B v Police HC Auckland CRI 2008-404-392 [2009] NZHC 487 (5 May 2009)

Last Updated: 1 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2008-404-392}

B

Appellant

v

THE POLICE

Respondent

Hearing: 2 March 2009

Appearances: N J B Taylor for appellant

N Whittington for respondent

Judgment: 5 May 2009

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of pm on Tuesday 5 May 2009

Solicitors:

N J B Taylor, PO Box 4106 Shortland St, Auckland 1140

_{Crown Solicitor Auckland [e-mail]}

B V POLICE HC AK CRI 2008-404-392 5 May 2009

[1] Having pleaded guilty to one charge of selling a military style semi-automatic firearm to an unauthorised person, the appellant was sentenced in the North Shore District Court on 11 December 2008 to five months’ community detention. He now appeals against the refusal of the sentencing Judge to discharge him without conviction.

Background

[2] In 1999 the appellant, together with his wife and two children, was involved in a serious car accident in which he sustained significant back and neck injuries. He was thereafter unable to carry on his established occupation as a fitter and turner and, instead, developed a new business involving the sale and purchase of firearms in which he had had an interest since his youth. He has held a firearms licence since the age of 16 years but over time he obtained a series of endorsements which enabled him to possess and deal in a wide range of weapons. Of particular interest is the appellant’s business as a theatrical firearms supplier and dealer. In that capacity he has been contracted to a number of film producers, to whom he has supplied a range of firearms and weapons for television, theatre and film work. Over time he developed an international reputation as a leading armourer for television and film.

[3] In December 2006 the Police began an investigation into the movement of firearms in and around the Waikato region. Ultimately that investigation led them to a firearms dealer by the name of Dale Jenner. He was approached by two undercover Police Officers who offered large sums of money for “off ticket” weapons, a term used to describe weapons that are not registered. Mr Jenner obtained from the appellant an NSSA rifle, which he then on-sold to an undercover Police Officer.

[4] The sale by the appellant to Mr Jenner was unlawful because no permit authorising the sale had been obtained under s 35 of the Arms Act 1983. The appellant was subsequently charged under s 44(1)(b), which provides:

44 Selling or supplying pistol, military style semi-automatic firearm, or restricted weapon to person who does not hold permit to import or to procure

(1) Every person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who sells or supplies a pistol, military style semi-automatic firearm, or restricted weapon to any person other than a person who is authorised—

...

(b) By a permit issued under section 35 of this Act to procure that pistol, military style semi-automatic firearm, or restricted weapon.

[5] The appellant pleaded guilty to that charge in the District Court on 3 June

2008.

Jurisdiction

[6] The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act 2002 which respectively provide:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—

(a) make an order for payment of costs or the restitution of any property; or

(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i) loss of, or damage to, property; or

(ii) emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c) make any order that the court is required to make on conviction.

(3A) If the court is considering making an order under subsection (3)(b), it may order a report to be prepared under section 33 as if the court were considering imposing a sentence of reparation.

(4) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of “victim” in section 4.

(5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

(6) When determining the amount of compensation to be paid, the court must take into account any offer, agreement, response, measure, or action as described in section 10.

(7) Nothing in section 320 of the Injury Prevention, Rehabilitation, and

Compensation Act 2001 applies to sentencing proceedings.

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[7] The application of these sections was recently discussed by the Court of Appeal in R v Hughes 2008 [NZCA] 546. There, the Court noted that despite the heading to s 107, “Guidance for discharge without conviction”, the provisions of the section are mandatory. In consequence, no Court may exercise its discretion under s 106 to discharge without conviction unless it is satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. As was said in Hughes (at [8]):

... Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.

[8] Importantly, the Court also pointed out that a decision as to whether the test under s 107 has been met is not a matter of discretion. Rather, it is a matter of fact requiring judicial assessment and so is subject to appeal on normal appellate principles: R v Rajamani [2007] NZSC 68; [2008] 1 NZLR 723 at [5]. In consequence, the approach

mandated in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at

[16] applies:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[9] In Hughes, the Court of Appeal confirmed that the criminal law disproportionality test discussed in such cases as Fisheries Inspector v Turner [1978]

2 NZLR 233 (CA) and Police v Roberts [1991] 1 NZLR 205 (CA) had not been departed from in s 107. The Court said in Hughes (at [41]):

In summary, the parameters within which the disproportionality principle operates have not been changed by s 107. Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.

[10] The appellant does not carry an onus to establish that the disproportionality test has been met. Rather, in terms of s 107, the Court may discharge without conviction “... if satisfied” that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. As explained in R v Leitch [1998] 1 NZLR 420 at 428, the need to be “satisfied” simply involves the exercise of judgment by the Court; it is inapt to import notions of burden and standard of proof.

