R v Finlayson - [2020] NZHC 1892

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-019-5053

[2020] NZHC 1892

THE QUEEN

v

RODERICK JAMES FINLAYSON

Hearing: 31 July 2020

Appearances:

R Guthrie for Crown

G Dixon and L McMaster for Defendant

Judgment:

31 July 2020

SENTENCING REMARKS OF LANG J

Solicitors:
Hamilton Legal, Hamilton
Public Defence Service, Hamilton

R v FINLAYSON [2020] NZHC 1892 [31 July 2020]

[1] Mr Finlayson, you appear for sentence today having pleaded guilty to charges of being in unlawful possession of a firearm and ammunition. The maximum penalty for both charges is four years imprisonment.

[2] You pleaded guilty following a sentence indication I gave on 18 June 2020.1 In that indication I set the starting point applicable for your offending. I then indicated the discounts I would be prepared to give to reflect the fact that, at 30 years of age, you have never appeared before the courts before. In addition, I indicated the level of discount that would be available for the entry of guilty pleas.

[3] I left open the prospect that further discounts may be given for mitigating factors that arose after the sentence indication and that might be referred to in a pre- sentence report. As it transpires, there is a further significant mitigating factor I need to take into account at this stage.

The facts

[4] The factual basis for the sentence to be imposed on you is contained in an agreed summary of facts prepared for the sentence indication hearing. This records that on 28 March 2019 a Mr Garson contacted you via Facebook asking you to buy him a firearm. The two of you obviously knew each other reasonably well, and you have told the writer of the pre-sentence report that you trusted him. You say you understood he intended to apply for a firearms licence and he wanted you to buy a firearm and ammunition in the meantime so that he could learn clay and duck shooting.

[5] You then communicated with each other over the following months sporadically using the Facebook messenger application. You suggested Mr Garson should find a firearm on TradeMe. You said you would then go with him to pick up the firearm and Mr Garson would give you cash en route to the location at which you were to purchase the firearm.

[6]On 12 August 2019 the two of you agreed that you would receive the sum of

$400 in exchange for purchasing the firearm for Mr Garson. Mr Garson then told you

1 R v Finlayson [2020] NZHC 1381.

the type of firearm he wanted, and you made arrangements to purchase it the following day. During the course of these communications you acknowledged to Mr Garson that you had “so much to lose” by purchasing a firearm for him. You also discussed the type of ammunition that you were to purchase for use with the firearm. He told you he wanted “strong, deadly ammo” to use for…

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 Finlayson

Details

AGLC: R v Finlayson [2020] NZHC 1892
Case: [2020] NZHC 1892
Decision Date: 31 July 2020

CaseChat Overview and Summary

Roderick James Finlayson pleaded guilty to being in unlawful possession of a firearm and ammunition. The court had to decide on an appropriate sentence. Finlayson had facilitated the purchase of a shotgun and ammunition for Mr Garson, who subsequently used the firearm to commit a serious crime. The court had to consider both aggravating and mitigating factors in determining the sentence. The court selected a starting point of two years and three months imprisonment, taking into account the premeditated nature of the offence, the commercial aspect, and the potential for serious violence. Finlayson had no previous convictions, which entitled him to a discount for good character. Additionally, Finlayson's guilty pleas warranted a further discount. Finlayson's cooperation with the police and willingness to testify against Mr Garson provided additional mitigating factors. The court applied a six-month discount for these factors, resulting in a sentence of 13 months imprisonment. However, due to the unsuitability of the defendant's residence for home detention and his employment requirements, a sentence of community detention was imposed instead. Finlayson was sentenced to six months of community detention, with electronically monitored curfews at his residence. The sentence allows him to continue working to support his family while fulfilling the requirements of his sentence.

Orders