Freme v Police
[2014] NZHC 2031
•26 August 2014
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 RespondentJudgment:
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 cartridges. The serial number on the weapon had been ground off. Mr Freme’s explanation was that he had found the shotgun at the head of the Ashley River while
he was trail bike riding, along with the two unused cartridges which were lying next to the shotgun, and he had loaded them into the weapon to keep everything together.
The Sentencing Process
[9] When Mr Freme appeared before Judge O’Driscoll for a sentence indication at case review, counsel was referred to the decision in Iti v R,1 which is recent authority on sentencing for the offence of unlawful possession of a firearm. In fact, no sentence indication was given on that date, but Mr Freme did subsequently plead guilty to both offences and, on 9 July was sentenced to two months on the charge of presenting a firearm and 11 months on the charge of unlawful possession.
[10] At the sentencing hearing, Judge Garland inquired of Mr Freme’s counsel whether he had any other sentencing authorities in addition to Iti, to which counsel replied he did not. After reciting the background facts above, the Judge referred to the probation officer’s report including the recommendation of the probation officer for intensive supervision and community detention. He identified that counsel for Mr Freme endorsed the recommendation of the probation officer, referring to Iti,
which suggested that imprisonment was not inevitable in cases like this.2
[11] In deciding what sentence to impose, Judge Garland began with the seriousness of the charges. He considered the maximum penalties available for the charges and the relevant facts. These included that Mr Freme was intoxicated and in an angry state of mind and that he deliberately went to the car to get the shotgun and pointed it at the head of the victim when it was loaded with two live shotgun rounds. Adding to the seriousness was that this occurred in a public place where others were present, including children, and when Mr Freme was not a licenced firearms holder.
[12] The Judge then went on to refer to 10 sentencing decisions which he had
considered “in order to gain some guidance as to how I should sentence you today”.3
These ranged from a decision dating back to 15 June 1989,4 through to decisions
1 Iti v R [2012] NZCA 492. Note, the citation given by the appellant was R v Iti [2012] NZCA
307 but that appears to be incorrect as it is a bail decision.
2 See Iti at [133].
3 Police v Freme DC Christchurch CRI-2014-061-7, 9 July 2014 at [12].
4 R v Wootton CA 42/89, 15 June 1989.
reported in the last three years. The cases he spent particular time discussing; R v Wootton5, R v Douglas,6 and Edwards v P,7 were cases decided when the maximum penalty for unlawful possession was three years imprisonment. The offenders in these three cases were sentenced to 12 months, 9 months and 13 months imprisonment respectively, on the charge of unlawful possession of a firearm.
[13] Having had regard to those cases by way of guidance, the Judge held that the combined starting point on the two charges should be 18 months imprisonment, particularly given the seriousness of the offending. Despite Mr Freme’s two convictions for violence, the Judge did not uplift the starting point. He then reduced the starting point by five months to take into account the early guilty pleas and Mr Freme’s expressed remorse and willingness to address his offending behaviour. That resulted in a sentence of 13 months imprisonment, which the Judge then retrospectively apportioned as 11 months imprisonment on the unlawful possession charge and two months imprisonment on the charge of presenting a firearm and imposed the terms cumulatively. That appears to follow the approach taken in Edwards, where sentences of 13 months imprisonment on a charge of unlawful possession, and two months on a charge of presenting a firearm, were imposed cumulatively to give a final sentence of 15 months imprisonment.
The Appeal
[14] The questions to be considered on appeal are whether there was an error in sentencing and whether a different sentence should be imposed.8
Breach of Natural Justice?
[15] The first error alleged is a breach of the right to natural justice, as protected by s 27 New Zealand Bill of Rights Act 1990. The appellant argued that the Judge should have drawn the 10 cases to counsel’s attention and provided counsel with the
opportunity to reflect on those decisions and provide submissions if necessary.
5 R v Wootten, above n 3.
6 R v Douglas HC Christchurch T21/89, 19 December 1989.
7 Edwards v P HC Christchurch A196/99, 5 October 1999.
8 Criminal Procedure Act 2011, s 250.
[16] The Courts have recognised that where another decision is a relevant and material consideration to the fact-finder’s decision, then natural justice requires the disclosure of that material so that the party affected may have the opportunity of rebutting that material or taking advantage of matters that may be considered favourable to that party.
[17] This principle is illustrated in the decision Secretary for Internal Affairs v Pub Charity,9 where French J (delivering the reasons of the Court) stated:10
In our view, in circumstances where the Blue Waters decision post-dated the parties’ submissions and underpinned the … decision, it was a breach of natural justice for the Commission not to draw the Pub Charity’s attention to Blue Waters and invite it to make further submissions. Had it done so, the outcome might still have been the same. But it might also have been different.
[18] A slightly different situation arose in Secretary for Justice v Simes,11 where
Randerson J (delivering the reasons of the Court) commented:12
It is abundantly clear that the Review Panel’s reference to other decisions in relation to other providers was a relevant and material consideration in the Review Panel’s decision. It was, at the very least, a matter the review panel considered supported its decision to cancel Ms Simes’ listings. The submission that the cases did not provide relevant or helpful guidance is not sustainable. The Review Panel itself plainly considered the other decisions were relevant and helpful.
