Perez v R [2015] NZCA 267 (24 June 2015)

Last Updated: 29 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA725/2014 [2015] NZCA 267
BETWEEN	FRANK PEREZ Appellant
AND	THE QUEEN Respondent

Hearing:	15 June 2015
Court:	Stevens, Andrews and Gilbert JJ
Counsel:	A G Speed for Appellant J E Mildenhall for Respondent
Judgment:	24 June 2015 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] Following a jury trial in the Auckland District Court, Mr Perez was convicted of a charge of unlawful possession of a military style semi-automatic (MSSA) firearm.^[1] He was sentenced by Judge Ronayne to nine months’ imprisonment to be served cumulatively on a sentence of four years and three months the appellant was serving for associated drug offending.^[2] The Judge ordered forfeiture of the MSSA firearm (the Bushmaster).^[3]
[2] Mr Perez appeals his conviction on two grounds. First, that the verdict was unreasonable and against the weight of evidence. Second, the question trail given to the jury contained errors and was confusing.
[3] The sentence appeal is advanced on the grounds that the Judge made factual findings which were not supported by the evidence; the sentence of nine months’ imprisonment was manifestly excessive; a cumulative sentence was unwarranted; and forfeiture of the Bushmaster was an unduly harsh additional penalty.

Background

[4] Mr Perez is a commercial drug dealer.^[4] In August 2011 Mr Perez had applied for a standard Category A firearms licence which was granted after he had undertaken the required Police training course. This course includes instruction on the different categories of licence and different categories of firearms. Mr Perez bought the Bushmaster firearm from a licensed dealer on 29 August 2011.
[5] In June 2012 the police executed a search warrant at his residence. The Bushmaster was found in a safe in Mr Perez’s bedroom. It had two features which brought it within the definition of an MSSA firearm under the Arms Act 1983. First, it had a flash suppressor attached to the end of the muzzle. Second, the magazine found with the firearm was capable of holding more than seven rounds of 6.8 mm ammunition.
[6] There is no dispute a Category A licence does not authorise the holder to possess or use a MSSA firearm: a Category E endorsement to the licence is required to hold such a weapon. An important issue at trial concerned Mr Perez’s knowledge of what an MSSA firearm was. In his evidence Mr Perez acknowledged he knew he was not permitted to possess a MSSA firearm on his Category A licence.
[7] Mr Perez was found guilty by a majority of unlawful possession of a MSSA firearm.^[5]

Sentencing decision

[8] Judge Ronayne considered Mr Perez would have been aware the Bushmaster was equipped with the flash suppressor and the oversize magazine and that those features made it a MSSA firearm.^[6] The Judge noted Mr Perez had previously pleaded guilty to a total of thirteen charges relating to dealing in Class A, B and C drugs and had been sentenced to four years and three months’ imprisonment for this offending.
[9] The Judge correctly observed that usually sentencing for possession of firearms occurs at the same time as sentencing for drug offences.^[7] The Judge stated:^[8]

The Courts have said on countless occasions that there needs to be denunciation and deterrence of drug dealers possessing firearms in association with their drug dealing activity. I have to bear in mind the gravity and culpability of your offending, I have to be as consistent as I can with other cases and I have to impose the least restrictive outcome that is appropriate in the circumstances.

[10] An aggravating feature of the offending was that Mr Perez unlawfully possessed the gun at the same time as, and in association with, his activities as “an active, serious and commercial drug dealer”.^[9] The Judge adopted a starting point of 12 months’ imprisonment.^[10] The Judge then applied a discount of 25 per cent taking into account the totality principle, and imposed a sentence of nine months’ imprisonment. This was to be served cumulatively on the sentences imposed for the drug offending.^[11]
[11] The Judge considered Mr Perez’s explanation that he possessed the MSSA firearm for hunting was “completely implausible”; he ordered forfeiture of the firearm under s 69 of the Arms Act 1983 on that basis.^[12]

Applicable provisions of Arms Act

[12] At the time of trial, s 50 of the Arms Act relevantly provided:

50. Unlawful possession of pistol, military style semi-automatic firearm or restricted weapon

• (1) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who—

...

(c) is in possession of a military style semi-automatic firearm and is not a person authorised or permitted, expressly or by implication, by or pursuant to this Act, to be in possession of that military style semi-automatic firearm.

