Gray v Police [2015] NZHC 81 (4 February 2015)

Last Updated: 25 February 2015

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-95 [2015] NZHC 81

BETWEEN	PETER BILL GRAY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 February 2015
Counsel:	M McGhie for appellant JJ Rhodes for respondent
Judgment:	4 February 2015

_{(ORAL) JUDGMENT OF FAIRE J}

Solicitors: M McGhie, Papamoa

Ronayne Hollister-Jones Lellman, Tauranga

Gray v New Zealand Police [2015] NZHC 81 [4 February 2015]

Table of Contents

Introduction ............................................................................................................[1] Facts .......................................................................................................................[4] District Court Decision ..........................................................................................[9] Ground of Appeal .................................................................................................[12] Approach to appeal against sentence ...................................................................[13]

Appellant’s submissions .............................................................................................

Firearms charges [19] Excess breath alcohol charge [21]

Respondent’s submissions....................................................................................[25] Firearms charges [26] Excess breath alcohol charge [28]

Relevant Law .............................................................................................................

Firearms charges [30] Excess breath alcohol charge [35]

Analysis ......................................................................................................................

Firearms charges [39] Excess breath alcohol charge [48] Vehicle confiscation order [52] Community work and disqualification from driving [56]

Result....................................................................................................................[57]

Introduction

[1] Mr Gray was sentenced on the following offences by Judge Bidois on

26 November 2014:

(a) Two charges of unlawful possession of firearm and explosives (shotgun and ammunition) under s 45 of the Arms Act 1983. The maximum penalty for the offence is four years’ imprisonment;

(b) Four charges of presenting a firearm at a person under s 52(1) of the

Arms Act. The maximum penalty is three months’ imprisonment;

(c) Driving with excess breath alcohol, third or subsequent, under s 56(1) of the Land Transport Act 1998. The maximum penalty is two years’ imprisonment.

[2] Mr Gray received the following sentences and orders for the whole offending:

(a) 12 months’ home detention; (b) 280 hours’ community work;

(c) Disqualification from driving for one year and one day;

(d) Confiscation of a motor vehicle pursuant to s 129 of the Sentencing

Act 2002.

[3] Mr Gray appeals the sentence on the basis that it was manifestly excessive.

Facts

[4] On the afternoon of 1 August 2014 Mr Gray consumed some alcohol. In the late afternoon Mr Gray, together with a male associate drove to visit Mr Gray’s friend at the friend’s place of work. Mr Gray made some enquiries as to the whereabouts of his friend and was told by a worker that his friend was still at work. Mr Gray and his associate then left the address and drove to Mr Gray’s address a short distance away. There Mr Gray took a firearm and ammunition that belonged to his grandfather-in-law (who is also resident at the address) and returned to the place of work of his friend.

[5] Upon his return he approached and spoke to a group of persons who were standing outside the premises. One member of the group and Mr Gray exchanged heated words, at which point the worker called Mr Gray a “dog” – a colloquial term for a member of the Mongrel Mob. Mr Gray went into his car (in view of the group) and produced the shotgun and ammunition. He loaded the gun in front of the group as I understand it, and lifted it, scanning with it at all members of the group. The

four victims scattered in different directions while Mr Gray yelled that he was not a

“dog”. Shortly after Mr Gray then left the scene.

[6] Two hours later Mr Gray called the Police informing them that he was at his home. He was arrested shortly after. At the time Mr Gray explained that he was intimidated by the three males in the group and that he was not a gang member.

[7] Mr Gray was released on bail on the condition that he will not possess or consume alcohol. On 13 September 2014 Mr Gray was stopped at a routine checkpoint. The breath test showed a reading of 629 micrograms of alcohol per litre of breath.

[8] Mr Gray is 26 years old and resides with his wife and her grandfather. I am told today, that the grandfather no longer resides at the house. He has a number of previous convictions, although all are relatively minor. The convictions include five convictions for breaching community work, three for excess breath alcohol, two for shoplifting and two for using a document for pecuniary advantage. Mr Gray is unemployed, but works as a relief milker from time to time.

