Martel v Police HC Hamilton CIV 2010-419-69

[2010] NZHC 1840

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-69

BETWEEN  RODNEY GEORGE MARTEL Appellant

ANDPOLICE Respondent

Hearing:         4 October 2010

Appearances: K Burroughs for Appellant

P V Cornege for Respondent

Judgment:      4 October 2010

JUDGMENT OF COOPER J

Solicitors:

K Burroughs, PO Box 19307, Hamilton

Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244

MARTEL V POLICE HC HAM CIV-2010-419-69  4 October 2010

[1]      This is an appeal against  a sentence of one year eight months’ imprisonment imposed by Judge Everitt in the Hamilton District Court on a charge laid under s 45 of  the  Arms  Act  1983.    The  appellant  contends  that  the  sentence  was  clearly excessive and in particular advances the argument that having arrived at a sentence of one year and eight months the Judge’s consideration of the possibility of home detention was flawed.

[2]      On 11 December 2009 the police executed search warrants at a number of apartments at 185 Victoria Street, Hamilton.  One of the apartments where a warrant was executed was occupied by the appellant.

[3]      During  the  search  the  police  went  onto  the  balcony  of  the  appellant’s apartment  and  discovered  a  silver  screw  which  had  been  wedged  between  the building and the wall of the adjacent building.  There was a nylon wire attached to the string and then a length of electrical wire. When the police pulled on the length of nylon and electrical wire they observed that there was a bag attached to it.  The bag was hidden in a gap between the two buildings which was some 30 centimetres wide.  On lifting up the bag to the balcony the police found that it contained a pump- action 12 gauge shotgun, a Remington .223 calibre scope rifle and a Marlin 30/30 calibre lever-action rifle.  The shotgun was loaded with four rounds in its magazine tube.  An empty magazine was fitted to the Remington.  A magazine fitted to the Marlin rifle contained four rounds of ammunition.

[4]      The Judge recorded that the shotgun’s butt had been sawn down, leaving a pistol-grip shaped section with which to hold and fire the weapon.  While it could not be fired during testing the problem was simply that it needed a replacement spring.   The Judge noted that replacing the spring would have been a simple and straightforward operation.   As to the rifle, its barrel had been sawn down and its wooden stock refashioned into a pistol grip.

[5]      In addition, the police found two boxes of 20 x .223 rounds, 4 loose 30/30 rounds, 25 shotgun shells, a shotgun shell belt containing seven shotgun shells, a red plastic case containing one shotgun shell and 18 x .22 calibre rounds, three boxes of

.22 calibre rounds containing respectively 100, 92 and 50 rounds, and a 30/30 calibre bullet.

[6]      One  charge  was  proffered  against  the  appellant  alleging  that  he  was  in possession of a firearm except for some lawful, proper and sufficient purposes in breach of s 45(1) of the Arms Act 1983.  However, all three weapons were referred to in the information.   The charge was one that, under the Arms Act, carried a maximum potential penalty of four years’ imprisonment or a fine not exceeding

$5,000, or both.

[7]      The appellant pleaded guilty.   The explanation that he put forward at the sentencing was that he was storing the bag in which the weapons were found without being aware of its contents.  It was suggested that associates had asked him to do this and that he had not wished to risk the consequences of turning them down.   The Judge rejected these contentions in robust terms, at paragraphs [5] to [7] where he said:

[5]       In  my  assessment  of  that  summary  the  facts  disclosed,  that Mr Martel went to extreme lengths to hide the firearms and the way that the wires were connected to the screw between the buildings in the bag, all indicates to me that Mr Martel knew what he was doing.  He has come up with an excuse which he did not mention to the police at the time, but he has thought about subsequently, and that is that he was in some way imposed upon and he was carrying out a stupid action for other people.  He said he had no idea of the contents of the bag except that he accepted responsibility for allowing it to be secured by a rope to his balcony,

[6]       He explained he has lived in Victoria Street with a group of men, shared a unit through a common wall.  He said that they worked in the field of security.  They were rather macho in their manner, did body-building in their unit, and he was slightly intimidated by them.  Therefore when he was asked if he could hide something in the narrow alleyway beside his unit he did not want to refuse them.  He admitted that he suspected something dodgy was happening but did not want to know.  He turned a blind eye and told himself he was not involved.  He asserted he had no idea what was in the bag but reflected that he had been very naïve, made some stupid choices.   He said he wanted nothing to do with firearms as they hurt people.

