Gray v Police
[2018] NZHC 3030
•21 November 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-232
[2018] NZHC 3030
BETWEEN CHRISTOPHER GRAY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 October 2018 Counsel:
N Taylor for Appellant
R M A Coubrey for Respondent
Judgment:
21 November 2018
JUDGMENT OF WHATA J
This judgment was delivered by me on 21 November 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Castle Brown, Auckland
Meredith Connell, Auckland
GRAY v POLICE [2018] NZHC 3030 [21 November 2018]
Introduction
[1] Mr Gray was found guilty of being in possession of a pistol, namely a Glock 17 pistol, without a lawful, proper or sufficient purpose.1 His application for discharge without conviction was declined. The Judge instead imposed a sentence of six months’ community detention and nine months’ supervision. Mr Gray appeals each of those decisions.
Background
[2] Mr Gray got into a fight with his partner, Cody. They were sharing an apartment at the time. Cody, assisted by two female friends, was in the process of moving out. Both Mr Gray and Cody were injured and highly distressed. They separately rang the police. By the time the police had arrived, Cody had left, but they found Mr Gray with a holstered Glock 17 pistol. Mr Gray cooperated with the police in handing over the gun and ammunition, and in the removal of other firearms from the property. He was later charged with possession of a firearm in contravention of s 45 of the Arms Act 1983.
[3] The central issue at trial was whether Mr Gray had established in all the circumstances and on the balance of probabilities he was in possession of a pistol for a “lawful, proper and sufficient purpose”. Mr Gray said he had armed himself in self- defence as he was concerned Cody might return to the apartment with associates and continue the fight. He said he believed his partner had a knife. Relevantly, Judge Carruthers found:
(a)There was a full magazine of bullets in the pistol and the pistol itself had been “racked” so that there was a bullet in the chamber. It was therefore ready to fire.
(b)Mr Gray was an experienced person with guns – he was a security professional and fully licenced to possess firearms, including the Glock pistol.
1 Arms Act 1983, s 45(1).
(c)There is considerable doubt that Cody had a knife, but Mr Gray believed Cody “may” have taken a knife from the apartment.
(d)But even accepting Cody had taken a knife, it was clear that there were several obstacles to him returning and being any sort of threat to Mr Gray.
(e)Previously Mr Gray was in his own room and Cody and his friends were in the front room of the apartment; at that time Mr Gray apprehended no threat at all and he could keep the door closed.
(f)Cody was described by others as the slighter man and his friends appear to have been either neutral or trying to de-escalate what was happening.
(g)There was always an opportunity to block the entrance to the house.
(h)The 111 conversations showed a de-escalation of Mr Gray’s distress and he was invited to call back if Cody returned, though he remained distressed.
[4]The Judge then concluded:2
[31] There were, in short, a number of other options and opportunities for the defendant short of having to use a loaded pistol for the purposes of protecting himself. I reject the self-defence argument. In the circumstances it was not a proportionate or a reasoned response to the threat perceived by the defendant and I believe he did not exercise, what I understand to be, his usual responsible and mature judgment about weapons when he armed himself in the way he did and loaded the weapon. In the circumstances this was not the response of an experienced user of firearms, as the defendant clearly is and shows the level of distress he was under at the time in exercising his judgment in that way.
[32] I reject therefore the defence that he raises in the circumstances of this case, insofar as it relates to the s 45(2) defence, namely that possession was for a lawful, proper, and sufficient purpose. The possibility of Mr Cody having the knife and possibly gaining entry are a step too far to justify racking the gun.
2 Police v Gray [2017] NZDC 25794.
Application for discharge
[5] An application for discharge came before Judge Gibson.3 The Judge found that the facts showed an intentional, rather than impulsive act to retrieve and load the pistol. This showed, he said, a serious lack of judgment. As a result, he considered the offending was seriously grave, particularly given there is a significant public interest in ensuring that those with access to firearms do not use them in a domestic context. He found the gravity of the offending was significant and high.
