shooters, and instructed them to shoot at a target behind which a line of continuous traffic could be seen passing along a road.

[24] We dismiss this first ground of appeal.

Ground 2: misdirection as to reasonable cause and reckless disregard

[25] Judge Erber’s directions to the jury about the “without reasonable cause” and

“reckless disregard” elements of s 57(3) were these:

[23] The second thing the Crown has to prove beyond reasonable doubt is that Mr Tipple did so with reckless disregard for the safety of others. As a matter of law you are reckless if you realise that a certain consequence could well follow from what you were doing, but you go ahead and do it anyway. You realise that the consequence could well happen, not just a remote risk, and you decide to run the risk. The Crown has to satisfy you objectively that it was not reasonable to run the risk in those circumstances. Therefore, you have to be satisfied that at the time Mr Tipple actually realised that what he

was doing could well endanger someone’s safety, but decided to go ahead and run that risk. Was it in his mind that the risks existed and did he decide to run the risk? It is not enough to say that Mr Tipple did not know all the risks, but that he should have done. The Crown has to prove that he did know what the risks were and decided to run those risks. So, recklessness is deliberate and unreasonable risk running. If he did not know of the risk that people would be endangered by what was going on, then he is not guilty of the offence.

[24] The third thing that the Crown has to prove is that when Mr Tipple dealt with the rifle, he had no reasonable cause to do so. That is to say that it was not reasonable to allow a novice, in the circumstances, to use the rifle.

[25] It may be that you will be assisted by asking yourselves four questions:

(1) Did Mr Tipple deal with the rifle by giving other persons the use of it? I think the answer to that has to be yes.

(2) Was there in fact a real risk that to do so could well endanger the safety of others? You look at that objectively. Look at it from your point of view. Was there a risk that if you shot that rifle from that position on that day and in those circumstances the risk was that the shooter might endanger the safety of others?

(3) Did Mr Tipple appreciate that risk. Was that risk consciously present in his mind when he dealt with the rifle in the way in which he did?

(4) Did Mr Tipple act reasonably? Here you would examine the precautions taken by him and what he actually knew about the risks and you will assess whether a reasonable person, with Mr Tipple’s state of knowledge, would have thought that adequate precautions had been taken. Here the issue is whether you think he acted reasonably, not whether he thought he acted reasonably, although you will have regard to his opinion.

[26] Mr Burley submitted that these directions erred in law in two respects:

a) They did not adequately convey to the jury that any risk to safety has to be a dangerous risk, and that it is not enough that it only be a risk to safety.

b) They contained an objective element, when the legal test of reckless disregard was wholly subjective.

[27] We deal with these alleged misdirections in reverse order. In New Zealand criminal law, at least in the context of discharging firearms, “reckless” or

“recklessness” requires a conscious taking by the accused/defendant of the relevant risk. In short, subjective recklessness is required to find the accused guilty. Although this is now the established position, at least for a charge such as the appellant faced, it has not always been so. The New Zealand cases divide into two camps: those holding that the test is subjective; and those which, following the House of Lords’ decision in R v Caldwell [1982] UKHL 1; [1982] AC 341, apply an objective test. We discuss Caldwell in [32] – [33] following.

[28] The following is a brief overview of the cases in the “subjective” camp:

a) R v Storey [1930] NZCA 25; [1931] NZLR 417 concerned the degree of negligence required for ‘motor manslaughter’ under s 171 Crimes Act 1908. Of the seven members of the Court of Appeal, only Blair J touched on recklessness. In an obiter dictum toward the end of his judgment at

470, he drew the following distinction between driving recklessly and driving negligently:

A negligent driver is remiss in his duty, but a reckless driver is more than merely forgetful or inattentive – he is knowingly disregardful of his duty.

[Our emphasis.]

b) In McBreen v Ministry of Transport HC DUN M102-82 27 September

1982, when dealing with an appeal against conviction for reckless driving, Hardie Boys J held that “recklessness involves a mental element on the part of the driver” (our emphasis). He cited what Blair J had said in Storey. However, the real issue in McBreen was what kind of risk the driver knowingly had to take before he could be convicted of reckless driving. Hardie Boys J found that liability depended on there being “a real risk of injury or damage”.

c) Giving an intra-trial ruling in R v Stephens HC AK T91-83

8 December 1983, where the accused was charged with discharging a shotgun with reckless disregard for the safety of others contrary to

s 198(2) Crimes Act 1961, Chilwell J adopted what he referred to as the “traditional approach”, ruling that:

... recklessness is a state of mind which involves the conscious and deliberate taking of an unjustified risk: the person who is reckless about safety is aware of the likelihood or possibility that safety may be imperilled even though he may hope that it will not.

