Newton v The Queen

[2021] NZHC 3370

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000041

[2021] NZHC 3370

BETWEEN

NICHOLAS JAMES NEWTON

Appellant

AND

THE QUEEN

Respondent

Hearing:	7 December 2021
Appearances:	S A Saunderson-Warner for Appellant C J Bernhardt for Respondent
Judgment:	9 December 2021

JUDGMENT OF EATON J

This judgment was delivered by me on  at           pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NEWTON v R [2021] NZHC 3370 [9 December 2021]

Introduction

[1]    The appellant, Nicholas Newton, was sentenced by Judge Turner to three years and one months’ imprisonment on charges of aggravated robbery,1 possession of a firearm,2 and unlawfully getting into a motor vehicle.3 He appeals against that sentence on the ground it was manifestly excessive.

Background

[2]    At around 9.45 pm on 23 March 2020, Mr Newton and his two co-offenders were in a stolen vehicle. They drove to a Z petrol station and parked directly outside the automatic doors. At the time, there was a sole attendant working inside the store.

[3]    Mr Newton was heavily disguised with his hood up, sunglasses and gloves on. He entered the service station while his co-offender, who was also heavily disguised, positioned himself between the automatic doors to prevent them from closing. The third co-offender remained in the vehicle.

[4]    As he entered the service station, Mr Newton was holding a sawn-off shotgun. He approached the counter and raised the firearm, pointing it at the attendant as he told him to put cash and tobacco into a bag provided.

[5]    Mr Newton and his co-offenders fled the shop with approximately $200 cash and 17-20 pouches of tobacco. This offending resulted in the charges of aggravated burglary and unlawfully getting into a motor vehicle.

[6]    At around 10.30 pm on 2 April 2020, Mr Newton was dropped on the street at the entrance to the Dunedin public hospital by his co-offenders who were driving a stolen vehicle. Mr Newton had a shotgun wound to his chest area. He told hospital staff he had been getting the shotgun out of the boot of a car when the gun had gone off, injuring him.

1      Crimes Act 1961, s 235; maximum penalty 14 years’ imprisonment.

2      Arms Act 1983, s 51; maximum penalty three years’ imprisonment.

3      Crimes Act, s 226; maximum penalty two years’ imprisonment.

[7]    Mr Newton’s co-offenders fled the hospital at speed, driving through a red traffic light. The vehicle collided with a large passenger bus as it was travelling through the intersection causing extensive damage to both vehicles.

[8]    The offenders fled with the loaded sawn-off shotgun. It was thrown onto the roof of a nearby building, where it was later recovered by police. Mr Newton was charged with unlawful possession of a firearm.

District Court decision

[9]    The District Court Judge adopted a starting point of five years’ imprisonment on the charges of aggravated robbery and unlawfully getting into a motor vehicle,4 referring to the guideline decision of R v Mako.5 The same starting point had been adopted for a co-offender. The aggravating factors of the offending were the degree of planning, the use of a stolen vehicle, the number of participants and the use of a firearm.

[10]   In relation to the firearm charge, the Crown submitted an uplift could be as low as nine months’ imprisonment. Defence counsel submitted an uplift of six months’ was appropriate on a totality basis, referring to R v Kane.6 The Judge found that case could be distinguished on the basis that there was an absence of evidence that Mr Kane had the weapon for a criminal purpose.

[11]   The Judge had applied an uplift of 18 months for Mr Newton’s co-defendants in relation to the firearms charge and a charge of unlawfully getting into a motor vehicle. Mr Newton did not face the additional motor vehicle charge.

[12]   The Judge settled on an uplift of 14 months’ imprisonment. This resulted in an adjusted starting point of six years and two months’ imprisonment (74 months).

[13]   The Judge then considered an uplift to reflect Mr Newton’s criminal history and the fact the offending was committed while he was on parole. Mr Newton was

4      The reference to a five year starting point for the charge of unlawfully getting into a motor vehicle was a slip. The end sentence on that charge was six months’ imprisonment.

5      R v Newton [2021] NZDC 18427, referring to R v Mako [2000] 2 NZLR 170.

6      R v Kane [2017] NZHC 340.

subject to a second-strike warning. He will be required to serve the entirety of the sentence on the charge of aggravated robbery.7 The Judge was cognisant of the tension between the loss of parole as a result of the second-strike provisions and the need to impose an uplift to recognise Mr Newton’s personal aggravating factors.8 But for the strike provisions, the Judge considered that uplift would have been in excess of nine months. An uplift of three months was applied.

