R v Taylor

[2020] NZHC 3333

ORDER REDACTING PARAS [37] AND [38] OF THIS JUDGMENT IN ANY PUBLICATION THAT MAY OCCUR

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-075-000500

[2020] NZHC 3333

THE QUEEN

v

JONATHON MARK ALLEN TAYLOR

Hearing:	15 December 2020
Appearances:	J Hamilton for the Crown M Sturm for Defendant
Sentencing Notes:	15 December 2020

SENTENCING NOTES OF WYLIE J [REDACTED VERSION]

Solicitors/counsel:

Crown Solicitor, Hamilton M Sturm, Rotorua

R v TAYLOR [2020] NZHC 3333 [15 December 2020]

Introduction

[1]    Can I start by acknowledging the presence of the members of the Williams family in Court today. I can understand why you are here. You will appreciate that Mr Taylor is not the principle offender and I am sorry that nothing I can say today will appease the grief and hurt I am sure you will feel, but I acknowledge your presence here today.

[2]Mr Taylor, you may remain seated until I ask you to stand.

[3]    You appear for sentence today on one charge of being in possession of a firearm without lawful excuse. That is an offence pursuant to s 45(1) of the Arms Act 1983. It is subject to a maximum penalty of four years’ imprisonment.

[4]    You were charged jointly with Adrian Phillips. He was also charged with murder. You entered a guilty plea to the charge against you on 27 October 2020.

Factual background

[5]    You are charged as a result of an operation known as Operation Collinsville. This operation concerned a police investigation into the murder of Brayden Williams on 5 August 2020 at Kopu. The police allege that Mr Williams was killed by Mr Phillips.

[6]    You and Mr Phillips were very good friends. Neither of you had a firearms licence.

[7]    In around March or April 2020, you found a single barrel shotgun in a bush area on the Coromandel. You took the gun back to your home address in Thames. You then secured it in a gun safe in your bedroom.

[8]    You told Mr Phillips that you had the shotgun. Between 14 July 2020 and 22 July 2020, you and Mr Phillips discussed the sale of the shotgun, and Mr Phillips ultimately agreed to buy it from you for $100. He came to your home. He paid you the agreed sum of $100 and collected the shotgun from you.

[9]    On 12 August 2020, the police executed a search warrant at your house. They found three shotgun shells and three live .22 rounds in your bedroom.

[10]   You made a full admission to the police. You stated that you did not know that Mr Phillips intended to use the gun against any person.

Criminal history

[11]It is common ground that you have not previously appeared before the Court.

Provision of Advice to Courts report

[12]   A pre-sentence report has been prepared. It records that the firearm is “not an untypical pig hunting weapon”. You told the report writer that you thought the gun was inoperable due to extensive rust. You said that Mr Phillips saw the gun in your bedroom and asked to purchase it so that he could go pig hunting, and that you ultimately agreed to sell it to him.

[13]   You accepted that you did not have a firearms licence, and that you had the gun cabinet for your air rifle. You told the report writer that both you and your sister had started the process to get firearms licences and that you completed and passed the initial assessment, but could not afford the application fee at the time.

[14]   You expressed remorse over your involvement in the tragedy that ultimately unfolded, and you told the report writer that you wished you had never found the weapon.

[15]   The report writer recorded that there are no identified contributing factors to your offending, and that you are not seen as being in need of any rehabilitative interventions. The report writer considered that your risk of reoffending and of causing harm to others is low. It was noted that you have no criminal history and that as a first time offender, you have no compliance history. The report writer recorded that you were cooperative and transparent at interview, and he suggested that you will be fully compliant with whatever sanction the Court imposes. He recommended a sentence of community work with the possible addition of community detention,

although noting that the option of home detention is also available to the Court. In this regard, he noted that an address is available, that all occupants have provided written consent, and that there are no identified safety concerns. Further, the address is technically suitable for such a sentence.

Statements/references

[16]There are no victim impact statements.

[17]   I have received a number of references for you – from your eldest sister and from many of your close friends – all of whom have known you for very many years. They all speak of your warm and generous nature and suggest in one way or the other that you are a respectful and caring individual. A number refer to you as being a gentle giant with a heart of gold.

Submissions

[18]   Ms Hamilton, for the Crown, submitted the following matters are aggravating factors in your case:

(a)premeditation – you and Mr Phillips made an agreement, and you were motivated by financial gain. She argued that you were aware that you were selling a firearm to somebody who was not entitled to possess it;

(b)the nature of the weapon – you provided Mr Phillips with a shotgun which is a potentially lethal weapon; and

(c)the victim impact – the ultimate use of the weapon caused the death of Mr Williams.

[19]   She referred to other cases, submitting that one of them in particular is analogous.1 Ms Hamilton argued that the appropriate starting point should be two years and three months’ imprisonment. She acknowledged that you are only 20 years old and that you have no previous convictions. She submitted that a 20 per cent

1      R v Finlayson [2020] NZHC 1892.

discount is appropriate for your guilty plea. She accepted that home detention is likely to be available if there is a suitable address.