[Again, our emphasis.]

d) In Mutual Rental Cars Ltd v Forster HC DUN M241-82 15 December

1983 Hardie Boys J was again confronted with the interpretation to be given to “recklessness” in relation to driving, but this time in a civil context. This time the focus was on the requisite mental element rather than the nature of the risk. Hardie Boys J again referred to “the leading case” of Storey, to his own previous decision in McBreen, and to English authority, notably the House of Lords’ decision in R v Lawrence [1982] AC 510. He concluded that:

“... the mental element of recklessness thus involves either a shutting of the eyes to, or a wilful disregard of a known risk”.

[Our emphasis.]

At face value, that statement, which represents an unhappy fusion of the diametrically opposed positions taken by Blair J in Storey and by the House of Lords in Lawrence, is ambiguous. However, the use of the word “known” by Hardie Boys J, together with his conclusion that the respondent’s driving amounted “to a deliberate running of the risks he had been warned against”, makes it clear that he applied a subjective test of recklessness.

e) In D’Almeida v Auckland City Council (1984) 1 CRNZ 281, Casey J addressed the differences between the three categories of faulty driving in the penal provisions of the Transport Act 1962: careless use, dangerous driving and reckless driving. Of the last of these he observed at 283:

I believe “reckless” was chosen in the light of the longstanding authority of Storey in all aspects of our criminal law, requiring an appreciation of the risk as an added mental element beyond the purely objective standard involved in dangerous driving.

[Our emphasis.]

f) R v Harney [1987] 2 NZLR 576 (CA) was an appeal in which the appellant alleged the trial Judge had misdirected the jury as to the requirements of s 167(b) of the Crimes Act 1961. The appellant was charged with murder, by stabbing another young man in a street brawl in Napier. In allowing the appeal, and holding that s 167(b) requires proof of the accused’s actual appreciation of risk at the relevant time, this Court observed that in most statutory contexts “recklessly” has the meaning given in the pre-Caldwell textbooks (we deal with Caldwell in [32] below). As a case where the statutory context required a different meaning, the Court referred to R v Howe [1982]

1 NZLR 618 at 623-624.

g) In R v H (1989) 4 CRNZ 461 the accused sought an order directing that no indictment be presented on the ground that the depositions disclosed insufficient evidence that he either intended to set or was reckless in relation to setting fire to a school hall. Having considered Harney and the English cases, Williamson J expressed the view that New Zealand law required a pre-Caldwell approach unless the context of the statutory provisions is to the contrary. He stated (at 464):

It properly requires a definite policy decision by the legislature before persons should be found guilty of offences where they have not appreciated the nature of their conduct or the probable consequences of their actions.

[Our emphasis.]

h) R v Foley CA287/94 24 July 1996 is directly on point, since the appellant had been convicted, amongst other things, on a (third) count that without reasonable cause he discharged a firearm, namely a shotgun, with reckless disregard for the safety of named individuals,

contrary to s 57(3). Delivering the judgment of this Court, Heron J

said of the third count:

...there must knowingly be a discharge of the firearm, appreciating that there is some risk to the safety of others but proceeding nonetheless and intending to do so.

[Again, our emphasis.]

[29] The exceptions to this line of authority include this Court’s decision in R v Howe and, to the extent of our researches, four decisions of the High Court. Howe and 12 others had been charged with riotous damage to a police car, contrary to s 90(c) of the Crimes Act 1961. The main issue on appeal involved the mens rea required to convict a person of such damage. In the course of its judgment the Court said, at 624:

...in this context at least, recklessness includes giving no thought at all to the matter ...

[30] The High Court decisions of which we are aware which adopt an objective test for recklessness are Wright v Police HC DUN M126-84 22 November 1984; Meikle v Police (1985) 1 CRNZ 510; Thompson v Innes (1985) 2 NZCLC 99,463 and Jefferson v Ministry of Agriculture & Fisheries HC ROT M286-85 12 August

1986. All were decided before this Court’s decisions in Harney and Foley. They have the common feature of reliance on Caldwell. Wright referred to Howe. Only Jefferson referred to Storey, but in a way which is a little difficult to follow. In his judgment Barker J, after referring to Storey, observed that “[t]here must be an appreciation of the risk involved and the carrying out of the action nevertheless”. But then, later in his judgment, Barker J held:

Lord Diplock’s formulation [in Caldwell] of the concept of recklessness must command the respect of this Court in the absence of a contrary indication from our Court of Appeal.

If that means that Barker J did not consider Blair J’s obiter dictum in Storey to represent a decision of the Court of Appeal, then it is a fair viewpoint. As we have pointed out, Blair J was the only member of the Court to refer to recklessness, and his comment was undoubtedly an obiter dictum.

