Fowler v R - [2016] NZCA 233

IN THE COURT OF APPEAL OF NEW ZEALAND

CA90/2016
[2016] NZCA 233

BETWEEN	NEIL JAMES FOWLER Appellant
AND	THE QUEEN Respondent

Hearing:	11 May 2016
Court:	Kós, Courtney, Gilbert JJ
Counsel:	R M Gould for Appellant D J Boldt for Crown
Judgment:	27 May 2016 at 12.00 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed.
CThe sentences of 12 months’ imprisonment on the charge of possession of a restricted weapon and six months’ imprisonment on the charge of possession of explosives are set aside and replaced with concurrent sentences of 50 hours’ community work and six months’ supervision with a special condition that Mr Fowler is to attend any alcohol or drug rehabilitation programme as may be directed by the supervising probation officer.

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REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Following a trial by jury in the Blenheim District Court, Mr Fowler was found guilty of unlawful possession of a restricted weapon (a military-style semi-automatic firearm, MSSA), possession of explosives (260 rounds of ammunition), and possession of 77 grams of cannabis. Judge Zohrab convicted Mr Fowler on these charges and sentenced him to 12 months’ imprisonment on the lead charge of possession of a restricted weapon and concurrent prison sentences of six months on the charge of possession of explosives and one month on the charge of possession of cannabis.[1] Mr Fowler appeals against both conviction and sentence.

Grounds of appeal

[1]R v Fowler [2016] NZDC 2256.

Mr Fowler contends that the Judge misdirected the jury in two respects:
(a)the onus of proof in a reverse onus case; and
(b)the need to distinguish between credibility and reliability when assessing the complainant’s evidence.
Mr Fowler argues in support of his appeal against sentence that the Judge erred:
(a)by imposing a sentence of imprisonment without the benefit of a full pre-sentence report; and
(b)by failing to impose the least restrictive outcome appropriate in the circumstances, being a sentence of home detention combined with post-detention conditions requiring counselling for alcohol abuse to address Mr Fowler’s rehabilitative needs.

Background

On the evening of 10 December 2014, Mr Fowler was at home drinking with a female friend, the complainant. After both became heavily intoxicated, the complainant agreed to pose in a negligee holding the MSSA which Mr Fowler produced from his garage. Mr Fowler used the complainant’s mobile phone to take a number of photographs of her holding the gun. An argument developed after the complainant declined to have sex with Mr Fowler. A window was broken and the complainant cut her hand before leaving and returning to her own home.
Mr Fowler called the police. The police constable who was despatched to the complainant’s address found her intoxicated, upset and covered in blood. She reported that there had been an altercation and mentioned the firearm. Another police constable visited Mr Fowler and found him heavily intoxicated. The constable advised Mr Fowler that he proposed to search the property given the information…

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 Fowler v R

Details

AGLC: Fowler v R [2016] NZCA 233
Case: [2016] NZCA 233
Decision Date: 27 May 2016 at 12.00 pm

CaseChat Overview and Summary

Neil James Fowler appeals against his conviction and sentence for possession of a restricted weapon, possession of explosives, and possession of cannabis. The appeal against conviction contends that the trial Judge misdirected the jury on two issues: the onus of proof in a reverse onus case, and the need to distinguish between credibility and reliability when assessing the complainant’s evidence. The appeal against sentence argues that the Judge erred in imposing a sentence of imprisonment without the benefit of a full pre-sentence report and in failing to impose the least restrictive outcome appropriate in the circumstances, being a sentence of home detention combined with post-detention conditions requiring counselling for alcohol abuse. The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentences of 12 months’ imprisonment on the charge of possession of a restricted weapon and six months’ imprisonment on the charge of possession of explosives are set aside and replaced with concurrent sentences of 50 hours’ community work and six months’ supervision with a special condition that Mr Fowler is to attend any alcohol or drug rehabilitation programme as may be directed by the supervising probation officer.

Orders