NEWMAN V NEW ZEALAND POLICE HC GIS CRI 2009-416-26 [2009] NZHC 1245 (14 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY
                                                                   CRI 2009-416-26



                    GERARD HAMILTON MOUNT NEWMAN
                               Appellant



                                
         v



                               NEW ZEALAND POLICE
                                    Respondent



Hearing:      
 14 September 2009

Appearances: A W Clarke for Appellant
             S B Manning for Respondent

Judgment:       14 September 2009


                               JUDGMENT OF KEANE J




Solicitors:

Burnard Bull & Co., Gisborne
Crown Solicitor, Napier



NEWMAN
V NEW ZEALAND POLICE HC GIS CRI 2009-416-26 14 September 2009

[1]    On 18 August 2009 Gerald Newman was sentenced in the District
Court to
four years imprisonment. Three year terms were imposed concurrently for
possessing two firearms on 15 April 2009. A 12 month
term was imposed,
cumulatively, for permitting his property to be used for possession of cannabis.


[2]    On this appeal Mr Newman
contends that the sentence imposed was
manifestly excessive. The firearms possession offences did not have the aggravating
feature
normally pivotal, a gang context in which firearms are possessed with intent.
The sentence imposed for permitting cannabis on his
property, he contends, ought to
have been concurrent. The Judge, as well as imposing the term under appeal,
imposed a two year minimum
term. That too is subject to challenge. Mr Newman
contends that the sentence imposed is sufficient to mark the seriousness of his
offending.


[3]    The Crown contends that the sentence imposed was within the discretion of
the Judge except, arguably, in one
respect, the weight the Judge gave to Mr
Newman's previous convictions. They are not so relevantly serious, the Crown
concedes, as
to nullify the full credit for plea to which, as the Judge said,
Mr Newman was entitled.


Context


[4]    On 15 April 2009, as
the undisputed summary before the Judge had it, the
police executed a search warrant at Mr Newman's address in Patutahi, Gisborne.
He
and his co-offender, Mr Rangi, occupied a caravan. The police surrounded the
caravan. They called Mr Newman and Mr Rangi outside.


[5]    Mr Newman was seen to throw a Beretta semi-automatic shotgun out of the
window. It was loaded with six live rounds. An Escort
shotgun cut to pistol length,
wrapped in a black rubbish bag and unloaded, was also found. Four kilograms of
cannabis, hanging and
drying, was found in a small shed a short distance away.


[6]    Mr Newman made no admission beyond the fact that the address was
his.
Mr Rangi accepted that he had fired the Beretta shotgun the night before when

drinking. He accepted responsibility for the
cannabis, some of which he said was for
his own use. The rest was for sale.


[7]    Mr Newman's pre-sentence report recommended
that he be sentenced to
home detention, though as it also said, his offending might warrant a term of
imprisonment. Apart from the
offences for sentence, Mr Newman had some 64
previous convictions, most relevantly for drug offences, which confirmed an
entrenched
addiction extending from cannabis to methamphetamine, and had
resulted in sentences of imprisonment.


[8]    Mr Newman had also
three previous firearms related convictions. In 1993
two for possession of a pistol and discharge of it, for which he was placed
on
supervision for one year. In 1997 carrying explosives, possibly ammunition, for
which he was convicted and discharged.


Sentence


[9]    The offences for which Mr Newman was to be sentenced, the sentencing
Judge said, constituted a highly disturbing combination.
The only uses a sawn-off
shotgun has, he said, are all unlawful. They can prove fatal. A shotgun is a source of
danger if left loaded.
In his experience, the Judge said, as many as one-third of drug
offenders face firearms or other weapons charges. He gave two telling
instances of
extreme offending that has resulted before saying this:

       Although I am duty bound to impose the least restrictive sentence upon you,
       I am also duty
bound to try and protect the public by sending out a clear
       message that if any drug user chooses to carry an unlawful weapon
such as a
       firearm, as well as being under the influence of drugs, then they will receive
       condign punishment as a result.

[10]   The Judge referred, as he had earlier in his sentencing remarks, to
Mr Newman's previous convictions. These included seven
for drug offending, the
most recent in April 2006 for a conspiracy to supply all three classes of drugs,
attracting a 27 month term
of imprisonment.

