R v Holes

[2017] NZHC 2898

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-096-4755 [2017] NZHC 2898

THE QUEEN

v

CHRISTOPHER RAY HOLES

Hearing:	20-23 November 2017
Appearances:	C Gisler for Crown K Preston and M Paish for Defendant
Sentence:	23 November 2017

SENTENCE NOTES OF CLARK J

[1]      Mr Holes you are for sentence today following a sentence indication given at

9.40 this morning, the fourth day of a jury trial set down for one week.  The Crown was almost at the point of closing its case.

[2]      You have pleaded guilty to the following charges:

•       careless use of a firearm1

•       unlawful possession of a firearm and explosives (x2)2

•       driving while disqualified3

1      Arms Act 1983, s 53(1),

2      Arms Act 1983, s 45(1)(b).

3      Land Transport Act 1998, s 13(1)(a) and 32(3).

•       four charges of possession of an offensive weapon4

•       possession of utensils5 and

•       cultivating cannabis.6

Background to the offending

[3]      The summary of facts has you sitting in your car in your driveway in Stokes

Valley at around 5:50 am on 24 December 2016.

[4]      At about the same time the victim, Mr Allen, was leaving an address in the vicinity.  He heard raised voices across the road and went to investigate.  Mr Allen saw a male standing in a threatening manner inside the open driver’s door where you were seated.  The male was armed with a firearm.  So were you.  Neither you nor the male noticed Mr Allen’s approach.

[5]      In an attempt to warn off the threatening male you discharged the firearm. The bullet struck Mr Allen’s left forearm and elbow.  Hearing the blast and feeling his arm begin to go numb Mr Allen immediately began to run.  A short time later he was taken to hospital and received treatment for his injuries.

[6]      A little later an associate of yours arrived.  He got into the passenger seat. At about this time a police patrol turned into the street. You hastily drove off. You were a disqualified driver at the time.

[7]      You  were  stopped  at  a  police  cordon  not  too  far  away  and  not  long afterwards.  A subsequent search of your vehicle located the sawn-off shotgun, and

15 cartridges; two knives; a sharpened piece of steel; a claw hammer and paraphernalia for the purpose of consuming methamphetamine.

[8]      Consequent upon your arrest your house was searched. Ten juvenile cannabis plants, growing equipment and around 50 cannabis seeds were located.

4      Crimes Act 1961, s 202A(4)(a).

5      Misuse of Drugs Act 1975, s 13(1)(a) and 13(3).

6      Section 9(1).

[9]      I have considered the victim impact statement.  It is unlikely Mr Allen will regain the full use of his left arm.  He is left with lifelong impairment.  Mr Allen says although he will never forget what has happened he is willing to forgive.   Your counsel, Mr Preston, has advised the Court you are willing to engage in a restorative justice process. That will be for Mr Allen to decide.

[10]     Your  counsel  submitted  a  15-month  starting  point  was  appropriate.    My sentence indication took a starting point of 18 months’ imprisonment on the charge of careless use and the charge of unlawful possession of a firearm.

[11]     An aggravating feature of the offending is your possession of what I describe as weaponry.  I uplift the starting point by six months for the charges related to that possession.   The drug offending is relatively minor as is the disqualified driving charge, although I note this is your third disqualified driving conviction.

[12]     You pleaded guilty to the charge of careless use immediately the charge was laid.  But your guilty plea does not attract the full 25 per cent that would otherwise be available for such a quick plea because you have already received significant benefit from the change in the charge.

[13]     You pleaded guilty to the disqualified driving and cannabis charges on the morning of the first day of trial.   I give no reduction for these, or your remaining guilty pleas. They were entered late in the piece.

[14]     In summary, the sentence I am about to pass is structured in the following way:

(a)        On the careless use and unlawful possession of a firearm charges the starting point is 18 months imprisonment.

(b)The  18  months  is  reduced  to  14  months  in  recognition  of  the immediate guilty plea to the new charge of careless use.

(c)       I then uplift by six months to reflect the remaining charges

[15]     Mr Holes please stand.

(a)       On  all  charges  you  are  sentenced  to  a  term  of  imprisonment  of

20 months.

(b)      You are disqualified from driving for a period of six months from 18

May 2018.  That is when your present period of disqualification runs out.

(c)       There is an order for the destruction of the firearms, the explosives, the utensils and equipment.

Please stand down.

Karen Clark J