Pfeiffer v The Queen

[2021] NZHC 2409

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000099

[2021] NZHC 2409

BETWEEN

KARL DAVID PFEIFFER

Appellant

AND

THE QUEEN

Respondent

Hearing:	14 September 2021 (by VMR)
Appearances:	W T Nabney for Appellant S J Bird for Crown
Judgment:	14 September 2021

ORAL JUDGMENT OF VENNING J

Sentence appeal

Solicitors:           Crown Solicitor, Rotorua Counsel:     W T Nabney, Tauranga

PFEIFFER v R [2021] NZHC 2409 [14 September 2021]

[1]    Karl Pfeiffer pleaded guilty to charges of possession of cannabis, cultivating cannabis, possession of methamphetamine, possession of a pipe for smoking methamphetamine, possession of a sawn-off shotgun, possession of ammunition (two shotgun cartridges) and possession of a knife in a public place.

[2]    On 4 August 2021 Judge D J McDonald sentenced Mr Pfeiffer to 20 months’ imprisonment.1 Mr Pfeiffer appeals on the basis that the starting point adopted by the Judge in respect of the charge of unlawful possession of a firearm and ammunition was excessive and a sentence of home detention, being the least restrictive outcome, should have been imposed rather than the sentence of imprisonment.

[3]    The background to Mr Pfeiffer’s offending coming to the attention of the Police is somewhat unusual.

[4]    In the early morning just before 7.00 am on 27 January 2021 he presented at the Tokoroa Police Station and said that about four hours earlier an intruder armed with a 12 gauge shotgun had entered his house and then fallen asleep on his couch.

[5]    The Police went to Mr Pfeiffer’s home shortly after 7.00 that morning. There was a person on his couch. No firearm was found to be present and the person on the couch denied bringing one. Mr Pfeiffer said the person asleep on the couch had arrived at about between 2.00 and 3.00 in the morning to remind him he owed money for fixing a garage door, a child’s motorbike and a fuel pump. Mr Pfeiffer said he had given the firearm to a friend of a friend.

[6]    In the course of looking for the firearm the Police found two point bags containing 0.39 g of methamphetamine on a coffee table, a tent for growing cannabis in a bedroom, 60 cannabis seedlings in various trays and more cannabis in another bedroom. Mr Pfeiffer’s garage contained a growing room complete with heat lamps and fans. The cannabis weighed 1.91 kgs.

[7]Mr Pfeiffer told the Police the cannabis was for his own use.

1      Police v Pfeiffer [2021] NZDC 15815.

[8]    About six weeks later at 1.15 am on 6 March 2021 Mr Pfeiffer was found in a car parked in a car park in Rotorua. In a backpack in the footwell of the car were two 12 gauge shotgun cartridges. Mr Pfeiffer also had 0.15 g of methamphetamine on him and a glass pipe for methamphetamine use. Mr Pfeiffer also had a knife strapped to his ankle. A search of the boot located a sawn-off shotgun. Mr Pfeiffer’s explanation at the time for having the shotgun was that he intended to return it to his lawyer that day. He said a friend have given him the ammunition and the knife was for his protection.

District Court sentence

[9]    The Judge in sentencing Mr Pfeiffer on his guilty pleas took the possession of the sawn-off shotgun and the two cartridges as the lead charges. He applied a starting point of 20 months for that offending. He then uplifted that by four months for possession of the knife. The Judge then considered cultivation of the cannabis noting the Police accepted it was for Mr Pfeiffer’s own use. He imposed a further uplift of two months for that offending. That led to an adjusted start point of 26 months. The Judge then applied a 20 per cent reduction for Mr Pfeiffer’s guilty plea.

[10]   The Judge then considered whether it was necessary to impose imprisonment as opposed to home detention together with community work. The Judge considered that a fulltime custodial sentence was required in Mr Pfeiffer’s case to deter him and others from possession of firearms such as sawn-off shotgun and to denounce such offending. The Judge ultimately imposed a sentence of 16 months’ imprisonment for the firearm, two months’ cumulative for the possession of cannabis, and a further two months cumulative for the possession of the knife. The Judge then dealt with the other drug related and possession of the ammunition offending by concurrent sentences. The effective end sentence was 20 months’ imprisonment.

[11]   In Tutukangahau v R the Court of Appeal confirmed that while s 250(2) of the Criminal Procedure Act 2011 makes no express reference to the concept of manifestly excessive sentence, the concept is longstanding, is consistent with statutory language and should continue to be applied.2 Importantly the focus on a sentence appeal such

2      Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

as an appeal of this nature must remain on whether the sentence imposed is within range rather than the process by which the sentence is reached.

Submissions

[12]   Mr Nabney submitted that the start point of 20 months’ imprisonment for the possession of the sawn-off shotgun and ammunition was too high in this case.

[13]   He submitted that as the shotgun and ammunition were in separate parts of the car and the shotgun was not readily accessible to Mr Pfeiffer and was unloaded a start point of less than 18 months’ imprisonment would have been appropriate. Mr Nabney contrasted this case with the observations of Simon France J in Moore v Police where there was a higher penalty of four years’ imprisonment and ready access to the weapon in that case.3 He also referred to the case of Burns v Police where, while the Court had accepted a start point of 20 to 24 months’ imprisonment was within range the firearm in that case was also readily accessible unlike in the present case.4 Further, in Burns there had been more than one firearm and a significant amount of ammunition was with them.

[14]   Mr Nabney submitted that no more than 12 to 15 months was appropriate as a starting point in this case. With the uplifts which he accepted he submitted an end sentence of 18 to 21 months would have been appropriate as the adjusted start point as opposed to the 26 months adopted by the Judge.