[14]   In relation to mitigating factors, the Judge applied what he considered to be a generous credit of 25 per cent credit for guilty pleas. A 14 per cent credit was applied to reflect time spent in custody on recall. A further discount of 15 per cent was applied to reflect the matters contained in a psychological report akin to a s 27 Sentencing Act 2002 cultural report.9

[15]   The Judge declined to give a distinct credit to recognise a willingness to embrace restorative justice. The Crown had acknowledged the five per cent reduction given to the co-defendants might be applied to Mr Newton. The Judge disagreed having regard to what was described as the generous credit for the guilty pleas and the need to avoid excessive discounts.

[16]   This resulted in a total discount of 54 percent.10 The end sentence was three years and one-month’s imprisonment.

Principles on appeal

[17]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.11

7      Parole Act 2002, s 86C.

8      His Honour referred to Wipa v R [2018] NZCA 219, where the Court provided a small uplift was justified in similar circumstances.

9      The Judge noted this was the same discount given to the co-defendants.

10 The net discount is 50 per cent and reflects the uplift for personal aggravating factors and the discount for mitigating factors. The Judge expressed the uplift in months, however converting this to a percentage in the conventional manner achieves the same result.

11 Criminal Procedure Act 2011, ss 250(2) and 250(3).

[18]   As the Court of Appeal said in Tutakangahau v R referring to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.12 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.13

Submissions

Appellant’s submissions

[19]   The sole challenge on appeal raised by Ms Saunderson-Warner on behalf of Mr Newton is to the uplift of 14 months’ imprisonment for the charge of unlawful possession of a firearm.

[20]   It is submitted the 14 months uplift was excessive by some considerable margin and that an uplift of no more than six months was appropriate.

[21]   Ms Saunderson-Warner submits the Judge erred in treating the connection between the sawn-off shotgun and the aggravated robbery as an aggravating factor of the firearm offence. In her submission, that aggravating factor was already reflected in the starting point for the lead offending. If the shotgun had been located at the time of  the  aggravated  robbery,  it  is  submitted  a  concurrent  sentence  was  likely.  Ms Saunderson-Warner accepts that a cumulative sentence is warranted as the firearm was not located for around 10 days after that offending which indicated ongoing possession. However, she submits the totality principle requires the uplift to be moderate.

[22]   It is submitted the credits allowed by the Judge were orthodox rather than generous and that a credit might reasonably have been allowed to reflect Mr Newton’s willingness to embrace restorative justice.

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

13     Ripia v R [2011] NZCA 101 at [15].

[23]   Ms Saunderson-Warner stresses that Mr Newton is a second strike offender and will be required to serve the full term of any sentence. Consequently, any adjustments made to the end sentence are magnified in effect.

[24]   Ms Saunderson-Warner submits the appropriate adjusted starting point is no more than 69 months’ imprisonment. Applying the same calculations for personal aggravating and mitigating factors, she argues for an end sentence of two years and eight months’ imprisonment (32 months).

Respondent’s submissions

[25]   Mr Bernhardt, for the respondent, submits the uplift for the firearm charge was within the range available to the Judge. He accepts the uplift could have been as low as nine months but submits that, even if the uplift was too high, the generous discounts given for personal mitigating factors meant the end sentence was not manifestly excessive.

[26]Mr Bernhardt referred to a number of cases supporting the uplift of 14 months.

Analysis

[27]   Appropriately, Mr Newton does not challenge the starting point of five years’ imprisonment for the lead charge of aggravated robbery. In my view, that starting point was well within range.

[28]   The sole issue on appeal is whether the uplift of 14 months’ imprisonment for the charge of unlawful possession of a firearm was outside the available range and resulted in a manifestly excessive end sentence.

The Uplift

[29]   In R v Richardson the Court of Appeal upheld a sentence of 18 months’ imprisonment for two charges of unlawful possession of a firearm.14 The Court noted:

14     R v Richardson CA 450/02, 25 March 2003.

[33] 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.

[30]   Ms Saunderson-Warner relies on the recent Court of Appeal decision in Harris v R.15 There, the lead offending was methamphetamine drug related offending. The Court did not disturb the uplift of six months’ imprisonment for a charge of unlawful possession of a pistol. The Court referred to its earlier decisions of Mills v R, where it indicated uplifts of between 12 to 18 months’ imprisonment were appropriate for firearms offending associated with drug dealing but noted that the appropriate uplift will depend on the circumstances and that a number of cases have involved uplifts of six months.16

[31]The respondent refers, inter alia, to the following cases:

(a)In Joyce v R an uplift of 18 months’ imprisonment was upheld on appeal to reflect two charges of unlawful possession of an airgun and one charge of unlawful possession of a sawn-off shotgun.17 The lead offending was possession of methamphetamine for supply.

