Sheed v R [2022] NZCA 440 (19 September 2022)

Last Updated: 27 September 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA75/2022 [2022] NZCA 440

	BETWEEN	RICKY CHARLES SHEED Appellant
	AND	THE KING Respondent

Hearing:	15 August 2022
Court:	Collins, Duffy and Edwards JJ
Counsel:	E Huda for Appellant T S Simpson and P D Marshall for Respondent
Judgment:	19 September 2022 at 9.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time is granted.
2. The application to adduce further evidence is granted.

100. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)

• [1] The appellant, Ricky Charles Sheed, appeals against his sentence of two years and three months’ imprisonment.^[1] He was sentenced in the District Court following a jury trial in which guilty verdicts were delivered on two charges under the Arms Act 1983 for possession of a .22 Webley & Scott firearm and possession of 83 rounds of .22 calibre ammunition.^[2] Nine of those rounds were loaded in the magazine of the firearm when it was found by police.
• [2] The appeal is 13 days out of time. As the delay is short and has been explained, the Crown do not oppose an extension of time. Accordingly the extension of time is granted.

Facts

• [3] Mr Sheed resides in Invercargill. On 7 November 2020 his van was seized while it was in Christchurch. He could not collect it until 7 December 2020. He went to Christchurch with that purpose in mind and while there he stayed at the gang pad of the Mongols. He is a patched member of that gang. While at the pad he acted as a substitute for another member who was assigned to guard duty.
• [4] At approximately 7.00 am on 7 December 2020 the police conducted a raid on the pad. They found three people present, one of whom was Mr Sheed. When the police arrived, he was seen coming out of a sleepout on the property. The other two persons were in a separate building. He left the pad around 9.00 am for Invercargill.
• [5] Police remained on site. At approximately 10.00 am they found the .22 firearm and ammunition hidden behind a wardrobe in the bedroom of the sleepout. The next day police went to Mr Sheed’s home in Invercargill. He was arrested for possessing the firearm and ammunition found in the sleepout. The police searched his vehicle and found a laser bore sighting tool in the glovebox. This was capable of being attached to the .22 rifle.
• [6] At the time of sentence Mr Sheed was 43. He had 91 previous convictions, but none for firearms offences and there had been no convictions since 2015. He did not hold a firearms license.

Sentencing notes

• [7] The pre-sentence report recommended a sentence of home detention and community work.
• [8] At sentencing the Crown argued for a starting point of three years’ imprisonment, because the firearm was loaded and there was gang involvement. The Crown correctly recognised there was no tariff for this type of offending and presented the Judge with comparable cases where starting points of 12 to 15 months’ imprisonment had been adopted at the lower end and two years, six months’ imprisonment at the upper end.
• [9] Defence counsel sought to distinguish Mr Sheed’s case from those cited by the Crown on the basis there was no actual violence in the offending and no drug offending as often occurred in other firearm cases. Defence counsel submitted an appropriate starting point was between 18 to 21 months’ imprisonment. The defence relied on Miller v R where a starting point of 18 months imprisonment was adopted but was then converted to home detention.^[3]
• [10] Judge S J O’Driscoll distinguished Mr Sheed’s offending from that in Miller v R on the grounds that in Miller, the sentence was imposed in 2008, there was only a history of minor offending and there appeared to be an issue of joint possession of the subject firearm. Further, there was no gang connection in Miller.^[4]
• [11] The Judge emphasised the need for deterrence and denunciation when it came to the possession of firearms, and the need to protect the public. He found this was particularly so where firearms were involved with gangs. The Judge gave less attention to rehabilitation given Mr Sheed was 43, and he had made choices and continued to make choices to be involved with a gang.^[5]
• [12] The Judge considered the fact the firearm was loaded and located at the Mongols’ pad as an aggravating factor of the offending. He noted that Mr Sheed was the only known occupant of the sleepout. Also a significant amount of available ammunition was found near the gun.^[6]
• [13] The Judge viewed the laser bore sighting tool found in the glove box of Mr Sheed’s vehicle the following day in Invercargill as proof that Mr Sheed knew of the existence of the firearm and had possession of the firearm.^[7]
• [14] The Judge considered the case called for a stern response given Mr Sheed was a patched member of the Mongols, he was not a young offender and he had been found in possession of a loaded firearm and a significant amount of ammunition.^[8] This led the Judge to adopt a starting point of two years, six months’ imprisonment. He reduced that by three months to account for the gap in Mr Sheed’s offending between 2015 and sentencing and the lack of previous similar convictions.^[9] No other mitigating factors were before the Judge.

