Philpott v The Queen - [2021] NZHC 3219

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000144

[2021] NZHC 3219

BETWEEN
CHRISTOPHER PHILPOTT

Appellant

AND

THE QUEEN

Respondent

Hearing: 26 November 2021

Appearances:

M Jenkins for the Appellant A Maino for the Respondent

Judgment:

29 November 2021

JUDGMENT OF MUIR J

This judgment is delivered by me on 29 November 2021 at 11:30am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Gordon Pilditch, Crown Solicitors, Rotorua Jenkins Law, Rotorua

PHILPOTT v R [2021] NZHC 3219 [29 November 2021]

Introduction

[1] Mr Christopher Philpott appeals his sentence of 13 months’ imprisonment imposed by Judge Spear on 9 November 2021 in respect of one charge of supplying firearms to a person who was not the holder of a firearms licence.1 The principal ground of appeal is that the appropriate end sentence is one of home detention rather than imprisonment.

[1]I turn briefly to the facts of the offending.

The offending

[2] The appellant holds a category A firearms licence which enables him to purchase rifles and ammunition from licenced firearms retailers.

[3] In September 2020, a Mr McRae who had known the appellant from school days and who has never held a firearm’s licence, approached the appellant and asked him to purchase firearms on Mr McRae’s behalf. On 25 September 2020, Mr McRae sent a text message to the appellant asking him “So wats the go with the sticks shager”. Over the following several days the two men continued to communicate and the appellant explained his intention of travelling to a meeting between Cambridge and Hamilton on 29 September 2020. On the morning of 29 September 2020, Mr McRae contacted the appellant and arranged to transfer money to him. The appellant told him to wait until later that evening.

[4] The appellant then travelled from Taupō to a firearms retailer in Hamilton and purchased five Alfa revolver rifles, namely one .357 magnum rifle and four .22 magnum rifles.2 He told the sales staff that they were gifts for family members. In addition to the rifles, he purchased 250 rounds of .22 magnum ammunition, 50 rounds of .357 magnum ammunition and 1100 rounds of .22 ammunition. He paid $8,700 in cash for the five firearms and a further $250 in cash for the 1400 rounds of

1 Arms Act 1983, s 43(1)(a): carrying a maximum penalty of two years’ imprisonment.
2 Although the appellant is unable to purchase pistols on his class of licence, the Alfa carbines are imminently suitable for cutting down into a pistol configuration and are available in a range of calibres.

ammunition. One hour after purchasing the firearms, the appellant rang Mr McRae and they arranged to meet that evening.

[5] In March 2021, Mr McRae was convicted of on-selling the firearms and dealing in methamphetamine. On 10 June 2021, the Police executed a search warrant at the appellant’s home address. None of the five Alfa carbine rifles were located…

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 Philpott v The Queen

Details

AGLC: Philpott v The Queen [2021] NZHC 3219
Case: [2021] NZHC 3219
Decision Date: 29 November 2021

CaseChat Overview and Summary

Christopher Philpott has appealed against his sentence of 13 months’ imprisonment imposed by Judge Spear in the Rotorua District Court on 9 November 2021 for supplying firearms to a person who was not the holder of a firearms licence. Philpott's principal ground for appeal is that the appropriate end sentence is one of home detention rather than imprisonment. The offending involved Philpott purchasing five Alfa revolver rifles and ammunition on behalf of Mr McRae, who did not hold a firearms licence. The firearms were never recovered by police.

The legal issues before the court were whether there was an error in the imposition of the sentence and if a different sentence should be imposed. The court considered whether the sentence of imprisonment was manifestly excessive or wrong in principle. The appeal court's focus was on the final sentence imposed rather than the process by which that sentence was reached.

The court found that a sentence of home detention was more appropriate in this case. The appellant's personal circumstances, including his limited criminal history, insight, remorse, and guilty plea, as well as the particular needs of his son who has Type 1 diabetes, warranted a less restrictive sentence. The court accepted that Philpott's imprisonment has exacerbated the financial and emotional toll on his family due to his son's illness. The court concluded that a sentence of home detention would better meet the principles and purposes of sentencing in this case.

The court allowed the appeal and commuted the appellant’s sentence of 13 months’ imprisonment to one of seven months’ home detention, to be calculated from the date of his release from custody. The sentence of home detention is to be served on the standard terms and conditions set out in s 80C of the Sentencing Act 2002 with an amendment to allow the appellant to leave the home detention residence to seek urgent medical or dental treatment for himself or his Type 1 diabetic son.

Orders