Torea v R [2011] NZCA 96 (25 March 2011)

Court of Appeal of New Zealand

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Torea v R [2011] NZCA 96 (25 March 2011)

Last Updated: 29 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA600/2010 [2011] NZCA 96

BETWEEN JASON CHARLES TOREA Appellant

AND THE QUEEN Respondent

Hearing: 21 March 2011

Court: Randerson, Simon France and Lang JJ

Counsel: R A B Barnsdale for Appellant J M Jelas for Respondent

Judgment: 25 March 2011 at 10 a.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant appeals against a sentence imposed by Judge Spear in the District Court[1] following the appellant’s plea of guilty to one count of unlawful possession of a pistol and one count of unlawful possession of ammunition, contrary to s 45(1)(b) of the Arms Act 1983. In each case the maximum penalty was four years imprisonment. The sentence imposed was two years ten months imprisonment on the first count with a concurrent sentence of two years imprisonment on the second.
[2] The appellant submits that the sentence was manifestly excessive.

Background facts

[3] On 11 June 2009 the appellant went to the property of a female friend to collect some belongings which included a gang patch, a Webley .455 calibre pistol and ammunition for it. There was a disturbance and the police were called. When they arrived they found the appellant sitting in the lounge. He was arrested. The police found the pistol under a cushion on the couch where he had been sitting. Its safety catch was disengaged and there were three bullets in the chamber. One bullet was lined up in the firing position. As the Judge found, it was a pistol ready to be used.
[4] It is common ground that the appellant was on bail for other offending at the time of the subject offences. Initially, the Judge thought that the appellant was outside his curfew at the time of the offending but he later accepted this was not the case and made a small downward adjustment in his sentence which is not disputed.

The Judge’s approach to sentencing

[5] The Judge considered that the offending was serious, particularly because of the nature of the firearm and the fact that it was loaded with the safety catch off. He was also concerned about the appellant’s background, noting he was a long-standing patched member of the Black Power gang whom the probation officer described as the Sergeant at Arms of the local chapter, responsible for discipline within the ranks of the gang.
[6] The Judge described the appellant as having a shocking history of previous offending. As recently as 2004 he was sent to prison for three years and nine months on two charges of wounding with intent to injure. There was a firearms conviction in 2000 for possession of a firearm for which the appellant had received a sentence of six months imprisonment, cumulative on other offending. There was an earlier conviction in 1988 for possession of a sawn-off shotgun.
[7] The Judge also recorded that the appellant had a number of offences of a violent nature including robbery and male assaults female. As well, there were drug dealing charges. This led the Judge to observe that the appellant was a career criminal. The Judge concluded that a very clear message was required to deter the appellant and others from taking up arms.
[8] The Judge adopted the Crown’s submission that an appropriate starting point was two years and six months imprisonment. He applied an uplift of six months for the appellant’s previous convictions and a further two months uplift because the offending occurred while the appellant was on bail. This totalled three years and two months. After applying a ten per cent reduction for the appellant’s guilty plea, the final sentence was two years and ten months on the firearms charge with the concurrent two year sentence in respect of the ammunition.

Submissions on appeal

[9] Mr Barnsdale for the appellant did not challenge the uplifts for previous convictions and offending while on bail. He accepted the discount of ten per cent for the guilty plea was appropriate. It follows that the real issue is whether the starting point of two years six months imprisonment was manifestly excessive.
[10] Mr Barnsdale referred us to a number of decisions of the High Court to support his submission that the sentence was manifestly excessive.[2] In particular, he submitted there was no attempt by the appellant to leave the premises or to present the pistol; the weapon was not particularly sophisticated; the members of the general public were not exposed to risk; and there was no context of gang warfare.

Discussion

[11] There is no tariff case for offending under s 45 of the Arms Act. This is appropriate since the level of culpability may vary greatly. However, this Court has expressed its concern about the risks inherent in the unlawful possession of firearms on more than one occasion. In R v Richardson[3] this Court said:

[33] Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential for danger from their possession.

[12] This statement was recently endorsed in R v McLean.[4]
[13] Starting points of two years were adopted in two decisions of this Court in circumstances not dissimilar to the present.[5] In R v Fonotia, the appellant was a drug dealer and the police located a loaded shotgun in the boot of her car. She claimed it was for protection. This Court accepted a two year starting point as being within range, albeit at the lower end.
[14] We accept the Crown’s submission that the starting point of two years six months imprisonment was within the range available to the Judge. The Judge correctly identified the aggravating features: the firearm was loaded and ready for use; the appellant kept the firearm loaded and at his side while awaiting the arrival of the police; a relatively serious weapon was involved; the obvious gang overtones of the offending; and the potential for the use of the weapon in that context.
[15] It must be recognised that possession of loaded firearms, particularly by those with gang connections, will require in most cases a sentence which will be an effective deterrent to the offender and to others who may be similarly minded.

Result

[16] We are satisfied that the final sentence was within range and not manifestly excessive. The appeal against sentence is dismissed accordingly.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] R v Torea DC Hamilton CRI-2009-019-5510, 19 August 2010.

[2] Grant v Police HC Christchurch AP251/93, 5 August 1993, 28 July 1993; Harrison v Police HC Hamilton CRI 2007-419-101, 27 September 2007; Roberts v Police (1993) 10 CRNZ 451; Hastie v Police HC Palmerston North AP56/97, 7 October 1997; Faataape v Police HC Rotorua CRI 2009-463-73, 30 November 2009.
[3] R v Richardson CA450/02, 25 March 2003.
[4] R v McLean [2009] NZCA 465 at [24].
[5] R v Richardson; R v Fonotia [2007] NZCA 188.