Fell v Police
[2019] NZHC 333
•10 May 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-431
[2019] NZHC 333
BETWEEN KEN FELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 March and 10 May 2019 Counsel:
S Fernando for Appellant
R Ching and Thompson for Respondent
Judgment:
10 May 2019
[REDACTED] JUDGMENT OF WHATA J
This judgment was delivered by me on 10 May 2019 at 4.00 pm.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Meredith Connell, Auckland
FELL v NEW ZEALAND POLICE [2019] NZHC 333 [10 May 2019]
[1] Mr Fell pleaded guilty to one charge of possession of a firearm. He was sentenced to 60 hours community work. He appeals against Judge A-MJ Bouchier’s refusal to discharge without conviction.
Facts
[2] On 29 November 2017, police attended Mr Fell’s residence to remove a firearm following a reported suicide attempt by N, a boarder there. The police evidence is that N in fact told health care providers about the firearm and that they reported to police there was a firearm in the house. After conducting a search, police found a firearm leaning against a wall within the house with the bolt attached. The firearm was disabled and there was no ammunition in it.
[3] When police spoke to Mr Fell, he admitted that the firearm was his and it had been in the room for five years. He also reportedly stated that the “matter was not a serious one.” Police established that Mr Fell was issued with a type “A” standard firearms licence on 4 May 1988 which had expired on 1 May 2002, and that the licence was revoked on 1 June 2007 after Mr Fell failed to respond to calling in of the licence.
The evidence
[4] In his affidavit in support of a discharge without conviction, Mr Fell stated that the firearm in question had been locked in a secure box hidden under the floorboards at his mother’s house for over 20 years. He had forgotten about it. He suggested that N may have found the gun while searching for items to steal, and that N had contacted the police to “get back” at Mr Fell for asking him to leave the residence.
[5] Mr Fell also explains that, as an agricultural contractor, he is required to travel to Australia and that he has family is resident in the United States.
[6] Ms Fernando (Mr Fell’s counsel) further advised that Mr Fell had tried previously to renew his licence, but his workload was such that he was unable to complete the application process. He has also since sat and passed the licence exam and obtained a favourable recommendation from a vetting officer.
The Judge’s decision
[7] The Judge assessed the gravity of the offending as at the low end of the spectrum, but noted it was an offence that should be taken seriously. As to consequences, the Judge identified:
(a)Mr Fell’s inability to have his firearms licence reinstated;
(b)The potential barrier to international travel (which Mr Fell said was an issue because he must travel to Australia during harvesting season to carry out work as an agricultural contractor, and because he has family he visits in the United States); and
(c)The embarrassment, shame and potential stigma of a conviction.
[8] The Judge was not, however, satisfied there was a clear and appreciable risk that these consequences would occur. The application for discharge without conviction was declined.
The threshold
[9] The threshold for discharge without conviction is now reasonably well settled. Section 107 of the Sentencing Act 2002 states:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[10] The Court of Appeal has set out a three-step test in relation to s 107.1 A Judge must consider:
(a)the gravity of the offending;
(b)the consequences of a conviction; and
1 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].
(c)whether the consequences of a conviction would be out of all proportion to the gravity of the offending.
[11] The Court of Appeal in Z (CA447/12) v R summarised the approach in this way:2
… when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
(footnotes omitted)
[12] The Court of Appeal has also noted that there needs to be a “real and appreciable risk” that the consequences of the conviction will occur.3
[13] As the steps set out in relation to s 107 do not involve an exercise of the Court’s discretion, ordinary appellate principles apply on appeal, and the appellant is entitled to have the decision evaluated afresh.4 I will therefore examine the s107 threshold criteria again.
Gravity
[14] The Judge correctly located the offending at the lower end of the spectrum for offending of its kind. The firearm was disabled and not loaded. The nature of the offending was, nevertheless, as the Judge noted, moderately serious. However, I agree with Ms Fernando, it appears the Judge did not consider personal factors that further mitigated the gravity of the offending, including:
(a)his age (51);
2 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
3 DC (CA47/2013) v R [2013] NZCA 255 at [43]; citing Iosefa v Police HC Christchurch CIV-2005- 409-64, 21 April 2005 at [34].
4 R v Hughes, above n 3, at [65]-[66].
(b)his guilty plea;
(c)his sense of remorse;
(d)his acceptance of responsibility;
(e)his lack of any relevant previous convictions; and
(f)the steps he has taken post-offending to reinstate his firearms licence.
[15] Taken together, the risk of reoffending presented by Mr Fell at the time of the offending and now appears very low. But even so, these factors do not reduce the gravity of the offending to minor or insignificant. The wider context of the offending is relevant. This was not about a moment’s inattention or lapse in judgment. The rifle was unlicensed for more than 15 years and located at Mr Fell’s mother’s house. This is a significant breach of licencing regulation exacerbated by the fact that he did not retain direct control and oversight of the firearm. There is then the evidence that the gun came to the attention of the police via a report from health providers following N’s suicide attempt. This serves to illustrate the importance of both licencing and maintaining oversight of firearms.
[16] I accept that the storage of the firearm, without ammunition, in a secure box under the floorboards mitigated the risk of harm, as did the fact it was disabled. But maintaining a licence is part of a scheme of control designed to ensure that what in fact transpired does not happen. Illustrative of this point, Mr Fell admits he had forgotten about the existence of the gun, no doubt because he had not maintained a licence in respect of it. Mr Fell’s evidence that N only found it as part of an attempted theft, if anything, highlights the underlying risk of not maintaining strict control of firearms. It might in fact be said that, if it was part of an attempted theft, there was a risk of the firearm finding its way into the hands of persons who might have good reason to re-arm it.
[17] In my view, therefore, the gravity of the offending, having regard to Mr Fell’s personal circumstances, is low but not insignificant.
Consequences
[18] The only consequence of any moment is the potential impact on Mr Fell’s ability to travel for work. Any impact on an ability to re-licence and any stigma effect is a natural, foreseeable and proportionate consequence of the offending.
[19] As to travel impact, the evidence of material impact was weak at the first hearing and at the hearing before me. I granted leave to Ms Fernando to obtain evidence about the likely impact of the conviction. This was opposed by the respondent, but I preferred to proceed on a properly informed basis. That evidence refers to various grounds for prohibition in terms of entry into the United States. Most relevantly, a person who has combined sentences of more than five years or more is prohibited from entry. Mr Fell does not have aggregate sentences of this level. I am therefore not satisfied that there is a real and appreciable risk of exclusion from the United States if conviction is not discharged.
Proportionality
[20] I am not persuaded that the conviction is grossly disproportionate to the gravity of the offending. Mr Fell retained possession of an unlicensed firearm for many years. This is not an insignificant breach of a regulation designed to protect the public. The lack of direct oversight also carried the risk that it could come into the possession of someone who might use it unlawfully and, in a way, that is dangerous to the public. While Mr Fell did not appear to present this type of immediate risk, the object of the Firearms Act clearly demands better protection of the public by those who possess firearms.
[21] Accordingly, the impact on travel, to the extent there is any, is not out of all proportion to the gravity of the offending.
[22]The appeal is therefore dismissed.