R v Benjamin Harry Timmins
[2003] NZCA 287
•10 December 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA191/03
THE QUEEN
v
BENJAMIN HARRY TIMMINS
Hearing:26 November 2003
Coram:Glazebrook J
William Young J
Paterson JAppearances: L C Rowe for Appellant
C L Mander for Crown
Judgment:10 December 2003
JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J
Introduction
[1] Mr Timmins was convicted after a jury trial in Wanganui of possessing a firearm after his licence had been revoked and sentenced to 150 hours community work. He appeals against his conviction on the basis that the trial judge failed adequately to put the defence case to the jury thereby causing a miscarriage of justice. He appeals against his sentence on the basis that he ought either to have been discharged without conviction, given that the consequences of a conviction were out of all proportion to the gravity of the offence, or at the most convicted and discharged.
Background
[2] During a search of Mr Timmins’ address police found a double-barrel shotgun wrapped in a sack in a garden shed. This shotgun had the stock broken and the barrels plugged with a cloth wadding. Located in a separate sack in the shed were four rifle barrels of various calibres, taped together with insulation tape. The sole issue at trial was whether or not the shotgun was a firearm.
Legislation
[3] Under s2 of the Arms Act 1983 a firearm:
(a)means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive; and
(b)includes –
(i)anything that has been adapted so that it can be used to discharge a shot, bullet, missile, or other projectile by force of explosive; and
(ii)anything which is not for the time being capable of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or subparagraph (i); and
(iii)anything (being a firearm within the meaning of paragraph (a) or subparagraph (i) which is for the time being dismantled or partially dismantled; and
(iv)any specially dangerous airgun.
Appellant’s submissions
[4] It is accepted by Mr Rowe, on behalf of Mr Timmins, that it was open to the jury to reach the verdict it did if it rejected the evidence of the defence expert and accepted the evidence of the Crown expert. The evidence of the Crown expert, Mr Ngamoki, a police armourer, was to the effect that the shotgun could be made operational.
[5] The defence at trial was advanced on three grounds:
(a)That the Crown had failed to prove beyond reasonable doubt that the item was capable of firing a shot, projectile or missile by explosive force upon completion, repair or replacement of parts (as required by the extended definition of a ‘firearm’ under the Arms Act);
(b)That, if the item was so capable, the degree of repair or replacement of parts was so substantial that the item could not, in its present form, constitute a firearm;
(c)That, given the condition of the item, it lacked the characteristics of a firearm.
[6] Mr Rowe advances Mr Timmins’ appeal on the basis that the judge failed to put the defence case adequately to the jury. He accepts that the direction was adequate in respect of the first ground but submits that the second and third grounds were either not covered or were not covered adequately.
[7] In relation to the second ground Mr Rowe submits that the jury needed to be directed specifically that it was a question of the degree to which parts had to be replaced or repaired before the item was capable of discharging a shot. At one end of the spectrum one may simply have a bolt for which the entire componentry of a firearm would be required in order to make the item capable of discharging a shot. At the other end of the spectrum would be a firearm that is complete except for one minor component. The greater the replacement and repair of parts required, in Mr Rowe’s submission, the less it could be said that the item meets the definition of a firearm. In this case the defence contention was that one would be almost starting from scratch and that the few parts that could be used to produce a firearm were little more than if one was simply starting with a bolt.
[8] With regard to the third ground Mr Rowe submits that the jury ought to have been directed that they must be satisfied beyond reasonable doubt that the item had the characteristics of a firearm and not, for example, the characteristics of some other explosive device like a bomb or a grenade. In other words, the jury should have been instructed that, if they could not be satisfied beyond reasonable doubt that the item would perform with the characteristics of a firearm, then they should acquit.
[9] With regard to sentence Mr Rowe’s primary submission is that the gravity of this offence was so low that in the s107 balancing exercise, the consequences of a conviction easily outweigh the gravity of the offence. In Mr Rowe’s submission the reality in this case is that the item found in Mr Timmins’ possession was not capable of firing a live round and would only become capable after considerable effort well beyond Mr Timmins’ abilities and beyond his financial means. While Mr Ngamoki suggested that it would not be very difficult at all to make the gun fully operational, even he accepted that it would require hours of work and the machining or hand fitting of parts. The defence expert, Mr Hume, on the other hand, considered that it would be a major undertaking requiring the machining of parts and that it would be highly unlikely that one could source parts that would actually fit. In this respect, it is submitted that the item found in Mr Timmins’ possession was little better than a piece of galvanised pipe which could be adapted to make a gun.
[10] Mr Rowe submits further that Mr Timmins has made efforts to obtain qualifications in pest eradication and control, particularly after he lost his job as a meat inspector in December 2001. He has completed courses in chainsaw safety, ATV/motorbike safety, first aid and, in December 2002, obtained an approved operators certificate for vertebrate pest monitoring. He is also approved to supply game to MAF licensed premises. Mr Timmins, however, needs a firearms licence to be able to supply game and to be able to undertake possum control and monitoring. The police have required Mr Timmins to wait five years from his previous convictions for firearm offending before they would consider restoring his firearms licence and this most recent conviction has once again brought a refusal of Mr Timmins’ application for restoration of his licence. Accordingly, Mr Rowe submits, that both the direct and indirect consequences of a conviction in this case are out of all proportion to the gravity of the offence.
