Ward v Police

[2022] NZHC 1051

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-162

[2022] NZHC 1051

BETWEEN

TIM AIDEN WARD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 May 2022
Appearances:	A J Bailey for Appellant L Fiennes for Respondent
Judgment:	13 May 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 13 May 2022 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

WARD v POLICE [2022] NZHC 1051 [13 May 2022]

[1]    Mr Tim Ward pleaded guilty to two charges laid pursuant to the Arms Act 1983. The first was an allegation that he, together with two other persons, was unlawfully in possession of three shotguns and a .22 rifle. The second charge concerned his unlawful joint possession of ammunition. On these charges he was sentenced by Judge Crosbie in the Christchurch District Court to 27 months’ imprisonment. On charges of possessing methamphetamine and breaching his bail he was convicted and discharged.1 Mr Ward now appeals his sentence.

Factual background

[2]    In the early hours of 2 December 2020, police searched a motor vehicle occupied by Mr Ward and two other persons. A number of 12-gauge shotgun rounds had been viewed in plain sight on the rear seat of the vehicle. A search of the vehicle located two cut-down 12-gauge shotguns under the front seats. A further cutdown 12- gauge shotgun was located on the rear passenger seat. A .22 pistol was located on the road directly under the vehicle. A magazine containing 10 rounds of .22 ammunition was found in the front passenger footwell and a further 50 rounds of 12-gauge ammunition were located on the rear passenger seat.

[3]    When Mr Ward was searched a shotgun round and 2 grams of methamphetamine were located in his hooded fleece.

District Court sentence

[4]    The sentencing Court was provided with an affidavit from one of Mr Ward’s co-defendants, Ramon Turner, which acknowledged the guns and ammunition located in the vehicle belonged to him and had already been in the car when Mr Ward got into it.2 The Judge accepted that, while Mr Ward’s offending should be viewed as less serious than Mr Turner’s, the distinction to be drawn was modest and that a condign sentence should be imposed.

1      Police v Ward [2021] NZDC 21934.

2      Mr Turner, who also pleaded guilty, was sentenced by the same Judge to 33 months’ imprisonment on the two Arms Act charges and further charges of possessing a drug utensil and MDMA.

[5]    Judge Crosbie identified the aggravating features as being the number of firearms found in the vehicle, the presence of two other individuals with gang associations, ammunition for the firearms being directly accessible and the fact this occurred in the early hours of the morning. The Judge remarked that the presence of firearms in those circumstances, which were ready and able to be used, was a “recipe for disaster”. It was observed that the inference to be drawn from the circumstances of the occupants’ possession of the firearms was that they had them for a criminal purpose and that the starting point should approach the maximum penalty.

[6]    After taking into account Mr Ward’s previous convictions, a starting point of 42 months’ imprisonment was adopted. From that a 15 per cent discount was applied for matters canvassed in a s 27 cultural report and a 20 per cent credit afforded to  Mr Ward for his guilty plea. This resulted in the sentence of two years and three months’ imprisonment (27 months).

Appeal

[7]    Mr Ward challenges the starting point of 42 months’ imprisonment as being manifestly excessive. On his behalf, it was argued the Judge’s assessment of the circumstances of the offending did not take into account that the shotguns had been disassembled and that the .22 firearm and magazine for that weapon were located in separate places. It followed in counsel’s submission that none of the firearms were available for immediate use as they would have to be assembled and loaded. It was further stressed that Mr Turner had accepted ownership of the firearms and that they had already been in the car when Mr Ward entered the vehicle.

[8]    It was argued that the District Court had erred in its conclusion that it was difficult to think of a case more serious than this one. In that regard, it was noted there was no evidence Mr Ward or his associates had any specific criminal purpose in mind at the time they were found in possession of the firearms and, in the absence of them being fully assembled, loaded and available for immediate use, the offending could obviously have been more serious. In further support of that submission, it was noted the firearms were not ones prohibited under the Arms Act.3 Finally, it was argued the

3      Arms Act 1983, s 2A.

Judge had failed to take into account Mr Ward’s lesser involvement, which ought not to have attracted a starting point approaching the maximum penalty.

