Hazlewood v Police

[2015] NZHC 2304

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2015-476-000002 [2015] NZHC 2304

BETWEEN

CHRISTOPHER RONALD CHARLES

HAZLEWOOD Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 September 2015
Appearances:	Appellant in person N M Willcocks for Crown
Judgment:	22 September 2015

ORAL JUDGMENT OF DUNNINGHAM J

[1]      Mr Christopher Hazlewood was sentenced by Judge Maze in the Oamaru District Court on 15 April 2015 to 13 months’ imprisonment after he pleaded guilty to trespass, driving whilst disqualified, the unlawful possession of a pistol and discharging a pistol with reckless disregard for safety.1

[2]      Mr Hazlewood now appeals to this Court against the latter two convictions, being the unlawful possession of, and the reckless discharge of, a pistol, as well as against the sentence Judge Maze imposed.

Grounds of Appeal

[3]      The only indication the appellant has given about the grounds on which he seeks to appeal his convictions and sentence was contained in his Notice of Appeal,

dated 11 May 2015.  In that form, where he specified his grounds of appeal, he stated

1      It seems the Court records show a sentence of 13 months’ imprisonment, although the sentencing

notes record a 12 month sentence, and it is an issue I come back to at the end of this judgment.

“a question of law, is this offence criminal [?]”.  He then cited the decision in Iti v

R.2

[4]      Mr  Hazlewood  has  been  unable  to  file  submissions  subsequently  as  his lawyer has ceased representing him.  Today he sought the indulgence of the Court to have his Mckenzie friend, Mr Stephen Kelly appear and make submissions on his behalf and, with some reluctance I did allow that, given Mr Hazlewood’s statement that he has difficulty with literacy issues.

[5]      Dealing  briefly  with  the  principles  on  appeal,  there  is  no  dispute  that Mr Hazlewood can appeal his conviction as of right.  Under s 232(2) of the Criminal Procedure Act 2011 (CPA), the Court must allow a first appeal against conviction if it is satisfied that:

(a)      in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or

(b)in the case of a Judge alone trial, that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)       in any case, a miscarriage of justice has occurred for any reason.3

[6]      As Mr Hazlewood pleaded guilty to the firearms offences before any trial began, subsections s 232(2) (a) and (b) are obviously not engaged.  Mr Hazlewood therefore must establish some circumstances which compel the conclusion that there has been a miscarriage of justice in this case.

[7]      In terms of the appeal against sentence, that of course is governed by ss 245 and 250 of the CPA.  But here I discern that the appeal against sentence is simply raised as a consequence of the appeal against conviction, and no standalone grounds

are raised for appealing the sentence.

2      Iti v R [2008] 1 NZLR 587, (2007) 23 CRNZ 572 (CA).

3      Criminal Procedure Act 2011 s 232(1)(c).

Appeal against conviction

[8]      The offences which Mr Hazlewood was convicted of are provided for in the

Arms Act 1983. They are ss 50 and 53, which provide as follows:

50 Unlawful possession of pistol, military style semi-automatic firearm, or restricted weapon

(1)       Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who—

(a)       is in possession of a pistol and is not a person authorised or permitted, expressly or by implication, by or pursuant to this Act, to be in possession of that pistol…

And:

53 Careless use of firearm, airgun, pistol, or restricted weapon

….

3)Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who, without reasonable cause, discharges or otherwise deals with a firearm, airgun, pistol, or restricted weapon in a manner likely to injure or endanger the safety of any person or with reckless disregard for the safety of others.

[9]      The original grounds of appeal suggested that Mr Hazlewood argued that either these offences were not criminal at all or, relying on the decision in Iti, that firearms offences of this character are not criminal.  It is clear from the wording of the section that his first argument is unsustainable.

[10]     In relying on Iti to support his appeal he has overlooked some obvious points of  difference  between  that  case  and  his  case.    First,  his  convictions  are  under different sections of the Arms Act from the sections Mr Iti was originally convicted on.   Second, Mr Iti’s convictions were quashed on the basis that the Crown had failed to prove that the requisite harm had been made out under s 48 to support a conviction under s 51 of the Arms Act under which Mr Iti had been charged and that

was sufficient for the decision.4   Ancillary to that were issues about whether an atea

4      Iti v R, above n 1. The relevant ‘harm’ was the requirement to be engaged in an ‘unlawful purpose’, which there the Crown argued this was satisfied by his commission of a s 48 offence.

was a public place and whether a purported Tuhoe custom rendered an otherwise unlawful purpose lawful.   Unfortunately none of those issues are relevant on the present facts.

[11]     As matters progressed today, it seemed that that was not the only basis on which Mr Hazlewood wished to appeal.  Through his Mckenzie friend, he also raised a suggestion that the summary of facts significantly misstated what had actually occurred.

[12]     In relation to firearms charges, the relevant part of the summary of facts reads as follows:

Whilst in Oamaru they picked up another person and began driving around the Oamaru township.

At this time the defendant HAZLEWOOD has produced a small pistol from his person and began showing it to the other two occupants.

Over the next half an hour or so the defendant and the two associates have driven around Oamaru looking for an address before dropping one of the associates off at an address.

Later in the evening the defendant and [his] associate then drove back to

Hampden.

As the defendant and the associate approached Hampden the defendant has again taken the pistol out and began waving it around.

At this time he began to work the action in an attempt to get the pistol to fire. He has then put the pistol out the window and pulled the trigger.

The firearm failed to fire and he has again brought the pistol inside the vehicle working the action.

As the driver came through the built up area of Hampden along London Street the defendant again put the firearm out the window and pulled the trigger firing a round in the centre of Hampden.

As the vehicle continued south the defendant again pulled the trigger numerous times discharging rounds in Hampden township.

It is unknown where these rounds went.

[13]     Mr Kelly suggested today that this statement of facts was erroneous.  In fact, Mr Hazlewood was simply “making a loud noise”.

[14]     I explained to Mr Kelly that if issue was to be taken with the summary of facts, that would have required affidavit evidence to have been led from his then counsel  as  to  why  a  summary  of  facts  which  differed  so  markedly  from Mr Hazlewood’s recollection of events, was accepted and pleaded guilty to.

[15]     That was not done and I was not prepared to entertain an appeal which made such significant and unsupported challenges to the events which led to the conviction and sentence in the District Court.

[16]     It is for those reasons the appeal against both conviction and sentence is dismissed.

[17]     There is, however, one further issue which needs to be addressed.   When Judge Maze gave her sentencing indication back on 21 January 2015, she indicated a total sentence of 13 months on the charges.  When it came time to actually sentence Mr Hazlewood on 15 April 2015, she recited her sentencing indication and the reasoning for it.  However, when she finally came to impose sentence she said “on each of the other charges you are sentenced to imprisonment for 12 months’.  There is   no   suggested   reason   why  she  varied   the  sentencing  indication   term   of imprisonment of 13 months, to one of 12 months.  There is a slight possibility that the sentencing notes have been transcribed in error, but all the other documentation on file records a sentence of 13 months, including the warrant for imprisonment.

[18]     I therefore direct that this matter be referred back to the District Court to check whether the sentencing notes which are on file are correct, and whether a sentence of 12 months was in fact imposed by Judge Maze.   If it was, then the warrant for imprisonment and other records are to be corrected to record that it was a sentence of 12 months and not 13 months.

Solicitors:

Gresson Dorman & Co., Timaru