[15]   Mr Nabney then submitted that a full reduction of 25 per cent for the guilty plea was warranted. In his written submissions Mr Nabney also suggested that, if the Judge intended to reject Mr Pfeiffer’s explanation that he intended to hand the sawn- off shotgun to his lawyer, Mr Pfeiffer should have been given the opportunity to have that assertion tested by a disputed fact hearing under s 24 of the Sentencing Act 2002.

[16]   Finally on the issue of home detention Mr Nabney submitted that, as the drugs in the present case were all for the appellant’s own use, as conceded, his case could be distinguished from those cases where a drug dealer had a firearm for protection.  He

3      Moore v Police [2015] NZHC 3113.

4      Burns v Police [2021] NZHC 1589.

submitted that there was nothing in the appellant’s history of offending to require the sentence of imprisonment. Mr Pfeiffer had a suitable address for home detention and home detention would have met the necessary sentencing objectives in this case and was the least restrictive outcome appropriate.

Decision

[17]   I deal first with the issue of the Judge’s rejection of Mr Pfeiffer’s explanation for possession of the firearm. During oral submissions Mr Nabney confirmed he no longer pursued the point that the Judge had not directed a disputed fact hearing. That was a proper and responsible concession. The Judge was entitled to reject that explanation. Defendants will often offer an explanation to the Police on arrest or shortly thereafter, which is recorded in the summary of facts. In a number of cases that explanation or denial would, if correct, provide a defence to the offending. By pleading guilty to the charge the appellant accepted the essential elements of the offence. If he intended to seriously pursue any further explanation for the possession to mitigate the seriousness of it, it was for him or his counsel at the time of sentencing to seek a disputed fact hearing. As Mr Nabney now accepts, that was not raised.

[18]   In any event, as Mr Bird submitted, a realistic view of the proffered explanation for presence of the firearm is required. The suggestion that it was in the car to return it to his lawyer that day is inherently implausible. I infer it is the same firearm that Mr Pfeiffer says was brought to his house and that he had told the Police at that time he had given it to a friend of a friend. Six weeks had passed before the firearm was found in the boot of Mr Pfeiffer’s car at 1.15 am in the morning in Rotorua when Mr Pfeiffer’s home is in Tokoroa. At no point during that six week period had he arranged for the firearm to be delivered to his lawyer or the Police.

[19]   Returning to the starting point, in a number of cases this Court has upheld starting points of between 20 and 30 months for the possession of sawn-off shotguns and ammunition.5 In R v Richardson the Court of Appeal upheld 24 months starting point for the possession of a cutdown shotgun and a loaded pump action shotgun found

5      Burns v Police, above n 4; Herewini v Police [2014] NZHC 2396.

under Mr Richardson’s bed and in his car boot (neither of which were particularly accessible).

[20]   While it is correct that in this case as Mr Nabney points out the firearm was not loaded, Mr Pfeiffer had the cartridges in his backpack and as Mr Bird submitted the fact he was out and about in the car with the firearm is also relevant.

[21]The important thing is the principle in this case.

[22]   The possession of unlawful weapons, particularly sawn-off shotguns, is a matter of proper concern to the community. In Richardson the Court said:6

Every court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of [firearms] availability because of the potential for danger from their possession.

[23]As Simon France J more recently observed in Moore v Police:7

[7]  … the Court [of Appeal in Richardson] noted the need for sentences  that send an unequivocal message. There is nothing in our society or events overseas to suggest that the need for such an approach has diminished. Indeed, a case may exist for consistently sterner responses.

[24]   The Judge’s starting point for the possession of the shotgun and ammunition in this case was within range. While the shotgun was in the car boot, as noted it was in Mr Pfeiffer’s car and he had ammunition in his back pack. Further, it is relevant that Mr Pfeiffer said he had the knife for his own protection as well.

[25]   In any event, standing back and looking at the overall starting point of 26 months for the totality of the offending in this case, which included not only possession of the shotgun and ammunition but also possession of the knife and the related drug offending, 26 months was readily available to the Judge. As the Court has said on a number of occasions it is the overall sentence rather than individual elements that are important.

6      R v Richardson, CA450/02, 25 March 2003.

7      Moore v Police, above n 3, citing R v Richardson, above n 6.

[26]   Nor do I consider there to be anything in in the challenge to the guilty plea discount.

[27]   Given the strength of the Police case a discount of 20 per cent was appropriate. In any event, strictly speaking, as Mr Bird observed, a reduction from 26 months to 20 months is effectively a reduction of 23 per cent.

[28]   The last matter, and perhaps most interesting issue, is that of whether home detention is the appropriate outcome as Mr Nabney submitted.

[29]   However, the Judge was entitled to take the view in this case deterrence and denunciation, particularly in relation to the possession of the firearm, required the imposition of a term of imprisonment. Whether the firearm was to protect the cannabis Mr Pfeiffer was cultivating at home for his own use or whether firearms are used by drug dealers is really neither here nor here. The fact of the matter is Mr Pfeiffer had the firearm in his possession and the comments of the Court of Appeal in Richardson borne out more recently by Simon France J in Moore are relevant.

[30]Further, in this case Mr Pfeiffer has previous convictions for drug offending.

[31]   The cultivation of cannabis was obviously undertaken at his home. The pre- sentence report confirms he would be living at that property on his own. The fact the offending occurred at his property taken with his previous offending and the unhelpful attitude confirmed in the pre-sentence report all provided further reasons to support the Judge’s decision for rejecting home detention as a suitable option.

Result

[32]For those reasons the appeal is dismissed.

Venning J