Submissions

Appellant

• [15] The starting point of two years, six months’ imprisonment was the same as that approved by this Court in Torea v R.^[10] Mr Sheed’s counsel, Mr Huda, sought to distinguish the present case from Torea. In that case the offender was a senior patched gang member who visited a female friend’s property to collect a firearm, some ammunition and a gang patch. The police were called because of a disturbance. They found Mr Torea sitting on a sofa. The firearm was under the cushion beside him. It was loaded with the safety catch disengaged and one of three bullets in the firing chamber. The fact he kept the firearm loaded and at his side while awaiting the arrival of the police was treated as a serious aggravating factor.
• [16] Mr Huda argued that the immediate accessibility of the firearm in Torea meant that case was different from Gunning v Police.^[11] In that case, the appellant was an associate member of the Head Hunters. The police raided the home of a more senior member and found secreted in a wall cavity a rifle, two magazines (one of which contained 14 live rounds of ammunition), a suppressor and a scope. Mr Gunning said the items belonged to him. The sentencing Judge adopted a starting point of 20 months’ imprisonment and imposed an end sentence of 15 months’ imprisonment. The High Court on appeal endorsed the former but commuted the latter to home detention.
• [17] Mr Huda also relied on Moore v Police where the police had found a .22 semi-automatic rifle hidden in Mr Moore’s bedroom and a magazine for it in his jacket, which was hanging behind the bedroom door.^[12] There were a further 38 rounds of ammunition hidden in a hole in the bedroom wardrobe wall. The sentencing Judge adopted a starting point of 16 months’ imprisonment for the Arms Act offending and other offending. On appeal Simon France J observed Mr Moore was fortunate not to have received a 16 month starting point for the Arms Act offending alone.
• [18] Mr Huda seeks to distinguish Mr Sheed’s offending on the basis the sleepout where he stayed was temporary accommodation because he was only visiting Christchurch to collect his vehicle. It had four rooms, a lounge, bathroom, bedroom and a back room. The police found a bag containing Mr Sheed’s wallet and other personal items in the lounge and his patch and other belongings in the bedroom. The rifle and ammunition were also found in the bedroom hidden behind a wardrobe. There was no evidence Mr Sheed’s fingerprints or DNA were present on either item. Mr Huda submits the most that can be said, therefore, is that Mr Sheed’s possession of the rifle and ammunition came about because of his knowledge that they were in a sleepout in which he was temporarily staying.

Crown

• [19] On the other hand, the Crown submits that the guilty verdicts are consistent with the Crown case at trial: Mr Sheed was completing guard duty whilst staying at the Mongols’ pad in accordance with his obligations as a patched member and to do so he occupied the sleepout with access to a loaded gun. The Crown referred to the defence case at trial which was simply that Mr Sheed was staying in the sleepout temporarily while in Christchurch and was unaware of the firearm and ammunition. He had argued that his temporary stay did not equate to legal occupation for the purposes of s 66 of the Arms Act. The Crown submits the jury’s guilty verdicts show the defence explanation was rejected.
• [20] The Crown relies on Torea v R and argues that Mr Huda’s attempt to distinguish Torea v R relies on fine distinctions as to how immediately accessible the respective firearms were. However, when looked at more broadly in both cases the firearms were loaded and they were easily accessible to the appellants.
• [21] Further, the Crown submits that the evidence in Mr Sheed’s trial established he had ready access to a loaded weapon as well as at least 74 rounds of ammunition when police arrived at the gang pad. As with Torea v R the offending here was gang related. The Crown submits that the exact location in which the firearms were concealed is irrelevant. The fact Mr Sheed tried to distance himself from the weapon when police arrived does not mitigate from the seriousness of the offending. As to Mr Sheed’s attempt to suggest a distinction in sentencing between cases where a firearm is immediately accessible compared to where firearms are stored somewhere on a property the Crown submits this Court rejected such a distinction in Byles v R.^[13]