[9]    No issue was taken with the  discounts  provided  for  the  guilty  pleas  or  Mr Ward’s personal circumstances. In respect to Mr Ward’s previous firearms convictions, it was suggested a limited uplift of three months’ imprisonment would have been appropriate. It was accepted that an end sentence of imprisonment was unavoidable, but that the starting point should have been no greater than between   18 months to two years.

The Crown’s response

[10]   The Crown’s position is that the final sentence imposed was within the available range of the sentencing Judge in the exercise of his discretion and cannot be considered manifestly excessive. The Crown submitted the Judge was correct to categorise the offending as falling within the upper end of seriousness given the number of firearms located and the circumstances in which they were found. Relying upon observations made by the Court of Appeal in Torea v R,4 the Crown submitted the Judge was correct to impose a sentence that carried a deterrent effect.

[11]   Further aggravating factors included the way in which the shotguns had been sawn down to enable them to be concealed, and that they had obviously been modified for a criminal purpose.5 In response to the submission the shotguns were not available for immediate use, the Crown pointed out that the .22 pistol had a magazine nearby and could be easily loaded. There was also ammunition readily available in the vehicle to be used in the shotguns. In relation to Mr Turner’s acceptance of ownership of the firearms, the Crown submitted this was not a significant mitigating factor given     Mr Ward’s acceptance of his joint possession of the weapons, and that it was telling he was found with a shotgun cartridge in his pocket.

4      Torea v R [2011] NZCA 96.

5      Police v Cook DC Whangārei CRI-2008-088-6084, 19 May 2009; and Herewini v Police [2014] NZHC 2396.

Analysis

[12]   The appeal centres on the correctness of the starting point adopted by the sentencing Court. There is no guideline or tariff case for sentencing for firearm offending, and the assessment of the appropriate level of sentence will turn on the circumstances of the individual case. The present situation must be considered as constituting serious offending. Four firearms were located, three of which had been modified by being cut down, clearly for a criminal purpose, and were inherently dangerous.6 They were not loaded but ammunition was readily to hand in the vehicle. Similarly, the firearms could easily be assembled and quickly made ready for use. Mr Ward’s associates have gang connections, and the weapons were found in a vehicle in a public place and at night.

[13]   I accept Mr Ward’s culpability is to some degree reduced as a result of the information provided by Mr Turner, that the firearms were owned by Mr Turner and were already in the car when Mr Ward entered the vehicle. However, Mr Ward pleaded guilty to joint possession of the firearms and ammunition, which was an admission that he had both knowledge of the firearms and the ability to exert control over them. The shotgun rounds were clearly visible from outside the car and Mr Ward would have been aware of them and the firearms when entering the vehicle. The presence of the shotgun cartridge in his pocket is a significant circumstance that points to a closer level of involvement, at least with the shotguns.

[14]   Both Mr Ward and the Crown relied on various sentencing decisions to support their respective arguments. The most analogous cases included:

(a)Rawiri v R7 – On three different occasions the offender was found in possession of a total of five firearms, including military-style firearms. He was associated with a gang and some of the firearms were loaded. A starting point of three years and six months’ imprisonment was upheld on appeal. It was noted in this relatively recent case that where a single firearm is located with no mitigating circumstances, a starting

6      Herewini v Police, above n 5, at [27].

7      Rawiri v R [2021] NZHC 1573.

point in the vicinity of two to three years has been adopted by this Court.8

(b)Keenan-Fry v Police9 – The appellant was convicted of two charges of possessing firearms and two charges of possessing ammunition, together with a litany of other drug and traffic offending. During the course of a police chase, he threw a pistol out of a motor vehicle which was retrieved by police. It contained a magazine loaded with three live rounds of ammunition. Another magazine was located in the vehicle. The police also found cannabis, a sawn-off double-barrel shotgun, shotgun cartridges and a methamphetamine pipe. The starting point of 40 months’ imprisonment, which included a six-month uplift for the appellant’s previous convictions and the fact the offending took place while he was on bail, was not challenged on appeal.