[20]   Mr Sturm, on your behalf, accepted that the shotgun was supplied pursuant to a commercial transaction, and that ammunition was found in your room, although he noted that you did not supply that ammunition to Mr Phillips. He disputed the fact that the firearm was a shotgun is an aggravating factor, arguing that that factor is inherent in the charge. He also noted that Mr Phillips’ ultimate use of the shotgun, as alleged by the police, is not a consequence that you contemplated. He accepted that a starting point of between 18 months and two years’ imprisonment is appropriate. He sought to distinguish the case relied on by Ms Hamilton, noting that your case did not involve a loaded firearm and that it did not involve the supply of ammunition. He argued that you are entitled to discounts for good character, youth, remorse and for your guilty plea. He argued that any sentence should be commuted to a sentence of either home detention or community detention, noting that the Provision of Advice to Courts report recommended a sentence of community work.

Purposes and principles of sentencing

[21]   In sentencing you, I have considered the purposes and principles set out in ss 7 and 8 of the Sentencing Act. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending, and the need to denounce the conduct in which you were involved. It is the latter matter, denunciation, as well as deterrence, that is most important in this case. I have taken into account the gravity of the offending with which you were involved, including your culpability. I have considered the seriousness of this type of offending and the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences. I have also had regard to the various aggravating and mitigating factors identified in s 9 of the Act.

Analysis

[22]   I start by observing that there is no tariff case for this type of offending, and that the level of culpability and range of circumstances in which such offending is

committed can vary greatly.2 There are obvious risks inherent in the unlawful possession of firearms, and the Courts have an obligation to impose appropriate sentences to express society’s condemnation of the availability of firearms in the wrong hands.3

[23]   Having said this I do not consider that your culpability is particularly high. You found the shotgun by chance. You did not set about obtaining the firearm by deceit or dishonesty. I disagree with the Crown that the fact that the firearm was a shotgun is an aggravating factor. The possession of any firearm is an element of the offence. I also disagree with the Crown that victim impact is of relevance in your case. The Crown has not pointed to any evidence that you would or should have known that Mr Phillips might use the firearm to harm somebody. It is recorded in the agreed statement of facts that you knew that Mr Phillips did not have a firearms licence. I accept that that is an aggravating factor. That is the highest in my view that the Crown can put it. I accept that there was degree of premeditation, but only in the sale and handing over of the firearm, not in what ultimately occurred.

[24]   In R v Finlayson, the offender had a firearms licence. He was asked by an associate to buy a firearm and ammunition for him, so that he could learn clay and duck shooting. The offender and the associate communicated sporadically over a period of some months. It was agreed that the offender would be paid $400 to purchase a firearm, in his name but for the associate, and he made arrangements to do so, acknowledging to the associate that he had “so much to lose” by doing so. The offender and the associate went to a gun store together and chose a particular type of shotgun and ammunition. The offender gave his firearm’s licence to the store owner and purchased the gun. The offender gave the gun to the associate shortly thereafter, and he was paid $400 for his role in procuring it. The associate later killed somebody using the gun. Lang J considered that the aggravating features in that case were premeditation (given the length of time over which the discussions took place), that the offender knew that he was purchasing a firearm for somebody who was not lawfully entitled to possess one, that the offender received a financial reward for committing the illegal act, that a commercial transaction was involved, and that in

2      Torea v R [2011] NZCA 96 at [11].

3      Richardson v R [2007] NZCA 188 at [33].

purchasing both the firearm and the ammunition, the offender placed his associate in a position of being able to use a weapon to commit an act of serious violence. Lang J considered that this was akin to providing the associate with a loaded weapon. He held that a starting point of 27 months’ imprisonment was appropriate.

[25]   I do not consider Finlayson to be particularly analogous to your situation. As I have noted you found the gun by chance, whereas the offender in Finlayson set about deceitfully purchasing a firearm and ammunition for another person. The offender in Finlayson was paid for his services in covertly procuring the firearm for the unlicensed associate. You were paid for the shotgun itself. You  did not acquire it covertly for  Mr Phillips although you did know that he did not hold a firearm’s licence. The financial gain for you was minimal – $100.

[26]   In Finlayson, Lang J referred to other cases of offending involving the supply of firearms by one person to another.4 I have considered each of these cases, and in my judgment, your offending is less serious than that in any of them. You did not provide the firearm in an inherently dangerous situation. You told the report writer who prepared the pre-sentence report that you believed that Mr Phillips would be using it for hunting. The firearm which you provided to Mr Phillips was not loaded at the time. Although ammunition was found in your room, you did not give it to Mr Phillips. Indeed, you have not been charged with possession of the ammunition. I also note that in more typical cases recording the unlawful possession of a firearm, rather lower starting points have been adopted.5