[31] Thompson v Innes is of limited assistance here as that case arose in a civil context; it was alleged that the directors of a company had acted recklessly. As Lord Millett, in his dissenting speech in Twinsectra Ltd v Yardley [2002] 2 AC 164, noted at [127]:

... consciousness of wrongdoing is an aspect of mens rea and an appropriate condition of criminal liability: it is not an appropriate condition of civil liability.

[32] The House of Lords’ judgments in R v Caldwell radically changed the law in England. Pre-Caldwell, in R v Cunningham [1957] 2 QB 396 and R v Stephenson [1979] EWCA Crim 1; [1979] QB 695, the English Court of Appeal had established a subjective approach to recklessness. In Stephenson the Court set out the test in this way (at 703):

A man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. It is however not the taking of every risk that could properly be classed as reckless. The risk must be one which it is in all the circumstances unreasonable for him to take.

[33] Caldwell substituted a wholly objective test. Lord Diplock, delivering the majority decision, stated (at 354) that a person is reckless if:

... (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.

[34] The House of Lords’ more recent decision in R v G [2004] 1 AC 1034 restores the pre-Caldwell position, preferring the view that a person will be reckless where he is aware of a risk, and it is, in the circumstances known to him, unreasonable to take the risk (at 1057).

[35] The requirement referred to in Stephenson and R v G that the known risk must be one which it is unreasonable for the accused to take, referred to by Chilwell J in Stephens as “an unjustified risk”, is the objective element of recklessness. Indeed, paragraph CA20.29 in Adams on Criminal Law (Looseleaf 1992-) is headed “The objective component”. As Adams explains, this does not depend on whether the appellant thought it was reasonable, but is an objective question requiring the

jury to consider all the circumstances, in particular the degree and nature of the risk, and the “social value” of the shooting activity. If that were not the position, then an accused who took a risk which, objectively viewed, was a reasonable one to take, should be convicted if his view of the risk were otherwise. Judge Erber’s second suggested question for the jury (his [25](2) cited in [25] above) was directed to this objective component.

[36] Thus, Mr Burley is not correct in submitting that the legal test of reckless disregard is wholly subjective, devoid of the objective component to which we have referred.

[37] Nor do we accept Mr Burley’s first suggested misdirection: that Judge Erber erred in failing to direct the jury that it could not convict the appellant unless satisfied that the target shooting involved a dangerous risk. Mr Burley’s argument relied on this Court’s reference in Harney, at 579, to “foresight of dangerous consequences that could well happen”. There are two points about that comment. First, it is not to be taken in isolation. Immediately following it, the Court expressly approved the correctness of Chilwell J’s ruling in Stephens, in which he held that one who is reckless about safety is aware of the likelihood or possibility that safety may be imperilled even though he may hope that it will not. Secondly, the comment was made in the context of murder. In that context there must be a subjective appreciation that death is likely, in the sense that there must be a real possibility that death might ensue. “Dangerous consequences” can be read as shorthand for just that.

[38] We cannot spell out of the wording of s 53(3) any requirement that there be a risk of dangerous consequences, or a dangerous risk. Commenting on Harney in a case note at [1987] NZLJ 338, Mr Simon France (now Simon France J of the High Court) said (at 339):

The notion of dangerous consequences is new; it appears to be a rewording of the traditional balancing requirement that it be unreasonable for the accused to run the foreseen risk. ... It is probable that the Court of Appeal did not intend to effect such a radical change in the definition of subjective recklessness ...

We agree, and do not consider the Judge misdirected the jury as to the requisite risk or consequences.

[39] We consider that Judge Erber’s directions on the two aspects challenged by Mr Burley were both accurate and adequate. Indeed, they could be viewed as particularly favourable to the accused. The nub of Mr Burley’s criticism was that the Judge’s directions did not convey to the jury that the test of reckless disregard was a subjective one. We do not accept that. The Judge made that abundantly clear, as is demonstrated by the emphasis we have added to these parts of his directions:

You are reckless if you realise that a certain consequence could well follow from what you were doing, but you go ahead and do it anyway ...

...

You realise ... you decide to run the risk ...

...

You have to be satisfied that at the time Mr Tipple actually realised that what he was doing could well endanger someone’s safety ...

[40] In particular, we regard Judge Erber’s direction at the end of his [23] as drawing together the law in a way that was particularly helpful to the jury:

So, recklessness is deliberate and unreasonable risk running. If he did not know of the risk that people would be endangered by what was going on, then he is not guilty of the offence.

[41] Mr Burley took us in detail through the appellant’s preparations for the target shooting, and the precautions he had taken. He emphasised the point that the Police armourer, like the appellant himself, was unaware of the risk that a bullet could ricochet off the soft grassy surface of the paddock where the target shooting was taking place. We refer to these matters in [45] and [46] below, in dealing with the next ground of appeal.