District Court Decision

[9] Judge Bidois gave particular importance to the sentencing principles and purposes of promoting responsibility, accountability, deterrence, denunciation and effect of the offending on the victims. The Judge took unlawful possession of a firearm as the lead offence. The Judge did not select a separate starting point, but noted that under a global approach, taking into account all firearms offences only, a sentence of two years and three months’ imprisonment was justified. This included the aggravating factors, which the Judge considered to be the number of victims and the psychological effect on the victims. The Judge then reduced the sentence by nine months for mitigating factors, which included a guilty plea, acceptance of responsibility, some remorse, letters of apology and no imprisonment in the past. The Judge then further reduced the sentence to nine months of home detention for the unlawful possession charge. His Honour then added two months to reflect the other firearm charges. He added also post-detention conditions and 160 hours’ community work.

[10] On the drink driving charge the Judge found imprisonment was justified irrespective of the other offences. He noted this occurred while Mr Gray was on bail. The Judge sentenced Mr Gray to three months’ home detention to be served cumulatively with the unlawful possession of firearms.

[11] 120 hours’ community work cumulative on the earlier sentence was also imposed. The Judge made an order under s 129 of the Sentencing Act to confiscate Mr Gray’s vehicle.

Ground of Appeal

[12] Mr Gray appeals his sentence on the ground that it was manifestly excessive and unjust. In particular, he disputes the sentence for the firearm charges, the excess breath alcohol charge and the confiscation of the vehicle.

Approach to appeal against sentence

[13] An appeal against sentence is an appeal against a discretion. The Court must allow the appeal if satisfied that:¹

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[14] In any other case, the Court must dismiss the appeal.²

[15] The Court of Appeal in Tutakangahau v R³ has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957. Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s

_{approach to sentence appeals.}⁴

¹ _{Criminal Procedure Act 2011, s 250(2).}

² _{Section 250(3).}

³ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

⁴ At [33], [35].

[16] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:⁵

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[17] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁶

Appellant’s submissions

Firearms charges

[18] Mr McGhie argues that the starting point, which included aggravated features, of two years and three months’ imprisonment, was too high. He cites a number of cases that involved a charge for unlawful possession of a firearm in the context of sentencing for drug dealing and possession for supply.⁷ In those cases the courts have adopted starting points of four to six months for the firearm charge. In R v Bevan,⁸ the unlawfully possessed firearm was the weapon of manslaughter. In that case the defendant was sentenced to nine months’ imprisonment for the firearms charge to be served concurrently with the sentence for manslaughter. It is pertinent to note that in the cases cited by counsel, the firearm charges were not the lead

_{offences and the firearms were discovered during search warrants.}

⁵ _{R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].}

⁶ _{Ripia v R [2011] NZCA 101 at [15].}

⁷ R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009; R v Walker [2008] NZCA

_{145; R v Coe [2012] NZHC 3242; R v Harvey [2013] NZHC 2425.}

⁸ R v Bevan [2012] NZHC 2969.

[19] Mr McGhie submits that a starting point of four to six months imprisonment would be appropriate. He submits that the offending in this case is less serious than in the cases cited. He also contends that Mr Gray took possession of the firearm for a lawful purpose and prior to (as opposed to because of) the incident with the victims. Mr Gray’s version of events is that he took his grandfather-in-law’s shotgun to go clay bird shooting and possum hunting with his friend, for whom he was waiting at the time of the incident.

[20] Mr McGhie accepts that an uplift for the other firearm offences is justified, but notes that the uplift should not be greater than the maximum penalty for presenting a firearm at a person, which is three months.

Excess breath alcohol charge

[21] Mr McGhie submits that the three month home detention sentence imposed for the drink-driving charge should be reduced to one and a half to two months. In support, he says the level of intoxication was not extremely high, there was no driving fault nor was there any associated driving offences, and one of his previous convictions for drink driving occurred in the Youth Court.

