R v Smith

[2016] NZHC 851

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-063-3678 [2016] NZHC 851

THE QUEEN

v

PETER WILLIAM SMITH

Hearing:	2 May 2016
Appearances:	B Foote for Crown A Hill for Defendant
Judgment:	2 May 2016

SENTENCE INDICATION AND SENTENCING REMARKS OF LANG J

R v SMITH [2016] NZHC 851 [2 May 2016]

[1]      Mr  Smith  is  jointly  charged  with  another  person  of  being  in  unlawful possession of a firearm.   The maximum sentence for that offence is four years imprisonment.  He now seeks a sentence indication in respect of that charge.  The indication is given on the basis that he enters a guilty plea to the charge shortly after the indication is given.

Background

[2]      The charge has its genesis in an ongoing dispute between two rival gangs in the Rotorua area.   This culminated in a shooting incident in a Rotorua suburb on

11 December 2015.  During that incident a shotgun was discharged at another person and the victim received serious injuries.  Mr Smith is not alleged to have been party to that incident.  Shortly after the incident, however, members of Mr Smith’s group who had  been  involved  in  the shooting incident  retreated to  a  rural  address  in Mamaku.  They clearly anticipated retribution by members of the victim’s group as a result of the incident that had just occurred.

[3]      When the police went to the Mamaku address, they found Mr Smith and another person outside the address.   They were obviously there as lookouts.   The other  person  was  holding  a  double-barrelled  shotgun.     The  police  did  not immediately recover the firearm.   They observed, however, that it had been in a closed position at the time they entered the property.  They found the firearm a short distance from the house after they searched the property.  At this time, the firearm was broken open.  It is therefore not possible to determine whether the firearm was loaded at the time that it was in the possession of Mr Smith’s associate.

[4]      Mr Smith is charged on the basis that he and the person holding the weapon were in joint possession of it.  In other words, each would take the opportunity to take control of the weapon in the event that the need arose.

Starting point

[5]      Counsel have been unable to find any other case directly on point.  Generally speaking, however, any charge of being in unlawful possession of a firearm of this type is likely to carry a starting point of around 18 months imprisonment.  That is

particularly so when the firearm in question is part of an ongoing dispute between gangs.  In the present case, I consider the offending is slightly more serious, because the factual circumstances in which the offending occurred heightened the likelihood that the firearm would be used if need be.  This means that there was a real potential for further injury to be caused.

[6]      Ordinarily,  therefore,  a  starting  point  of  around  two  years  imprisonment would be appropriate.  I propose to reduce that in the present case to reflect the fact that Mr Smith was not carrying the weapon and it is impossible to tell whether or not it had been loaded at the time he and his associate were in possession of it.   I therefore select a starting point of 21 months imprisonment.

Aggravating factors

[7]      Mr Smith has a reasonably long list of previous convictions.  These include a conviction of being in unlawful possession of a firearm in 2011.   He received a sentence of six months imprisonment on that occasion.   He was also sentenced to four months imprisonment on 13 June 2013 on a charge of being in possession of an offensive weapon.

[8]      In those circumstances, an uplift would ordinarily be appropriate.   In the present case, perhaps generously, the Crown does not ask that an uplift be applied. Should the matter proceed further, however, Mr Smith should not take that as an indication of the likely attitude of the Court towards his previous convictions.

Mitigating factors

[9]      The only mitigating factor would be the guilty plea.   That would not be entered at the earliest opportunity, but the Crown accepts that a discount of up to 25 per cent is available.  I propose to allow a discount of five months to reflect a guilty plea. This produces an end sentence of 16 months imprisonment.

Home detention

[10]     Technically speaking, Mr Smith is therefore a candidate for a sentence of home detention.   Given his long-standing history of non-compliance with Court

sentences and orders, however, that option would not be available to him in the present case.  I do not discard the prospect that some further small allowance may be made for further mitigating factors personal to Mr Smith.  It is difficult, however, to see what they might be.

Result

[11]     The sentence indicated is therefore one of 16 months imprisonment.

Sentence

[12]     Mr Smith, I have just completed giving you a sentence indication in which I indicated that a sentence of 16 months imprisonment would be appropriate on the charge that you face.   You have taken advice and elected to accept the sentence indication.   You have pleaded guilty to the charge, and you have also decided to waive your right to obtain a pre-sentence report.  You have asked to be sentenced immediately.  That is entirely understandable given the fact that you have been in custody since 15 December 2015, and you will be eligible for release at the end of June 2016.  I am therefore prepared to sentence you notwithstanding the fact that I do not have the benefit of a pre-sentence report.

[13]     On the charge to which you have entered a guilty plea, I sentence you to

16 months imprisonment.

[14]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Rotorua