Woodward v Police - [2021] NZHC 2367

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2021-483-012

[2021] NZHC 2367

BETWEEN
SIMON JAMES WOODWARD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 September 2021

Appearances:

On the papers

Judgment:

10 September 2021

JUDGMENT OF GRICE J

(sentence appeal)

Introduction and background

The offending and sentencing

[1] On 23 June 2021 Mr Woodward was sentenced by Judge Carter in the Marton District Court to 25 months’ and two weeks’ imprisonment for six charges, namely: one charge of unlawful possession of a firearm, one charge of unlawful possession of ammunition, one charge of cultivating cannabis, one charge of possessing utensils for methamphetamine, one charge of being unlawfully in a building in Queenstown, and lastly, one charge of unlawfully converting a motor vehicle.1

[2] Mr Woodward had appealed his sentence, with that appeal being set down for 6 October 2021. However, on 19 August 2021, counsel for Mr Woodward filed a

1 Police v Woodward [2021] NZDC 12387.

WOODWARD v NEW ZEALAND POLICE [2021] NZHC 2367 [10 September 2021]

memorandum seeking clarification from the Crown of a factual matter relating to one of Mr Woodward’s charges.

[3] Specifically, in relation to the unlawful possession of a firearm charge, Judge Carter had stated in his sentencing notes that when the police had executed a search warrant on Mr Woodward’s address, they had found an 8 mm starter pistol that had been modified to fire live rounds, and was loaded with four rounds in the chamber.2

[4] Importantly, Judge Carter took this as the lead charge, and adopted a starting point of 20 months’ imprisonment, identifying a range of aggravating features, including the fact that the gun was loaded and that it had four rounds in the chamber:3
The lead offence is the unlawful possession of firearm and there are a number of aggravating features about that. It was an easily accessible pistol under your bed. The pistol was loaded with four rounds in the chamber and the locating of that pistol was accompanied at the same time by locating drugs and ammunition at the same location.

[5] That starting point was adopted by the Judge after having set out a number of comparable cases which related to the possession of unlawful loaded guns.

Counsel identify an issue with the sentencing

[6] In their 19 August 2021 memorandum, counsel for Mr Woodward identified that there was no evidence in the summary of facts for Mr Woodward’s offending which indicated that the pistol was loaded, or had four rounds in the chamber. In fact, counsel submitted that the modification of the starter pistol meant that it could only hold one round in the chamber at a time, and that when the police seized it, it was not in fact loaded.

[7] Counsel requested clarification from the Crown and police as to whether they were still in possession of the pistol, whether it was unloaded at the time it was seized, whether it could or could…

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

Case: [2021] NZHC 2367
Decision Date: 10 September 2021

CaseChat Overview and Summary

Simon James Woodward has appealed the sentence imposed by the Marton District Court. The appeal was heard by Grice J. The respondent, New Zealand Police, submitted that the appeal should be dismissed. The appeal concerned the sentence of 25 months’ and two weeks’ imprisonment for multiple charges, including unlawful possession of a firearm, unlawful possession of ammunition, cultivating cannabis, possessing utensils for methamphetamine, being unlawfully in a building, and unlawfully converting a motor vehicle. The primary issue was whether there was a factual error in the sentencing that led to a manifestly excessive sentence. The Court found that there was a significant factual error regarding the unlawful possession of a firearm charge, which resulted in a manifestly unjust sentence. The error was due to the judge's reliance on incorrect submissions made at sentencing. A disputed facts hearing, which may have clarified the issue, was not held. The appeal was allowed, and the matter was remitted back to the District Court for re-sentencing.

Orders