Discussion

[11] In Hughes, the Court of Appeal confirmed the continuing applicability of the three-step approach suggested in Turner and in Roberts:

a) Identification of the gravity of the offending by reference to the facts of the particular case;

b) Identification of the direct and indirect consequences of a conviction;

c) Determination of whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.

[12] I deal first with the offence itself.

[13] The purpose of the Act is to promote the safe use and control of firearms and other weapons. The Act aims at achieving this objective, at least in part, by requiring those procuring firearms to obtain a permit from a member of the Police. Section 35(2)(a) expressly provides that a permit may be issued if the procurer of the weapon is a licensed dealer. The permit system is plainly intended to ensure that the Police have access to records of all firearms dealing. I accept Mr Whittington’s submission that non-compliance with the permit system by a licensed dealer is a serious matter. The scheme of the Act is such as to place upon licensed dealers the responsibility of complying with the permit regime. The Judge was, in my view, correct to characterise as a breach of trust the appellant’s failure in the present instance to ensure that the purchaser held the necessary permit. The sentencing Judge, Judge Wilson QC, referred to a number of features which, in his view, exacerbated the offending:

a) The transaction was in cash;

b) It was not recorded in the appellant’s dealer’s book;

c) When first taxed with the offending, the appellant for some time denied any knowledge of the transaction;

d) The delay in payment by Mr Jenner to the appellant.

[14] I agree that, if considered alone, each of these individual factors might be thought to be of limited significance. But, taken together, they are, in my view, suggestive of a culpable approach by the appellant to his obligations as a licensed arms dealer. In particular, the failure to enter the transaction in his dealer’s book and his denial of the transaction when questioned by the Police are indicative of a desire to keep this transaction secret.

[15] Mr Taylor submits that the appellant’s initial denial of the offending to the Police was understandable in the light of the substantial emotional pressure to which the appellant was subject at the time. But the appellant knew that a permit had been required and he accepts that he knew that the failure to ensure that his purchaser had a permit was a serious matter. It transpired that Mr Jenner, long regarded by the appellant as a trustworthy associate, was prepared to sell firearms illegally. It is that very circumstance at which the permit system is aimed.

[16] Mr Taylor submits that the gravity of the offending is significantly diminished by the appellant’s view of the legislation, inculcated by the Police. An affidavit from a former Police Officer specialising in firearms suggested that, at least for a significant period, the Police tended to turn a blind eye to offending of this sort. There is sworn evidence to the contrary. Mr B says that he believed that the Police would not pursue what he regarded as a technical breach of the Act but, if that was indeed his position, his initial denial of the offending makes no sense. Rather, it would have been logical for him to concede that there had been a breach of the Act, but then to explain his understanding that the Police turned a blind eye to proper record keeping.

[17] Mr Taylor relied upon Tipple v Police [1994] 2 NZLR 362. There a licensed dealer sold firearms to certain Russian sailors who were visiting Lyttleton. Holland J accepted that members of the Police had told Mr Tipple that sales of firearms to the sailors would be permitted, provided that the sale was carried out at the premises of the licensed dealer, with delivery to the ship. The Judge considered that the sales, although illegal, had been induced by the incorrect advice conveyed by the Police and that it was in the public interest that Mr Tipple be discharged without conviction. This is a completely different case. The appellant accepts that he knew

that a permit was required. He was, therefore, under no misapprehension about the lawfulness of the transaction.

[18] Mr Taylor pointed out that the firearm that was the subject of the relevant sale could have been simply and speedily converted into a weapon for which no permit was required, but I do not see that as bearing on the question of the gravity of the present offending. The appellant was prepared to sell and did indeed sell the weapon in its more dangerous configuration. I share the view expressed by Judge Wilson as to the gravity of this offending. The appellant sold a dangerous weapon to another dealer without ensuring that the necessary permit was obtained. He thereby enabled that dealer to on-sell the weapon to other persons (undercover Police Officers) who had no right to possession of the weapon. The entire absence of the necessary paperwork would have frustrated Police enquiries had the purchasers (as might well have been the case) been other than undercover Police officers. The facts of this case provide a very clear example of the mischief at which the Act is aimed.

[19] I turn to a consideration of the consequences of a conviction upon the appellant.

[20] There appears to be some divergence of authority in respect of the stage at which mitigating features should be considered. In Delaney v Police [2005] BCL

498, Miller J thought that the expression “gravity of the offence” should be taken to include not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability, including mitigating features. But in Waight v Police HC AK CRI 2006-404-465 24 May 2007, Winkelmann J thought that mitigating features ought to be addressed as part of a proportionality assessment, rather than in the context of the offending itself.

