R v Burr
[2022] NZHC 3153
•29 November 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2020-073-000333
[2022] NZHC 3153
THE KING v
WILLIAM BRUCE BURR
Hearing: 29 November 2022 Appearances:
K Whyte for the Crown
P J Morgan KC for the Defendant
Judgment:
29 November 2022
SENTENCING NOTES OF TAHANA J
This judgment was delivered by me on 29 November 2022
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Hamilton Legal, Hamilton Braun Bond & Lomas, Hamilton
Thackeray Chambers, Hamilton
R v BURR [Sentencing Notes] [2022] NZHC 3153 [29 November 2022]
Introduction
[1]Mr Burr, you appear for sentence today having pleaded guilty to:
(a)a charge of possessing a non-prohibited firearm without a licence (Game King shotgun);1
(b)a charge of being in unlawful possession of a firearm (Remington shotgun);2 and
(c)a charge of being in unlawful possession of explosives (ammunition).3
Facts
[2] Summaries of facts were presented to the Court when you pleaded guilty. You accepted those summaries. I will sentence you on the basis of those agreed facts, together with any inferences I can draw from them.4
[3]I summarise your offending briefly.
Game King shotgun
[4] In the early hours of the morning of 1 October 2020, you were woken by a male who had entered your home, he demanded your keys and you were hit on the head with an empty bottle of wine. An altercation commenced. You retrieved a shotgun from a cupboard. You took control of the situation and then rang the police.
[5] Police came to your home. You had a five shot, semi-automatic Game King shotgun. The Game King shotgun was loaded and was not secured in a firearm’s safe. You did not have a firearms licence.
1 Section 20(1) and (3). Maximum penalty: one year’s imprisonment or a fine of $15,000.
2 Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment or a fine of $5,000.
3 Section 45(1). Maximum penalty: four years’ imprisonment or a fine of $5,000.
4 R v R [2019] NZCA 135 at [33]; R v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R [2014]
NZCA 356 at [30]–[36]; and R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494.
Remington shotgun
[6] A week later, police again attended your address in relation to the above incident. You asked to go into your house to retrieve some clothing. A police constable escorted you into the house, observing a box of live shotgun cartridges sitting on an alcove in the hallway.
[7] A subsequent search of your house located a Remington 12-gauge shotgun (Remington shotgun) leaning against a writing desk in the dining room. The Remington shotgun contained four live cartridges.
Approach to sentencing
[8] The Sentencing Act 2002 sets out the purposes and principles of sentencing. Here, relevant purposes include holding you accountable for the harm that your offending has done to the community, promoting in you a sense of responsibility for that harm, denouncing your conduct, deterring you and others from committing similar offending, and protecting the community.5
[9] The principles include the need to consider the gravity of your offending and your degree of culpability,6 and the general desirability for consistency with sentences that have been imposed in similar cases.7
[10] Determining the appropriate sentence involves two steps. First, I must determine the “starting point” for the sentence, which will be based on the seriousness of the offending to which you have pleaded guilty. Secondly, I will consider your personal circumstances, including the appropriate deduction for your guilty pleas.8 This will produce the end sentence.
5 Sentencing Act 2002, s 7(1).
6 Section 8(a).
7 Section 8(e).
8 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].
Starting point
[11] I will begin by considering the starting point. The lead charge relates to the possession of the Remington shotgun, which carries a maximum penalty of four years’ imprisonment. I will then consider the other charge relating to possession of the Game King shotgun without a licence, to reach an overall starting point.
[12] The Crown submits a global starting point is appropriate with the remaining charges being considered as aggravating features of the lead charge. While the global starting point may end up being similar, I will adopt the orthodox approach and consider the starting point for the lead charges and apply an uplift for the other charge given that the charges relate to two separate events.
