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Perez v R

Perez v R

Case [2015] NZCA 267 24 June 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA725/2014
[2015] NZCA 267

BETWEEN	FRANK PEREZ Appellant
AND	THE QUEEN Respondent

Hearing:	15 June 2015
Court:	Stevens, Andrews and Gilbert JJ
Counsel:	A G Speed for Appellant J E Mildenhall for Respondent
Judgment:	24 June 2015 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

Following a jury trial in the Auckland District Court, Mr Perez was convicted of a charge of unlawful possession of a military style semi-automatic (MSSA) firearm.[1] He was sentenced by Judge Ronayne to nine months’ imprisonment to be served cumulatively on a sentence of four years and three months the appellant was serving for associated drug offending.[2] The Judge ordered forfeiture of the MSSA firearm (the Bushmaster).[3]
[1]Arms Act 1983, s 50(1)(c).
[2]R v Perez DC Auckland CRI-2012-092-7791, 26 November 2014 [Sentencing decision].
[3]Arms Act, s 69.
Mr Perez appeals his conviction on two grounds. First, that the verdict was unreasonable and against the weight of evidence. Second, the question trail given to the jury contained errors and was confusing.
The sentence appeal is advanced on the grounds that the Judge made factual findings which were not supported by the evidence; the sentence of nine months’ imprisonment was manifestly excessive; a cumulative sentence was unwarranted; and forfeiture of the Bushmaster was an unduly harsh additional penalty.

Background

Mr Perez is a commercial drug dealer.[4] In August 2011 Mr Perez had applied for a standard Category A firearms licence which was granted after he had undertaken the required Police training course. This course includes instruction on the different categories of licence and different categories of firearms. Mr Perez bought the Bushmaster firearm from a licensed dealer on 29 August 2011.
[4]He has previously been convicted for a number of different drug-related offences, including possession and supply of Class A, B and C drugs. He was sentenced for this offending in May 2014.
In June 2012 the police executed a search warrant at his residence. The Bushmaster was found in a safe in Mr Perez’s bedroom. It had two features which brought it within the definition of an MSSA firearm under the Arms Act 1983. First, it had a flash suppressor attached to the end of the muzzle. Second, the magazine found with the firearm was capable of holding more than seven rounds of 6.8 mm ammunition.
There is no dispute a Category A licence does not authorise the holder to possess or use a MSSA firearm: a Category E endorsement to the licence is required to hold such a weapon. An important issue at trial concerned Mr Perez’s knowledge of what an MSSA firearm was. In his evidence Mr Perez acknowledged he knew he was not permitted to possess a MSSA firearm on his Category A licence.
Mr Perez was found guilty by a majority of unlawful possession of a MSSA firearm.[5]

Sentencing decision

[5]Mr Perez was acquitted on another…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perez v R

Details

AGLC: Perez v R [2015] NZCA 267
Case: [2015] NZCA 267
Decision Date: 24 June 2015 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Frank Perez, challenged both his conviction and sentence on appeal. Perez had been found guilty by a jury of unlawful possession of a military style semi-automatic firearm under the Arms Act 1983. He was sentenced to nine months imprisonment to be served cumulatively on a sentence of four years and three months the appellant was serving for associated drug offending. Perez appealed his conviction on two grounds: that the verdict was unreasonable and against the weight of evidence, and that the question trail given to the jury contained errors and was confusing. Perez also appealed his sentence on the grounds that the Judge made factual findings which were not supported by the evidence, that the sentence of nine months imprisonment was manifestly excessive, that a cumulative sentence was unwarranted, and that forfeiture of the firearm was an unduly harsh additional penalty.

The Court dismissed the conviction appeal. The Court found that the jury were entitled to prefer the evidence of the Crown expert that the primary function of the attachment was as a flash suppressor, not as a compensator. The jury were also prepared to draw the necessary inferences to find the knowledge and intention elements of the offence of possession proven beyond reasonable doubt. The Court also found that the question trail was correctly formulated and contained no error. The Court dismissed the sentence appeal. The Judge was entitled to find that the Bushmaster had both a flash suppressor and a 10 cartridge modified magazine, and the sentence of nine months imprisonment was well within the available range. Forfeiture was also warranted on the facts of this case.

The appeal against conviction and sentence is dismissed.

Orders