R v Smith [2007] NZCA 219 (1 June 2007)

Last Updated: 16 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA467/06 [2007] NZCA 219

THE QUEEN

v

_{KIM BRUCE SMITH}

Hearing: 15 May 2007

Court: Chambers, John Hansen and Priestley JJ Counsel: M S Gibson for Appellant

M D Downs for Crown

Judgment: 1 June 2007 at 3 pm

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

B The sentence on count 1 is reduced to five years’ imprisonment. C The effective sentence is reduced to seven years’ imprisonment.

REASONS OF THE COURT

_{(Given by John Hansen J)}

R V SMITH CA CA467/06 1 June 2007

Introduction

[1] On 29 September 2006 the appellant pleaded guilty to the following charges:

1. Conspiracy to defeat the course of justice between 12 November 2004 and 19 August 2005.

b) Wilfully attempting to defeat the course of justice between 7 and

15 June 2005.

c) Three charges of being in unlawful possession of firearms.

d) Three charges of being in unlawful possession of explosives. e) Possession of the Class A drug methamphetamine.

f) Possession of the Class B drug ecstasy.

[2] He was sentenced to an effective term of eight years imprisonment.

[3] The appellant appeals his sentence on the grounds it is manifestly excessive and there is a disparity with the sentence imposed on a co-offender, Mr MacPherson.

Facts

[4] The appellant was the sergeant-at-arms of a Hamilton motorcycle gang called The Outcasts. On February 2004 members of the armed offenders squad executed a search warrant on a property occupied by the appellant at Dawn Rise, Glenview. The property was fortified with steel bars over the windows and doors. There were security sensors and surveillance cameras.

[5] The appellant had a Category A firearms licence that allowed him to use firearms and ammunition for lawful and sufficient purposes. In a pickup truck two

.22 semi-automatic firearms and a .223 semi-automatic rifle were found. These

weapons were not secure. Police also located four 25-shot banana-style magazines for the .22 rifle. They also located two 10-shot magazines for a .22 rifle that were joined to enable the firearm to be fired continuously. The effect of this was to change the category of the .22 firearms from the sporting configuration class into the military-style semi-automatic category. The appellant did not have a licence to legally possess firearms in this category.

[6] In a basement garage substantial quantities of .45, 9 millimetre and .357 ammunition was found. This was said to be handgun ammunition and handguns do not come within the Category A firearms licence permit held by the appellant.

[7] Other weapons, including batons, knives, knuckle-dusters, and mace instruments, were found as well as three further shotguns that appeared to have the firing pins removed. In the appellant’s bedroom a Mossberg 12-gauge semi- automatic shotgun was found containing four rounds of ammunition in a condition where it was ready to fire. Three bullet-proof vests were also found.

[8] Various charges were laid as a result of the firearms discovered in the police search on 12 February 2004. The appellant was granted bail. On 4 November 2004 he was arrested in Kihikihi in relation to an aggravated robbery that had occurred in Northland some five days earlier. The appellant was again granted bail when he appeared on the robbery charges. The Crown appealed against the order granting bail, and that appeal was successful. As a result, a warrant was issued by the High Court on 12 November 2004 for the appellant’s arrest. The appellant failed to appear in the Hamilton District Court on 17 December 2004 and Kaikohe District Court on 2 February 2005. Further warrants for arrest were issued on each occasion.

[9] The police continued their efforts to locate the appellant. Sometime prior to June 2005 he began living at a remote rural property at Waingaro, 29 kilometres from Ngaruawahia. The occupant of that property was Dwayne Andre Wilson, a member of another gang, and his partner, Vicki Cobb. It appears the appellant was visited by his own partner and friends and associates during this period. He slept in a caravan a short distance from the house.

[10] In the early hours of 7 June 2005, Mr Wilson received a fatal gunshot wound to the chest. The circumstances of this shooting are unclear and no one has been charged with any offence arising from it. An ambulance was called and when it arrived the appellant departed the scene in a vehicle belonging to a friend. He took with him the firearm that inflicted the fatal wound on Mr Wilson. That led to the charge of wilfully attempting to defeat the course of justice. After approximately one week, he telephoned the owner of the vehicle to advise her where the vehicle could be found and instructed her to tell the police that a firearm could be found in it. This was found along with a machine pistol. The police searched the Waingaro property and found a significant cache of firearms and ammunition. The appellant’s fingerprints were found on one of the firearms.

