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…

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 [2016] NZHC 851
Case: [2016] NZHC 851
Decision Date: 2 May 2016

CaseChat Overview and Summary

In the case of The Queen v Smith, the defendant was jointly charged with another person for being in unlawful possession of a firearm. The charge stemmed from an ongoing dispute between two rival gangs in Rotorua, New Zealand, which culminated in a shooting incident on 11 December 2015. Mr Smith was not alleged to be a party to the shooting incident, but was found in possession of the firearm with his associate who was holding the weapon. The maximum penalty for this offence was four years imprisonment.

The legal issues the court needed to decide included the starting point for sentencing, any applicable aggravating or mitigating factors, and the appropriate sentence for Mr Smith. The court considered the starting point for this type of offence to be around 18 months imprisonment, but adjusted it to two years due to the seriousness of the circumstances. The court then applied an uplift for Mr Smith's previous convictions, but ultimately decided not to apply it in this case. The only mitigating factor was the guilty plea, for which the court allowed a discount of up to 25 per cent, resulting in a sentence of 16 months imprisonment.

The court determined that Mr Smith was a candidate for a sentence of home detention, but ruled it out due to his history of non-compliance with court sentences and orders. The final sentence for Mr Smith was 16 months imprisonment, which he accepted along with waiving his right to obtain a pre-sentence report. The court sentenced him immediately, taking into account the time he had already spent in custody since 15 December 2015 and his eligibility for release at the end of June 2016.

Orders