[11] Mr Rowe’s secondary submission in respect of sentencing is that, if a conviction is required, that constitutes a substantial penalty in itself and no further penalty is required. Any conviction was due to the technical definition of “firearm” being met and nothing more. The underlying purpose of the Arms Act, namely to promote the safe use and control of firearms, would not be compromised by a simple conviction and discharge.
Crown submissions
[12] Mr Mander, for the Crown, submits that the directions given by the trial judge adequately put the defence case. The judge directed the jury that the issue for them was whether the object before the court was a firearm. He directed the jury on the definition of “firearm” contained in the Arms Act 1983, including the extended definition in para (b)(ii) of the definition. He told the jury at the commencement of his summary of the defence case that the defence case was that the item was not a firearm. He said:
The defence case is that it is not a firearm and could only be with considerable work and much difficulty and even if repaired or restored it says there is no guarantee that it will fire and will not blow up and that there is, in fact, a good likelihood that it will.
[13] The Crown submits that this summary of the defence case covered the first and second grounds of defence. The judge went on to give a detailed summary of the defence expert’s evidence. He then once again drew the jury’s attention to the extended definition of the term “firearm”. He noted it was accepted that the gun could not in its present condition be fired. He said that the real question was whether it came within the extended definition of the term “firearm” and then said:
It is a question of degree. Of course, in applying the definition and the principles you must be satisfied beyond a reasonable doubt.
[14] In Mr Mander’s submission this clearly dealt with the defence’s second ground, although the Crown does not accept that it needed to be dealt with in a situation such as this where the shotgun clearly had once been a firearm as defined and where even the defence expert conceded it could be made operable again.
[15] In terms of the third ground the Crown submits that this purported ground of defence does not bear scrutiny in the circumstances of this case. If the jury was satisfied beyond reasonable doubt that the Crown had proved that the item met the statutory definition of firearm it would not be open to them to acquit on the basis that the item “lacked the characteristics of a firearm”. It is the statutory definition which provides the “characteristics” of a firearm for the purposes of the Arms Act 1983. To the extent that cases such as Wall v Police (1984) 1 CRNZ 223 and Police v Jackson [1980] 1 NZLR 78 suggest otherwise, they were concerned with the Arms Act 1958 which, unlike the current Arms Act, did not have a comprehensive definition of firearm.
[16] In relation to sentence, Mr Mander submits that there is a clear need to deter persons who allow firearms (whatever the state of disrepair) to be possessed and therefore potentially circulated outside the licensing system. In this case the Crown submits that the firearm was clearly stored with some care and for some purpose. In addition, in the Crown’s submission, the failure of Mr Timmins to acknowledge any culpability or acknowledge that he has broken the law exhibits a lack of understanding of the need for strict compliance with the Arms Act and its regulations. Mr Timmins at the time of sentence had three convictions for unlawful possession of a weapon. The latter two convictions in February 1997 resulted in the imposition of a term of periodic detention. Mr Timmins’ revocation of his firearms licence resulted from that offending. The Crown submits that Mr Timmins, as a revoked licence holder with experience and knowledge of firearms, should have been aware of his obligations.
[17] A submission that Mr Timmins might not gain prospective employment in a particular vocation which he currently cannot undertake and in which he has not been able to participate for a number of years is not, in the Crown’s submission, sufficient grounds for a discharge without conviction. Mr Timmins is not limited to a single vocation requiring a firearms licence. Further, the Crown submits that the imposition of a sentence of 150 hours community work was neither inappropriate nor manifestly excessive, given Mr Timmins’ previous convictions.
Discussion
[18] With regard to Mr Timmins’ complaint that his third ground of defence was not put before the jury, we accept the Crown submission that the issue for the jury was whether the item found in the shed met the statutory definition of “firearm” and that there is no additional gloss on that term. There was therefore no need for the judge to say anything more than he did on this topic.
[19] We reject the Crown’s submission that the second ground did not need to be dealt with. It was in our view open to Mr Timmins to argue that what was required to render the shotgun operable was so extensive as to go beyond what is contemplated by “completion”, “replacement of any component … parts” or “correction or repair of … defects” in para b(ii) of the definition of firearm.
[20] In this regard the judge summarised the defence expert’s evidence in some detail and articulated the defence case as being that the shotgun would have been very difficult if not impossible to repair and that, even if repaired, it was likely to explode. He then, in the context of repeating the extended definition of firearm, said that it was a matter of degree. This remark must be seen in the context of a short trial where no doubt the defence closing stressed this matter. It must also be seen against the background of the summary of the defence expert’s evidence as to the extensive repairs necessary. We consider the jury can have been in no doubt that the question of degree referred to by the judge was whether the extent of work needed took the item outside the extended definition of firearm.
[21] We are also unable to see any error of principle in the judge’s exercise of his discretion not to discharge without conviction. Indeed, given Mr Timmins’ previous history, we consider that a discharge without conviction would have been inappropriate. For similar reasons, we consider the sentence was one that was within the judge’s discretion to impose.
Result
[22] Mr Timmins’ appeal against conviction and sentence is dismissed.
Solicitors:
Armstrong Barton, Wanganui for Appellant
Crown Solicitor’s Office, Wellington
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