[11] After leaving the Waingaro property, the appellant moved to a remote hut near Port Waikato. During that time he was in regular contact with Mr MacPherson who supplied him with drugs, food and other equipment that enabled him to stay on the run. In relation to the supply of drugs Mr MacPherson appears to have been a conduit.

[12] On 24 July the appellant observed a specialist police team searching the area near the hut. He departed the area. The hut was located and searched the next day and a large quantity of fresh food, clothing, gas bottles, drugs, ammunition and firearms were found. It is apparent that, of the cache of firearms found there, two guns had come from the Waingaro property but a new firearm had also been added.

[13] On 19 August 2005 the appellant was ultimately located in the Patumahoe area. The property on which he had been staying was surrounded by armed police. He attempted to decamp the scene but was apprehended. The police located a vehicle that he had been using, in which was found a .22 bullet and $4,520 in cash. In the house was a quantity of methamphetamine and implements for using methamphetamine. The appellant himself advised the police of a loaded pistol under a pillow in the front bedroom of the house. Again he had been able to rearm.

[14] Throughout the period the appellant evaded police, associates provided him with significant assistance in the form of food, clothing, drugs, firearms,

ammunition, a quad bike and a vehicle. One associate, Mr MacPherson, was charged in relation to his actions in assisting the appellant.

The sentencing

[15] The appellant pleaded guilty to the various charges set out above at [1] and appeared for sentence in the High Court before Lang J on 16 November 2006.

[16] In Lang J’s careful and comprehensive sentencing notes, he correctly considered that conspiracy to pervert the course of justice should be the lead offence for sentencing purposes. In determining the appropriate sentence on the conspiracy charge, the Judge referred to the sentencing of the associate, Mr MacPherson, who supplied a significant amount of equipment and drugs to the appellant. He had no previous convictions and was a friend of the appellant from schooldays. In Mr MacPherson’s case, Ellen France J took a starting point of four years on the conspiracy to pervert the course of justice and added a further one year’s imprisonment for the supplying of the methamphetamine: HC HAM CRI 2006-019-

1950 11 May 2006 at [35]. For the significant mitigating features, including the clear record, she made an allowance of 18 months, giving an effective sentence of three and a half years. Lang J considered the offending of the appellant to be more serious than that of Mr MacPherson and took as his starting point five and half years’ imprisonment on the conspiracy charge.

[17] Lang J then carefully reviewed the other individual offences and set a starting point for each. He then considered the totality principle and reached an overall starting point of 11 years’ imprisonment. This consisted of nine years for matters that occurred while the appellant was a fugitive and a cumulative sentence of two years’ imprisonment for the firearms charges arising from the search on 12 February

2004.

[18] The Judge then considered and applied the provisions of s 84 of the Sentencing Act 2002 to the sentencing process. He made an allowance of three years for mitigating factors, giving an effective sentence of eight years imprisonment. The Judge then structured the sentence as follows:

• SIX YEARS arising from the following concurrent sentences:

a) On the charge of conspiring to defeat the course of justice, Lang J

sentenced the appellant to six years’ imprisonment.

b) Wilfully attempting to defeat the course of justice, 12 months’

imprisonment.

c) Two charges relating to firearms and ammunition found at Waingaro,

18 months’ imprisonment on each.

4. On the count of possession of the Class B controlled drug MDMA, one month’s imprisonment.

5. On the count relating to the possession of methamphetamine, three months’ imprisonment.

• PLUS TWO YEARS arising from the following concurrent sentences:

6. On the four counts arising from the 12 February 2004 search, two years’ imprisonment on each.

g) On the counts relating to firearms and ammunition found at the hut at

Port Waikato, one year’s imprisonment on each.

8. On the count relating to the pistol found at Patumahoe, one year’s imprisonment.

Submissions

[19] Mr Gibson submitted that the appellant’s offending, with the exception of

12 February 2004 charges, should have been assessed globally, resulting in a lower overall sentence. He said an appropriate sentence should have been imposed on the principal offence of conspiracy to defeat the course of justice, and then concurrent

sentences for the balance of the charges. He accepted that cumulative sentences would be appropriate for the offending on 12 February 2004.

