Ward v The King
[2025] NZHC 167
•13 February 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-204
[2025] NZHC 167
BETWEEN JORDAN PAUL WARD
Appellant
AND
THE KING
Respondent
Hearing: 13 February 2025 Appearances:
M Starling for Appellant
A M Harvey for Respondent
Judgment:
13 February 2025
ORAL JUDGMENT OF EATON J
(appeal against sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WARD v R [2025] NZHC 167 [13 February 2025]
Introduction
[1] Jordan Ward pleaded guilty to two charges of unlawfully possessing firearms (representative),1 two charges of unlawfully possessing ammunition2 and one charge of possessing an offensive weapon.3 On 14 August 2024, he was sentenced by Judge Duggan to 27 months’ imprisonment.4 He appeals this sentence on the grounds it was manifestly excessive.
Facts
[2]The District Court Judge summarised the offending in these terms:
[7] To make things more complicated or more serious, there are two parts to your offending.
[8] The first part relates to the firearms and the ammunition that you unlawfully had in the car that you were in, at 3.20 am on the morning of 10 February. More particularly, you had a firearm that was under your driver’s seat, then on the back seat there was a bag that contained an assault rifle, with five rounds of ammunition, and you had in your pocket another five rounds of ammunition. The police also found (but this is less significant compared to the firearms) a large metal file which is where the possession of an offensive weapon charge comes from. In total you had two firearms, one an assault-style firearm, and ten rounds of ammunition, and the file.
[9] You were arrested, charged and then bailed after you appeared in court for those two firearms. And after you were bailed, you went home and contacted an associate or a friend and asked her to come and collect some stuff from your place. She collected a pistol that was loaded with a round, four other unloaded pistols, a shotgun, and over 100 firearm parts.
[3] Each of the firearms in the vehicle search were 3D printed, as were the four pistols, one shotgun and the firearm parts located at the associate’s address.
District Court Decision
[4] The Judge adopted a starting point of 30 months’ imprisonment for the firearms and ammunition found in the car, taking into account the aggravating factors that there was a pistol under Mr Ward’s seat for ready access and an assault weapon and ammunition on the back seat. A starting point of 30 months’ imprisonment was
1 Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment or $5000.
2 Section 51; maximum penalty three years’ imprisonment or $4000.
3 Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.
4 Police v Ward [2024] NZDC 19301.
adopted for the second set of charges, being the firearms, parts and ammunition that Mr Ward arranged for his associate to uplift. That starting point reflected that one of the pistols was loaded, and that there were multiple weapons and a significant amount of ammunition and parts. It also reflected that Mr Ward had asked an associate to conceal those items post arrest and release. The two starting points were then adjusted to account for totality and reduced to a starting point of 42 months’ imprisonment.
[5] A 25 per cent deduction was allowed for guilty pleas and a further 10 per cent to acknowledge the impact of imprisonment on Mr Ward’s brother and father. That resulted in an end sentence of 27 months’ imprisonment.
[6] Finally, The Judge made an order for destruction of the firearms, parts, the file, and the ammunition, and cancelled Mr Ward’s outstanding fines of nearly $1,500.
Principles on appeal
[7] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal said in Tutakangahau v R, referencing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7 The Court of Appeal in Ripia v R held that “[t]he route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal”.8
Leave to appeal out of time
[8] Mr Ward seeks leave to appeal out of time. Section 248 of the Criminal Procedure Act requires a notice of appeal to be filed within 20 working days
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
8 At [15].
of the sentence under appeal. Mr Ward was sentenced on 14 August 2024 but the notice of appeal before me was not filed until 3 December 2024. However, he had filed a notice of appeal against conviction and sentence on 19 August 2024. That appeal was not pursued. When the second notice of appeal was filed, it was not an amended notice of appeal. Consequently an extension of time is sought in relation to the latter notice of appeal. Counsel explains there were issues associated with the availability of assigned legal aid counsel.
[9] Ultimately, the overriding consideration for the Court in determining whether to grant an extension of time is whether the interests of justice support that extension. Appropriately and responsibly, Mr Harvey does not offer any opposition to that application and given the explanation provided by Mr Starling on behalf of Mr Ward, and the lack of prejudice to the respondent, I grant leave for appeal to proceed out of time.
Submissions
Appellant’s submissions
[10] Mr Starling, on behalf of Mr Ward, submits the sentence imposed was manifestly excessive. He submits the Judge erred in treating the two sets of offending as distinct and in fixing discrete starting points of two years and six months’ imprisonment imposed cumulatively with an 18-month discount for totality. He submits that the adjusted starting point of three years and six months’ imprisonment was too high, particularly having regard to the starting point that was adopted in a case that he submits involved more serious firearms offending, namely Police v Cranch.9
[11] Mr Starling submits the correct approach is to set a starting point for the first set of offending and to then apply an uplift for the second set. He proposes a starting point of 20 to 24 months’ imprisonment with an uplift of six months.
9 Police v Cranch [2022] NZHC 461.
Respondent’s submissions
[12] Mr Harvey, on behalf of the respondent, submits the end sentence of 27 months’ imprisonment was not manifestly excessive. He submits that the possession of a single firearm with no mitigating circumstances generally calls for a starting point between two- and three-years’ imprisonment.10 He refers to Court of Appeal authorities emphasising the seriousness with which the courts view unlawful possession of firearms, particularly when it is coupled with live ammunition.11 He therefore contends the global starting point of three years and six months’ imprisonment was appropriate, even though the approach adopted by the Judge might have been erroneous.