[13] As counsel noted, there is no tariff case for firearms offending.9 The level of culpability for Arms Act 1983 (the Arms Act) offending may vary greatly.10 But unlawful possession of firearms is inherently risky, and the Court has a clear obligation to impose a sentence that unequivocally expresses society’s condemnation of the availability of loaded firearms, because of the potential danger from their possession.11
[14] Comparator cases aid my assessment as to the appropriate starting point.12 Mr Whyte referred me to several authorities. Your counsel very helpfully provided a table summarising a number of cases. I will embed a summary discussion of some of those cases in the footnotes to my written sentencing decision.13
9 Rawiri v R [2021] NZHC 1573 at [35].
10 Torea v R [2011] NZCA 96 at [11].
11 R v Richardson CA450/02, 25 March 2003 at [33]; and R v McLean [2009] NZCA 465 at [24].
12 I have regard here to the principle of consistency in sentencing: Sentencing Act, s 8(e).
13 In Gunning v Police [2019] NZHC 309, a starting point of 20 months’ imprisonment was upheld for an offender who had secreted an AR-15 rifle and ammunition in a wall cavity behind a set of shelves in a garage. In Burns v Police [2021] NZHC 1589, a starting point of 22 months’ imprisonment was adopted for an offender found in unlawful possession of a 12-gauge shotgun and rounds of various kinds of ammunition. In R v McDonald CA108/00, 10 July 2000, the Court of Appeal surveyed case law showing sentences in unlawful possession cases tend to range between 18 months’ imprisonment and three years and five months’ imprisonment. In R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338, the Court observed at [41] that “[a] starting point of two years’ imprisonment is within the range sanctioned by McDonald, albeit at the lower end”. In R v Richardson CA450/02, 25 March 2003, a starting point of two years’ imprisonment for a defendant found in unlawful possession of two guns was not disturbed on appeal. In Torea v R [2011] NZCA 96, a starting point of two years and six months’ imprisonment for a defendant found in unlawful possession of a pistol and ammunition was within the available range. In R v Taylor [2020] NZHC 3333, a starting point of 18 months’ imprisonment was adopted for an offender found in unlawful possession of a shotgun. In Rawiri v R [2021] NZHC 1573, a starting point of
[15] Mr Whyte submits your offending is relatively more serious than the cases on which the Crown relies, where the starting points ranged from 20 to 22 months’ imprisonment. The Crown says the aggravating features of your offending are the number of firearms (being two), both of which were stored loaded and unsecured and accompanied by a box of ammunition. The Crown argues for a global starting of 24 months’ imprisonment.
[16] Your counsel submits that a fine for each charge would be appropriate and that your possession of the firearms was innocent and not accompanied by criminal offending. Your counsel says the firearms were at your home, in a rural location, only accessible by you.
[17] I have considered the comparator cases and in particular, the case of Taranaki v New Zealand Police where Mr Taranaki faced two sets of charges for possession of firearms on two different occasions.14 In that particular case Mr Taranaki’s counsel also argued, as has your counsel that:
(a)The firearms were kept at a place not easily accessible by him or others;
(b)he had no relevant previous convictions and was not involved with any gangs; and
(c)the submission was he owned the firearms to protect his family and there was evidence that his house had been burgled before.
[18] In Taranaki v The Police, the charges laid for the second set of offending under s 45 of the Arms Act were accepted as the lead offending. The police found an unloaded sawn-off shotgun in a closed room attached to the garage.15 The Court carefully considered the relevant authorities after noting that typically, cases where a
three years and six months’ imprisonment was available in respect of an offender who had been found in unlawful possession of five guns and a large quantity of ammunition. And in Taranaki v Police [2021] NZHC 2746, a starting point of 20 to 22 months’ imprisonment was said to be appropriate for an offender found in unlawful possession of a single round of 9 mm ammunition and an unloaded sawn-off rifle.
14 Taranaki v New Zealand Police [2021] NZHC 2746.
15 At [66].
two year staring point had been adopted involved loaded firearms found in circumstances where they are readily accessible and often associated with other criminal offending.16 This Court considered the offending was less serious than those cases and considered a starting point of between 20 to 22 months appropriate noting that Mr Taranaki was on bail at the time (for the first firearms charge) and this meant that a lower starting point of 18 to 20 months was not appropriate.17 That was the only aggravating feature that the Court found in that case.