Section 27 report

• [22] For the purpose of the appeal Mr Sheed obtained a report under s 27 of the Sentencing Act 2002. The report outlines the difficult and deprived childhood Mr Sheed experienced.
• [23] The Crown was critical of the attempt to introduce the report for the first time on appeal and argues the report does not establish an error in the sentence imposed. It submits the material in the report may not have warranted any discount in sentencing because it does not establish a demonstrative nexus between any deprivation in Mr Sheed’s background and his offending such that his choices can be considered constrained and his moral culpability diminished.
• [24] The report causes no prejudice to the Crown, and we grant leave to adduce it as further evidence.

Analysis

• [25] We do not accept the circumstances of this offending are less serious than those in Torea v R. Whilst the firearm in Torea v R was more immediately to hand than in this case, here there was considerably more ammunition immediately available. Further the circumstances of its possession, namely Mr Sheed being on guard duty at a gang pad, suggest to us that had there been an intrusion that was seen to warrant defensive action the loaded firearm and ammunition were readily available. We consider that such circumstances should be strongly denounced and deterred.^[14]
• [26] The jury’s rejection of the defence case at trial must be taken to mean it was sure Mr Sheed knew the firearm and ammunition was available to him.
• [27] We are satisfied that a starting point of two years and six months’ imprisonment was available.
• [28] We accept the Crown’s submission that the s 27 report adds little to the sentencing considerations and we see no basis for an additional discount based on this report. Mr Sheed is a mature man in his early 40s, who has later in life chosen to join a gang. It is notable that the s 27 report records that in his younger years he refrained from joining a gang like his relative had done because of the disapproval of others close to him. If he could resist joining a gang when younger, we consider his later decision to join a gang reflects his personal choice rather than being the result of his circumstances. Whilst he deserves credit (which was given) for the period of non-offending since 2015 the maturity that supported such a change in lifestyle has not been enough to cause him to turn away from the gang life and what it entails, including the seeming need for guards with firearms available to them.
• [29] It is well settled that this Court will not interfere with a sentence on appeal unless the end sentence is manifestly excessive or there is some other material error of sentencing process.^[15] Here there is none. For this type of offending and offender an end sentence of two years, three months’ imprisonment cannot be viewed as manifestly excessive.

Result

• [30] The application for an extension of time is granted.
• [31] The application to adduce further evidence is granted.
• [32] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Sheed [2021] NZDC 24178.

^[2] The charge notice for the ammunition charge refers to 83 rounds however in sentencing Mr Sheed Judge O’Driscoll referred to “some 74 rounds of ammunition”: see R v Sheed, above n 1, at [2]. This is because the charge sheet presumably includes the 9 rounds of ammunition found inside the gun. Mr Sheed was also convicted and discharged on a charge of possession of cannabis to which he pleaded guilty; this sentence forms no part of the appeal.

^[3] Miller v R [2018] NZHC 2701.

^[4] R v Sheed, above n 1, at [20].

^[5] At [21].

^[6] At [23].

^[7] At [24].

^[8] At [26].

^[9] At [28].

^[10] Torea v R [2011] NZCA 96.

^[11] Gunning v Police [2019] NZHC 309.

^[12] Moore v Police [2015] NZHC 3113.

^[13] Byles v R [2013] NZCA 18.

^[14] See R v Richardson CA450/02, 25 March 2003 at [33]; R v McLean [2009] NZCA 465 at [24]; and Torea v R, above n 10, at [15].

^[15] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].