[13] The term “military style semi-automatic firearm” was defined in s 2 as follows:

• (a) a firearm which, after being loaded, fires, ejects, and chambers a cartridge with each pull of the trigger; but
• (b) Does not include—
  • (i) a pistol; or
  • (ii) a semi-automatic firearm that, with its magazine (if any), is maintained at all times in a sporting configuration

[14] A semi-automatic firearm is not in a “sporting configuration” if it has certain features, including either a magazine that is capable, or that, by its appearance, indicates that it is capable of holding: in the case of a magazine designed to hold .22 inch rimfire cartridges, more than 15 cartridges; or in any other case, more than seven cartridges; or a flash suppressor.
[15] There is no dispute it is a defence to a charge under s 50 of the Arms Act if the defendant can prove he or she was “authorised or permitted, expressly or by implication, by or pursuant to this Act to be in possession of that pistol, military style semi-automatic firearm, or restricted weapon”.^[13] A person may be “authorised or permitted” to be in possession of a MSSA firearm only if that person has a firearms licence which has the appropriate endorsement.

Conviction appeal – unreasonable verdict

[16] Relying on s 385(1)(a) of the Crimes Act 1961, the first ground of the conviction appeal is the verdict should be set aside on the basis it is unreasonable. In summary, Mr Perez challenges the sufficiency of the evidence as to whether the Bushmaster had either of the two features which made it a MSSA firearm, that is a flash suppressor and a magazine with a capacity of 10 rounds of 6.8 mm ammunition. Mr Perez also contends there was no proof he knew of either of those features.
[17] The applicable law is not disputed. The Supreme Court in Owen v R has settled the approach to be applied in appeals under s 385(1)(a).^[14] It endorsed the approach of this Court in R v Munro that the appellate court is performing a review function.^[15] It is not a matter of the appellate court substituting its own view. The Supreme Court endorsed the following aspects of the case:^[16]

...

(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.

(c) The weight to be given to individual pieces of evidence is essentially a jury function.

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f) An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

[18] The Supreme Court described the correct approach as follows:^[17]

Section 385(1)(a) contains two distinct, albeit overlapping, concepts. The first concerns a verdict which is unreasonable. A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. The second concept concerns a verdict which cannot be supported with regard to the evidence. That will be so when there is no evidence capable of supporting it. This can arise particularly when a specific factual ingredient of the offence lacks evidentiary support. It is unlikely that a case will have the point of a verdict of guilty if that is so, but this ground is contained in para (a) both for historical reasons ... and because it must have been thought necessary to cater for that kind of case. Although they are distinct, the two limbs of s 385(1)(a) overlap because a verdict of guilty based on no evidence must necessarily be an unreasonable verdict. On the other hand a verdict of guilty based on some evidence is not necessarily a reasonable verdict.

The flash suppressor

[19] Expert evidence was called by the Crown and defence about the features of the Bushmaster. Both experts agreed the attachment to the Bushmaster’s muzzle would operate both as a compensator (against recoil or muzzle lift) and a flash suppressor. They disagreed as to which one of those two was the device’s primary function in this instance.
[20] The Crown expert, Mr Ngamoki, described the difference between a compensator and a flash suppressor. He was clear that the attachment functioned “mainly” or primarily as a flash suppressor. His opinion was confirmed in crossexamination when he said:

17. The primary function of this compensator or device is to reduce recoil and muzzle climb, isn’t it?
1. It’s to disperse the flash.
17. You said in your evidence that, words to the effect of a compensator and a flash suppressor can be interlocked or interlinked or have the same –
1. Overlapping.
17. Overlapping, so how can you draw the line between what is a flash suppressor and what is a compensator?
1. Because the primary function of this is to suppress the flash and it does have a secondary purpose when a firearm is being fired rapidly to reduce recoil.
17. And that’s your opinion isn’t it?
1. Yes it is.
17. Because Mr Bath’s opinion is that this is not a flash suppressor it’s a muzzle break or a muzzle compensator and the primary purpose is not to hide the flash?
1. Then we disagree.

[21] The tenor of the evidence of the defence expert, Mr Bath, was that the purpose of the attachment was primarily as a compensator. He relied on both design and functionality features to support his view that it was “designed as a compensator”.
[22] There was therefore a conflict between the opinions of the two experts. It therefore fell to the jury to weigh the respective opinions of Mr Ngamoki and Mr Bath and determine the weight to be given to that evidence. The Crown expert was preferred.
[23] Mr Speed accepts this case is one where there was a conflict in the expert evidence, rather than there being no evidence on the point. He also accepts the weight to be given to particular parts of the evidence is a jury function. We are satisfied the jury were entitled to prefer the evidence of Mr Ngamoki that the primary function of the attachment was as a flash suppressor, not as a compensator.