[6] Judge Gibson accepted that there would be direct consequences if a conviction was entered; namely, Mr Gray may not be able to work in his chosen profession, the security industry. But he agreed with the police submission that the underlying conduct in the offending suggested Mr Gray may well be unsuited for that industry.
[7]The application, pursuant to s 106, was therefore declined.
Sentencing
[8] In terms of sentencing, the Judge adopted a starting point of 18 months’ imprisonment against a notional maximum of four years.4 He allowed a three-month discount for Mr Gray’s lack of previous convictions and previous good character. This led to an end sentence of 15 months. He accepted, however, the recommendation in the pre-sentencing report of community detention and supervision. He therefore imposed a sentence of nine months’ supervision and six months’ community detention.
Points on appeal
[9]There are three main parts to the appeal, namely that:
(a)The Judge erred in finding guilt on the basis that the prosecution failed to show an unlawful purpose. The defendant was lawfully entitled to possess both firearm and ammunition, and to carry a pistol in his dwelling. Moreover, a defence of self-defence was available to him.
3 Police v Gray [2018] NZDC 15135.
4 Police v Gray [2018] NZDC 18640.
(b)The refusal to grant discharge without conviction was based on a flawed finding as to the gravity of the offending, which was not supported by the evidence. The Judge also underweighted the significance of conviction for Mr Gray, meaning he applied the balancing test incorrectly.
(c)The sentence was manifestly excessive, again, on the basis that the gravity of the offending was not correctly assessed, given the exceptional circumstances.
Jurisdiction
[10] To succeed on appeal against conviction, the appellant must show an error leading to miscarriage of justice.5 The appeal against refusal to discharge will depend on a fresh balance of the statutory criteria at s 106, namely that conviction is out of all proportion to the offending and the circumstances of the offender.6
Appeal against conviction
[11] Mr Taylor for Mr Gray submits the Judge erred in finding possession was not for a lawful, proper or sufficient purpose. He contends that:
(a)Mr Gray was licenced to possess the pistol and ammunition;
(b)No offence is committed by a properly licenced person carrying a loaded pistol on private property (though it might breach accepted protocol);7
(c)It was not necessary for Mr Gray to show that he was acting in self- defence at the time the police arrived. Rather, it was enough for
5 Criminal Procedure Act 2011, s 232.
6 Sentencing Act 2002, s 107.
7 See, for example, “Letter of agreement between the New Zealand Pistol Association and the New Zealand Police” (20 July 2013) Pistol NZ
< Gray to show he reasonably perceived that he needed to carry the gun in self-defence;
(d)Although the Judge did not specifically address this issue, the evidence and the Judge’s findings support the conclusion that Mr Gray reasonably perceived that he needed to carry the gun in self-defence; and
(e)As Mr Gray’s possession was for a lawful purpose it was also proper and sufficient.
[12] Mr McCoubrey responds that the Judge was correct to require “contextual restraint”; not every possession of a pistol within a private residence is lawful. All firearms must be held in accordance with the conditions of the licence and the Arms Regulations 1992. Those regulations require, among other things, a person use a pistol only for target shooting on an approved pistol range.
[13] Mr McCoubrey does not discount the possibility there may be cases where a pistol may lawfully be used in self-defence. An armed intruder posing an immediate threat of death may justify possession on self-defence grounds. But the Judge was correct to hold that in the circumstances of this case, it was wholly disproportionate to the threat perceived by Mr Gray.
Further submissions
[14] After the hearing, I invited comment on the Judge’s findings in light of the Court of Appeal’s statement of the law of self-defence in Sarich. The Court said:8
[37] The essential aspect is that both the subjective and the objective elements of the test are to be assessed in light of the circumstances as the accused saw them. As stated in Reyland, whatever formulation a trial Judge uses in his or her summing up, the necessity is “to draw to the jury’s attention the need to assess both the self-defence limb and the reasonable force limb of s 48 in the light of the circumstances as the accused saw them”. It is axiomatic that a trial Judge sitting alone should also direct him or herself along the lines of the approved formula.