[22] Additionally, he challenges the vehicle confiscation order made by Judge Bidois on grounds of hardship. He says that Mr Gray’s wife suffers from epilepsy and a vehicle is necessary to drive her to the hospital in case of a seizure. A doctor’s letter confirming Mr Gray’s wife’s condition was provided to the District Court but is no longer on the Court file. It was also submitted that Mr Gray’s grandfather-in- law relies on the vehicle for his home-kill business, and that due to their residence being somewhat in the countryside, a vehicle is necessary for normal living purposes. There was a development in the course of the hearing of this appeal which I will refer to later when I analyse the result.

[23] Mr McGhie refers also to Judge Bidois’ comment that there was another vehicle on the property. Counsel argues that at the time of sentencing, the vehicle in question, which belonged to Mr Gray’s wife, was not mechanically sound and was not able to be used. There is no proof as to the condition of that vehicle however.

[24] Mr McGhie does not challenge the sentence of community work or the period of disqualification.

Respondent’s submissions

[25] The Crown accepts that the starting point taken by the Judge in respect of the firearms charges was too high. In relation to the drink-driving charge, the Crown submits that the uplift imposed for drink-driving offending was not manifestly excessive. The Crown submits that the confiscation order should also stand. Overall, counsel argues the sentence should be reduced to eight to nine months’ home detention, with all the community work and disqualification orders remaining the same.

Firearms charges

[26] Counsel submits that Freme v Police⁹ is a more directly comparable case than those presented by on the appellant’s behalf. In that case Mr Freme presented a loaded shotgun to the person who sought to intervene in Mr Freme’s argument with his wife. Mr Freme was convicted of unlawful possession of a firearm and with presenting a firearm. On appeal the High Court upheld the starting point of 18 months.

[27] Counsel recommends a starting point of 15—18 months’ imprisonment for the firearms offending and applying a one-third discount for remorse and guilty plea, which would produce an end sentence of five to six months’ home detention for the firearms offending.

Excess breath alcohol charge

[28] The Crown submits that the sentence imposed for this charge was not manifestly excessive. In support the Crown cites the following aggravating features of the offence:

(a) This is Mr Gray’s fourth offence. The fact that he was sentenced to the first in the Youth Court has no relevance, as such proceedings can be taken into account under s 9(4)(a) of the Sentencing Act when they are of direct relevance; R v Rongonui.¹⁰

(b) The previous offences occurred in three year intervals over a nine year period;

(c) The breath alcohol was not moderate;

(d) Offending was committed while on bail and in breach of his bail conditions not to possess or consume alcohol. The firearm offending also occurred while Mr Gray was under the influence of alcohol.

[29] In respect of the confiscation order, the Crown submitted that there is little to support Mr Gray’s claim that the order will result in undue hardship for his wife or her grandfather. This caused me to instigate a discussion between counsel, because I was particularly concerned to read of Mrs Gray’s epilepsy. Counsel helpfully conferred and, although this is unusual and should not be taken as precedent for further cases, in this particular case I am satisfied that there is a medical need for the Gray household to have a vehicle available for use in the event that Mrs Gray requires urgent medical attention. It is important that I note this because I intend expressing the finding that a confiscation would cause undue hardship to Mrs Gray because of her medical condition. That is the only ground for setting aside the confiscation order. It was confirmed to me that Mrs Gray’s grandfather no longer lives with the couple. It was also confirmed that the vehicle the subject of the confiscation order is the only means of transportation.

Relevant Law

Firearms charges

[30] Freme v Police, cited by the Crown, appears to be the most comparable to the present case. Mr Freme was convicted of one charge of unlawful possession of a

firearm and one charge of presenting a firearm. The offending occurred in a popular camping ground while many adults and children were still awake. Mr Freme held a loaded shotgun to the victim’s head for some time, before someone intervened. The Court approved a starting point of 15 months’ imprisonment. The end sentence was

13 months’ imprisonment, being 11 months’ imprisonment on the unlawful possession charge and two months on the presenting charge. The terms were imposed cumulatively.

