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Court of Appeal of New Zealand |
Last Updated: 27 February 2013
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CA30/2013
[2013] NZCA 18 |
BETWEEN ERRON JAMES BYLES
Appellant |
AND THE QUEEN
Respondent |
Hearing: 12 February 2013
|
Court: Ellen France, Ronald Young and Dobson JJ
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Counsel: J C Hannam for Appellant
A Markham for Respondent |
Judgment: 12 February 2013
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Reasons: 18 February 2013
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JUDGMENT OF THE COURT
A The application for an extension of time is granted.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
Introduction
[1] This was an appeal against a sentence of 17 months’ imprisonment in respect of a conviction for unlawful possession of a firearm imposed on the appellant by Judge Roberts in the District Court at New Plymouth on 6 December 2012.[1] Because the effective sentence would expire 14 days after the hearing, the Court was pressed for an early answer so as not to render nugatory any measure of success on the appeal.
[2] On the day of the hearing, the Court extended time for filing the appeal, but the appeal was dismissed. The reasons for that outcome are now addressed.
Background
[3] Mr Byles had been indicted on a single charge of unlawful possession of a firearm. It was initially alleged against Mr Byles that he was in possession of the firearm, a distinctive hand gun, on 20 February 2012 when it was discovered by police during the search of a vehicle in which he was a passenger. The driver of the vehicle, a Mr David Scadden, was also charged. So, too, a third man, Mr Ryan Hopkins. The police had been alerted to the existence of the firearm by a complaint from a former partner of Mr Hopkins, who alleged that he had presented it at her on 18 February 2012.
[4] Mr Byles had pleaded not guilty to the charge as originally laid against him, denying that he was in possession of the firearm when it was found in the vehicle in which he was a passenger. Subsequently the police amended the terms of the charge against him to allege possession by Mr Byles of the firearm on 6 February 2012. The amended allegation relied upon video clips that had been extracted from a cellphone seized from Mr Hopkins, which showed Mr Byles assisting Mr Hopkins to load the firearm, and firing it himself.
[5] The firearm had been inspected by a police armourer and was described as previously having been a .22 bolt action rifle. The barrel had been shortened, a plastic grip section from a Chinese air pistol had been attached (apparently with tape) and an Allen key had been glued and wired to the trigger allowing the firearm to be held and fired with one hand. Given its features, the Judge inferred that its intended use could only be “within the realm of criminal endeavour”.[2]
Sentence and analysis
[6] The Court was advised by Mr Hannam that the District Court was not provided with a written summary of facts on which Mr Byles was to be sentenced after he had pleaded guilty to the charge on these amended terms. The Judge’s analysis of the relative seriousness of the offending is somewhat cryptic, which may reflect the fact that Judge Roberts had been dealing with the alleged offending of Messrs Scadden, Hopkins and Byles involving the firearm on an evolving basis over a period of months.
[7] Messrs Scadden and Hopkins had been sentenced in relation to possession of the firearm on different occasions,[3] and the Judge approached the present sentencing on the basis that there ought to be parity between the starting points for Messrs Scadden and Byles. On the basis that the maximum penalty was three years’ imprisonment,[4] the Judge had considered a starting point of two years’ imprisonment was appropriate for Mr Scadden, with a reduction of six months to reflect an early guilty plea. He also treated Mr Byles as having pleaded guilty at an early stage after the terms of the charge were amended. Because he had afforded Mr Scadden an extra month’s discount, he considered it appropriate to do the same with Mr Byles and that was reflected in the final sentence of 17 months’ imprisonment.
[8] With Mr Hopkins, an aggravating factor was that he had presented the firearm at a woman in the course of threatening her. The video clip implicating Mr Byles also showed Mr Hopkins firing the gun. In the context of other serious charges, the starting point for Mr Hopkins’ conviction for possession of the firearm was three years’ imprisonment.