(c)Bowring v Police10 – The police located a 12-gauge shotgun and ammunition belt containing 10 rounds of shotgun ammunition. It was not assembled when found, but when put together was capable of being fired. While on bail for these charges, a cut-down firearm and five rounds of ammunition for that weapon was found in the appellant’s possession, together with 13 grams of cannabis oil and three bongs. The appellant had gang connections. A starting point of 22 months’ imprisonment for the first offending was uplifted by 14 months’ for the second episode of offending and upheld on appeal.

(d)Aspinall-Su’a v Police11 – The appellant was found in possession of a sawn-down single-barrel shotgun, one shotgun pistol and approximately 24 rounds of shotgun ammunition. When the defendant was located after absconding on bail, he was found with a loaded firing pistol designed to fire blanks which had been modified to discharge live

8      Rawiri v R, above n 7, at [33]. As an example, Torea v R, above n 4, was cited, where a starting point of two years and six months was considered appropriate for a single loaded firearm with obvious gang overtones.

9      Keenen-Fry v Police [2021] NZHC 562.

10     Bowring v Police [2021] NZHC 3198.

11     Aspinall-Su’a v Police [2020] NZHC 3022.

rounds. He was also located with a sawn-off double-barrelled shotgun that, while divided into two halves, could readily be assembled back together. Twelve 12-gauge shotgun shells were also located, together with some cannabis. There was no suggestion the offending was gang related. A starting point of 34 months’ imprisonment was upheld on appeal.

(e)McMillan v Police12 – A search of the appellant’s motor vehicle located a stolen rifle and a loaded semi-automatic shotgun which had been cut down. The possession of these firearms took place in the context of drug offending involving  methamphetamine.  A  starting  point  of  20 months’ imprisonment was upheld on appeal.

[15]   The circumstances of each case will invariably differ and care is required when drawing comparisons with other sentencing decisions. The aggravating features of Mr Ward’s offending are readily apparent given the number of firearms (four), their modification, the accessibility of appropriate ammunition, the fact they were located in a car with people with gang affiliations in the early hours of the morning, and their obvious possession for criminal purposes. The fact Mr Ward was in possession of methamphetamine only added to the dangerous situation.

[16]   These factors notwithstanding, when compared with other cases, I accept the 42-month starting point was excessive, although it likely reflected the Court’s concern at the growing prevalence of firearms and the public’s disquiet about their use for criminal offending. Based on relevant authority, I consider a three-year starting point would have been more consistent with broadly analogous cases in the particular circumstances of Mr Ward’s offending.

[17]   From this starting point of three years, I consider an uplift of three months to recognise Mr Ward’s prior criminal involvement with firearms would have been appropriate. The present offending occurred only four months after he was convicted for like offending. This would bring the final starting point to three years and three months’ imprisonment (39 months’ imprisonment). After applying the 20 per cent

12     McMillan v Police [2019] NZHC 3323.

discount for Mr Ward’s guilty pleas and the 15 per cent discount for his personal background, the final sentence would be one of 25 months’ imprisonment, only two months less than that imposed by the District Court.

[18]   This minimal difference indicates the final sentence imposed by the District Court was one that fell within the exercise of judicial discretion and was not manifestly excessive. In reaching that conclusion, I note the Judge’s legitimate objective to impose a deterrent sentence. An appeal court will not intervene where the sentence is within range and can properly be justified by accepted sentencing principles.13 In the present case, any alteration to the sentence would amount to mere tinkering.

Result

[19]The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].