Byles v R - [2013] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND

CA30/2013
[2013] NZCA 18

BETWEEN ERRON JAMES BYLES
Appellant

AND THE QUEEN
Respondent

Hearing: 12 February 2013

Court: Ellen France, Ronald Young and Dobson JJ

Counsel: J C Hannam for Appellant
A Markham for Respondent

Judgment: 12 February 2013

Reasons: 18 February 2013

JUDGMENT OF THE COURT

A The application for an extension of time is granted.

B The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Dobson J)

Introduction

This was an appeal against a sentence of 17 months’ imprisonment in respect of a conviction for unlawful possession of a firearm imposed on the appellant by Judge Roberts in the District Court at New Plymouth on 6 December 2012.[1] Because the effective sentence would expire 14 days after the hearing, the Court was pressed for an early answer so as not to render nugatory any measure of success on the appeal.
[1] R v Byles DC New Plymouth CRI-2012-043-1697, 6 December 2012 [sentencing remarks].
On the day of the hearing, the Court extended time for filing the appeal, but the appeal was dismissed. The reasons for that outcome are now addressed.

Background

Mr Byles had been indicted on a single charge of unlawful possession of a firearm. It was initially alleged against Mr Byles that he was in possession of the firearm, a distinctive hand gun, on 20 February 2012 when it was discovered by police during the search of a vehicle in which he was a passenger. The driver of the vehicle, a Mr David Scadden, was also charged. So, too, a third man, Mr Ryan Hopkins. The police had been alerted to the existence of the firearm by a complaint from a former partner of Mr Hopkins, who alleged that he had presented it at her on 18 February 2012.
Mr Byles had pleaded not guilty to the charge as originally laid against him, denying that he was in possession of the firearm when it was found in the vehicle in which he was a passenger. Subsequently the police amended the terms of the charge against him to allege possession by Mr Byles of the firearm on 6 February 2012. The amended allegation relied upon video clips that had been extracted from a cellphone seized from Mr Hopkins, which showed Mr Byles assisting Mr Hopkins to load the firearm, and firing it himself.
The firearm had been inspected by a police armourer and was described as previously having been a .22 bolt action rifle. The barrel had been shortened, a plastic grip section from a Chinese air pistol had been attached (apparently with tape) and an Allen key had been glued and wired to the trigger allowing the firearm to be held and fired with one hand. Given its features, the Judge inferred that its intended use could only be “within the realm of criminal endeavour”.[2]

Sentence and analysis

[2] Sentencing remarks at [15].

The Court was advised by Mr Hannam that the District Court…

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.

Continue reading Byles v R

Details

AGLC: Byles v R [2013] NZCA 18
Case: [2013] NZCA 18
Decision Date: 18 February 2013

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Erron James Byles against a 17-month imprisonment sentence imposed for unlawful possession of a firearm. The appeal was heard by Ellen France, Ronald Young, and Dobson JJ. The appellant was represented by J C Hannam, and the respondent by A Markham. The Court granted the application for an extension of time to hear the appeal but dismissed the appeal against the sentence. The appeal was dismissed due to the Court's determination that the sentence was appropriate in light of the circumstances of the case. The Court found that the starting point for the sentence was within the appropriate range and the extent of discount was also appropriate. The sentence was not considered manifestly excessive.

The legal issues the Court was required to decide included whether the starting point for the sentence was appropriate, whether the extent of the discount was appropriate, and whether the sentence was manifestly excessive. The Court found that the starting point for the sentence was within the appropriate range, and the extent of the discount was also appropriate. The Court also found that the sentence was not manifestly excessive. The Court's reasoning was based on the nature of the firearm, the appellant's substantial criminal record, and the circumstances of the offending. The Court also considered the starting point confirmed in R v Richardson.

The Court of Appeal dismissed the appeal against the sentence imposed by Judge Roberts in the District Court at New Plymouth on 6 December 2012. The Court found that the sentence was appropriate in light of the circumstances of the case. The Court also found that the starting point for the sentence was within the appropriate range, and the extent of the discount was also appropriate. The Court further found that the sentence was not manifestly excessive. The Court's decision was based on the nature of the firearm, the appellant's substantial criminal record, and the circumstances of the offending. The Court also considered the starting point confirmed in R v Richardson.

Orders