[20] He submitted the learned sentencing Judge failed to take into account that throughout the nine-month period the appellant was a fugitive, he committed no offences against any member of the public. He accepted there was a substantial cost and inconvenience to the police but said the sentencing Judge also failed to take into account that none of the firearms were used to threaten any police officers or any other person. He submitted credit should have been given for the fact that the appellant made arrangements so that the police eventually recovered the weapon responsible for the death of Mr Wilson and for the fact that, when apprehended at Patumahoe, he advised the police where the firearm was.

[21] He further submitted that there was a disparity between the appellant and his co-accused, Mr MacPherson, in the sentences received by each on the charge of conspiracy to defeat the course of justice. He submitted this disparity was such that a reasonably minded and independent observer would believe that something had gone wrong with the administration of justice.

[22] He submitted that an overall sentence of six to seven years’ imprisonment would be sufficient to recognise the seriousness of the offending.

[23] Mr Downs, for the Crown, submitted that Lang J had approached the matter in accordance with the Sentencing Act 2002. He accepted the matter could have been approached somewhat differently in the way the sentence was structured, but submitted the end result would have been similar. He said there was nothing to suggest the individual starting points employed by Lang J were too high.

[24] He also submitted there was no disparity because the appellant was clearly more culpable than Mr MacPherson. He submitted that on the conspiracy to pervert the course of justice charge the fact that the appellant was the ring-leader and beneficiary had to be taken into account in sentencing. He submitted a higher starting point and end sentence was therefore necessary.

Discussion

[25] We see no disparity with Mr MacPherson’s sentence. Clearly, the appellant was more culpable and there were significant aggravating features that did not apply to Mr MacPherson.

[26] In R v Martin CA199/04 14 February 2005 this Court said at [160]:

On an appeal against sentence, what is required is not so much a critical examination of the sentencing Judge’s method as an evaluation of the appropriateness or otherwise of the sentence ultimately imposed. A minute dissection of the sentencing notes is less helpful to an appellate court than submissions as to the relevant aspects of the case and the application of statutory and common law sentencing principles.

[27] We do not propose to examine the individual sentences tailored by Lang J in detail. It is the function of this Court to determine whether the overall sentence imposed is manifestly excessive.

[28] It is clear that the concurrent sentences imposed for the four charges arising from the 12 February 2004 search are within the range available to the Judge. Indeed, on a stand-alone basis, they could be said to be lenient.

[29] However, we are concerned with the totality of the effective starting point of nine years for the offending that occurred once the appellant became a fugitive. We do not disagree with the individual sentences that the Judge used to reach his starting point. The decision of R v Moore CA399/99 23 November 1999, cited by Mr Gibson, is of little assistance. That was a case where the offender prevailed upon witnesses to perjure themselves and thereby effectively avoided a murder conviction. The seven year sentence imposed was the maximum available to the Court. It was quite different offending from the appellant’s.

[30] Nor do we think that the starting point of five and a half years for the conspiracy to pervert the course of justice was excessive when compared to the starting point adopted by Ellen France J in the case of Mr MacPherson. As the Crown rightly submitted, the appellant was both the ring-leader and beneficiary of

the offending. He led an otherwise blameless friend into serious criminal offending and his culpability must be viewed as very much higher.

[31] We accept the presence of firearms, and the ability and determination of the appellant to repeatedly restock his armoury, seriously aggravated this offending. But we respectfully consider the Judge failed to sufficiently take into account the fact that although there was the potential to use these firearms, they were never presented at the police or the public. The appellant on at least two occasions went out of his way to draw the attention of the police to the whereabouts of relevant firearms. It is also significant, as Mr Gibson submitted, that the appellant did not offend against the public in any way during his period as a fugitive. For people avoiding the law, that is an unusual feature.

[32] If sufficient weight had been given to these factors, we think the appropriate starting point was one of eight years’ imprisonment for the totality of the offending while a fugitive, as opposed to the Judge’s nine years. This would still mark the seriousness of the offending with the aggravation of weapons being present. That reduces the Judge’s overall starting point of 11 years to ten years’ imprisonment.

[33] Neither the Crown nor the appellant took issue with the allowance of three years made by the Judge. In the circumstances, for the early guilty plea and the other mitigating factors he identified, we consider it appropriate. This leads to an end sentence of eight years’ imprisonment.

[34] Accordingly, the appeal is allowed. We consider the appropriate way to structure this is to reduce the sentence for the conspiracy to pervert the course of justice to five years. The end result is an effective sentence of seven years’ imprisonment.

Solicitors

Crown Law Office, Wellington