R v Smith - [2007] NZCA 219

IN THE COURT OF APPEAL OF NEW ZEALAND

CA467/06 [2007] NZCA 219

THE QUEEN

v

KIM BRUCE SMITH

Hearing: 15 May 2007
Court: Chambers, John Hansen and Priestley JJ Counsel: M S Gibson for Appellant
M D Downs for Crown

Judgment: 1 June 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal is allowed.
B The sentence on count 1 is reduced to five years’ imprisonment. C The effective sentence is reduced to seven years’ imprisonment.

REASONS OF THE COURT

(Given by John Hansen J)

R V SMITH CA CA467/06 1 June 2007

Introduction

[1] On 29 September 2006 the appellant pleaded guilty to the following charges:

a) Conspiracy to defeat the course of justice between 12 November 2004 and 19 August 2005.

b) Wilfully attempting to defeat the course of justice between 7 and

15 June 2005.

c) Three charges of being in unlawful possession of firearms.

d) Three charges of being in unlawful possession of explosives. e) Possession of the Class A drug methamphetamine.
f) Possession of the Class B drug ecstasy.

[2] He was sentenced to an effective term of eight years imprisonment.

[3] The appellant appeals his sentence on the grounds it is manifestly excessive and there is a disparity with the sentence imposed on a co-offender, Mr MacPherson.

Facts

[4] The appellant was the sergeant-at-arms of a Hamilton motorcycle gang called The Outcasts. On February 2004 members of the armed offenders squad executed a search warrant on a property occupied by the appellant at Dawn Rise, Glenview. The property was fortified with steel bars over the windows and doors. There were security sensors and surveillance cameras.

[5] The appellant had a Category A firearms licence that allowed him to use firearms and ammunition for lawful and sufficient purposes. In a pickup truck two
.22 semi-automatic firearms and a .223 semi-automatic rifle were found. These

weapons were not secure. Police also located four 25-shot banana-style magazines for the .22 rifle. They also located two 10-shot magazines for a .22 rifle that were joined to enable the firearm to be fired continuously. The effect of this was to change the category of the .22 firearms from the sporting configuration class into the military-style semi-automatic category. The appellant did not have a licence to legally possess firearms in this category.

[6] In a basement garage substantial quantities of .45, 9 millimetre and .357 ammunition was found. This was said to be handgun ammunition and handguns do not come within the Category A firearms licence permit held by the appellant.

[7] Other weapons, including batons, knives, knuckle-dusters, and mace instruments, were found as well as three further shotguns that appeared to have the firing pins removed. In the appellant’s bedroom a Mossberg 12-gauge semi- automatic shotgun was found containing four rounds of ammunition in a condition where it was ready to fire. Three bullet-proof vests were also found.

[8] Various charges were laid as a result of the firearms discovered in the police search on 12 February…

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 Smith

Details

AGLC: R v Smith [2007] NZCA 219
Case: [2007] NZCA 219
Decision Date: 1 June 2007

CaseChat Overview and Summary

Kim Bruce Smith appeals against his conviction for conspiracy to defeat the course of justice, wilfully attempting to defeat the course of justice, and multiple charges of unlawful possession of firearms and explosives, and possession of Class A and B drugs. The appeal concerns the sentence imposed by Lang J, which was an effective term of eight years imprisonment. Smith argues that the sentence is manifestly excessive and there is a disparity in the sentencing compared to a co-offender, Mr MacPherson. The court must determine if the sentence is appropriate and if there is a disparity in sentencing between Smith and MacPherson.

The court considered the submissions of both parties and examined the sentencing principles. The court found that while the individual sentences for the charges arising from the 12 February 2004 search were within the range available to the judge and could be considered lenient, there was a concern with the overall effective starting point of nine years for the offending that occurred once Smith became a fugitive. The court found that the starting point of five and a half years for the conspiracy to pervert the course of justice was not excessive when compared to the starting point adopted by Ellen France J in the case of Mr MacPherson. However, the court considered that the judge failed to sufficiently take into account the fact that the firearms were never presented at the police or the public, and that Smith did not offend against the public during his period as a fugitive. The court concluded that the appropriate starting point was one of eight years’ imprisonment for the totality of the offending while a fugitive, reducing the judge’s overall starting point of 11 years to ten years’ imprisonment. The court found that the allowance of three years made by the judge was appropriate, leading to an end sentence of eight years’ imprisonment.

The appeal is allowed. The sentence on count 1 is reduced to five years’ imprisonment. The effective sentence is reduced to seven years’ imprisonment.

Orders