4      Moore v R [2019] NZCA 205 – starting point of four years and three months for supplying a loaded weapon and then taking steps to conceal involvement, thus perverting the course of justice. Offender did not know that gun would be used to kill the victim, but knew it was loaded and that it would be used for violence; R v Jefferies-Smith [2019] NZHC 2067 – offender gave firearm to his co-offender who used it to commit manslaughter. Offender knew of co-offender’s dispute with deceased and encouraged him to shoot the deceased. Held that case was “an example of the worse case scenario, save only for the fact that the firearm when it was given was not loaded”. A starting point of three years’ imprisonment; R v Ohuka [2018] NZHC 3304 – offender gave co-offender a loaded pistol when they were both in a taxi. Co-offender then used the pistol to threaten and then shoot the taxi driver. Aggravating factors – the nature of the firearm – it was loaded – the public setting – injuries to the victim. Although offender did not shoot the victim, the shooting would not have been possible without the gun, which was initially concealed by the offender. Starting point – 18 months’ imprisonment.

5      R v Caine [2017] NZHC 340 – gang member found in possession of loaded shotgun and ammunition – a starting point of 12 months’ imprisonment; Gunbie v Police [2019] NZHC 250 – offender had a loaded .22 pistol and ammunition in his bedroom. A starting point of 18 months; R v Smith [2016] NZHC 851 – offender in possession of double-barrelled shotgun while acting as a lookout during a gang related incident. A starting point of 21 months’ imprisonment.

[27]   In my judgment, the appropriate starting point to adopt in your case is one of 18 months’ imprisonment.

Personal aggravating and mitigating circumstances

[28]There are no aggravating features personal to you.

[29]I agree with Mr Sturm that you are entitled to significant discounts.

(a)I would give you a five per cent discount for your previous good character and to recognise that you have not previously offended.

(b)I would give you a further discount of 10 per cent, to recognise your relative youth. The Courts accept that young people commit impulsive offending. The Courts also recognise that young people can make ill- considered decisions which they later regret. In my view, that is what happened here.

(c)I would also give you a full 25 per cent discount for your guilty plea. You appeared in the District Court at Thames on 25 August 2020. You were then remanded without plea to 7 September 2020 so that counsel could be confirmed, and so that consideration could be given as to whether the charge against you should be joined with the charge which Mr Phillips faced. The date of 7 September 2020 was vacated by consent and a date in this Court on 27 October 2020 was allocated. By memorandum on 12 October 2020, you notified the Crown and the Court that you would plead guilty at that hearing, and you did so. I acknowledge that the Crown had a strong case but the plea was still entered at the first reasonably available opportunity.

(d)I would give you a further 10 per cent discount for remorse. Mr Sturm described you as being horrified by what subsequently transpired. The writer of the pre-sentence report also noted your remorse. You have cooperated fully with the police, speaking to them on request and giving a two hour DVD interview. You have also advised the Crown that you

are willing to be a Crown witness and/or to provide a formal written statement at Mr Phillips’ trial.

[30]   It follows, that were I to sentence you to a term of imprisonment, the term of imprisonment would be 18 months, less 50 per cent – an end sentence of nine months’ imprisonment.

[31]   I do not however consider that a sentence of imprisonment is appropriate in the circumstances of your case. The Sentencing Act requires me to impose the least restrictive sentence that is appropriate in the circumstances and to seek to encourage your rehabilitation. In my judgment, in your circumstances, this requires a sentence of community work and community detention. Community work will assist in your rehabilitation. Community detention will condemn the conduct in which you were involved and act as a deterrent to others. Such a sentence will in my view better serve the purposes and principles of the Sentencing Act.

Final sentence

[32]Mr Taylor, will you please stand.

[33]   On the charge of being in unlawful possession of a firearm, you are sentenced to 300 hours’ community work, and to a sentence of community detention for a period of four months. The sentences are to be served concurrently.

[34]I make an order for the destruction of the ammunition found in your bedroom.

[35]   Mr Taylor, you have led an offence free life to date and I am satisfied that your present offending was an aberration. I am confident that you will serve your sentence and go on to make a positive contribution to society. You may stand down.

Name suppression

[36]   Ms Hamilton advised me that to date Mr Taylor has enjoyed interim name suppression. That order is due to expire today. Mr Sturm does not seek continued

name suppression for his client. The order for interim name suppression is lifted. There is no ongoing suppression of Mr Taylor’s name.

Addendum

[37]   After the sentencing had concluded, I was advised by the Registrar that I neglected to specify the curfew address and the relevant curfew period for the sentence of community detention. The Provision of Advice to Courts report suggested that any sentence of community sentence should be served at [REDACTED MATERIAL], and that the curfew period should be from 7 pm to 6 am, Monday to Sunday inclusive. I discussed community detention with counsel, and it was accepted by Mr Sturm that there would be a curfew period.

[38]   Accordingly, I direct that the sentence of community detention is to be served at the curfew address of [REDACTED MATERIAL], and that Mr Taylor is subject to curfew from 7 pm to 6 am, Monday to Friday inclusive, with the first curfew to begin on Wednesday 16 December 2020.

Wylie J