Hore v Police
[2015] NZHC 2313
•23 September 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2015-412-000030 [2015] NZHC 2313
BETWEEN ANDREW KEITH HORE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 September 2015 Appearances:
D P Robinson for Appellant
C Power for RespondentJudgment:
23 September 2015
JUDGMENT OF DUNNINGHAM J
Introduction
[1] This is an appeal against the decision of the District Court declining to grant the appellant, Mr Hore, a discharge without conviction. Mr Hore had pleaded guilty to one charge of supplying a firearm to an unlicensed person and on
17 September 2015, he was convicted and fined $400 plus Court costs of $130.1
[2] The appeal is advanced on the ground that the District Court Judge erred in fact and law in refusing to grant a discharge without conviction. More specifically, he says the Judge failed to properly weigh:
(a) the aggravating and mitigating factors;
(b)the consequences of conviction (and the likelihood of the same occurring); and
1 Police v Hore [2015] NZDC 18502.
HORE v NEW ZEALAND POLICE [2015] NZHC 2313 [23 September 2015]
(c) the seriousness of the offence.
The offending
[3] The offence occurred on 2 May 2015 when Mr Hore and a number of his associates met on a rural property in Central Otago to go duck shooting. One member of the shooting party was Mr Daniel Parker, who did not hold a firearms licence because it had been revoked in 2012.
[4] Mr Hore brought two firearms to the mai mai, one of which was a shotgun, which he gave to Mr Parker to use for the purpose of duck shooting that day. It is that action which gave rise to the charge.
[5] However, it is what happened subsequently which brought this matter to the attention of the police. The duck shooting party, having spent the day at one pond shooting ducks and consuming alcohol, eventually decided to move to another pond located on the same property. They did so in an ATV vehicle. However, while travelling on the ATV, three members of the party and a number of the firearms fell from the back of the vehicle, resulting in one of the shotguns unintentionally discharging and causing a serious wound to the right arm of Mr Parker.
[6] Mr Hore was later spoken to by police. He admitted ownership of the firearms and also admitted supplying the firearm to Mr Parker. He said he did not know that Mr Parker’s firearms licence had been revoked. However, he also accepts that at no point did he check whether Mr Parker was in fact the holder of a current firearms licence.
[7] Mr Hore was then charged with supplying a firearm to an unlicensed person, and Mr Parker was charged with being in possession of a shotgun while his licence was revoked. For completeness, two other members of the party were also charged with being in possession of a shotgun while not the holder of a firearms licence.
Approach on appeal
[8] Section 106 of the Sentencing Act 2002 provides the Court with the ability to discharge an offender without conviction. Section 106 is guided by s 107 which provides a gateway through which the application for discharge must first pass.2 It provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[9] In applying s 107 the Court must:3
(a) consider all of the aggravating and mitigating features relating to both the offending and the offender to determine the gravity of the offence;
(b)identify the direct and indirect consequences of a conviction on the offender for that offending; and
(c) consider whether those consequences are out of all proportion to the gravity of the offence.
[10] It is only once the Court is satisfied that the criterion provided in s 107 has been met, that is, the consequences would be out of all proportion to the gravity of the offending, that the Court may go on to consider whether it should exercise its residual discretion to grant discharge. However, it would be rare for the discretion not to be exercised in the applicant’s favour, if the Court is satisfied that the s 107 criterion has been met.4
[11] For that reason, the appeal is not treated as an appeal against a Judge’s
discretion.5 Rather, the appeal proceeds by way of the normal appellate principles
2 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8] – [12].
3 R v Hughes, above n 2, at [10]; Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].
4 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
5 H v R [2012] NZCA 198.
and the Court must reach its own independent assessment of whether the threshold in s 107 has been met.
Gravity of the offending
[12] I deal first with the offence itself. Mr Hore was convicted under s 43(1)(a) of the Arms Act 1983. The maximum penalty for that offence is three months’ imprisonment or a fine of up to $1,000. That level of penalty does suggest the offence falls at the lower end of the spectrum of firearms offences.
[13] Furthermore, in terms of the actual offending, I accept that the firearm was used in Mr Hore’s presence and was only used to take a few shots. There is no evidence that Mr Parker used the firearm in an unsafe manner and there has been no harm resulting from the commission of the offence itself.
[14] The fact that there was an injury to Mr Parker later in the day was not directly connected to the specific facts of the offending, although it does serve to illustrate the risks which are inherent in using firearms without taking all proper safety precautions. This is the very reason why people are required to be licensed, having first satisfied the police that they fully appreciate the risks, and the safety requirements, of using firearms.
[15] The aggravating features of the offence itself are relatively limited. They are the failure by Mr Hore to enquire as to Mr Parker’s licensing status, the fact the firearm was supplied to someone whose licence had been revoked (which means the person is not just without the requisite qualification, but is currently considered unsuitable to hold a firearms licence), and the fact the shotgun was actually used by Mr Parker.
