R v Grace
[2013] NZHC 116
•8 February 2013
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 to firing a warning shot, or
otherwise acting in self-defence following the hammer attack on you. So you were acquitted of attempted murder and discharge of a firearm with intent to do grievous bodily harm.
[11] You are, however, fortunate that in the escalating circumstances and with a dangerous and inaccurate firearm, that you did not hit someone by accident if not design.
[12] You had no business bringing a loaded firearm into the central city, let alone using it.
[13] Indeed the evidence at trial was that you then fired a second shot, almost certainly a warning shot, a few minutes later after your pursuers, who initially scattered after the first shot, resumed the chase.
[14] After that you handed the rifle over to Mr Edmonds, who ran down an alleyway with it. Police arrived shortly after and located you and your associates, and the rifle.
Personal circumstances and pre-sentence report
[15] Turning now to your personal circumstances, you are 33 years old and live in Gisborne. You have 50 previous convictions. A number are for serious offending, most notably your conviction in 1996 for rape. You were sentenced on that occasion to six and a half years’ imprisonment. You have eleven convictions for violence. You have two convictions in 2006 for possession of an offensive weapon, and most relevantly for the purposes of your sentencing today, you have two convictions in March 2011 for unlawful possession of a firearm and unlawful possession of explosives. On that occasion you were sentenced to one year and three months’ imprisonment. At the time of the present firearms offence you were on release conditions from that sentence.
[16] You do not seem to have learned your lesson, Mr Grace. I am afraid a rather more vigorous lesson will therefore be administered to you today.
[17] You told the writer of the pre-sentence report that you had removed the lead projectile from the cartridge case, converting it to a blank. Your counsel, Mr Calver, makes the same point in submissions. But as he also says, there is no available corroboration of that fact and nothing seems to have been said about that to the police at any earlier stage. It would of course have been very material to the charges on which the jury acquitted you. It is not, on the other hand, material to the present conviction, which is for possession rather than discharge.
[18] The pre-sentence report states that you say you have severed your ties with the Mongrel Mob, and are no longer active in it. You have good relationships with your whanau, and you seek to restore and reinforce your wairua. In part for the sake of your children. I agree with Mr Calver that your conduct at trial was exemplary, and it is clear that you are alert and intelligent. That is all creditable.
[19] But the fact remains that you are before me today for sentence on the same charge you were convicted of just eight months before the present incident, and which at the time you were on release conditions for. There was no need for possession of the gun. Indeed you had every reason not to have possession of it. The fact that you recommitted this offence demonstrates a worrying lack of insight into the risks of guns for the community, for your whanau and for you.
[20] In this case the Court had the startling evidence before it that, despite your having fired one shot and indeed a second shot later on, your pursuers even though they thought the first shot at least was aimed at them, continued pursuit. So much, therefore, for your gun “scaring off troublemakers”. They – and you – were probably fortunate that the police arrived on the scene so swiftly.
[21] There is I think a lesson in this for anyone minded to copy your example.
Guns don’t scare adrenalin-fuelled youths.
Purposes and principles of sentencing
[22] I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing. Section 7 requires me to have regard to the
need to hold you accountable for the harm from your offending, and the need to promote a sense of responsibility for, and acknowledgement of, that harm. I need to denounce your conduct and I need to deter you and others like you from committing the same or similar offences in the future.
[23] In terms of s 8 principles, I must take into account the gravity of your offending, including your degree of culpability. I must have regard to the seriousness of the types of offences committed by comparison to other types of offending, indicated by the maximum penalty prescribed. I must also consider the general desirability of consistency with appropriate sentences. And then I need to impose the least restrictive outcome that is appropriate to your circumstances, including your personal circumstances.
Starting point
[24] There is no tariff decision for offending of this type. The maximum penalty on indictment is a term of imprisonment not exceeding 3 years or a fine not exceeding $4,000.
[25] The possession and use of these sorts of weapons in a public place is utterly unacceptable and it must be discouraged by the Courts. The normal response will be imposition of a prison sentence. All the more so if there is evidence to suggest that use is contemplated in a criminal connection.2 In particular, the Courts take a firm and consistent stance to this type of offending where gang rivalry is involved and a condign approach is taken.3
[26] Deterrence is an important principle in sentences for this type of offending.4
New Zealand community standards require that our citizens be free from the malign use (including possession) of unlawful firearms. What has happened, and continues to happen, in the United States merely confirms the wisdom of an unflinching
response in this country to deviation from these standards.
