Freme v Police - [2014] NZHC 2031

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000067 [2014] NZHC 2031

JAMIE ANTHONY FREME

v

NEW ZEALAND POLICE

Hearing: 14 August 2014

Appearances:

A J McKenzie for Appellant
MAJ Elliott for Respondent

Judgment:

26 August 2014

JUDGMENT OF DUNNINGHAM J

[1] On New Year’s Eve Mr Freme was camping near the Ashley River in North Canterbury, with his family. He began arguing with his partner and, when a fellow camper sought to intervene, he presented a loaded shotgun to that person.

[2] As a result, Mr Freme was charged with both unlawful possession of a firearm, which carries a maximum penalty of four years imprisonment or a $5,000 fine, and with presenting a firearm, which carries a maximum penalty of three months imprisonment or a $1,000 fine. Both charges arise under the Arms Act 1983.

[3] On 9 July 2014 he was sentenced to 13 months imprisonment on the two charges. He appeals his sentence on the basis:

(a) the sentencing process was unfair (because the Judge took into account 10 sentencing cases which were not raised with counsel);

FREME v NEW ZEALAND POLICE [2014] NZHC 2031 [26 August 2014]

(b)the end sentence of 13 months imprisonment was manifestly excessive (bearing in mind the maximum penalty for presenting a firearm is three months); and

(c) in all the circumstances imprisonment should not have been imposed.

How did the charges arise?

[4] Mr Freme, his partner and their two children went camping at the Ashley River over the 2013 Christmas period. Camping nearby, as part of the defendant’s group were two other families, including three other children, who were all either family members or friends.

[5] Throughout their time camping there had been tensions and ongoing arguments between Mr Freme and his partner which had been witnessed by other parties who were present. On occasions they had intervened to try to get the defendant to calm down.

[6] On New Year’s Eve day Mr Frame had travelled away from the campsite and had returned with boxes of beer. He proceeded to drink heavily and, at about
11.30 pm, an argument took place between him and his partner. A friend of Mr Freme spoke to Mr Freme about his behaviour and asked him to “sort it out”. At that point Mr Freme went to his vehicle and took out a long barrel “under-over” shotgun, although he does not hold a current firearms licence.

[7] Mr Freme then walked back to where his friend was in front of the campsite. Other campers were still up, including some of the children. Mr Freme levelled the shotgun at his friend’s head, holding it there for a short time. His friend and another male camper jumped Mr Freme after this, took the shotgun off him and hid it, refusing to return it to him. At that point Mr Freme left the camp area in his motor vehicle and police were called.

[8] The shotgun was subsequently checked and found to be loaded with two…

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 Freme v Police

Details

AGLC: Freme v Police [2014] NZHC 2031
Case: [2014] NZHC 2031
Decision Date: 26 August 2014

CaseChat Overview and Summary

Jamie Anthony Freme appeals his sentence, imposed by Judge Garland on two charges under the Arms Act 1983: unlawful possession of a firearm and presenting a firearm. He argues that the sentence was unfair, manifestly excessive, and that imprisonment was inappropriate. The case arose when Mr Freme, while camping near the Ashley River, retrieved a loaded shotgun from his vehicle and pointed it at a fellow camper who had intervened in an argument between Mr Freme and his partner. The shotgun was subsequently found to be loaded with two cartridges, and the serial number had been ground off. Mr Freme was sentenced to 13 months imprisonment on the two charges, and he appeals on three grounds.

First, Mr Freme claims there was a breach of natural justice because the sentencing judge did not provide counsel with the opportunity to comment on the cases relied on by the judge. The court held that, although a judge should provide counsel with an opportunity to comment on cases relied on, the appellant needed to show that the case relied on was not comparable in some way and that reliance on it led to the imposition of an inappropriate sentence. Here, the only case discussed at sentencing was the decision in Iti, which was not relevant for the purposes of s 8(e), as it did not involve comparable circumstances. The cases considered in detail were decided at a time when the maximum penalty for firearms possession was three years, not four years, which arguably could have been advantageous to the appellant. However, the judge was aware of the fact that the maximum penalty was now four years and noted that in his decision. The court held that the judge's failure to give counsel the opportunity to comment on the sentencing decisions he relied on did not lead to an error in the sentence, which would justify allowing the appeal.

Second, Mr Freme argues that the end sentence of 13 months imprisonment was manifestly excessive. The court held that the presentation of the loaded firearm in the circumstances described was behaviour which justified imposing a starting point for the penalty of, or near, the maximum. However, in light of the four-year maximum penalty available for the charge of unlawful possession of a firearm, the judge set the starting point for this aspect of the offending at approximately 15 months, being a starting point of between a quarter and a third of the maximum penalty, which does not seem in error in all the circumstances. The court did not consider the sentence imposed was manifestly excessive.

Third, Mr Freme argues that the judge erred in his rejection of sentencing options less than imprisonment, by saying the offending was "too serious" when the fact that the end sentence was well below the two-year mark indicates that this is not so. The court held that simply because a judge is considering a sentence of imprisonment of less than two years, that is not, of itself, sufficient to justify a non-custodial sentence. The judge was aware of the options to impose a lesser sentence, and he considered these carefully. The reasons he gave for rejecting a sentence of home detention, or the probation officer's recommendations of intensive supervision and community detention, were legitimate and were open to the judge. The court held that there was no error in sentence, and no need to impose a different sentence.

The appeal is dismissed.

Orders