8 R v Sarich CA407/04, 16 May 2005.
[15] Mr McCoubrey submitted the Judge squarely addressed the correct threshold test, namely whether the holstering was “a proportionate or a reasoned response to the threat perceived by the defendant.” Mr Taylor contends, however, that given the evidence and the findings about Mr Gray’s perception of events, the Judge did not correctly direct himself as to any subjective enquiry into the circumstances as Mr Gray saw them.
Assessment
[16]Section 45(1) states:
Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 4 years or to a fine not exceeding $5,000 or to both who, except for some lawful, proper, and sufficient purpose,—
(a) carries; or
(b) is in possession of—
any firearm, airgun, pistol, restricted weapon, or explosive.
[17] As Randerson J stated in Brocas, the expression “purpose” in its ordinary meaning refers to the object or end in view.9 In the present case, the object of Mr Gray’s possession was self-defence. There is long standing authority in this jurisdiction and elsewhere that self-defence, including preparatory acts, may be a lawful, proper and sufficient purpose.10 Whether it is or not, requires proof, on the balance of probabilities, of threatened danger genuinely anticipated, that must appear reasonably imminent and must be of a nature which could not be reasonably met by more pacific means.11 In this regard, both the subjective and objective elements of self-defence must be assessed in light of the circumstances as Mr Gray saw them.12
[18] I see no reason to depart from this settled framework. Mr Taylor’s submission that carrying the pistol was lawful (there being no express law against it)13, and thus
9 Brocas v Police HC Auckland AP279/97, 2 February 1998.
10 See R v Fegan [1972] NI 80 at 87; Arnesen v Police (1988) 3 CRNZ 495 at 497; Attorney- General’s Reference (No 2 of 1983) [1984] QB 456 at 471.
11 R v Fegan, above n 10, at 87.
12 R v Sarich, above n 8, at [37].
13 Mr Taylor relied on R v Iti [2007] NZCA 119, [2008] 1 NZLR 587 for the proposition that the lawful in this context means not subject to criminal sanction. While the Court in Iti framed the assessment, at [52], by reference to whether there was a “purpose to commit a criminal act”, it is
proper and sufficient, not only departs from settled authority, but from the plain meaning of the statutory phrase “lawful, proper and sufficient purpose”. The express use of the conjunctive “and” invites a cumulative assessment. This interpretation is also consistent with the evident policy of the Act to strictly regulate the possession and use of firearms.14
[19] Furthermore, Mr Taylor’s argument conflates lawful “possession” with lawful “purpose”. Mr Gray may well have been at liberty to holster a loaded pistol in his apartment, but he must do so for a lawful, proper and sufficient purpose.15 For example he may have been preparing to go to the shooting range. But, having identified self-defence as his purpose at the time he was arrested, he must have still anticipated using the pistol to shoot Cody if necessary. Therefore, to succeed at trial, he had justify holstering the pistol for this otherwise plainly unlawful purpose.
[20] Returning to the present facts, the trial Judge found that holstering a fully loaded pistol “was not a proportionate or a reasoned response to the threat perceived by [Mr Gray].” While not clear cut, I agree with him. The facts suggest Mr Gray apprehended real and imminent danger to himself at the time he holstered the pistol. He had been previously threatened by Cody, who was a trained martial artist. Both he and Cody were very emotionally charged at the time of the altercation and for a time afterwards. There was physical violence; Mr Gray had been struck in the head and was bleeding. Mr Gray thought Cody may have grabbed a kitchen knife. Cody had a key to the flat. But, by the time the police arrived approximately 30 minutes after the altercation, Mr Gray had had the presence of mind to take photos of his apartment and clean himself up. There was no imminent threat, at this time, based on Mr Gray’s perception of the circumstances. Thus, it was available to the Judge to conclude that the ongoing holstering of the pistol was unreasonable in the circumstances as Mr Gray believed them to be. I therefore apprehend no error on this ground.
not clear the Court was intending to confine unlawful acts to criminal acts only. As it is unnecessary to resolve this issue in the present context, I say no more about it.