[7]       The inferences that can be drawn from the summary of facts are adverse to Mr Martel’s explanation.  There was no need for him to become

involved at all in any storage of any firearms and the situation is that he willingly did so.  …

[8]      In calculating the sentence of one year eight months, the Judge took a starting point for sentencing purposes of two and a half years’ imprisonment.  In arriving at that starting point he appears to have been influenced, in part, by the modifications that had been carried out to two of the weapons, and by various decisions of the Court of Appeal and of this Court to which he made extensive reference in his decision and in which  the Higher Courts have emphasised the seriousness with which this kind of offending is viewed.  The relevant discussion of his conclusins is at paragraphs [23] to [24] of the judgment which I quote:

[23]     Looking at Mar Martel’s explanation, personal circumstances, Mr Burroughs has drawn to my attention that Mr Martel is somewhat naïve. Indeed, one could say that, but one could also say that he is cunning and that he has attempted to put the blame on someone else, other people, these macho men, which I have rejected as being highly implausible.   It is a question, in my view, of fixing a starting point for this offence.  I take a very serious view of people who possess weapons of this nature which have been modified.  Pistol grips, barrel has been shortened in the case of a rifle, and the stock shortened in the case of the shotgun.  They are weapons designed to  be  used  illegally,  not  legally,  and  possession  of  those  weapons  by inference indicates that Mr Martel had some intention of using them illegally if the opportunity arose and that is the possession that he is charged with, not the use, but that is a matter that cannot be overlooked.  The fact that he went to such extraordinary and cunning lengths to conceal these weapons in the way he did, indicates to me that they were stored for the purposes of being used when the occasion arose.

[24]      I believe a starting point of two and a half years is appropriate for the serious nature and level of this offending.   If firearms came into the wrong hands, Mr Martel and his associates, any number of people could be severely injured, wounded, banks robbed and the like, drug deals carried out with threats, violence, firearms.   That I acknowledge is a severe starting point but in my view is appropriate from the point of view of the circumstances of the offending.

[9]      The Judge allowed a full discount for the guilty plea which took him back from the starting point to an end sentence of one year and eight months.  He then turned his mind to the possibility of a sentence of home detention.

[10]     In broad terms, having considered a sentence of home detention it appears that the Judge was of the view that a sentence of imprisonment was needed  in order to sufficiently denounce the appellant’s conduct and deter the possession of illegal firearms.

[11]     At paragraph [26] of the decision he observed:

… I have considered the situation of home detention, this being a short sentence of imprisonment.   In my view the sentence of home detention, whilst it does have a deterrent aspect, simply in this case a more severe sentence is  required to denounce and deter the  possession of  dangerous illegal firearms and I note there is no presumption in favour of home detention.  I have considered it, and it is not appropriate.

[12]     Mr Burroughs has advanced the appeal on the basis that the consideration of home detention was inadequate.

[13]     Mr Burroughs referred me to the decision of the Court of Appeal in R v

Iosefa[1].  In that case the Court of Appeal said at paragraphs [41] and [42]:

[1] R v Iosefa [2008] NZCA 453.

[41]      The sentence of home detention introduced by the 2007 amendment indeed provides a real alternative to imprisonment.   It carries with it in considerable measure, the principles of deterrence and denunciation.   It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.  In cases of more serious offending which justify a sentence greater than two years, the sentence of home detention will not be available and in such cases in accordance with the hierarchy of sentencing in s 10(A) a sentence of imprisonment usually will be required to reflect the purposes of denunciation and deterrence.

[42]     We consider the Judge was wrong to determine that a sentence of home detention would not appropriately reflect the purposes of denunciation and deterrence in this case.  While he considered, and rejected, a sentence of home detention, he did not sufficiently analyse the place of the sentence of home detention under the new regime.   In relying on authorities decided under the former regime, he failed to take into account that the sentences there imposed consistently resulted in the sentence being served by way of home detention.