[31] Edwards v Police:¹¹ Mr Edwards, a long-term alcoholic, was convicted of unlawful possession of a pistol and presenting a firearm at a police officer. While intoxicated Mr Edwards took with him a sawn-off shotgun and went to a tavern. He produced the pistol inside the tavern, and proceeded to walk outside with it, holding it at waist-height and ignoring police warnings to drop the weapon. Ultimately he levelled the pistol at a police officer but was shot himself. The pistol was not loaded. The Court did not select a starting point but upheld a sentence of 13 months’ imprisonment for the unlawful possession charge (at a time when the maximum penalty for the s 45 offence was three years’ imprisonment). For the presenting charge the Court upheld a sentence of two months’ imprisonment, to be served cumulatively. The Court was influenced by a number of aggravating features, namely high level of intoxication, the escalating level of alert as multiple warnings were ignored, and presenting the pistol against a police officer.

[32] R v Wooton:¹² Mr Wooten was convicted of unlawfully carrying a firearm in a public place under s 51(1)(a) of the Arms Act, which had a maximum penalty of three years. During a heated argument with a hotel barman Mr Wooton produced a sawn-off shotgun (unloaded) from his car and pointed it generally toward the barman, and then the bar premises generally after the barman hid inside. The Court upheld a sentence of 12 months’ imprisonment.

[33] R v Douglas:¹³ The defendant was warned by the police not to intervene in

_{the arrest of the defendant’s relative. The defendant produced a firearm and}

¹¹ _{Edwards v Police HC Christchurch A196/99, 5 October 1999.}

¹² _{R v Wooton Court of Appeal CA42/89, 15 June 1989.}

¹³ R v Douglas HC Christchurch T21/89, 19 December 1989.

presented it at the police officers. The Court imposed a sentence of nine months’

imprisonment.

[34] Long v Police:¹⁴ The defendant was convicted of six charges of unlawful possession of firearms, explosives and ammunition. On appeal the Court found that a starting point of two years six months’ imprisonment was too high, noting that the only aggravating feature was the volume of ammunition. The case did not have gang associations, presentation of firearms or previous convictions for similar offending. The Court took a starting point of one year eight months’ imprisonment, and imposed a final sentence of one year one month imprisonment.

Excess breath alcohol charge

[35] In Clotworthy v Police,¹⁵ White J set out a number of factors that are relevant to setting a sentence for multiple drink driving. Those factors are:¹⁶

(a) The breath or blood alcohol level;

(b) The length of time that had elapsed since the most recent conviction; (c) Whether the charge involved two convictions in close succession;

(d) The manner of driving;

(e) Whether the offender was disqualified at the time; (f) The pleas;

(g) The sentences previously imposed (particularly if they included imprisonment);

_{(h) The offender’s criminal history;}

¹⁴ _{Long v Police HC Palmerston North CRI-2009-454-39, 8 October 2009.}

¹⁵ _{Clodworthy v Police HC Wanganui CRI-2003-483-13, 25 September 2003.}

¹⁶ At [20].

(i) Any remorse or attempts to deal with alcohol and personal problems; (j) Any mitigating personal or family circumstances.

_{[36] Rangitonga v Police:}¹⁷ _{The defendant was disqualified from driving}

indefinitely when he was caught driving with excess breath alcohol. The relevant reading was 613 micrograms of alcohol per litre of breath. This was the defendant’s fourth conviction for drink-driving and occurred shortly after his third conviction. The Court upheld a starting point of eight months’ imprisonment.