It does not matter whether the circumstances of the other cases might be viewed more seriously or less seriously than Ms Simes’ case. Natural justice requires the disclosure of material the decision maker intends to take into account so that the party or parties affected have the opportunity of rebutting material that may be considered adverse and taking advantage of matters that may be considered favourable to that party.
Here, as the Judge said, Ms Simes and her counsel ought to have had the decisions disclosed to them so they had this opportunity. …
[19] Thus, strictly speaking, a Judge is in error by not giving counsel an opportunity to comment on if they are to be material to the final decision. However,
9 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177.
10 At [76].
11 Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044.
12 At [79]-[81].
much more than such an error, needs to be established to succeed on an appeal against sentence.
[20] Under the Sentencing Act 2002, a mandatory sentencing principle, is the requirement to “take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances”.13 Where counsel have failed to refer the Court to comparable sentencing cases, it is inevitable that the Court will undertake its own inquiries to such cases to comply with this
sentencing principle.
[21] To succeed on this ground of appeal, the appellant needs to show that reliance on such cases has led the Court into error in terms of the sentence arrived at. In other words, an appellant would need to show that the case relied on was not comparable in some way and, furthermore, that reliance on it has led to the imposition of a sentence that is inappropriate and which should be set aside and a different sentence imposed.
[22] In this case the only case discussed at sentencing was the decision in Iti, which was clearly not relevant for the purposes of s 8(e), as it did not involve comparable circumstances.
[23] The cases which were considered in detail were decided at a time when the maximum penalty for firearms possession was three years, not four years, so arguably, could have been advantageous to the appellant. However, the Judge was cognisant of the fact that the maximum penalty was now four years and noted that in his decision.
[24] The only issue raised by Mr McKenzie to challenge the reliance on the earlier cases referred to, was that they were decided before the introduction of the Sentencing Act 2002, where a wider range of penalties short of imprisonment
became available to a sentencing Judge.
13 Sentencing Act 2002, s 8(c).
[25] However, I do not consider that, in this case, that has led to any error. The Judge simply used the cases to determine a sentencing length, should imprisonment be imposed. He was clearly aware of, and considered, the other options short of imprisonment but, for separate reasons, rejected the options of home detention, community detention and intensive supervision.
[26] For these reasons I do not consider that the Judge’s failure to give counsel the opportunity to comment on the sentencing decisions he relied on led to an error in the sentence, which would justify allowing the appeal.
End sentence “manifestly excessive”
[27] The primary ground for submitting that the end sentence was manifestly excessive was that the most serious aspect of the appellant’s actions was his presenting a loaded firearm to the victim. For this offence Parliament had chosen to impose a maximum penalty of just three months. Accordingly, the appellant submitted it was “manifestly excessive for the sentencing Judge to adopt a starting point … some six times in excess of its maximum”.
[28] However, the logical corollary of that argument is that if the appellant is to get the benefit of a low maximum penalty for presenting a firearm, he must equally suffer the disadvantage of a high maximum penalty for the offence of unlawfully possessing a firearm. I accept that the presentation of the loaded firearm in the circumstances described, was behaviour which justified imposing a starting point for the penalty of at, 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,14 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.
14 Taking the 18 months starting point the Judge used for the totality of the offending, and assuming that the Judge imposed a sentence close to the maximum penalty of three months for the presentation of the firearm.
[29] In assessing the seriousness of the possession charge, the Judge relevantly recorded that:15
You were not the holder of a firearms licence, therefore you should not have had possession of that firearm at all. You gave an explanation to the police along the lines that you found it in the riverbed and there were a couple of shells nearby. I do not accept that explanation. In my view that is just plainly fanciful.
[30] While the Judge noted Mr McKenzie’s submissions that Mr Freme “did not possess this gun for a criminal purpose”, it is clear that it is the possession of the firearm which facilitated the subsequent presentation, and the sentencing Judge was entitled to consider the offending as a whole. It is also quite clear that, having regard to the other cases considered by the Judge, the penalty imposed on the possession charge was well within the range available to the Judge.
[31] In all the circumstances I do not consider the sentence imposed was manifestly excessive.
Was imprisonment inappropriate?
[32] The third ground of the appeal was 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.
[33] It is obvious 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. Where there is jurisdiction to impose home detention, or a community-based sentence, the sentencing Judge must nevertheless form a judgment as to whether imprisonment is necessary.
[34] It is clear that the Judge was aware of the options to impose a lesser sentence, and he considered these carefully at [21] and [22] of his decision. The reasons he
gave for rejecting a sentence of home detention, or the probation officer’s
15 Police v Freme, above n 3.
recommendations of intensive supervision and community detention, were legitimate and were open to the Judge.
[35] Accordingly, there was no error in sentence, and no need to impose a different sentence.
[36] The appeal is dismissed.
Solicitors:
A J McKenzie, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch
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