Hilterscheid v Police

[2025] NZHC 1937

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2025-419-000035

[2025] NZHC 1937

BETWEEN

LUKAS HARTMUT HILTERSCHEID

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 July 2025
Counsel:	MBJ Curran for Appellant KA Dillon for Respondent
Judgment:	15 July 2025

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Hamilton. MBJ Curran, Hamilton.

HILTERSCHEID v POLICE [2025] NZHC 1937 [15 July 2025]

[1]    This appeal concerns the forfeiture of 17 firearms and related ammunition. It is argued forfeiture is “unjust”, hence everything should be returned to its owner. For reasons explained in this brief judgment, I  allow  the  appeal  and  direct  the  District Court to reconsider the question of forfeiture.

[2]    On 14 May 2024, Police executed a search warrant at Lukas Hilterscheid’s home, a rural property in Thames. They found two unsecured rifles: one, a .22 calibre weapon, with a (live) bullet in the chamber; the second, a .308 calibre weapon, with an accompanying ammunition holder containing four live rounds in it. Police also found more than 900 rounds of live ammunition. None of it was secured.

[3]    Mr Hilterscheid had been living at the home for more than 30 days. He had not told Police he had moved there, contrary to the terms of his firearms licence. He was charged with two offences: careless use of a firearm;1 and failing to notify a change of address in connection with the firearms and ammunition.2

[4]    Mr Hilterscheid ultimately pleaded guilty. He argued the consequences of conviction would be wholly disproportionate to the  gravity  of  the  offending.  Judge M M Mason agreed:3

Your application is that you have prior good character. I accept that. You are 66 years of age. You have got no previous convictions, and I have this morning just read a number of references from a number of your family and friends, which tell me that you have been a person of good character in the community.

The police say that may help with the moderate nature of the offending but say really there has to be a balance here and that when you do balance it the consequences of a conviction are not high. They say that is because at 66 years of age you do not have much of a working life left. You are entitled to the pension and there is a demonstration that you have got some means, particularly about some silver coins in a box.

Against that your lawyer submits that actually you do want to get employment. You have got a young child, and I see here you have got older children who have children themselves. You want to participate in providing a future for your children and your grandchildren. You want to work.

So when I do that I have to look at the consequences of a conviction of this nature in terms of how that would impact upon you. Firstly, sometimes the

1      Arms Act 1983, s 53(3).

2      Arms Act 1983, s 34(2).

3      Police v Hilterscheid [2025] NZDC 5017 at [5]–[8].

reason for this being serious offending is that these firearms can fall into the hands of the wrong people. We have this huge problem with organised crime in our community, but I accept that you have no connections to any such thing. But that is also why these types of convictions are considered very serious in an employment context and I accept that the consequences of a conviction in your case do outweigh the seriousness of the offending and you are discharged without conviction, but your firearms and the ammunition will be forfeited.

[5]    As will be apparent, the Judge ordered Mr Hilterscheid’s “firearms and ammunition” be forfeited to the Crown. The parties understood that order to encompass Mr Hilterscheid’s extensive firearms collection, not just the items identified by the charges.

[6]Section 69 of the Arms Act 1983 provides:

69     Forfeitures

(1)If a person is convicted of an offence of using, carrying, or being in possession of any specified item, the convicting court must, as part of the sentencing, order that the specified item be forfeited to the Crown.

(1A)If a person is convicted of an offence under section 42A for breaching a firearms prohibition order and is in possession of any firearms or related items, the convicting court must, as part of the sentencing, order that the firearms or related items be forfeited to the Crown.

(2)However, subsection (1) or (1A) does not apply and the convicting court need not make an order under that provision if the court considers that, given the circumstances of the offending, it would be unjust to make that order.

(3)Anything ordered under subsection (1) or (1A) to be forfeited to the Crown—

(a)     is forfeited to the Crown accordingly; and

(b)     may be disposed of in any manner that the Commissioner directs.

(4)In this section,—

firearm or related item has the meaning given in section 39

specified item means any firearm, airgun, pistol, restricted weapon, imitation firearm, prohibited item, pistol carbine conversion kit, ammunition, or explosive.

[7]    Forfeiture of Mr Hilterschied’s firearms collection was not discussed in the District Court. That has significance as it is not entirely clear the term “specified item” necessarily extends to a firearm beyond the ambit of the offence. To compound

matters, it is not entirely clear the charge of careless use extends to both firearms referred to by the Judge, rather than one. These observations should not be read as offering any view on the effect of s 69, whether in this case, or more generally. They are exclusively directed to a process point, which needs to be addressed for the reasons identified.

[8]    For completeness, Mr Hilterscheid proposes the firearms be sold by someone on his behalf. He says arrangements have been made or could be made, but these arrangements are not subject to any evidence. That will need to be corrected too.

[9]    I offered these observations to the parties at the hearing.   Very  properly,    Mr Dillon on behalf of the Police offered no opposition to the appeal being allowed and the matter being re-addressed in the District Court.

Result

[10]   The appeal is allowed. Forfeiture is quashed. Forfeiture is to be re-addressed by the District Court.

……………………………..

Downs J