(b)In R v Latimer the defendant was sentenced in respect of lower-level methamphetamine offending and possession of two shotguns, together with ammunition.18 The two shotguns were unloaded and under the bed. Cartridges of ammunition were close at hand. The Judge did not find there to be any association between the drug and firearm offending and adopted a global starting point of 16 months’ imprisonment for the offending.

(c)In Herewini v Police this Court upheld a starting point of two years and six months’ imprisonment for a charge of possession of a sawn-off

15     Harris v R [2021] NZCA 143 and the cases referred to therein: Tuuta v R [2019] NZHC 2799 and

R v Smith [2018] NZHC 2188.

16     At [22], citing Mills v R [2016] NZCA 245 at [18].

17     Joyce v R [2020] NZCA 124.

18     R v Latimer [2015] NZHC 1278.

shotgun that was loaded and found in a readily accessible location in a car.19 Moore J said:20

… the fact that the weapon was a sawn-off shotgun makes the offending more serious than if the weapon had been unmodified. Apart from the inherently dangerous features of a sawn-off shotgun the fact of its modified state infers it is to be used for a criminal purpose.

(d)In Rowell v Police, a starting point of 18 months’ imprisonment was adopted for possession of a pistol, firearms parts and ammunition.21 The items were discovered following a police search of the house relating to a domestic dispute call-out.

[32]   The cases illustrate that the Courts consider the combination of drug offending (in particular methamphetamine) and firearms to be a volatile combination that warrants a stern sentencing response. Mr Newton’s offending did not involve drug related offences but I do not think that, of itself, necessarily assists Mr Newton.

[33]Ultimately, each case turns on its own circumstances.

[34]   Here, a critical aggravating factor is the firearm was loaded. As observed by Moore J, a sawn-off shotgun is inherently more dangerous in its modified state. I agree with the District Court Judge there is no reasonable explanation for Mr Newton to be in possession of a sawn-off shotgun, other than for a criminal purpose. There is an irresistible inference the same firearm Mr Newton shot himself with was used for the aggravated robbery some 10 days earlier. This gives insight as to the criminal purpose.

[35]   In R v Kane there was an absence of any connection between the firearm and other offending, and an absence of evidence that the weapon was for a criminal purpose.22 There, the starting point was 12 months’ imprisonment. The defendant was

19     Herewini v Police [2014] NZHC 2396.

20     Above n 19, at [27].

21     Rowell v Police [2019] NZHC 471.

22 At [26]. R v Kane [2017] NZHC 340. Mr Kane had been acquitted of “many charges of violence and dishonesty”.

a gang member who was found in possession of the shotgun with ammunition.23 I agree with the District Court Judge that case can be distinguished, albeit on slightly different grounds. There, the defendant was for sentence on a sole charge, whereas, here, the charge arises in the context of aggravated burglary and an uplift to that sentence was applied.

[36]   Ms Saunderson-Warner acknowledges the fact the firearm was not located for approximately 10 days indicated possession for a further period beyond the aggravated robbery. She accepts a cumulative sentence is warranted but suggests the totality principle requires some acknowledgement of the connection between the aggravated robbery and firearms charge. I agree.

[37]   The Judge recognised that “the sawn-off shotgun was plainly connected to the earlier offending”,24 but did not consider the extent to which that connection impacted on the principle of totality. I have had the advantage of more focussed argument on the connection between the offences.

[38]   There is no dispute that connection is strong. It is accepted the sawn-off shotgun, the subject of the firearms charge, was the weapon used ten days earlier in the aggravated robbery. An essential aggravating factor of the aggravated robbery offence was the possession of the firearm. I agree with Ms Saunderson-Warner that a concurrent sentence might have been imposed had Mr Newton been arrested on the night of the aggravated robbery. But what of possession ten days later?

[39]   There can be no question that an established connection with prior offending might well permit the sentencing Court to draw an inference as to the criminal purpose of possessing a firearm but, as Mr Bernhardt responsibly acknowledges, once a connection is established, caution must be exercised to avoid double counting and to recognise the totality of offending.

[40]   In my view, it is appropriate that the uplift should reflect that the use of a firearm is a significant aggravating factor in the lead offending, as reflected in the

23 At [3].

24     R v Newton at [26], above n 5.

charge of aggravated robbery. The same weapon was in Mr Newton’s possession ten days later. There is a very strong connection between the two offences. I find that the uplift of 14 months’ imprisonment does not reflect that connection. I assess the appropriate uplift to be one of nine months’ imprisonment.

