Austin v Police HC Auckland CRI 2010-404-326
[2010] NZHC 2023
•17 November 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2010-404-326
COREY GRANT AUSTIN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 16 November 2010
Counsel: H Leabourn for Appellant
J Carlyon for Respondent
Judgment: 17 November 2010
JUDGMENT OF RONALD YOUNG J (Appeal against sentence)
Introduction
[1] On the evening of 5 July 2010 the police were called to investigate a report that a vehicle had been interfered with. When they arrived they found a car with its hazard lights flashing and the passenger window smashed. One of the witnesses to the event had seen someone leaving the car through the smashed window. And another witness had retrieved a black guitar case from the middle of road and put it
in the office of a nearby apartment block. The police then left the area.
COREY GRANT AUSTIN V NEW ZEALAND POLICE HC AK CRI 2010-404-326 17 November 2010
[2] A short time later the guitar case was opened and two sawn off guns were found together with ammunition for both firearms. When the police interviewed the appellant he admitted the sawn off shotgun and sawn off rifle were his. Ultimately the appellant was sentenced to 16 months’ imprisonment on charges of unlawful possession of the firearms and the ammunition. He says that sentence was manifestly excessive because the Judge placed too much emphasis on the aggravating features.
Background facts
[3] The events began when a number of people in White Street in Central Auckland in the early hours of 21 May 2010 called the police to report a vehicle being interfered with. They said they had heard what they believed was a gunshot, yelling and then saw a person leaving a car through a broken window. Although the police were told about these events they considered the events to be simply a case of someone interfering with a vehicle.
[4] However once the guitar case was opened and the guns found the police were able to quickly interview the appellant. The appellant admitted the sawn off shotgun and sawn off rifle were his. The shotgun and rifle were both loaded with ammunition although neither had a bullet in their respective chambers.
[5] The appellant said he had brought the firearms from an unidentified male in
Orewa to use for hunting. Mr Austin agreed he did not have a firearms licence.
District Court Sentencing
[6] In the District Court the Judge considered these factors as relevant:
a) the firearm possession was in the central business district;
b)the appellant’s claim that the weapons were brought for hunting purposes was, as he said, “absurd”. The appellant had handed a reference to the Judge which recorded his experience of hunting with people who had firearms licences;
c) he also rejected the appellant’s claim that he did not know that a firearm licence was required;
d)given the barrels were shortened the firearm he said could not possibly have been used for hunting and could only have been illegally shortened for unlawful activity primarily being killing of maiming human beings as part of another crime.
[7] The Judge noted that it was clear a firearm had been used in association with the appellant that evening.
[8] The Judge concluded that deterrence both individual and general was the sole objective of passing sentence in this case. The Crown submitted at sentencing in the District Court that a start sentence of 12–18 months was appropriate based on particular authorities. He considered however that a starting point of two years’ imprisonment for the offending here (which carried a maximum penalty of three years’ imprisonment) was appropriate. He deducted a full one third for the appellant’s guilty plea and imposed a sentence of 16 months’ imprisonment.
[9] As to home detention the Judge refused to adjourn the matter to allow the appellant to find suitable accommodation. He considered that given the sentence was primarily to deter both the appellant and others from committing such offences it would be wrong to send the message that such a sentence could be served by home detention.
[10] The appellant says rather than a starting point of two years’ imprisonment a starting point of 12 to 14 months would have been appropriate and a sentence of eight to ten months’ imprisonment. In the circumstances there was no reason not to impose a sentence of home detention.
Discussion
[11] I am satisfied that the start sentence of two years’ imprisonment was manifestly excessive. Mr Austin was not entitled to be in possession of any firearm because he did not have a firearms licence. I agree with the Judge that his claim that he did not know he needed a firearms licence was preposterous. This is a man who on his own evidence had been hunting for ten years.
[12] What is also preposterous is his claim that he bought the firearms believing they would be suitable for hunting. Given Mr Austin’s experience as a hunter he would have known that a sawn off shotgun and a sawn off rifle had no value for hunting.
[13] As this Court and the Court of Appeal have consistently pointed out the possession of modified guns can have only one logical inference. The possessor intends to use them or make them available for illegal activity.
[14] As the Judge identified possession of these weapons in Central Auckland was clearly an aggravating feature. Any use of such firearms could easily have resulted in accidental injury.
[15] The other factor of relevance is that the appellant has provided no rational explanation as to why he had possession of the guns in the area at the time. The guns were loaded and were clearly available for use.
[16] However the aggravating features sometimes present, for example, of gang association or the presence of guns associated with the supply or manufacture of drugs were not present here.
[17] As I have noted in the District Court the Crown identified the appropriate starting point as 12 to 18 months’ imprisonment. This was based on an extensive review of relevant High Court and Court of Appeal authority. Further, authorities such as Solicitor General v Lyon[1] and R v McFall[2] were referred to as having similar facts.
[1] Solicitor General v Lyon HC Auckland CRI 2004-404-77-A, 6 July 2006, Frater J.
[2] R v McFall Court of Appeal CA56/93 and CA57/93, 14 June 1993.
[18] A Judge does not have to accept the Crown starting point in any sentencing exercise. The Judge may go higher as long as the higher starting point is justified by the facts and authority. Here, I do not consider there was justification for a higher starting point than 18 months’ imprisonment. As I have remarked while serious this offending did not have the aggravating features which could have increased the start sentence to two years’ imprisonment and beyond.
[19] I therefore consider the appropriate starting point was one of 18 months’ imprisonment to reflect this serious offending. From that figure I deduct the full one third for the appellant’s early guilty plea leaving a sentence of 12 months’ imprisonment.
[20] As to home detention I agree with the Judge this was not appropriate essentially for the reasons he identified. Deterrence is a very important aspect of the sentencing. The possession of loaded sawn off guns in the Auckland Central Business district is a very serious matter and one where the public expect and the Courts will give a stern message emphasising the danger. A sentence of home detention simply does not adequately reflect the need for such a stern message.
[21] In summary, therefore, the appeal is allowed. The sentence of 16 months’
imprisonment is quashed. I impose instead a sentence of 12 months’ imprisonment.
Ronald Young J
Solicitors:
H Leabourn, Barrister, PO Box 210, Shortland Street, Auckland, email: leabourn[email protected]
J Carlyon, Solicitor, Meredith Connell, Auckland, email: julia[email protected]
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