[37] Whiteman v Police:¹⁸ Mr Whiteman was convicted of his fifth and sixth drink-driving offence; the second charge occurred while Mr Whiteman was on bail for the first charge. Mr Whiteman had an extremely lengthy list of previous convictions. On the first charge Mr Whiteman was sentenced to six months’ imprisonment, and to eight months on the second.

[38] Telfer v Police:¹⁹ Ms Telfer was convicted for her third drink-driving offence and convicted for her fourth offence two days later. The Court held that a starting point of eight months for the third offence was within range.

Analysis

Firearms charges

[39] From the above cases it is evident that the Courts tend to impose cumulative sentences for the unlawful possession and presentation charges, even though the two events occur at the same time. The Judge in this case appeared to have done so as well to reflect the four charges of presenting the firearm.

[40] The present case is arguably less severe than Freme and Edwards. Mr Gray did not hold the gun to any one person, but scanned the group of persons generally,

_{and de-escalated the situation himself without the involvement of third parties or}

¹⁷ _{Rangitonga v Police [2014] NZHC 2323.}

¹⁸ _{Whiteman v Police HC Dunedin CRI-2008-412-51, 11 February 2009.}

¹⁹ Telfer v Police [2012] NZHC 349.

police. Nevertheless, Mr Gray loaded the firearm in full view of the victims, no doubt to make the victims believe he intended to shoot at them.

[41] The most aggravating feature in this case is the apparent ease with which Mr Gray retrieved the firearm from the car and pointed it at a group of people. At the time Mr Gray was intoxicated and in an angry state of mind; he says he felt intimidated by a potential three-on-one situation. However, there is no evidence of threats of physical violence or other hostility from the persons in the group, other than the accusation that he was a member of the Mongrel Mob. The fact that Mr Gray had the firearm in view of the victims can also be considered an aggravating factor. By this action he intended to strike fear into the victims.

[42] The starting point of approximately two years three months’ imprisonment is significantly higher than the starting point in Long, where the offending comprised of unlawful possession of a significant volume of firearms and ammunition but without any aggravating factors such as presentation of those firearms. In terms of seriousness, the present case falls somewhere between Freme and Wooton. Accordingly I adopt a starting point of 14 months’ imprisonment for the charge of unlawful possession of a firearm.

[43] In respect of the presentation charges, I adopt a starting point of two months’ imprisonment to reflect the number of victims in this case. Unsurprisingly, the victims have suffered psychological and emotional harm, and some have noted that they had trouble sleeping for some time after the event. A number recorded in their victim impact statements that, at the time, they feared for their lives.

[44] This provides for a starting point of 16 months’ imprisonment for the firearms

charges.

[45] Mr Gray has written letters of apology to the victims and has expressed some remorse for his actions. A discount of five per cent discount for remorse and a 25 per cent discount for the guilty plea are appropriate. This reduces the sentence to 11 months’ imprisonment.

[46] This equates to a final sentence of approximately six months’ home detention for the firearms charges. This is clearly lower than the sentence imposed in the District Court.

[47] At this stage it is useful to address Mr McGhie’s submission that Mr Gray did not possess the firearm for an unlawful purpose. This submission is not relevant in the sentencing context. Whether Mr Gray carried the firearm for a lawful, proper and sufficient purpose is a question that should have been addressed at trial. Were it addressed at trial, it would have been up to Mr Gray to prove, on the balance of probabilities, after the Crown established possession of the firearm, that he was in possession of the firearm for a lawful proper and sufficient purpose. However, as Mr Gray had pleaded guilty, by the nature of the charge he has accepted that he was in possession of the firearm for an unlawful purpose. Additionally, it was the possession of the firearm which facilitated the presentation charges.