The magazine

[24] The second feature concerned the magazine. The experts both inspected the magazine and agreed it was a 10 shot magazine. Mr Ngamoki opined that, under the law as it stood at the relevant time, the magazine would have to have been physically cut down to show it could only contain a maximum of seven cartridges for it to be in a “sporting configuration” and therefore consistent with Mr Perez’s licence. It would not have sufficed for the magazine to have a block inside it preventing more than seven shells to be loaded if it still had the outward appearance of a 10 cartridge magazine.
[25] Mr Bath confirmed in his evidence it was a 10 shot magazine (albeit one that had been modified). As to the relevant legal requirements requiring the magazine to be reduced to seven rounds or less to achieve compliance, Mr Bath said he was not familiar with the law and could not comment further.
[26] The expert evidence before the jury was clear and undisputed that the magazine of the Bushmaster both appeared to be, and was, capable of holding more than seven cartridges. We are satisfied there was an evidential basis to support the presence of the second feature establishing this was a MSSA firearm. Accordingly Mr Perez has not shown that the verdict was unreasonable for want of proof of either aspect of the charge that made a MSSA firearm.

Proof of knowledge

[27] Mr Perez gave evidence that when he bought the Bushmaster in August 2011 he believed the magazine held “less than seven rounds” and that it did not have a flash suppressor. Mr Perez accepted in cross-examination that he bought the Bushmaster shortly after obtaining his firearms licence. He knew from his prelicence training what a MSSA weapon was and knew that his Category A licence did not permit him to possess a MSSA weapon. Mr Perez maintained under crossexamination he had not used the Bushmaster in the 10 months since he bought it. He said he had four brand new boxes of 20 cartridges at his property but could not explain why only 79 cartridges were found when police executed the search warrant.
[28] The Crown case was that the Bushmaster was a MSSA firearm and the jury was entitled to infer that the training Mr Perez received meant he could recognise the features making it a MSSA firearm. The Crown contended he had used the Bushmaster at least once. In any event he had the necessary knowledge and intention for proof of the elements of possession. The Crown said the jury could infer such knowledge and intention of the necessary features which make the Bushmaster a MSSA firearm from a combination of all of the circumstances and that Mr Perez’s evidence to the contrary should be rejected.
[29] The defence case at trial was that Mr Perez believed the Bushmaster was a Category A firearm and he was lawfully able to possess it. There was thus a reasonable doubt as to whether the Bushmaster had features of a MSSA firearm and if it did, Mr Perez had reasonable grounds to believe it did not. As defence counsel (not Mr Speed) said in closing:

... In order to have possession of something you have to know the features that it has. The accused had reasonable grounds to believe that the rifle was not a military style semi automatic rifle. He purchased it lawfully. He relied on Gun City’s advice and knowledge that he had an A category licence when they sold it to him. He did not modify the gun or allow it to be modified. Deciding whether the accused possessed the Bushmaster is a matter for you to decide, and you weigh up the surrounding circumstances. If you think that what he says is reasonably possible, then that is enough, you must acquit him. If you are not sure that the accused knew the Bushmaster had a flash suppressor or a 10 round magazine fitted, then that is also enough and you must acquit because you have a reasonable doubt.

[30] Mr Speed argues on appeal that there was a lack of evidence showing Mr Perez had any basis for knowing the magazine had a capacity of more than seven rounds. Moreover, given the highly specialised discussion as to whether the attachment to the Bushmaster had as its primary function a flash suppressor or a compensator, there was no proper basis for proof of knowledge of this feature.
[31] We disagree. It is clear from the verdict that the jury did not accept the evidence given by Mr Perez regarding lack of knowledge. Further, the jury was prepared to draw the necessary inferences to find the knowledge and intention elements of the offence of possession proven beyond reasonable doubt. Nothing has been raised by the appellant to suggest the jury failed properly to consider all the evidence in reaching its verdict. Accordingly we are satisfied the high threshold for interference with a guilty verdict on the basis of unreasonableness has not been met.

