R v Burr

Case [2022] NZHC 3153 29 November 2022

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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,…

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 R v Burr

Details

AGLC: R v Burr [2022] NZHC 3153
Case: [2022] NZHC 3153
Decision Date: 29 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Tāhana J sentenced William Bruce Burr on 29 November 2022 for possessing a non-prohibited firearm without a licence, being in unlawful possession of a firearm, and being in unlawful possession of explosives (ammunition). Burr had pleaded guilty to the charges, which stemmed from two separate incidents involving the possession of loaded and unsecured firearms.

The primary legal issues revolved around determining the appropriate starting point for the sentence and adjusting it based on Burr's personal circumstances, including his guilty pleas. Tāhana J began by establishing the starting point for the sentence, considering the seriousness of the charges. The court found the lead charge related to the possession of the Remington shotgun, which carried a maximum penalty of four years' imprisonment. The court then applied an uplift for the other charges, resulting in an overall starting point of 20 months' imprisonment. The court applied a discount of six months for Burr's guilty plea, resulting in a presumptive end sentence of 14 months' imprisonment.

Considering Burr's personal circumstances, the court found no grounds for an uplift, but acknowledged the discount for his guilty plea. The court concluded that a fine would not achieve the purposes of sentencing, which included accountability, denunciation, deterrence, and community protection. Instead, Tāhana J determined that a community-based sentence would be appropriate. The court ordered 400 hours of community service and six months of community detention to be served concurrently. The court also ordered the forfeiture of the firearms and ammunition found in Burr's possession.

In summary, William Bruce Burr was sentenced to 400 hours of community work and six months' community detention, and ordered to forfeit the firearms and ammunition found in his possession.

Orders