Burns v Police

[2021] NZHC 1589

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-20

[2021] NZHC 1589

KENNETH JOHN BURNS

v

NEW ZEALAND POLICE

Hearing:	30 June 2021
Appearances:	J M Woodcock for Mr Burns L A Blencowe for Crown
Judgment:	30 June 2021

JUDGMENT OF COOKE J

[1]                 Kenneth Burns appeals against the sentence of two years and three months’ imprisonment imposed by the District Court on one charge of unlawfully possessing of a firearm,1 one of unlawfully possessing ammunition,2 one of unlawfully possessing a magazine,3 and two charges of theft4 and trespass5 following his guilty pleas.

[2]                 Judge A S Greig adopted a starting point of 27 months’ imprisonment on the firearms charges, and then uplifted the sentence by three months for the theft and trespass charges, and then a further six months because of previous convictions. He

1      Arms Act 1983, s 45; $5,000 fine and/or 4 years imprisonment.

2      Section 22B; $10,000 fine.

3      Section 22A; $10,000 fine.

4      Crimes Act 1961, s 223(d); 3 months imprisonment.

5      Trespass Act 1980, ss 3, 4 and 11; $1,000 fine or 3 months imprisonment.

BURNS v NEW ZEALAND POLICE [2021] NZHC 1589 [30 June 2021]

then reduced the sentence by nine months for the guilty pleas leading to the end sentence of 27 months.6

[3]                 The appellant contends that the end sentence is manifestly excessive. The respondent accepts that the end sentence was stern, and in particular that a starting point of 24 months’ imprisonment for the firearms offending was more appropriate, but argues that a difference of approximately three months would not make the overall sentence manifestly excessive.

Facts

[4]                 The relevant facts begin with the theft and trespass charges. On 29 October 2020 the appellant was trespassed from  The  Warehouse  at  Bell  Block  Court,  New Plymouth. On 8 January 2021 the appellant and a female associate entered The Warehouse. The appellant wore sunglasses in an apparent attempt to conceal his identity. He took two pairs of trousers to the fitting rooms. He only paid for one pair when leaving the shop having concealed the other pair in a bag. They were worth $69. This gave rise to one theft and one trespass charge.

[5]                 On 29 January 2021 the appellant and a male associate entered The Warehouse again. This time the appellant selected multiple items of clothing and went into the fitting rooms. He left the singlet he was wearing in the fitting room and exited wearing a different black singlet with a grey shirt over his shoulder. Members of the staff recognised the appellant and asked him to return the items he had taken but he continued to walk away and left the store. The items were valued at $102. This gave rise to a second theft and trespass charges.

[6]                 On 10 March 2021 the police executed a search warrant at the appellant’s address. The warrant was sought after information that the appellant was in possession of firearms was received. At the time the appellant and his partner were the primary occupants of the address and were at the property at the time of the search. During the search the police found a backpack in the corner of the appellant’s bedroom. Inside the backpack was a cut down 12–gauge double barrelled shotgun with a wooden stock,

6      New Zealand Police v Kenneth John Burns [2021] NZDC 8114.

and a black pouch with four live rounds of 9 mm ammunition and 16 live rounds of

.22 calibre ammunition. On the bedroom floor was a live 12–gauge shotgun cartridge. On the living room table was a Ruger 10 shot magazine which held three live .22 rounds. A further .22 round was found on the same table. This gave rise to the charges of unlawful possession of a firearm, unlawful possession of ammunition, and unlawful possession of a non-prohibited magazine.

[7]                 Ms Blencowe for the Police accepts that the Judge adopted a stern approach in sentencing, particularly with respect to the starting point on the firearm charge. The Judge was plainly influenced by the personal circumstances of Mr Burns. He said:

[8]                   It is easy to say we all make choices. To a certain extent, we are a prisoner of our upbringing in the choices that we make. I would always extend leniency to any man or woman who really wants to change, but I do not see it in you, Mr Burns. I think at the moment you are choosing a path; you are enmeshed in gang culture and I do not think you could see your way to leading an offence-free lifestyle at the moment. It is going to take a lot of work. When the time comes, you will certainly get whatever help I can give you from here. If you do not believe me, ask those people who have had really lenient sentences. But I am afraid that is not for you today.

Appeal

[8]    The appeal is brought under s 244 of the Criminal Procedure Act 2011.7 Under s 250(2) the appeal must be allowed if the court is satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.8 The focus is on the ultimate end sentence, and whether it is manifestly excessive, rather than the steps taken in the sentencing process.9

[9]    When imposing the starting point the Judge considered the decision of the High Court in Herewini v Police.10 In that case the appellant was found with a loaded sawn- off shotgun, two large hunting knives and a crossbow, as well as a 15 cm dagger and a glass pipe used for the consumption of methamphetamine. The High Court upheld a starting point of two years and six months imprisonment. Moore J identified that the general trend was that a starting point of two years’ and two and a half years

7      Criminal Procedure Act 2011, s 244(1).

8      Section 250(2).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

10     Herewini v Police [2014] NZHC 2396.

imprisonment for cases involving possession of a sawn-off shotgun.11 He recorded that the “fact that the weapon was a sawn-off shotgun makes the offending more serious than if the offending had been unmodified”.12 This, coupled with the fact that the shotgun was loaded, readily accessible, and present inside a car that was in a residential area made the offending more serious.