[19] In your case, the Remington shotgun was loaded and was in the dining room leaning against a desk. It was also accompanied by a box of ammunition. It was accessible and not secure.
[20] Your counsel say you were given the Remington shotgun by members of your family who had concerns about your safety after the incident on 1 October 2020. He says there were concerns that associates of the youth who entered your home may attempt to seek revenge and you were not a willing recipient of the shot gun. However you could have disposed of or insisted on returning the Remington shotgun. Your counsel identifies that you personally discounted the possibility of a retaliatory attack against you, making your continued possession of it more egregious.
[21] Your counsel also seeks to distinguish the firearm from the cases the Crown relies on because it is not sawn off or intended for the purposes of unlawful shooting or threatening people. Any firearm is capable of being used for shooting or threatening people but I accept this is not a sawn off shotgun or a military style semi-automatic shotgun. Nor is the Crown is not arguing the type of firearm is an aggravating feature.
[22] Further, your counsel says it is relevant that the guns and ammunition were found by Police who came to your home after you experienced a home invasion. Again, your circumstances are not necessarily unique. Mr Taranaki had also experienced burglary and submitted that he had the firearm for protection. The Court nevertheless considered a starting point of 20 to 22 months was appropriate in that case.
16 At [66].
17 At [70].
[23] In these circumstances, I am satisfied that an appropriate starting point for the lead charge is 18 months’ imprisonment.
[24] There is then the need to apply an uplift for the first charge regarding the Game King shotgun. That charge carries a maximum penalty of 1 year imprisonment so it is less serious than the second set of charges.
[25] Your counsel has explained that you received the Game King shotgun from your father at 15 and it was for duck shooting and sometimes possums. The Game King shotgun was also loaded and you stored it in a cupboard in your bedroom in your family home where you have had it for many years, including while raising children. There is no evidence the cupboard in the bedroom was locked or secure from others (including children).
[26] Your counsel says that because the Game King shot gun is principally used for duck and possum shooting, you never gave any thought to the need to obtain a firearms licence. It is no answer to a charge of possessing a firearm without a firearms licence that you never thought to get one. This is especially so when you have had it for such a long period of time. Firearms are inherently dangerous.
[27] Your counsel then refers to the circumstances in which the police found you with the Game King shotgun. Your counsel say you held the two youth at gunpoint after you were woken and hit over the hit with an empty wine bottle. You were acquitted of all charges in relation to that incident. While I accept that you say you armed yourself for protection that does not reduce the inherent danger in possessing firearms and the Crown are not arguing that your use of the firearm is an aggravating feature.
[28] It is not therefore appropriate to make an allowance for your contended lack of culpability. They are not matters that mitigate your offending.
[29] I accept your counsel’s submission that there is no association with other criminal offending, which was a factor in some of the decisions that have applied a sterner sentence. Viewing your offending in terms of its relative seriousness and
accounting for its aggravating elements, I consider a modest uplift of 2 months for the first charge is appropriate. That brings the global starting point to 20 months’ imprisonment.
Personal circumstances
[30] Mr Burr, I now turn to your personal circumstances and any uplifts or discounts to your notional sentence that those circumstances warrant.
[31] I have read the two pre-sentence reports dated 20 June and 11 July 2022. You are a semi retired dairy farmer and have four children and seven grandchildren. You have held positions at your local rugby club, on the board of trustees of the primary school and have being a delegate for Federated Farmers. The report writer assesses you at low risk of re offending. The 11 July 2022 report recommends community work, fine and notes other options including community detention and home detention.
[32] The report notes that you have minimal remorse and displayed a high sense of entitlement towards the youth who entered your home, and you stated that you were justified in using the firearm on 1 October 2022. Your counsel submit the reports wrongly direct the lack of remorse to your use of the firearm, which is not the subject of the charges for which you are being sentenced. While I accept counsel’s submission, the reports also do not indicate that you showed any remorse for being in possession of the firearms or for not holding a licence. No discount is therefore available for remorse.