Conviction appeal – question trail

[32] Under this ground Mr Perez challenges the correctness of the definition of “possession” used in the question trail. For convenience we set out below what the question trail said on this issue:

To have “possession” of an item, a person must:

1. be aware of where the item is; and

2. be aware of what the item is; and

3. have actual or potential control of the item; and

4. have an intention to exercise that control.

In relation [to] 2 above the Crown must prove beyond reasonable doubt that the defendant knew of the existence of any one of the features that make the Bushmaster a military style semiautomatic weapon (MSSA). Specifically in this case that is either the existence of a flash suppressor or the magazine capable of holding 10 rounds of ammunition. The Crown does not have to prove that the defendant knew that either feature made the Bushmaster a restricted weapon in law.

So long as you are satisfied that the magazine inspected with the Bushmaster was for use in the Bushmaster you need not be satisfied that it was attached to it.

[33] Mr Speed accepts the final point about the magazine being “attached” was a question of law and is not relevant to the present analysis. He also acknowledged the prosecutor in closing correctly stated what is required to establish possession when submitting:

Simply put, the Crown has to prove that Mr Perez knew he had the firearm with one of those features, and he intended to exercise control over it.

[34] We have already referred to the remarks of defence counsel in closing for Mr Perez. Mr Speed submits what defence counsel was raising was one of the common law defences available under s 20 of the Crimes Act. This meant the defence was relying on the principle as expressed in Police v Rowles that “a person cannot knowingly be in possession of an article which he mistakenly but honestly believed he did not possess”.^[18] Mr Speed is therefore critical that the question trail omitted to deal with this point and it was not addressed in the Judge’s summing-up.
[35] For the Crown, Ms Mildenhall submits the reliance on s 20 of the Crimes Act and the proposition in Police v Rowles is misplaced. The issue in Rowles was whether a person can still be said to possess an article if the person has entirely forgotten about it, whether caused by mistaken belief or faulty memory. The distinction was between knowledge of possession as distinct from physical possession. The defence position in this case is quite different.
[36] Ms Mildenhall submits it was never in dispute that Mr Perez had possession of the Bushmaster and knew that it had the attachment to the muzzle and the magazine. His defence was that he believed he possessed it lawfully: if the device was a flash suppressor and if the magazine was capable of holding more than seven cartridges, he was not, as he said in evidence, aware of either of those facts. Thus the question trail reflected the defence advanced for Mr Perez by stating the Crown must prove that Mr Perez knew of “either the existence of a flash suppressor or the magazine capable of holding 10 rounds of ammunition”.
[37] Mr Speed accepted during oral argument that this was not a case of Mr Perez having once had knowledge of, but then forgotten about, the Bushmaster. Rather the question trail should have gone on to spell out the details of the defence case, including the claim that Mr Perez had an honest but mistaken belief that he possessed it lawfully.
[38] Mr Speed also accepted that prior to setting the question trail the Judge had consulted with counsel. Not surprisingly, no issue was taken by either trial counsel on the final form of the question trail. This is no doubt because the issues for decision by the jury were clearly stated in the question trail.
[39] Before addressing the adequacy of the question trail we refer briefly to the Judge’s summing-up. The Judge referred to the question trail as containing the “legal elements to a series of factual questions for you to address so that the law would largely look after itself”. The Judge then distributed the question trail and said:

[13] And then I set out here a definition of possession. To have possession of an item a person must first be aware of where the item is, and second, be aware of what the item is, and thirdly have actual or potential control of the item, and fourth, have an intention to exercise that control.

[14] In relation to two above, the Crown must prove beyond reasonable doubt that the defendant knew of the existence of any one of the features that make the Bushmaster a military style semi automatic. I may refer to that as MSSA but we have heard that plenty of times up to this point. Specifically in this case, that is either the existence of a flash suppressor or the magazine capable of holding 10 rounds of ammunition. The Crown does not have to prove that the defendant knew that either feature made the Bushmaster a restricted weapon in law. ...

[15] So over the page turning to charge 1. That is the unlawful possession of the Bushmaster, and I have a note here, you will recall from yesterday, that it is accepted that the defendant was not authorised to possess a military style semi automatic weapon. So the first question that you ask is this; has the Crown satisfied you beyond reasonable doubt that the defendant had possession of the Bushmaster? And when you consider the issue of possession you will go back to that first page and remind yourself what possession is. If the answer to this question is yes, go to question 2. If the answer to this question is no, find the defendant not guilty. Now in relation to this question, the Crown says that the necessary knowledge and intent are proven here. It says that you can infer knowledge of either of the necessary features which make the Bushmaster an MSSA, from a combination of all of the circumstances and that you should reject the defendant’s evidence to the contrary. That is just the very briefest of summaries of the Crown position.