14 See also discussion in Brocas v Police, above n 9, at 4-7.
15 The distinction between “possession” and “purpose” is another well settled principle. See again
Brocas, above n 9, at 7-11 and case law cited therein.
Discharge without conviction
[21]As recently stated by the Court of Appeal in Taulapapa:16
[22] … a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.
[23] The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.
[22] Mr Taylor submits Judge Gibson overstated the seriousness of the offending. Mr Taylor highlighted that the Judge’s statement that the police “were confronted with the defendant armed with a Glock,” is not supported by the evidence. He also contends that Judge Gibson’s assessment is not consistent with Judge Carruthers’s observation that the offending was “an extraordinary situation … [which] is not likely to be repeated.”
[23] Mr Taylor also submits that the Judge erred in his assessment of the consequences as well as the proportionality assessment. He submits that Mr Gray stands to lose his job and will be unable to work in his chosen career – the only one he has ever known. This outcome, he says, is out of all proportion to a one-off uncharacteristic offence.
[24]Mr McCoubrey responds that the Judge correctly:
(a)identified the threshold test;
(b)assessed the offending as significantly grave;
(c)described the consequences as significant; and
16 R v Taulapapa [2018] NZCA 414.
(d)concluded those consequences were not out of all proportion to the offending or the offender.
Assessment
[25] I agree with Judge Gibson the offending was very serious. It involved a possession of a Glock pistol for the purpose of shooting a former partner in a domestic violence context. The potential for domestic partner violence to irrationally escalate to very serious and sometimes fatal harm is well known. Various authoritative reports on domestic violence warn about the need to treat threats of domestic violence seriously.17 The possession of the pistol on the facts of the case and in this broader context was not justified. Mr Gray occupied a special position. He was licenced to possess lethal weapons and is a licensed private security professional. He should have known better. This is a further aggravating feature. In the result, the principles of deterrence and protection of the public are fully engaged in this context. For completeness, I accept that Mr Gray does not appear to present an ongoing risk. This is a personal mitigating factor. But the deterrence value relates not only to him, but to others who find themselves in similar situations.
[26] As to consequences, it is not clear whether Mr Gray has in fact lost his job. But for present purposes there is a clear and appreciable risk he will not only lose his job, but will be unable to work in his chosen profession. Section 62 of the Private Security Personnel and Private Investigators Act 2010 identifies an offence under the Arms Act as a ground of disqualification for a licence. However, s 64 of that Act also provides for waiver of ground of disqualification while a licence is in force. This means that loss of his job or occupation may be avoided. Nevertheless, I proceed on the basis that the potential consequences of conviction could be very significant for Mr Gray.
[27] Turning to the weighing exercise, like Judge Gibson, I am not satisfied that those consequences are totally out of proportion to the offending. While the potential consequences are very significant, Mr Gray’s professional community is best placed
17 See for example Jennifer Martin and Rhonda Pritchard Learning from Tragedy: Homicide within Families in New Zealand 2002-2006 (Ministry of Social Development, Working Paper, April 2010).
to assess the significance of the conviction.18 His previously unblemished record should hold him in good stead as does the fact that, as Judge Carruthers found, the circumstances of the offending were extraordinary. His low risk of reoffending is another important factor. Nevertheless, having regard to the gravity of the offending, discharge without conviction is not justified.
The sentence appeal
[28] The sentence appeal was only faintly argued. Given the seriousness of the offending I simply observe that the end sentence was well within range.19
Outcome
[29]The appeal against conviction is dismissed.
[30]The appeal against refusal to discharge without conviction is dismissed.
[31]The sentence appeal is dismissed.
18 Maraj v Police [2016] NZCA 279 at [28].
19 See R v Smith [2016] NZHC 851; R v Kane [2017] NZHC 340.
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