Curtis v The the King

[2022] NZHC 2816

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI 2022-087-736

[2022] NZHC 2816

BETWEEN

AREN THOMAS CURTIS

Appellant

AND

THE CROWN

Respondent

On the papers
Counsel:	B Nabney for the appellant D Coulson for the Crown
Judgment:	31 October 2022

JUDGMENT OF CAMPBELL J

[Appeal against Sentence]

This judgment was delivered by me on 31 October 2022 at 12.00 pm

Registrar/Deputy Registrar

CURTIS v THE CROWN [2022] NZHC 2816 [31 October 2022]

Introduction

[1]The appellant, Mr Curtis, was convicted of the following:

(a)Unlawful possession of a firearm;1

(b)Two charges of driving while disqualified;2

(c)Two charges of possession of methamphetamine;3 and

(d)Two charges of possession of a methamphetamine pipe.4

[2]        Mr Curtis was sentenced to two years and one month’s imprisonment by Judge T R Ingram in the Tauranga District Court on 28 January 2022.5 He appeals against his sentence. His sole ground of appeal is that the starting point for the firearm charge should have been 18 months’ imprisonment, rather than the two years’ imprisonment adopted by Judge Ingram.

[3]        Mr Curtis brought  his  appeal  five  months  out  of  time.  He  applies  for  an extension of time to appeal.

[4]The parties were content for the matter to be determined on the papers.

Offending

[5]I need only summarise the firearm offending.

[6]        On 10 September 2020, Mr Curtis parked a car  on a road near Tauranga.   He fell asleep in the driver’s seat. Next to him, in the front passenger’s foot well, was a sawn-off shotgun in a bag. The shotgun was positioned so that it was easily

1      Arms Act 1983, s 51. Maximum penalty of three years’ imprisonment, or $4,000 fine, or both.

2      Land Transport Act 1998, ss 32(1)(a) and 32(3). Maximum penalty of three months’ imprisonment, or $4,000 fine. The court must order licence disqualification for a minimum of six months.

3      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a). Maximum penalty of six months’ imprisonment, or $6,000 fine, or both.

4      Misuse of Drugs Act 1975, s 13(1)(a) and (3).   Maximum penalty of one year imprisonment,   or $500 fine, or both.

5      R v Curtis [2022] NZDC 1471.

accessible from the driver’s seat. The shotgun was loaded with two 12-gauge rounds. The safety mechanism was set to fire.

[7]        Members of the public believed that the way the car was parked was a safety risk. They contacted Police.

[8]        Three constables located the car and approached it. This woke Mr Curtis. There was an altercation. During the altercation Mr Curtis reached down towards the passenger foot well. Mr Curtis was restrained.

[9]The constables searched the car and found the sawn-off shotgun.

[10]Mr Curtis did not hold a firearms licence.

Sentencing decision

[11]      Judge Ingram treated the firearm charge as the lead offence.   He referred     to a then recent decision, Apiata v Police,6 in which Lang J had reviewed relevant authorities. Lang J had accepted that for unlawful possession of a firearm in a house, with significant ammunition, a starting point of two years’ imprisonment was appropriate. Judge Ingram said that Mr Curtis’s offending was more serious. Despite that, he said that he was prepared to take a two-year starting point for Mr Curtis’s offending.7

[12]      The Judge then added three months  for the other offending.8  This produced  a starting point for the overall offending of two years and three months.

[13]      The Judge also applied two uplifts: three months for Mr Curtis being in breach of bail and for offending while on release conditions, and a further three months for Mr Curtis’s “appalling” criminal record. These uplifts took the sentence to a “high point” of 33 months.9

6      Apiata v Police [2021] NZHC 3224. 7 R v Curtis [2022] NZDC 1471 at [5]. 8 At [10].

9 At [10].

[14]      Judge Ingram then allowed a discount of eight months for Mr Curtis’s guilty plea. This produced an end sentence of 25 months’ imprisonment.10

Principles governing sentence appeals

[15]      For a sentencing appeal to succeed the sentence generally must be shown     to be manifestly excessive or wrong in principle.11 The 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 generally depends on the end sentence imposed, rather than the process by which it is reached.12

Should time to appeal be extended?

[16]      The Crown opposes an extension of time to appeal. Given the view that I take on the  substantive  appeal,  I  see  no  prejudice  to  the  Crown  in  extending  time. I therefore grant an extension.