[42] Mr Burley submitted that these preparations and precautions, coupled with the appellant’s lack of awareness of the risk of ricochet, meant that the appellant was not “indifferent, nor did he treat danger or risk of no importance. He had shot on his property before and simply did not foresee what actually happened”.

[43] In relation to this ground, we understood Mr Burley’s submission to be that the appellant’s preparations and precautions should have been taken into account in deciding whether the appellant perceived the risk (i.e. thought he had reduced it to reasonable proportions or even eliminated it), and not just in deciding whether the appellant had acted reasonably. We accept this, but it is implicit in the Judge’s direction to the jury that they must be satisfied the appellant appreciated the risk. Further, if the precautions eliminated the risk, then the jury would have answered the question in the Judge’s [25](2) “no”, and would not have even reached the subjective element in [25](3).

[44] We dismiss this second ground of appeal.

Ground 3: jury’s verdict unreasonable or not supported by the evidence

[45] Mr Burley advanced this ground by enumerating all the circumstances in which the target shooting occurred. Examples include: the appellant’s experience with firearms; the fact that the appellant had fired rifles in this paddock on earlier occasions; the fact that the shooting was angled downwards toward a target near the ground; the firing range involved; the appellant’s instruction and demonstration to the group as to safety, firing and so on; the fact that all bullets fired were accounted for. And there were other points.

[46] Mr Burley emphasised various matters, particularly the appellant’s evidence that he was not aware that a bullet could ricochet upon striking the soft grassy surface of the paddock in which the target was erected.

[47] We are not persuaded at all by this ground of appeal. All these points were before the jury. The jury also had evidence from the three experts called, one of them by the appellant, that they would not have conducted target shooting in this location. And, it might be added, they certainly would not have conducted target shooting which involved providing a high powered rifle to a group of shooters, some of whom were complete novices.

[48] We think Ms Markham was justified in categorising, as misplaced, Mr Burley’s emphasis on the appellant’s lack of appreciation of the possibility of a

shot ricocheting. That was because the Crown put its case to the jury on the broader basis that, in the light of the obvious risks, the appellant was reckless to allow the shooting party to fire the .223 rifle at all in that location.

[49] We consider there was ample evidence that this target shooting endangered other people, in particular motorists on Marshlands Road, and that the appellant appreciated that, but proceeded nevertheless.

[50] This third ground of appeal against conviction is dismissed.

Sentence

[51] The sentence appeal was a challenge to Judge Erber’s refusal to exercise his discretion under s 107 of the Sentencing Act 2002 to discharge the appellant without conviction. Section 107 provides:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[52] Mr Burley referred to Police v Roberts [1991] 1 NZLR 205 in which this

Court said (at 210):

The words “out of all proportion” point to an extreme situation that speaks for itself.

[53] In the face of that, Mr Burley accepted that s 107 set at a very high level the jurisdictional bar which must be cleared by an offender seeking a discharge without conviction.

[54] To surmount that high bar, Mr Burley relied on the fact that the appellant would lose his current job with his father’s gun dealership if his conviction stood. This is regrettable, but in no way do we regard it as a consequence out of all proportion to the gravity of the offence. We were told that the District Commander of Police revoked the appellant’s firearms licence after he was charged with, but before he was convicted of, this offence. Mr Burley also told us that the appellant

has appealed to the District Court, pursuant to s 62 of the Arms Act, against that revocation. That appeal has been adjourned pending the outcome of this appeal.

[55] The offence of which the appellant was convicted is directly related to firearms. Judge Erber regarded it as a serious offence which gave an innocent person a tremendous shock and could seriously have injured or even killed that person. The Judge referred to the appellant’s “blasé attitude to an obvious danger”. We do not accept that the Judge erred in principle or was plainly wrong to refuse to exercise his s 107 discretion.

[56] A further consideration for us is that any decision on the appellant’s conviction affects the question whether he should be permitted to hold a firearms licence. The latter question is under appeal and we do not wish to be construed as in some way prejudging its determination. However, even if the appellant was discharged without conviction, the circumstances of the offending would remain relevant to the licence question.

[57] As we have pointed out, the appellant’s appeal against the revocation of his firearms licence remains live. So a District Court Judge will be able to review thoroughly the appropriateness of the revocation. Lastly, we point out that the s 11 prohibition is on the appellant selling firearms. It does not prevent him working in other areas of his father’s gun dealership.

[58] The appeal against sentence is dismissed.

Result

[59] None of the three grounds of appeal against conviction has succeeded. The appeal against conviction is accordingly dismissed.

[60] The appeal against sentence is also dismissed.

Solicitors:

Hunter Ralfe, Nelson for Appellant

Crown Law Office, Wellington