[14]     Mr Burroughs pointed to the fact that the appellant has no convictions since

1998 and that there is nothing similar to this in his record.  He submits that, having regard to those considerations and the early guilty plea, as well as a degree of remorse  the  Judge  should  have  recognised  that  home  detention  would  be  a sufficiently severe sentence in this case.  As the Court of Appeal said in R v Iosefa denunciation and deterrence are purposes that can be served by a sentence of home detention.  He further submitted that the cases to which the Judge had referred and

on which Mr Cornege has relied, were all cases decided before the passage of the Sentencing Amendment Act 2007 which afforded to sentencing courts the opportunity of imposing a sentence of home detention.

[15]     It is clear in this case that the Judge did turn his mind to the possibility of imposing a sentence of home detention.  Implicitly, however, he considered that the relevant  purposes  of  denunciation  and  deterrence  could  not  be  achieved  by  a sentence other than imprisonment.   In part he is no doubt influenced by the seriousness with which the Court of Appeal has in the past described offending of this nature.  In R v Richardson[2] at [33] the Court of Appeal said:

[2] R v Richardson CA450/02, 25 March 2003.

Loaded firearms are anathema within our community.   Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s  condemnation  of  their  availability  because  of  the  potential  for danger from their possession.

[16]     And in R v Corner[3] the Court of Appeal observed at page 7:

[3] R v Corner CA291/87 and CA329/87, 17 March 1988

The possession and use of such weapons is utterly unacceptable and must be discouraged  by  the  Courts.    In  the  absence  of  special  circumstances,  it should be appreciated that possession of such weapons will normally lead to the imposition of a prison sentence and the more so if there is evidence to suggest  that  their  use  might  have  been  contemplated  in  a  criminal connection.

[17]     There was in fact, no direct evidence that the use of the weapons in the present case might have been contemplated in a criminal connection, but the Judge was clearly sceptical of, and rejected the innocent explanation put forward by the appellant.  The fact that the weapons had been modified was another matter which the Judge was entitled to take into account in considering the seriousness of the offending.

[18] Whilst it is correct, as Mr Burroughs points out, that the various cases on which Judge Everitt relied, and to which I have been referred in Mr Cornege’s submissions were cases which pre-dated the Sentencing Amendment Act 2007, I do not regard the Court of Appeal’s decision in R v Isoefa as being to the effect that in every case  where, as  a result of a  conventional sentencing approach,  the Court

arrives at a sentence which is one which requires a sentence of home detention to be considered, that such a sentence must be the inevitable outcome.  While a sentence of home detention does have a deterrent effect, that is not to say that its deterrent effect should be regarded as sufficient in the case of every short term sentence.  That would be contrary to what the Statute itself provides.

[19]     Section 16(2) of the Sentencing Act provides that a Court must not impose a sentence of imprisonment unless it is satisfied that the sentence is being imposed for the purposes listed in s 7(1)(a) to (c), (e), (f) or (g) of the Sentencing Act.   That includes the purposes of holding the offender accountable for harm done, promoting a sense of responsibility for and an acknowledgement of harm, providing for the interests of victims, denouncing the conduct in which the offender was involved, deterring the offender or others from committing the same or similar offences and protecting the community from the offender.   The objectives of denunciation and deterrence are important here.

[20]     Section 16(2)(b) then provides that a sentence of imprisonment must not be imposed unless the Court is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act to the particular case.

[21]     This is not a statutory provision which provides that a sentence of home detention must be regarded as being a sufficient denunciation or deterrence in every case where a sentence of home detention is available.  That, I think, is the ultimate reach of the submission that Mr Burroughs has advanced here and I reject it.

[22]     In making the observations which he did at paragraph [26] and which I have earlier quoted, it seems to me that the Judge in a legitimate way was indicating that, in the circumstances  of this case,  he did not  consider that  a sentence of home detention would sufficiently denounce or deter.  As I see the facts of this case, that was a position which was open to him.

[23]     I can see no error in his approach and consequently the appeal is dismissed.