[33] I do not consider any uplifts are required. You have only one previous conviction. It is unrelated to the present offending. There are no other personal circumstances that conceivably could justify an increase to the starting point.
[34] As to discounts, you are entitled to credit for your guilty plea.18 Given that plea was entered immediately, I will allow the full 25 per cent credit.19 That represents a discount of six months.
18 Sentencing Act, s 9(2)(b).
19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
End sentence
[35] Beginning with a starting point of 20 months’ imprisonment and then applying the discount of six months for your guilty plea, your presumptive end sentence will be 14 months’ imprisonment. Given that this is a short term sentence within the meaning of s 4 of the Sentencing Act, it is open to me to consider whether to commute the sentence to home detention or a community based sentence. The Sentencing Act 2002 requires me to impose the least restrictive sentence that is appropriate in the circumstances, in accordance with the hierarchy of sentences.20 I do not consider imprisonment is appropriate in the circumstances of your case.
Fines
[36]Your counsel submits that a fine for each charge is appropriate.
[37] Mr Morgan however, was unable to identify any cases where a fine has been imposed for similar offending. He says this is because possession of firearms without a licence are invariably dealt with in the District Court where sentences are not routinely transcribed for non-custodial sentences. That submission however, ignores the cases where the offending is similar and a sterner sentence has been imposed. There is more than one charge here, the firearms were loaded and they were found with ammunition.
[38] I do not consider a fine would achieve the purposes of sentencing I have identified, including accountability, denunciation, deterrence and community protection. It would also not be consistent with the Court of Appeal’s finding that:21
[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.
[39] The Court of Appeal is clear on the seriousness with which the courts approach this type of offending and the sentence must be sufficiently severe to serve the sentencing purposes. Fines would not achieve that objective.
20 Sentencing Act, s 8(g).
21 R v Richardson CA 450/02, 25 March 2003.
Community based sentence
[40] I have considered a community based sentence. In R v Taylor22 an end sentence of nine months’ imprisonment was commuted to 300 hours community work and four months community detention. That involved one unloaded firearm and Mr Taylor was entitled to significant discounts because of youth, remorse and good character.23
[41] Your offending is more serious than Mr Taylor. I consider a sentence of community work and community detention would achieve the purposes of holding you accountable, promoting a sense of responsibility and denouncing your conduct.
[42] The pre-sentence report records that 400 hours of community work are available and could be arranged in your community. It is appropriate that you be held accountable to the community by making compensation to it in the form of work. I also consider it is appropriate given your circumstances as noted in the pre-sentence report.
[43] I also consider that community detention is appropriate and would also achieve the additional purpose of deterrence. The pre-sentence report notes that your address is suitable, you understand and consent to the conditions and your home is in an area where community detention is available. The community detention is to be served at your address as specified in the pre-sentence report with the curfew times as set out in that report.
[44] I therefore consider an end sentence of 400 hours community service and 6 months community detention is appropriate. The sentences are to be served concurrently.
[45]I now consider the issue of forfeiture.
22 R v Taylor [2020] NZHC 3333.
23 At [33].
Forfeiture of the firearm
[46] Your counsel submits that forfeiture of the Game King shotgun would be unjust because it is of sentimental value and has been in your possession for over 50 years without incident. You however, did not keep the shotgun secure and it was found loaded. Loaded and accessible firearms are dangerous. I do not consider that the circumstances of your offending mean it would be unjust for the firearm to be forfeited.
Result
[47]Mr Burr, please stand.
[48] On the charges of unlawful possession of a firearm, unlawful possession of ammunition, and possession of a non-prohibited firearm without a licence, I sentence you to 400 hours community work and six months’ community detention.
[49] I order the forfeiture to the Crown of the firearms and ammunition found in your possession.
[50]Mr Burr, please stand down.
Tahana J
9
0