Is the sentence manifestly excessive?

[17]      Counsel for Mr Curtis, Mr Nabney, submitted that a starting point for the firearms charge of no more than 18 months’ imprisonment was appropriate. No issue was taken with the uplifts nor the guilty plea discount.

[18]      Mr  Nabney  said  that  In   Apiata,  the  Court  referred  to  starting  points   of 18 months’ imprisonment often being adopted in cases involving only the unlawful possession of a firearm.13 He submitted that in that case the starting point was higher (two years) to reflect the fact that the defendant had a considerable number of rounds of ammunition (34). Mr Nabney also referred to Moore v Police.14 In Moore, the Court noted that in numerous decisions starting points of 18 months’ imprisonment had been imposed for possession of firearms where one of those firearms was loaded.

10     R v Curtis [2022] NZDC 1471 at [11].

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

12 At [36].

13     Apiata v Police [2021] NZHC 3224 at [14].

14     Moore v Police [2015] NZHC 3113.

[19]      Mr Nabney submitted that although those cases did not set a benchmark,     in  Mr  Curtis’s  circumstances  a  starting  point  of  18  months’  imprisonment   was appropriate for “possession of a single firearm albeit loaded”.

[20]      Mr Nabney also referred to Torea v R,15 in which the Court of Appeal approved a starting point of two years and six months’ imprisonment where the appellant was found in possession of a loaded pistol. The pistol was ready to fire with three bullets in the chamber and one bullet lined up in the firing position. Mr Nabney pointed out that this starting point was adopted in circumstances where aggravating features were present.  These were that the firearm was loaded and ready to use, the firearm was   at the appellant’s side while he was waiting for police to arrive, it was a relatively serious weapon, there were gang overtones and potential that the weapon would be used.16 Mr Nabney submitted that, by contrast, while Mr Curtis’s firearm was loaded and available, there was  no suggestion that  it  was being  made available for use   by Mr Curtis either in a gang context or in relation to the police.

[21]      I do not accept that Judge Ingram’s starting point was outside the range available to him. Mr Coulson, for the Crown, was right to note the following comment of Robertson J in R v Richardson:17

Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential for danger from their possession.

[22]      Mr Coulson relied on several authorities to show that Judge Ingram’s starting point was within range. It will suffice if I refer to two. In Herewini v Police,18 the appellant was in a car pulled over by police. Police located a sawn-off shotgun under the front passenger seat. On appeal, Moore J held that the starting point of two years and six months’ imprisonment was within range. The Court noted that the weapon was readily accessible and in a modified state.  In  Dewes v Police,19  police located  a sawn-off shotgun in the appellant’s car. There was no gang association. On appeal,

15     Torea v R [2011] NZCA 96.

16     Torea v R [2011] NZCA 96 at [14].

17     R v Richardson CA450/02, 26 March 2003 at [33].

18     Herewini v Police [2014] NZHC 2396.

19     Dewes v Police HC Christchurch A60/03, 12 June 2003.

John Hansen J upheld the starting point of two years and six months’ imprisonment. The Court noted that the fact that the weapon had been taken out in a car made it more serious than had the weapon been found hidden in a building.

[23]      There are several  aggravating factors to Mr Curtis’s offending that make     it at least as serious as that in Apiata, Herewini and Dewes. The shotgun was loaded. It was easily accessible. Its safety mechanism was set to fire. The shotgun had been modified (suggesting a criminal purpose).  It had been taken out in a car.  Finally,  Mr Curtis reached towards the shotgun when he was approached by the constables.

[24]      For these reasons, I consider that Judge Ingram did not err in adopting a starting point of two years’ imprisonment for the lead firearm charge.

[25]That conclusion is sufficient to dispose of the substantive appeal.

[26]      I make one other observation. The maximum discount available for a guilty plea at the first available opportunity is 25 per cent. That discount is applied to the starting point for the overall offending (without any uplifts for personal aggravating factors).20 Here the starting point for the overall offending was two years and three months’ imprisonment. The maximum available discount was, therefore, less than seven months. The Judge’s discount of eight months was almost 30 per cent of the starting point. If I had concluded that the starting point was excessive, that may have been balanced by the overly generous guilty plea discount allowed to Mr Curtis, meaning that the end sentence may not in any event have been manifestly excessive.

Result

[27]The appeal is dismissed.

Campbell J

20     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583; Gray v R [2020] NZCA 548 at [31].