[11]   For the possession of weapons offences the Judge took a starting point of
three years. In this he relied
on Police v Taingahue (HC GIS, AP 3-4010-2004, 24
February 2004), Randerson J. There the Crown appealed against a sentence of eight
months imprisonment for possession of a cut-down double barrelled shotgun,
contending that Mr Taingahue had been, and possibly still
was, a gang member.
Randerson J said that but for the fact that it was a Crown appeal and the sentence
imposed had already been served,
he would have taken a starting point of two and a
half years imprisonment.


[12]   The sentencing Judge took the starting point
intimated as proper, without
more, for possession of a sawn-off shotgun. He described this case as more serious
because Mr Newman
possessed two weapons, not one. For that reason he increased
the starting point to three years.


[13]   The Judge accepted that
the drug related offence, permitting cannabis on the
property but not possessing it, could be thought a more passive offence. The
quantity
of cannabis discovered, four kilograms, he said however, was very substantial. For
the possessor it would fall within category
two R v Terewi  [1999] 3 NZLR 62 and
attract a starting point for sentence in the range two ­ four years imprisonment. He
took a 12 month starting point. His starting
point became four years.


[14]   The Judge next accepted that Mr Newman was entitled to a credit for plea of
one-third. However,
he held that to be nullified by Mr Newman's previous
convictions, describing him as a career criminal. The sentence that the Judge
imposed for the offences in their totality was the aggregate of the starting points he
had taken, four years imprisonment.


[15]
  Finally, the Judge imposed a minimum term under s 86, to deter Mr Newman
and others who use drugs and carry weapons, and to protect
the community. Mr
Newman, he said, was to serve two-thirds of his sentence, but in fixing the minimum
he took two-thirds of the three
year term imposed for the firearms offences. Mr
Newman's minimum term is two years, one half of the four year sentence imposed.


Appellant's submissions


[16]   The Judge erred, Mr Clarke contends, in taking as his starting point for the
possession of the
sawn-off shotgun two and a half years imprisonment. That could
only have been justifiable if, like Mr Taingahue, he had possessed
it in a gang
context with intent to use it.


[17]   Simple possession of firearms has in the past usually attracted sentences of
less than one years imprisonment, Mr Clarke submitted. Two have been endorsed in
the Court of Appeal. In R v Goodwin (CA 426/93,
13 October 1993) the weapon, a
semi-automatic firearm, was found unloaded in an unlocked bedroom, without
ammunition. Six weeks imprisonment
was upheld. Eight months imprisonment for
seven charges of possession of a firearm was upheld in R v Hunter (CA 300/91, 16
September
1991).


[18]   The decisions, which proved influential in Taingahue, Mr Clarke submitted,
had the aggravating feature lacking here.
In Shailer v Police (AP 37/95, HC INV, 29
May 1996), John Hansen J, a two year sentence was upheld where a gang member,
in a gang
conflict, travelled to Invercargill carrying a sawn-off shotgun. In Police v
Grant (HC CHC, AP 251/93, 5 August 1993) Tipping J imposed
two years, three
months where a gang member carried a semi-automatic pistol to a rugby league
match, anticipating trouble.


[19]
  Against that spectrum, Mr Clarke submitted, the starting point the Judge
ought to have taken for the possession offences could
have stood no higher than 20
months imprisonment. The one year term that the Judge took as a starting point for
the cannabis offence,
he submits, ought not to have stood higher than ten months. It
ought not to have been imposed cumulatively. The Judge had already
taken it into
account when fixing the starting point for the possession offences.


[20]   An uplift, Mr Clarke accepted, might have
been warranted for previous
related convictions. It ought not to have nullified Mr Newman's entitlement to a full
credit for plea.
The minimum term was uncalled for. The sentence imposed was
more than enough.

Crown submissions


[21]   The Crown supports the
sentence the Judge imposed in the two most
important aspects in issue. The three year starting point for the firearms offences,
Mr
Manning contends, was fully warranted. The Taingahue two and a half year
starting point was apt.


