The appellant appeals against a sentence imposed by Judge Spear in the District Court[1] following the appellant’s plea of guilty to one count of unlawful possession of a pistol and one count of unlawful possession of ammunition, contrary to s 45(1)(b) of the Arms Act 1983. In each case the maximum penalty was four years imprisonment. The sentence imposed was two years ten months imprisonment on the first count with a concurrent sentence of two years imprisonment on the second.
[1] R v Torea DC Hamilton CRI-2009-019-5510, 19 August 2010.
The appellant submits that the sentence was manifestly excessive.

Background facts

On 11 June 2009 the appellant went to the property of a female friend to collect some belongings which included a gang patch, a Webley .455 calibre pistol and ammunition for it. There was a disturbance and the police were called. When they arrived they found the appellant sitting in the lounge. He was arrested. The police found the pistol under a cushion on the couch where he had been sitting. Its safety catch was disengaged and there were three bullets in the chamber. One bullet was lined up in the firing position. As the Judge found, it was a pistol ready to be used.
It is common ground that the appellant was on bail for other offending at the time of the subject offences. Initially, the Judge thought that the appellant was outside his curfew at the time of the offending but he later accepted this was not the case and made a small downward adjustment in his sentence which is not disputed.

The Judge’s approach to sentencing

The Judge considered that the offending was serious, particularly because of the nature of the firearm and the fact that it was loaded with the safety catch off. He was also concerned about the appellant’s background, noting he was a long-standing patched member of the Black Power gang whom the probation officer described as the Sergeant at Arms of the local chapter, responsible for discipline within the ranks of the gang.
The Judge described the appellant as having a shocking history of previous offending. As recently as 2004 he was sent to prison for three years and nine months on two charges of wounding with intent to injure. There was a firearms conviction in 2000 for possession of a firearm for which the appellant had received a sentence of six months imprisonment, cumulative on other offending. There was an earlier conviction in 1988 for possession of a sawn-off shotgun.
The Judge also recorded that the appellant had a number…

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.

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Details

AGLC: Torea v R [2011] NZCA 96
Case: [2011] NZCA 96
Decision Date: 25 March 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Jason Charles Torea, appealed against his sentence for unlawful possession of a pistol and ammunition, which he had pleaded guilty to. The court considered the appeal against the sentence imposed by Judge Spear in the District Court, which was two years ten months imprisonment on the first count with a concurrent sentence of two years imprisonment on the second. The appellant argued that the sentence was manifestly excessive.

The legal issues the court needed to decide included whether the starting point for the sentence was appropriate and whether the sentence imposed was manifestly excessive. The appellant's counsel accepted the uplifts for previous convictions and offending while on bail, as well as the discount for the guilty plea, but challenged the starting point of two years six months imprisonment as being manifestly excessive.

The court held that the starting point of two years six months imprisonment was within the range available to the Judge. The court recognised that possession of loaded firearms, particularly by those with gang connections, would require a sentence that would be an effective deterrent to the offender and to others who may be similarly minded. The court concluded that the final sentence was within range and not manifestly excessive, and dismissed the appeal against sentence accordingly.

Orders