[10]   A  consideration  of  other  firearms   related   sentences   referred   to   by  Ms Woodcock suggest that the approach adopted by the Judge here was higher than the normal range, however. Two Court of Appeal decisions in particular provide guidance:

(a)In Torea v R the Court upheld a starting point of two years and six months imprisonment.13 In that case police had been called to an address and when they arrived a loaded pistol was found underneath a pillow next to where the appellant was sitting. The safety catch had been disengaged and a bullet was in the chamber. The appellant had gang associations with the potential use of weapons in that context. The Court of Appeal observed that the gang connections and the possession of a loaded firearm would require “a sentence which will be an effective deterrent to the offender and to others who may be similarly minded”.14

(b)The Court referred to its earlier decisions, including that in R v Richardson. In that case the appellant was found to be in possession of a sawn-off shotgun which was found under his bed, as well as possession of another shotgun found loaded in the boot of his car. The Court approved of a starting point of two years’ imprisonment.15

[11]   These cases suggest that the starting point of 27 months — only three months lower than Torea, and three months higher than Richardson is not appropriate. That is confirmed by other High Court cases:

11     At [23]–[26]

12 At [27].

13     Torea v R [2011] NZCA 96 at [5]–[6].

14 At [15].

15     R v Richardson CA450/02, 25 March 2003 at [34].

(a)In Miller v Police the appellant was charged with a number of offences including three offences under the Arms Act, along with charges of threatening to kill and possession of cannabis.16 A starting point of 23 months’ imprisonment was adopted. The High Court found on appeal that the Judge did not err in adopting that starting point.17

(b)In Long v Police the defendant was found with two stolen rifles, a homemade pistol, 190 rounds of ammunition, a smoke grenade, another 610 rounds of ammunition, and various firearms parts.18 In that case the starting point of 20 months’ imprisonment was adopted.

[12]   Having regard to the comparable cases, and the trend of cases, in my view a starting point of 20 to 24 months’ imprisonment could be regarded as within range for this offending. I agree with the submissions that a starting point of above 24 months is outside the range. The aggravating feature in the present case is that the shotgun was sawn-off, and accordingly properly regarded as enhanced for the purposes of potential offending. But on the other hand it was not found in a public place, or a car, but in a private bedroom, and it was not loaded. So it was not possessed for immediate use. The presence of ammunition and associated equipment reiterates that this material was possessed for potentially unlawful purposes, but it does not put this case to the same kind of level as cases where the higher starting points have been adopted. It appears that the appellant has gang connections, and this was referred to by the Judge. But I note that this was not referred to in the summary of facts. So by itself it may not have been appropriate to consider it as an aggravating feature.

[13]   I accept Ms Blencowe’s submission that adopting a starting point three months higher than what might be regarded as the available range may not by itself lead to a manifestly excessive sentence, particularly if further steps are then taken in the sentencing process that ameliorate any erroneous starting point. The focus should be the end sentence rather than the particular steps taken in the sentencing process. But

16     Miller v Police [2021] NZHC 1104 at [24].

17 At [31].

18     At [29]; Long v Police HC Palmerston North CRI-2009-454-39, 8 October 2009.

here the subsequent uplifts made by the Court re-emphasised the error in the starting point, and it has led to a sentence that is manifestly excessive.

[14]   The Judge adopted a three month uplift for the theft and trespass offending, and then a further six month uplift given the appellant’s previous convictions. He then gave a nine month discount for the guilty plea so that the end sentence corresponded with the starting point. In other words the uplifts cancelled out the effect of the guilty plea discount. The Judge noted, but did not factor in, that the appellant had had a difficult background. Some care is required before uplifts are imposed for other offending and prior history which eliminate the effect of a guilty plea discount accompanying an offender’s acknowledgment of the offending.

[15]   The three month uplift for the theft and trespass offending cannot be criticised. The fact that this was repeated offending on two occasions meant that such an uplift was justified. But the further uplift for previous offending can be legitimately questioned. On a starting point of 27 months’ imprisonment this is approximately a 22 per cent uplift. By comparison in Miller v Police an uplift of 15 per cent was applied for personal aggravating factors.19 In Smith v Police an uplift of six months was applied where the appellant had  eight previous firearm convictions.20  Whilst  Mr Burns has a lengthy history he does not have firearms related convictions. I note that there is previous aggravated robbery offending, but I have no details of that offending and whether firearms were involved. Overall in my view an uplift of a further three months for the previous history would be more appropriate.

[16]   The cumulative effect of the approach adopted seems to me to lead to a manifestly excessive sentence. In my view a starting point of 22 months’ imprisonment is more in line with comparable cases, with an uplift of three months for the theft and trespass charges, and a further three months for the previous convictions. That leads to 28 months. The 25 per cent discount for the guilty plea then amounts to a seven month discount. This results in an end sentence of 21 months’ imprisonment.

19     Miller v Police, above n 16 at [37].

20     Smith v Police [2014] NZHC 2196.

[17]   The appeal will be allowed and the sentence of 27 months’ imprisonment replaced with a sentence of 21 months’ imprisonment. In all other respects the sentence imposed by the District Court will remain.

Cooke J

Solicitors:

Marsland Chambers, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent