Aspinall-Su'a v Police - [2020] NZHC 3022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-387

[2020] NZHC 3022

BETWEEN
CHRISTIAN ASPINALL-SU’A

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 November 2020

Appearances:

H G de Groot for the Appellant

H Benson-Pope for the Respondent

Judgment:

16 November 2020

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:
Mr H G de Groot, Barrister, Auckland
Mr H Benson-Pope and Mr J C Toebes, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City

ASPINALL-SU’A v POLICE [2020] NZHC 3022 [16 November 2020]

[1] Mr Aspinall-Su’a appeals his sentence of two years and two months’ imprisonment imposed by Judge D J Harvey in the District Court at Manukau on 17 August 2020.1

[2] Mr Aspinall-Su’a pleaded guilty to the following charges on 19 June 2020: unlawful possession of a firearm (x 4);2 receiving (over $1,000);3 unlawful possession of an explosive;4 unlawful possession of ammunition;5 and possession of cannabis.6

The offending

[3] On 30 January 2020, Mr Aspinall-Su’a was sentenced to 18 months’ intensive supervision, on standard and special conditions. He had committed a number of offences between 6 June and 20 July 2019, including presenting a firearm at another person, unlawful possession of ammunition and possession of cannabis and methamphetamine. At the time of the offending related to the current appeal, Mr Aspinall-Su’a remained subject to that sentence.

February offending

[4] On 26 January 2020, a white VW motor vehicle with the number plate JKT762 was stolen.

[5] On 13 February 2020, Police observed a VW vehicle bearing registration plates WR9968 in Māngere. Mr Aspinall-Su’a was the driver. Police inquiries revealed the registration number did not match the VW vehicle and the true registration was JKT762.

[6] Police searched the vehicle and found one sawn down single barrel shotgun, one shotgun pistol and approximately 24 rounds of ammunition for the shotgun.

1      Police v Aspinall-Su’a [2020] NZDC 16448.
2      Arms Act 1983, s 45(1). Maximum penalty is a $5,000 fine and/or four years’ imprisonment.
3      Crimes Act 1961, ss 246 and 247(a). Maximum penalty is seven years’ imprisonment.
4      Arms Act 1983, s 45(1). Maximum penalty is a $5,000 fine and/or four years’ imprisonment.
5      Section 51. Maximum penalty is three years’ imprisonment and/or a fine not exceeding $4,000.
6      Misuse of Drugs Act 1975, ss 7(1)(a) and (2)(b). Maximum penalty is three months’ imprisonment and/or a fine not exceeding $500.

[7] After his arrest, Mr Aspinall-Su’a admitted he had bought the vehicle via Facebook for $2,500. He denied knowledge of the firearms and ammunition. Mr Aspinall-Su’a was charged on 14 February with receiving, unlawful possession of a firearm and unlawful possession of an explosive. He was admitted to electronically monitored bail (EM bail) on 6 March 2020.

March offending

[8] On 7 March 2020, the day after being released on EM bail, Mr Aspinall-Su’a absconded.

[9] On 20 March 2020, Police located and arrested Mr Aspinall-Su’a. He was at his sister’s address in Manurewa, where he had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 3022
Decision Date: 16 November 2020

CaseChat Overview and Summary

Christian Aspinall-Su’a appeals the two years and two months’ imprisonment imposed on him by Judge D J Harvey in the District Court at Manukau on 17 August 2020. Mr Aspinall-Su’a pleaded guilty to four charges of unlawful possession of a firearm, receiving, unlawful possession of an explosive and possession of cannabis. The offending occurred on two separate occasions. On 26 January 2020, Mr Aspinall-Su’a was observed in a vehicle stolen on 13 February 2020. Police found one sawn down single barrel shotgun, one shotgun pistol and approximately 24 rounds of ammunition for the shotgun in the vehicle. On 20 March 2020, Police located Mr Aspinall-Su’a at his sister’s address in Manurewa where he had been sleeping on her couch. Police found a blank firing pistol which had been modified to fire live rounds, a sawn-off, double-barrelled side-by-side shotgun, 1.36 grams of dried cannabis and twelve twelve-gauge shotgun shells. The Judge noted Mr Aspinall-Su’a must have known the vehicle was “hot” when he purchased it. The Judge considered the striking similarities between the February and March offending and imposed an end sentence of 26 months’ imprisonment (rounding down from 26 and a half months) in respect of all charges, with the exception of the possession of cannabis charge for which Mr Aspinall-Su’a was convicted and discharged. The appeal is allowed, the sentence is quashed and a sentence of 21 months’ imprisonment is imposed. Leave is granted to apply to the District Court for home detention under s 80I of the Sentencing Act 2002.

Orders