[16] The defence says in relation to this, that the Crown has not proven the necessary knowledge of either feature notwithstanding that the defendant knew of the existence of the weapon. In other words, says the defence, the defendant did not know of the existence of either of those features and you should accept as reasonably possible, his explanation in that regard.

[40] The Judge later returned to the issue of proof of possession when dealing with the defence case stating:

[30] Insofar as the first charge is concerned, Mr Schellenberg submitted to you that all elements of possession require proof. That you need to be sure that Mr Perez knew that the gun had a flash suppressor or a 10 round magazine. Mr Schellenberg reminded you that Mr Perez himself had given evidence that he did not know of those things, that he had purchased the gun lawfully, and that he did not modify it, and Mr Schellenberg’s submission to you is that if the truth of that evidence is reasonably possible, that you must acquit his client. It was accepted by Mr Schellenberg of course, that the Bushmaster is a firearm and that Mr Perez is not permitted to possess an MSSA but that the Crown must prove either of those features, and his submission to you is that if the magazine was not attached then it is not a qualified feature.

[41] Mr Speed emphasised he made no criticism of the Judge’s summing-up. He only challenged the formulation of the question trail. And then only because it omitted a reference to the defence of honest belief on a mistaken basis.
[42] We are in no doubt the defence did not raise a common law defence that he had forgotten about the Bushmaster and its features either through mistaken belief or faulty memory. The passage from the defence closing relied on by Mr Speed does not invoke this defence. We consider the principle referred to by Mahon J in Police v Rowles has no application.
[43] Mr Speed’s challenge to the question trail involves a misunderstanding of the purpose of such a document. As was said by this Court in Singh v R:^[19]

... Question trails serve as an adjunct to the Judge’s oral summing-up, functioning as a guide on legal issues and as a framework, structure or agenda for the deliberative process. The jury has written transcripts of the evidence available and if and where necessary to resolve factual issues.

[44] We see the question trail in this case as a model of its kind. It identified the legal elements of possession and it clearly identified the factual issues to be resolved by the jury. In the elaboration as to element two, namely knowledge or awareness of what the item was, the question trail set out what the Crown was required to prove in terms of knowledge and intention. On the following page the Judge correctly identified that the factual issue for the jury was whether the Crown had satisfied it beyond reasonable doubt that the defendant had possession of the Bushmaster. When dealing with the element of knowledge the Judge emphasised the need for the Crown to establish, in addition to knowledge of where the item was, knowledge of what it was including knowledge of the existence of any one of the features that made the Bushmaster a MSSA firearm. We do not consider it was necessary to go further in the question trail. Significantly, defence counsel had not asked the Judge to go any further.
[45] We are satisfied the question trail contained no error. It is axiomatic that a question trail must reflect the elements of the relevant charge and the factual decisions to be made in respect of each element. The question trail prepared by the Judge here did that. The key concept of possession (and its elements) was identified and the separate factual components required for proof of possession were correctly set out. In addition they were correctly described by the Judge in his summing-up.
[46] This ground of appeal therefore fails.

