The Queen v Te Awa

[2007] NZCA 480

IN THE COURT OF APPEAL OF NEW ZEALAND

CA132/07
[2007] NZCA 480

THE QUEEN

v

TRINITY JAMES TE AWA

Hearing:11 October 2007

Court:Arnold, Ronald Young and Fogarty JJ

Counsel:W C Pyke for Appellant

A Markham for Crown

Judgment:1 November 2007 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

[1]       The appellant was a prospect for the Head Hunters gang and was living at an address occupied by members of the gang.  The Police executed a search warrant at the premises.  They found in the appellant’s bedroom a Luger pistol (operable, but having an intermittent fault), a loaded home-made pen gun (.22 calibre), a round of .22 calibre ammunition, a police scanner, some plastic snaplock bags, a set of electronic scales, a quantity of cash, a flick knife and a shoebox containing a large quantity of psuedoephedrine pills.

[2]       After a jury trial in the District Court, the appellant was convicted on two counts of being in unlawful possession of a pistol (the Luger and the pen gun), one count of unlawful possession of an explosive (the round of ammunition) and one count of possession of utensils for the purpose of supply of methamphetamine (the electronic scales).  He was acquitted of a count relating to the possession of the pseudoephedrine pills.  He also pleaded guilty to a charge of breach of a community work order. 

[3]       He was sentenced by Judge Wade to a total effective term of imprisonment of three years one month made up as follows:

(a)Two and a half years imprisonment on each of the firearms counts (concurrent);

(b)Two years imprisonment on the ammunition count (concurrent);

(c)Six months imprisonment on the possession of utensils for the purpose of supply count (cumulative);

(d)One months imprisonment for breach of the community work order (cumulative).

[4]       The appellant appeals against that sentence on the grounds that it is manifestly excessive. 

[5]       Mr Pyke made two principal submissions for the appellant.  He argued that:

(a)The sentence of two and a half years imprisonment in relation to the firearms offences was excessive in light of the decision of this Court in R v McDonald CA108/00 10 July 2000;

(b)       The Judge took no account of mitigating factors.

We deal with each point in turn.

[6]       In McDonald the appellants were members of the Road Knights gang.  They were found in possession of what the Court described as “a virtual arsenal” – a loaded pistol and two boxes of ammunition, a sawn off double barrel shotgun and six shells, a cut down .22 calibre rifle and 16 rounds of ammunition, a concealed cut-down and loaded semi-automatic 12 gauge shotgun and a detonator.  All the weapons were operable, although the semi-automatic shotgun required cleaning and oiling. 

[7]       The appellants were convicted on four counts of unlawful possession of a firearm and one count of unlawful possession of an explosive.  The trial Judge imposed a total sentence of three years imprisonment on each of the appellants except one who was judged to be less culpable.  He arrived at this figure by imposing concurrent sentences of two years imprisonment on three of the firearms charges and a further 12 months imprisonment imposed cumulatively on the fourth firearm charge (the semi-automatic shotgun).  In addition, a concurrent sentence of six months imprisonment was imposed for the possession of an explosive charge. 

[8]       Having reviewed the authorities, this Court upheld the sentences imposed.  The Court emphasised that the case involved a quantity of operable lethal weapons in the possession of gang members for use in possible gang conflict.

[9]       Mr Pyke said that in the present case there was no evidence that the two weapons would be used other than for self-defence.  Mr Pyke emphasised that this case did not involve a cache of weapons and said that there were no high powered or semi-automatic weapons, nor any suggestion that they would be used in gang confrontations.  Mr Pyke argued accordingly, that the offending was not as serious as the offending in McDonald.

[10]     In sentencing the appellant on the firearms charges, the Judge considered the decision in McDonald.  He was prepared to accept that the Luger pistol may have been possessed simply for the purpose of intimidating others.  However, he pointed out that the pen gun could not be used to intimidate people - its only purpose was to  kill or wound at close range.  The Judge noted that it was loaded and ready for use.  The Judge also emphasised that the weapons were found at a gang house which was obviously being used for the distribution of class A controlled drugs.  This, the Judge considered, was an aggravating feature of the offending.  The Judge placed great weight on the need for deterrence.  He determined that a starting point for the firearms offences of two years six months imprisonment was appropriate, thereby treating the offences as less serious than those in McDonald.

[11]     We see no error in this analysis.  The only explanation for the possession of the pen gun was that it was to be used to injure others in the context of drug dealing.  Its innocuous appearance made it the more dangerous.  The firearms convictions called for a stern response, albeit at a lesser level than that adopted in McDonald.  This is exactly what happened.

[12]     In relation to the possession of the scales, the Judge said that it was clear that the scales were intended for use by other gang members for supplying class A drugs.  In those circumstances the Judge considered that he should impose a cumulative sentence.  Given that the Judge had treated the drug supply context as an aggravating feature in relation to the firearms offences there is a question as to whether there is an element of “double counting” as a result of the six months sentence being cumulative on the firearms sentences.

[13]     We consider that there is no element of double counting, however.  Clearly the possession of firearms as an adjunct to a drug operation is an aggravating feature in the context of sentencing on firearms charges.  Possession of drug paraphernalia for the purpose of supply is an offence which is different in kind from the firearms offences.  Accordingly, in terms of s 84(1) of the Sentencing Act 2002, a cumulative sentence will generally be appropriate.  This is of course subject to the totality principle (see in particular, s 85(2) of the Sentencing Act).  In the present case we are satisfied, essentially for the reasons which the Judge gave, that the total sentence on the firearms and possession of paraphernalia charges of three years imprisonment is not out of proportion to the gravity of the overall offending. 

[14]     As to mitigating circumstances, Mr Pyke emphasised that the appellant’s pre‑sentence report noted that he had a reasonably good employment record and that his last employer said he would re-employ the appellant.  The employer said this despite the appellant’s somewhat erratic work performance in the two years before the offending as a result of his methamphetamine use.  Mr Pyke also drew attention to the fact the appellant had been attending courses and had positive plans for the future.  The pre-sentence report recorded that “[d]epartmental tools recognise [the appellant] as being a low risk of re‑offending”.  The report described the appellant’s motivation to change as “medium to high”.  Against this however, was the fact that the appellant has subsequently become a patched member of the gang and has indicated that he is not prepared to disassociate himself from it.

[15]     While the Judge did refer to the positive features identified in the pre‑sentence report, he placed more weight on the appellant’s unwillingness to break his links with the Head Hunters gang.  Whatever plans the appellant may now have, the likelihood of his being able to fulfil them must be assessed against the background that he has become a patched member of the gang and wishes to resume his gang lifestyle on his release.

[16]     While we consider that a modest allowance could have been given for mitigating factors we cannot say that the sentence imposed reflected an error of principle or was manifestly excessive.  The sentence, overall, was within the range available to the Judge, albeit at the upper end.  In those circumstances we must dismiss the appeal.

Solicitors:

Crown Law Office, Wellington