2 Solicitor General v Lyon at [22] citing R v Corner CA291/87 CA329/87 17 March 1988.
3 See e.g. R v McDonald CA108/00, 10 July 2000, at [20].
4 R v Drever CA 380/02 20 February 2003.
[27] Counsel for the Crown, Ms Rielly, submits that a starting point of two and a half years’ imprisonment is appropriate. She relies on Police v Tangahue,5 R v Taylor,6 and R v Rapana.7
[28] Your counsel, Mr Calver, relied on R v Iti8 and R v McDonald.9 The former case raised exceptional factual circumstances, both aggravating and mitigating, and comparison with other cases was, as Rodney Hansen J himself noted, unhelpful.10 In any event, Mr Calver accepts that a starting point of two years is inevitable.
[29] Having regard to:
(a) the authorities cited by Ms Rielly;
(b)the further cases of Grant v Police11 (which was a similar case of a gang-related person carrying a weapon “in case there was trouble” to a public park and a sentence of 27 months’ imprisonment was there upheld) and Shailer v Police12 (where a sawn-off shotgun was buried at a gang headquarters and two years, six months’ starting point upheld on appeal);
(c) the fact that you brought the gun into the central city with the express purpose of discharging it in the event of trouble;
(d) the fact that the gun was loaded, and ready to be used in that way; and
(e) the fact that the present offending is gang-related:-
I accept that a starting point of two and a half years’ imprisonment for this offence is appropriate.
5 Police v Tangahue HC Gisborne, AP3-4010-2004, 24 February 2004.
6 R v Taylor CA176/03, 24 October 2003.
7 R v Rapana CA7/06, 22 May 2006.
8 R v Iti [2012] NZHC 1130 (upheld on appeal: [2012] NZCA 492).
9 R v McDonald CA 108/00, 10 July 2000.
10 At [51].
11 Grant v Police HC Christchurch, AP 251/93, 5 August 1993.
12 Shailer v Police HC Invercargill, AP 37/95, 29 May 1996.
Personal aggravating and mitigating factors
Aggravating factors
[30] For the Crown Ms Rielly submits that your prior convictions, in particular those in 2011 for unlawful possession of a firearm and explosives, and the fact that the present offending occurred while on release conditions from imprisonment for those offences, commands a significant uplift to the starting point. I agree.
[31] An uplift of six months is justified. I recognise that that would, subject to mitigating factors, result in the imposition of the maximum sentence.
Mitigating factors
[32] You pleaded guilty to the present charge on the first day of trial on
10 December 2012. Mr Calver submits that you had in June 2012 signified your willingness to plead guilty to this charge. On the basis, however, that the other charges were dropped. Those who seek to bargain cannot expect the full potential 25 per cent discount. To secure that discount it is necessary to volunteer a guilty plea, unconditionally and at the first realistic opportunity.
[33] In the present case, Mr Grace, I will give you a discount of 10 per cent on your sentence. That is probably in these circumstances a generous allowance.
[34] There are no other mitigating consideration applies.
Sentence
[35] Stand please.
[36] Mr Grace, on the charge of unlawful possession of a firearm in a public place, to which charge you have pleaded guilty, I therefore sentence you to two years and eight months’ imprisonment.
[37] The Crown has sought an order for the destruction of the weapon. I make that order.
[38] The defence seeks remission of the $1,951 unpaid fines against your name so that you may be released with a “clean slate”. It is perfectly clear that you are in no position to pay that sum. Remission would be appropriate. However, as Stevens and Toogood JJ have held,13 the High Court lacks statutory jurisdiction for that purpose and separate application must be made to the District Court itself under s 88 of the Summary Proceedings Act 1957.
[39] Mr Grace, you say that you plan to cut your ties with the Mongrel Mob. That is the best step that you could take to ensure that you do not come back before this Court. I hope you will take that step and I wish you the best of luck in doing so. I acknowledge that you will need it but hopefully your own strength and the help of your family will achieve that for you.
[40] Stand down.
Stephen Kós J
Solicitors:
Crown Solicitor, Gisborne
13 R v Crawford HC Rotorua CRI 2006-070-5847, 27 June 2008; R v Feauai [2012] NZHC 171.