[22]   A gang context was not
called for. The Judge was entitled to say that a cut-
down shotgun by itself warrants a starting point of that order. The second
shotgun
called for the uplift. Taingahue, Mr Manning submitted, is not a case where the
weapon possessed was, when found, about to
be used, as it was in Shailer or Grant.
It is enough that it was available to be used, and then clearly unlawfully.


[23]   The
starting point taken independently and cumulatively for the permitting
offence was apt. It was a distinct offence. The quantity of
cannabis in issue was very
considerable, as the Judge said.


[24]   Mr Newman's convictions are aggravating, Mr Manning maintained,
but, he
conceded, not so aggravating as to nullify the full credit for plea to which Mr
Newman was entitled. The Crown stands by the minimum term the Judge imposed
but accepts that it
must be less if the three year sentence is reduced.


Conclusions


[25]   It is clear from the cases that over time possession of
a sawn-off shotgun by
itself has become regarded as a more serious offence than once was so. That is
evident from Taingahue. There
was certainly a gang but that was not an explicit
factor in fixing the starting point. The fact of possession of a sawn-off shotgun,
and
its implications, were.


[26]   It was open, therefore, to the Judge in this case to take that starting point as
his point of
reference. It was open, equally, to the Judge to say that here, in contrast
to that case, there was a further weapon and this one,
though not modified, was
loaded. The three year starting point he took was open to him.

[27]   The cannabis offence did stand independently
and, as the Judge said, the
amount in issue, four kilograms, was very considerable. The starting point the Judge
took for that offence,
which the Crown supports, is not one from which the defence
dissents greatly, suggesting that it is more than was required by no
more than two
months. That does not suggest that it was manifestly excessive and it was not.


[28]   The issue whether the starting
point for the permitting offence should have
been made cumulative on that for the firearms offences has caused me more concern.
The
Judge may have regarded the permitting offence as aggravating the possession
offences. In imposing a cumulative starting point, as
Mr Clarke said, there could
have been an element of double counting.


[29]   I do not consider that there was double counting and
the reason is that the
Judge, to the extent that he did speak about the offences combined, did not link them
explicitly. His focus
was on drug users carrying unlawful weapons and plainly
Mr Newman sat within that category. Moreover, as I have said, Taingahue speaks
for
itself and it does not call for a gang connotation.


[30]   The issue becomes finally whether the Judge was right to give Mr
Newman's
previous convictions the significance he did. He dealt with them globally. He
described Mr Newman as a career criminal with
64 previous convictions. The
relevant convictions, however, were those bearing on the offences for sentence.


[31]   The Judge was
entitled to give weight to the recent previous drug related
offending, to which he referred explicitly. But Mr Newman's previous
firearms
related offending was much more modest and historic. He could not be said to be
someone who habitually possessed, or had
resort to, firearms in the course of drug
offending.


[32]   The Crown concedes that a lesser uplift should have been taken, perhaps
six
months, and Mr Clarke concedes that there ought to be some uplift. In that sense
there is not a large distance between the two.

[33]   Finally, it is common ground, credit for plea comes into play only once that
starting point is identified and Mr Newman
was, as the Judge said, entitled to the
fullest one-third credit for plea at the earliest opportunity. It is in that way that I
intend
to revisit the sentence on appeal.


[34]   I uphold the sentence insofar as it takes starting points of three years for the
possession
offences and one year for the permitting offence. I uphold the Judge's
decision to impose one cumulatively on the other. I am unable
to uphold the Judge's
decision to nullify the one-third credit for plea by recourse to the previous
convictions. I think the Crown
is right to propose an uplift of six months.


[35]   The effect is to bring the starting point to four years, six months and the
credit for plea to 18 months and the sentence to three years in all. The three year
term for the two firearms offences will be quashed.
In their place Mr Newman will
be sentenced, concurrently, for each offence to two years, four months
imprisonment. The cumulative
12 month term for the permitting offence will also be
quashed. Mr Newman will be sentenced cumulatively to eight months imprisonment.


[36]   There remains the
minimum term imposed. I uphold it in principle. One
factor the Judge was entitled to take into account was the offending in its
combination.
The other was that Mr Newman had proved such a persistent offender.
However, the term imposed, two years, must be quashed to reflect
the reduced
sentence for the firearms offences. It will be 18 months imprisonment.



                                          
                  _____________
                                                             P.J. Keane J