[21] However, in my view, little turns upon the distinction in this case. It is not in dispute that the appellant’s early guilty plea and his previous good character are factors to be taken into account. So is the fact that the appellant has suffered a suspension of his firearms licence. Section 24 of the Act imposes a requirement that the holders of such licences be fit and proper persons to be in possession of firearms.

In determining whether an applicant is a fit and proper person, the Police must assess general character and temperament: Police v Cottle [1986] 1 NZLR 268. As part of that assessment, criminal convictions will be relevant: Dobbs v Police [1992] DCR

650. But a criminal conviction will not necessarily be conclusive. There is nothing before the Court to suggest that the appellant’s conviction, if upheld by this Court, would preclude the making of a successful application in the future. Indeed, for licensing purposes, a discharge without conviction might be seen by those in charge of the licensing process as of equal significance to a conviction.

[22] The plain financial consequences of a conviction are connected largely with the loss of the appellant’s licence. I accept that there have already been severe financial repercussions. They were reflected in the decision of the sentencing Judge to impose no financial penalty upon him. But although the appellant’s future financial fortunes are likely to be linked to his ability to resume his business, that consideration is unlikely to be sufficient in itself to justify a discharge, because there is a public interest in licensing agencies being aware of a conviction in exercising their discretions: see Roberts and R v Foox [1999] NZCA 281; [2000] 1 NZLR 641.

[23] Mr Taylor was critical of the sentencing Judge who paid only limited attention to the extent of the appellant’s physical disabilities.

[24] While s 8(h) of the Sentencing Act requires the Court to take account of any particular circumstances of an offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would in a particular instance be disproportionately severe, there is nothing in the present case to suggest that the appellant’s health ought to receive special attention. The penalty imposed upon the appellant was primarily reputational and, indirectly, financial. These sanctions would fall equally on an able-bodied offender. I do not regard Mr B ’s health as a significantly material factor.

[25] Mr Taylor also referred to potential difficulties in respect of overseas travel. Although there is little detail about that, it is not claimed that a conviction would preclude travel to the United Kingdom or the United States of America, which countries the appellant may well wish to visit for work or medical reasons. While I

accept that overseas travel may be rendered somewhat more difficult, there is no evidence that the appellant will not be able to travel at all. In those circumstances, the Court will be slow to take travel difficulties into account: Steventon v Police HC AK A108/01 2 November 2001 at [22].

[26] Then there is the loss (possibly only temporary) of the appellant’s hobby, although considerations of that sort cannot be accorded significant weight.

[27] Finally, it is necessary to consider whether, in the light of the gravity of the offending and the nature and seriousness of the consequences of the offending, the consequences of a conviction would be out of all proportion to the gravity of the offence. In the course of the necessary assessment, all of the facts of the individual case must be considered. But the words “out of all proportion” suggest an extreme situation that speaks for itself: Roberts.

[28] Although from case to case Judges have expressed themselves differently, there is general judicial acceptance that discharges without conviction will be rare and that the test is difficult of achievement: see for example McDowell v Police HC CHCH A133/02 11 March 2003 and Daniels v Police HC WN CRI 2008-485-19

22 May 2008.

[29] It is not possible to characterise this offending as trivial or technical. The weapon sold by the appellant to Mr Jenner was capable of inflicting very significant harm. The circumstances in which it was sold illustrate the danger to the public inherent in unauthorised and unrecorded transactions. The appellant held a licence that authorised the possession and sale of a wide variety of lethal weapons. He had an obligation to the community to comply carefully with the terms of that licence. His failure to do so amounts to a breach of trust. I do not regard the suggestion that the Police habitually turned a blind eye to transactions of this sort as assisting the appellant. The suggestion is denied but, in any event, Mr B knew that he was in serious trouble to the point of denying to the Police his involvement in the transaction concerned. That is inconsistent, in my view, with his claimed belief in the acceptability of what he had done.

[30] The consequences of the offending have been significant. They were taken into account to some degree by Judge Wilson when he imposed a sentence of community detention, rather than a sentence of imprisonment and/or a fine. But, in my view, the consequences to the appellant of a conviction are not of such seriousness as to satisfy the disproportionality test. In other words, those consequences would not be out of all proportion to the gravity of the offence. In my opinion, Judge Wilson was right to refuse the appellant’s application for a discharge without conviction.

Result

[31] The appeal is accordingly dismissed.

C J Allan J