[16] In terms of factors relating to the offender, I accept that, in mitigation, Mr Hore was co-operative with the police, was remorseful, and pleaded guilty at the earliest opportunity. Mr Robinson also raises the fact that Mr Hore and his family have suffered adverse consequences from the media interest in this case. It has attracted a degree of interest that someone of lesser profile would not have
experienced.6 Furthermore, some of the media reports conveyed the impression that Mr Hore’s offending was somehow directly linked to the injury Mr Parker suffered. That is, of course, not the case.
[17] However, in terms of aggravating factors, Mr Hore has previously been convicted of an offence on 27 July 2005 of taking a marine mammal without a permit under s 9 of the Marine Mammals Protection Act 1973. That incident involved Mr Hore and other associates firing from a boat at a group of fur seals, killing one adult male. Mr Hore’s part in that incident was to fire four shots with a shotgun at a fur seal. Mr Hore received police diversion for the firearms offence related to that incident, but on the breach of the Marine Mammals Protection Act, he was fined $2,500, ordered to pay costs, and to forfeit his firearm and his firearms licence for a period of two years.
[18] I have heard debate today about the significance of both the diversion for the firearms offending, and the marine mammal offence.
[19] Mr Robinson says, first, that I should not take the conviction into account as it was not raised at the first instance hearing. However, if I do, I should take account of the relatively low penalty imposed in that case, the time which had elapsed since it occurred, and Mr Hore’s remorse for that event.7
[20] Finally, he argued that I should disregard the fact Mr Hore had received diversion for the earlier firearms offence, as the fact that a person has previously accepted diversion is not evidence of guilt. In saying that he referred to the decision in Burns v Police where Salmon J noted:8
[14] In my view the fact of involvement in a diversion scheme cannot be said to be irrelevant, but before it is taken into account there would need to be considerable inquiry into the circumstances surrounding it. As Mr Haigh said, agreement to be involved in a diversion scheme is not an admission of guilt.
6 Mr Hore is a former All Blacks rugby player.
7 When the maximum penalty at the time was six months’ imprisonment or a fine not exceeding
$250,000.
8 Burns v Police HC Auckland A87/00, 28 July 2000.
[21] I was also directed to the current Police Adult Diversion Policy, dated March 2014, which states that diversion information is not to be provided to the Court in relation to sentencing decisions. The same policy also provides that the offender must “accept responsibility for the offence” but, of course, that is without prejudice to the offender’s ability to plead not guilty should diversion be declined, or the conditions of diversion are not completed, and the prosecution proceeds. However, I have no information as to the provisions of the policy at the time diversion was granted to Mr Hore in 2005 on the firearms related offence.
[22] Rather than focus on the current policy I simply accept that, in respect of the previous diversion, the position is as expressed by Salmon J. It means the fact of Mr Hore’s involvement in a diversion scheme on a firearms charge is not irrelevant, but it cannot be equated to an admission of guilt to that earlier offence. However, in this case the diversion on a firearms charge, and the marine mammals’ offence are clearly related and I am satisfied I can have regard to the summary of facts on which Mr Hore was convicted which did involve use of a firearm for an act which was an offence. This does, in my view, have a bearing on the gravity of the current offending, making it more significant. Mr Hore has been involved in offending of moderate seriousness, which involved a firearm, on an earlier occasion.
[23] Taking into account all these factors, I am of the view that the gravity of the current offending is low to moderate.
Direct and indirect consequences of a conviction
[24] The consequences of conviction relied on by Mr Hore largely relate to his ability to travel outside of the country, particularly in the next 12 months. Specifically, Mr Hore stated in his affidavit dated 17 August:
14.I am seeking a discharge without conviction on the basis of the impact it may have on my ability to travel to the United Kingdom and other countries, and what my solicitor has described as the “general” consequences of a conviction including the stigma of conviction.
…
17. My wife is British and we propose to have our two children (aged
2 years and 8 months) baptised at my wife’s church in the
United Kingdom in October. Our children are dual British and New Zealand citizens, and my wife’s family still [live] in the United Kingdom. We intend to travel there regularly as a family.
18.I still play some rugby overseas. My current commitments are: (a) World XV match against Japan on 15 August (in Japan);
(b) Playing for the Barbarians against Samoa on 29 August at Olympic Park Stadium, which will involve me flying to London on 24 August. That is the opening match at that venue;
(c) Playing for the Barbarians against Worcester on
5 September;
(d) Events associated with the Rugby World Cup including a
“Classic All Blacks” match against Toulon in France on
7 October; and
(e) Playing for the “Classic All Blacks” in the World Rugby Classic tournament in Bermuda from 8 to 14 November (travelling through the United States).
19. I have been invited to play for the Barbarians against Argentina on
21 November. That and my other UK commitments cannot now be confirmed until this case is resolved.
…
24.Beyond an inability to travel to the UK with family, I would be paid a match fee for every match [played]. In New Zealand dollars the Barbarians matches alone are worth about $21,500 to my family.
[25] In his further affidavit dated 8 September, the appellant further states:
2.Since swearing the affidavit, arrangements for me to be involved in hosting opportunities associated with the Rugby World Cup in England have been firmed up. It is proposed that I be involved in pre match shows to be screened at World Cup venues.