Manifestly Excessive?

[41]   Recently, in Wira v R the Court of Appeal reiterated it “is the end sentence, and not the components of the sentence nor the methodology by which it was fixed, that is relevant on appeal.”25

[42]   The Crown, whilst acknowledging a lesser uplift was available says the credits given were generous and so the end sentence is within range.

[43]   Not guilty pleas were entered on 4 May 2020. Guilty pleas were entered on 17 February 2021 shortly after the Crown elected not to proceed on a charge of aggravated burglary. At sentencing the Crown acknowledged that a 25 per cent credit was appropriate. In my view that credit was appropriate. I do not regard that credit as being so generous as to override what I have found to be an excessive uplift. The credit to recognise Mr Newton’s recall was an orthodox application of the principles summarised by Hinton J in Fane v R.26

[44]   The Judge could have applied a credit to recognise a willingness to participate in restorative justice. Five percent, equating to approximately four months, had been applied to the co-defendants.

[45]    I am also conscious that Mr Newton suffered a serious injury when he accidentally shot himself in the chest as he handled the firearm. Ms Saunderson- Warner responsibly directed my attention to R v Mako27 where the Court of Appeal disagreed with the sentencing Judge that the sentence should be reduced because the offender was shot and injured by police in the course of the arrest. In the aftermath of an armed robbery, Mako challenged the police and was called on to drop his shotgun.

25     Wira v R [2021] NZCA 98 at [42].

26     Fane v R [2019] NZHC 408.

27     R v Mako, above n 5.

He did not do so and was shot by one of the officers sustaining a bullet wound to his buttock. He was arrested on the spot. The Court of Appeal said28:

This he brought upon himself by his own conduct right at the end of the events of the evening. It was an inevitable result of his seeming to be about to shoot at a policeman. We do not see that it qualifies to mitigate the criminality of all that went before. Indeed the impact upon the police officer required to fire in the course of duty is not to be overlooked.

[46]   The circumstances in Mako differ  significantly  from  those  in  this  case.  Mr Newton shot himself in the chest whilst moving the shotgun. It was not in the course of a confrontation. I am told he was hospitalised for three days and underwent surgery. I have read his letters both to his victims and to the sentencing Judge. Summarised, he describes the events of 2 April 2020 as life changing. He says:

I was disgusted in myself, about to die and the only thing I’m leaving behind is a path of destruction and negativity. I’d just come to the realisation that I’ve done nothing positive in my life to be remembered by. I believe that I survived for a reason. I am now utterly dedicated to my goal.

[47]    I am willing to accept Mr Newton has been significantly affected as a consequence of the accidental shooting and will use it as a catalyst for change. There can be little doubt that such an event will act as a personal deterrent. In my view, his injury and the associated trauma is appropriately factored into the sentencing process.

[48]   Mr Bernhardt reminds me the starting point on the aggravated robbery for the co-defendants was five years and, for the firearm (and unlawfully getting into a motor vehicle) was 18 months’ imprisonment. I agree the principle of consistency is important. However, I do think it was open to the Judge to find the co-offenders were more culpable. Not only were they facing additional charges, they decamped from the stolen vehicle with the loaded firearm in hand as they sought to avoid the police. That firearm had very recently discharged accidentally causing a serious injury. They discarded the firearm whilst on the run. They presented a grave risk to the police and the wider public.

[49]   Finally, I am conscious that Mr Newton is a second-strike offender. He must be sentenced in accordance with the law as it stands, notwithstanding the proposed

28 Above n 5, at [19].

repeal of the three strikes law. The practical consequences of a second-strike offence are very real. Mr Newton must serve the full sentence imposed. What might be described as smaller adjustments to a sentence are magnified in real consequences.

Disposition

[50]   In my view the uplift of 14 months for the firearms offence has led to a sentence that was manifestly excessive.

[51]   The appeal is allowed. The sentence of three years, one-month’s imprisonment on the aggravated robbery charge is quashed and a sentence of two years, nine months’ imprisonment is substituted.

[52]   The sentence of one year and two months’ imprisonment on the charge of unlawful possession of the shotgun is quashed and a sentence of nine months’ imprisonment is substituted.

[53]The other sentences imposed in the District Court are confirmed.

...................................................

Eaton J

Solicitors:

Sarah Saunderson-Warner, Barrister, Dunedin RPB Law, Christchurch