Excess breath alcohol charge

[48] Six of the ten Clotworthy principles are relevant in the present case:

(a) The breath or blood alcohol level: Mr Gray’s intoxication level was

moderate;

(b) The length of time that had elapsed since the most recent conviction:

It has been three years since Mr Gray’s last drink driving offence;

(c) Whether the offender was disqualified at the time: Mr Gray was on bail for the firearms offending, and was in breach of his conditions not to consume alcohol;

(d) The pleas: Mr Gray pleaded guilty at the earliest opportunity;

(e) The sentences previously imposed: community work, disqualification and fines;

(f) The offender’s criminal history: a number of minor convictions.

[49] Mr Gray’s intoxication was of a similar level to the defendant in Rangitonga, and for both it was their fourth conviction. The aggravating factor in that case, which does not apply here, was the short amount of time elapsed since the last conviction. The defendant in Whiteman had more drink-driving convictions and convictions in general than Mr Gray, and the offending occurred whilst on bail.

[50] The aggravating factor is, as the Judge pointed out, that Mr Gray was on bail and in breach of his bail conditions. This is particularly aggravating when one considers that it was due to intoxication that Mr Gray came to face firearms charges.

[51] I conclude that a sentence of six months’ imprisonment reflects the aggravating features of the offence and a relatively moderate level of intoxication. Applying the discount for the guilty plea, the sentence is reduced to four and a half months’ imprisonment. This translates to approximately two months’ home detention to be served cumulatively.

Vehicle confiscation order

[52] Section 129(3) provides that if a court is satisfied that the motor vehicle that was driven by the offender at the time of the offence belongs to the offender, the court must order that vehicle be confiscated. Section 129(4) provides an exception where confiscation will result in undue hardship to another person.

[53] The only question on appeal is whether the Judge made an error in finding

the confiscation will not cause undue hardship to Mr Gray’s wife

[54] The onus is, of course, on Mr Gray to show the existence of undue hardship on the balance of probabilities.²⁰ “Undue” means something more than the ordinary hardship arising as a consequence of the order.²¹

[55] The points raised on appeal against the confiscation order can now be considered. There is a strong likelihood that the vehicle may be needed by Mrs Gray

²⁰ Police v McGlinchey [1997] DCR 898; Hunt v Police HC Wellington AP232/99, 29 September

_1999.

²¹ Adams on Criminal Law (online looseleaf ed, Westlaw) at [SA129.03].

for general living purposes due to the location of their residence; and more particularly in the case of a potential emergency because of Mrs Gray’s epilepsy. There is, before me, no direct evidence surrounding Mrs Gray’s condition. I was concerned, however, because apparently a letter had been produced to the District Court from a medical practitioner concerning her condition. I invited counsel to confer. Counsel did confer and Mr Rhodes very properly advised me that he was satisfied that Mrs Gray’s medical condition was genuine, that there was a relatively short period of time since the last epilepsy attack, that there are no other vehicles available to the couple, and that the grandfather no longer lives with the couple. It therefore seemed appropriate, as I put to him, that a finding of undue hardship to Mrs Gray could be made. The circumstances in which I can reach that conclusion are unusual to say the least. This should not be taken as a precedent. I would expect normally for formal evidence to be given by a medical practitioner in affidavit form so that the court can be satisfied, based on expert opinion, that there are justifiable grounds for the finding on medical grounds of undue hardship. However, there was some evidence of this apparently given to the District Court. Counsel have responsibly conferred and have assured me that this is a genuine case. I am therefore content to reach the conclusion that it would cause undue hardship to Mrs Gray because of her epilepsy and the need for her to attend on an urgent basis on a medical practitioner if the confiscation order remained in place. Accordingly, the confiscation order will be set aside.

Community work and disqualification from driving

[56] Mr Gray did not appeal these sentences. They continue to stand.

Result

[57] Under the above analysis, the total home detention sentence is eight months. This is a third less than the sentence imposed by the District Court. It follows that the original sentence for the firearms charges and excess breath alcohol was erroneous and should be substituted for eight months’ home detention. The sentence of community work and orders of disqualification stand. The confiscation order

made by Judge Bidois is set aside. The appeal is allowed to reflect the above

_position.

JA Faire J