Analysis
[13] Mr Starling has focused his submissions on the process adopted by the sentencing Judge in fixing a starting point. In my view the mechanism by which the sentence is constructed will rarely determine whether an end sentence is manifestly excessive. The more appropriate focus in this appeal is whether the starting point of 42 months’ imprisonment that was adopted was too high. I am satisfied it was not.
[14] As Mr Harvey has submitted, the possession of a single firearm, in this case in a vehicle and with ammunition close by, with no mitigating circumstances generally call for a starting point in the vicinity of two to three years’ imprisonment.12 If the offending involves a greater number of firearms then offenders should expect a higher starting point.13 The sentencing for the unlawful possession of firearms must be guided by observations of the Court of Appeal, for example, in R v Richardson where the Court said: 14
Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential for danger from their possession.
10 Campbell v R [2022] NZCA 579 at [18]–[19].
11 R v Richardson CA450/02, 25 March 2003 at [33].
12 Campbell v R, above n 10, at [18].
13 At [19].
14 R v Richardson, above n 11, at [33].
[15] Mr Ward’s offending, in my view, warranted a stern approach from the court. The aggravating features of his offending included that he was unlawfully in possession of nine firearms, 73 live rounds of ammunition and a significant number of firearm parts. Also, that one of the firearms was loaded, that one was an assault rifle, that one was readily accessible under the seat of the vehicle that he had been driving, and that he was also in possession of an offensive weapon being the large metal file. I agree with Mr Harvey that a distinct and significant aggravating factor is that following his arrest and his release on conditions, Mr Ward continued to possess firearms and attempted to conceal that offending by organising an associate to store firearms on his behalf.
[16] I have considered this Court’s decision in Cranch.15 Mr Cranch was found in possession of 22 firearms, 19 of which were prohibited military style semi-automatic (MSSA) firearms concealed throughout his property. However, unlike Mr Ward, he was not the owner of the firearms, he was storing them for other persons and there is no suggestion that those firearms found in possession of Mr Cranch were 3D printed or had otherwise been unlawfully manufactured. Cranch was a Solicitor General’s appeal against a sentence of nine months’ home detention. On appeal it was submitted that the sentence was manifestly inadequate.
[17] Fitzgerald J considered the appropriate starting point should have been one of between three years and six months’ to four years’ imprisonment but adopted the lower figure in recognition that the appeal was brought by the Solicitor General.16 The Judge identified as aggravating factors of Mr Cranch’s offending the number of weapons, the seriousness of the types of weapons (19 being prohibited MSSA firearms), that the firearms were by and large fully operational, that Mr Cranch had access to 2,500 rounds of ammunition and Mr Cranch had his firearms licence revoked.17
[18] Plainly Mr Cranch was found to be in the unlawful possession of significantly more firearms than Mr Ward. But unlike Mr Cranch, Mr Ward’s offending is aggravated, and in my view significantly aggravated, by the fact he was travelling in
15 Police v Cranch, above n 9.
16 At [51].
17 At [42].
a vehicle with very easy access to firearms. It was significantly aggravated by the fact that one of the firearms that the police seized was loaded, that he personally owned the firearms and ammunition seized, and that he had made arrangements to continue to unlawfully possess firearms following his arrest. I am therefore satisfied the starting point adopted by the Judge in this case was not at odds or inconsistent with the approach taken in Cranch.
[19] One factor not raised in the written submissions of counsel is that all nine firearms found in Mr Ward’s possession were manufactured using a 3D printer and that he was found to be in possession of over 100 3D printed firearm parts. In 2020, Parliament introduced, by the Arms Legislation Act 2020, a new offence of manufacturing a firearm. That offence carries a maximum penalty of 10 years’ imprisonment,18 a maximum penalty that is significantly higher than the four years Mr Ward faced for unlawful possession of a firearm. The new offence and the higher maximum penalty reflect the inability of agencies to trace 3D printed firearms or other firearms that had been home manufactured and the evolving criminal enterprise of trading in 3D printed weapons. I consider it aggravates Mr Ward’s offending that a majority of the firearms and the firearm parts he was found in possession of had been 3D printed. As I have observed that was not a matter that was discussed at all in the District Court. Given the absence of argument on the issue in this case, I do not intend to comment any further on that factor.
[20] I agree with Mr Starling that it would have been more appropriate for the Judge to have adopted a starting point for the first set of offending and imposed an uplift for the second set of offending given all offending involved a connected series of offences. However, the starting point ultimately adopted, and the end sentence imposed were, in my view, appropriate and reflected the very serious nature of the offending. That is a view I would have reached regardless of the fact that Mr Ward’s firearms were 3D printed.
[21] The final issue raised by Mr Starling was that the Judge failed to impose a sentence that reflected parity with the sentence imposed on the co-offender, that is the
18 Arms Act 1983, s 55D.
associate who had stored the firearms on behalf of Mr Ward. I am not satisfied there is any merit in that submission. The co-offender’s role was so distinct and secondary to that of Mr Ward that the sentence imposed on the offender bore little relevance to the appropriate sentence to be imposed on Mr Ward.
Result
[22]For those reasons, the appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
M Starling, Barrister, Christchurch
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