Sentence appeal

[47] Mr Perez says the Judge in his sentencing decision made factual findings which were not supported by the evidence. In particular, Mr Speed submits that the Judge was wrong to conclude the Bushmaster had a flash suppressor which, in his view, on the evidence was quite obvious and secondly that it had a “modified magazine”.^[20] Further, the Judge rejected Mr Perez’s evidence that he had a passion for hunting and possessed it for that purpose.^[21]
[48] Mr Speed also notes that the Bushmaster was locked away securely as was the ammunition. No credit was given for this factor. Mr Speed submits that if this Court agrees with the criticisms a lower sentence ought to have been imposed, or alternatively, a concurrent rather than a cumulative sentence.
[49] We are satisfied that none of the criticisms advanced by Mr Perez are warranted. The evidence led by the Crown at trial supports the Judge’s findings. The Judge, having heard the evidence, was entitled to reach his own view of the facts relative to sentence, provided such a view is not inconsistent with the verdict.^[22]
[50] The Judge, having heard the evidence, was entitled to find that the Bushmaster had both a flash suppressor and a 10 cartridge modified magazine. While the Judge took the view that Mr Perez must have made the modification, he did not factor that into the sentencing process. We agree with Ms Mildenhall’s submission that it has long been recognised that firearms associated with other criminal offending will attract a term of imprisonment.^[23]
[51] We are satisfied that the dangerous combination of drug offending and the use or possession of firearms must be denounced and deterred.^[24] Sentences should demonstrate to drug dealers that possessing firearms in association with their drug dealing activities will not be tolerated. This Court has recently emphasised that the possession of firearms by drug dealers will be seen as an aggravating factor.^[25]
[52] Mr Perez had already been sentenced for associated and quite serious drug offending including methamphetamine, ecstasy, MEC, DOC and cannabis.^[26] We agree that were he sentenced for the Arms Act charge at the same time, it would have constituted an additional aggravating factor. A cumulative sentence for possessing the MSSA firearm was therefore justified. We are also satisfied that the sentence of nine months’ imprisonment was well within the available range.^[27]
[53] Finally, in connection with the sentence appeal, Mr Perez appeals against the forfeiture of the Bushmaster. On this issue the Judge said:

[17] Mr Perez, the illegality of this MSSA was in my view obvious and should have been and was obvious to you. As I have already mentioned, your hunting explanation was completely implausible. Bearing that in mind and bearing in mind all of the circumstances surrounding the possession of this firearm and taking into account the submissions that I have heard today on the issue of forfeiture, I make an order forfeiting this gun to the Crown under s 69 of the Arms Act.

[54] Mr Speed submits that this was a harsh penalty in addition to the sentence imposed. The Bushmaster had a value according to the invoice produced in evidence of $4,000 plus GST. Mr Speed submits that forfeiture was not warranted on the facts of this case. He referred in particular to the fact that the firearm had been handed to a friend of Mr Perez.
[55] There is no merit in this submission. The explanation advanced by Mr Perez was plainly unpersuasive. Forfeiture is treated by the Arms Act as part of the conviction.^[28] For the sake of clarity, we confirm that forfeiture relates to the Bushmaster firearm (including the flash suppressor and the magazine) and not to any of the other items purchased at the same time such as the Nightforce NXS 2.5-10x24 compact riflescope.
[56] For the above reasons, all grounds of the sentence appeal are dismissed.

Result

[57] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Arms Act 1983, s 50(1)(c).

^[2] R v Perez DC Auckland CRI-2012-092-7791, 26 November 2014 [Sentencing decision].

^[3] Arms Act, s 69.

^[4] He has previously been convicted for a number of different drug-related offences, including possession and supply of Class A, B and C drugs. He was sentenced for this offending in May 2014.

^[5] Mr Perez was acquitted on another charge, namely, possession for an unlawful purpose of a .22 firearm found in his garage.

^[6] Sentencing decision, above n 2, at [2].

^[7] At [8].

^[8] At [10].

^[9] At [13].

^[10] At [15].

^[11] At [16].

^[12] At [17].

^[13] Section 50(3).

^[14] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37.

^[15] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87; Owen v R, above n 14, at [13](a).

^[16] Owen v R, above n 14, at [13].

^[17] R v Owen, above n 14, at [5] (footnotes omitted).

^[18] Police v Rowles [1974] 2 NZLR (CA) 756 at 759.

^[19] Singh v R [2014] NZCA 306 at [29].

^[20] Sentencing decision, above n 2, at [1].

^[21] At [4].

^[22] Sentencing Act 2002, s 24(1)(a); R v Heti (1992) 8 CRNZ 554 (CA) at 555.

^[23] R v Corner CA291/87, CA329/87, 17 March 1988.

^[24] See R v Henwood [2008] NZCA 248 at [23] and R v Faifua CA287/05, 27 March 2006 at [26].

^[25] Cooper v R [2013] NZCA 551 at [29].

^[26] R v Perez DC Papakura CRI-2012-092-779, 2 May 2014 at [4]. MEC (4-methylethcathinone) and DOC (2,5-dimethoxy-4-chloroamphetamine) are substances resembling amphetamines often found in substitute ecstasy pills.

^[27] Compare Haggie v R [2011] NZCA 221 at [23].

^[28] Arms Act, s 69.