[9] In support of the appeal, Mr Hannam argued that the circumstances of Mr Scadden’s offending involving possession of the firearm was relatively more serious in that it was found concealed in a vehicle in a built up area, whereas the circumstances of possession to which Mr Byles pleaded guilty involved a more innocuous firing of the firearm in apparently non-threatening circumstances in a rural environment. The focus of Mr Hannam’s argument was that there should have been a lesser sentence for Mr Byles’ offending. We do not consider the differing circumstances of the possession of the firearm was a valid basis for distinguishing the circumstances of Messrs Scadden and Byles’ offending with the firearm. The nature of the firearm suggests that, apart from testing how it works, its utility lay in being able to enforce threats of violence in criminal contexts. It may not have been necessary for the Judge to treat the offending of Messrs Scadden and Byles as requiring the same starting point on their sentencings, but no error resulted from his doing so.
[10] In opposing the appeal, Crown counsel invited an analogy with R v Richardson in which this Court upheld a starting point of two years’ imprisonment for possession of a cut-down semi-automatic shotgun and a loaded pump-action shotgun.[5] Those weapons had been found under the appellant’s bed in one case, and in the boot of his vehicle in the other. Although the weapons in Richardson were more likely to be lethal, there is scope for implying that a cut-down semi-automatic shotgun lacks the prospect of any legitimate purpose, in the same way as the altered firearm in the present case.
[11] The sentencing Judge was dealing with sequential possession of such a firearm in the hands of three men, all of whom apparently had substantial criminal records. In those circumstances, a starting point of two years’ imprisonment being one half of the maximum penalty for Messrs Scadden and Byles, who did not have the aggravating circumstances of related offending, cannot be criticised as manifestly excessive. It accords with the starting point confirmed in Richardson.
Other factors
[12] After deciding on the same starting point as used for Mr Scadden, the sentencing process was somewhat confused. Mr Byles had been bailed to a rural address occupied by a member of his family on 24 hour curfew, but was granted a variation of those terms after some four months back to an address in New Plymouth. Thereafter, he had breached the bail terms then applying, but it does not appear that he had pleaded to charges involving breaches of bail conditions, or to charges for offending whilst on bail that had either been laid, or were pending, when he was sentenced. The Judge treated the alleged offending whilst on bail as at least counteracting any credit Mr Byles may otherwise have been entitled to, for the period of four months on bail on a 24 hour curfew.
[13] The Crown argued that any regard the Judge had to other offending since the events giving rise to the charge of unlawful possession of the firearm when pleas had not been entered on those more recent charges did not, in any event, disadvantage Mr Byles. It was submitted that such offending whilst on bail ought to have attracted cumulative sentences when the ultimate outcome was that shorter, concurrent, sentences were imposed.
[14] The Judge did not consider any uplift on account of the appellant’s substantial previous criminal record, when arguably that might have been appropriate. Although the Crown made this point in support of an argument that the sentence could have been higher, it was not mandatory for the Judge to take it into account.
Conclusion
[15] In the end, the components of the sentence are not critical – it is the appropriateness of the end sentence. Reflecting all the arguments advanced, we are not able to treat the end sentence of 17 months’ imprisonment as manifestly excessive. The starting point was comfortably within the appropriate range, given the factual context, and the extent of discount was also appropriate to the circumstances.
[16] Accordingly, the appeal was dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Byles
DC New Plymouth CRI-2012-043-1697, 6 December 2012 [sentencing remarks].
[2] Sentencing
remarks at [15].
[3] R v Scadden DC New Plymouth CRI-2012-043-449, 29 June 2012 and R v Hopkins DC New Plymouth CRI-2012-043-1011, 29 November 2012.
[4] In fact,
pursuant to s 45(1) of the Arms Act 1983, the maximum term is four
years’ imprisonment or a fine not exceeding $5,000
or both.
[5] R v
Richardson CA450/02, 25 March 2003.
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