[26] Mr Hore’s first affidavit also attaches extracts from the UK home office immigration rules. These provide that a ground on which “entry clearance or leave to enter the United Kingdom should normally be refused” include where “within the
12 months prior to the date of which the application is decided, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of Court disposal that is recorded in their criminal record”. The decision to decline entry is, of course, discretionary and the guidance contained in the rules
for the application of those rules cautions that before refusing an application for entry, the officer “must take into account any human rights grounds and make sure that your refusal is both proportionate and reasonable”.9
[27] Taking these rules and guidance at face value, I accept that there are consequences that will likely be experienced by Mr Hore if he is not discharged. The Court does not need to be satisfied that the consequences would inevitably or probably occur, rather, it is sufficient that there is a real and appreciable risk that the consequence would occur.10
[28] The greatest consequence appears to be that Mr Hore may not be able to travel to the United Kingdom within the next 12 months if the conviction remains. If this occurs then it may be that Mr Hore cannot take up the remaining opportunities to participate in activities related to the Rugby World Cup.11 I also accept this may prevent him from earning some additional income (although the evidence was unclear as to what net income would be available to Mr Hore after travel and other
associated costs of going to the United Kingdom).
[29] However, although there would be consequences if Mr Hore could not travel to the United Kingdom in the next 12 months, the opportunities that he would be prevented from taking up no longer constitute his primary livelihood. His primary income is derived from farming his property, and this is not a case like many of the cases I was directed to, where there was a real risk to the applicant’s career and primary income source if a discharge was not granted.
[30] I also accept that Mr Hore’s wife is from the United Kingdom and she has family ties there. Mr Hore is concerned that he would be prevented from partaking in family events in the United Kingdom, at least in the next 12 months. Again, that may be so, and I accept that it is a potential consequence of the conviction
remaining.
9 General grounds for refusal s 2 – version 22.0 page 58.
10 Alshamsi v Police HC Auckland CRI-2007-404-000062, 15 June 2007.
11 Some of the opportunities given in his affidavit pre-date this hearing and it is unclear whether he undertook them or not.
[31] In terms of whether Mr Hore would be prevented from travelling to the United Kingdom after the initial 12 month period, I note there was no suggestion that he has had any difficulty in the past, even with his 2005 conviction. Furthermore, the chances of difficulties continuing beyond 12 months seem remote in light of the United Kingdom’s policy. Mr Hore received a non-custodial sentence and he was only fined $400. The immigration rules only provide that a person should normally be denied entry if they have received a non-custodial sentence within the last
12 months. With Mr Hore’s background and familial attachments to the United Kingdom, I am not persuaded that continued denial of entry after a 12 month period is a real or appreciable risk.
[32] Finally, Mr Hore also raised the “general consequences” of having a conviction, including the stigma of conviction, the loss of self-esteem and pride, and the fact that a conviction is a serious blot on anyone’s prospects.
[33] The strength of these submissions waned somewhat in light of the belated revelation that Mr Hore already had the conviction for the shooting of a fur seal. Once the fact of that conviction came to light, it put in doubt whether some of the alleged consequences asserted by Mr Hore would be as significant as was suggested. It was not explained why a further conviction was going to create material “general consequences” of the type described when he already had this conviction. I therefore do not accept that other significant general consequences will flow if the conviction stands.
[34] However, to recap, I accept that there is a real and appreciable risk that
Mr Hore will be denied the opportunity to travel to the United Kingdom in the next
12 months, and if that is the case, he will miss out on the opportunity to earn additional income through speaking and playing opportunities associated with the Rugby World Cup. There will also be a greater impediment to overseas travel with an Arms Act conviction. Those consequences must be weighed against the gravity of the offending to determine whether they would be out of all proportion.
[35] Counsel for Mr Hore relied on Thompson v Police, where the consequences of an Arms Act conviction were held to be out of all proportion to the gravity of the
offending because of the likely barriers it would place on the offender’s ability to
travel.12
[36] However, each case must be determined strictly on its facts. In this case, in balancing the consequences of conviction with the gravity of the offending, I conclude that, while the consequences are perhaps greater for Mr Hore than for some persons, they cannot be said to be “out of all proportion”. This is not a case where Mr Hore’s livelihood is at stake, or where his ability to travel for family reasons are likely to be permanently affected. Ironically, because the offence is at the lower end of the spectrum and attracted only a modest penalty, the evidence suggests it is unlikely to prove a lasting barrier to travel to the country which is of most significance to Mr Hore’s family, being the United Kingdom.
[37] This must be balanced against the fact that the offending did show a disregard for firearms rules and was not the first time that Mr Hore had been involved in offending that involved a firearm, and where he was also granted diversion on the charge of discharging a firearm in a public place. Thus, while there will be adverse effects on Mr Hore which are greater than for other offenders, I am unable to reach the conclusion that those consequences reach the threshold of being out of all proportion to the gravity of the offending.
[38] The appeal is therefore dismissed.
Solicitors:
Gallaway Cook Allan, Dunedin
RPB Law, Dunedin
12 Thompson v Police [2013] NZHC 1369.
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