R v Grace - [2013] NZHC 116

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2012-016-0157 [2013] NZHC 116

THE QUEEN

v

THOMAS WILLIAM GRACE

Hearing: 8 February 2013

Counsel: J E Reilly for Crown
G W Calver for Prisoner

Sentence: 8 February 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1] Mr Grace, you are before me today for sentence after pleading guilty to one count of unlawful possession of a firearm in a public place.1

[2] In December a jury acquitted you of attempted murder, and discharge of a firearm with intent to do grievous bodily harm. That was, I think, a sound verdict, as I will explain in a moment.

[3] But none of that diminishes the seriousness of the conviction for unlawful possession, on which I am sentencing you today.

1 Arms Act 1983, s 51(1)(b): maximum penalty 3 years imprisonment or a fine not exceeding
$4,000.

R v GRACE HC GIS CRI 2012-016-0157 [8 February 2013]

Details of offending

[4] I will summarise, briefly, your offending.

[5] You are, or were, a patched member of the Mongrel Mob. In the early hours of the morning of 6 November 2011 you were on Cobden Street in central Gisborne. You were there with your partner, a gang associate, Mr William Edmonds, and his partner. You had with you, concealed in a shoulder bag, a sawn-off .22 rifle. A battered old single-shot weapon, held together with duct tape. The police armourer’s evidence was that it could not be aimed and fired with any degree of accuracy.

[6] You are reported, in the pre-sentence report, as saying that you had the weapon with you, in case of “trouble”, to “scare off” the troublemakers. This weapon you had taken with you around town, and it appears into licensed premises, before the Cobden Street incident.

[7] In that street, at about 1.30 am, your group of four ran into a rather larger group of ten or so youths connected to the Black Power gang. A fight occurred between Mr Edmonds and a Mr Joshua Robinson. You were not physically involved in this fight. Rather, you stood across the street and watched it take place. That fight was more bravado than biffo, and it ended without injury to either participant.

[8] The two groups separated and headed off in opposite directions on Cobden Street. But someone from your group, most probably you, yelled out a Mongrel Mob slogan, and it was all on again. Mr Robinson’s group turned and gave chase. They are younger and fitter than you are, and they caught up with you. One of them hit you forcefully between your shoulder blades with a hammer.

[9] You then stopped, turned and fired the gun. You did not hit anyone. But your pursuers thought that you had aimed at them. They gave evidence to that effect at the trial in December.

[10] The jury, in my view rightly, concluded that there was too much doubt over whether you had intended to hit anyone, as opposed…

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 Grace

Details

AGLC: R v Grace [2013] NZHC 116
Case: [2013] NZHC 116
Decision Date: 8 February 2013

CaseChat Overview and Summary

The case of R v Grace, heard in the High Court of New Zealand, involved Thomas William Grace who was sentenced for unlawful possession of a firearm in a public place. The defendant, a patched member of the Mongrel Mob, was found with a sawn-off.22 rifle in a shoulder bag while in the company of gang associates in central Gisborne. Although Grace was acquitted of attempted murder and discharging a firearm with intent to cause harm, he was convicted of the unlawful possession charge. The court acknowledged the defendant's extensive criminal history, including previous convictions for serious offenses and unlawful possession of firearms and explosives.

The legal issues before the court included determining the appropriate starting point for sentencing, the impact of prior convictions, and the relevance of mitigating factors such as the defendant's guilty plea. The court considered the gravity of the offence, the need for deterrence, and the defendant's personal circumstances, including his ties to gang activities. In accordance with the purposes and principles of sentencing under the Sentencing Act 2002, the court emphasized the necessity to hold the defendant accountable, promote responsibility, denounce the conduct, and deter the defendant and others from similar offences.

The court decided on a starting point of two and a half years’ imprisonment, reflecting the seriousness of possessing and potentially using a firearm in a public place, especially in a context of gang rivalry. The court accepted the Crown's submission for an uplift of six months due to the defendant's prior convictions and the fact that the present offence occurred while on release conditions. However, a 10% discount was applied for the defendant's early guilty plea. Consequently, the defendant was sentenced to two years and eight months’ imprisonment, with an order for the destruction of the weapon. The court also noted that while remission of unpaid fines would be appropriate, it lacked the statutory jurisdiction to grant such remission and advised that a separate application be made to the District Court.

Orders