IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CRI-2019-019-5053
[2020] NZHC 1892	

THE QUEEN	

v	

RODERICK JAMES FINLAYSON	

Hearing:	31 July 2020	
Appearances:	R Guthrie for Crown
G Dixon and L McMaster for Defendant	
Judgment:	31 July 2020	

SENTENCING REMARKS OF LANG J

Solicitors:
Hamilton Legal, Hamilton
Public Defence Service, Hamilton

R v FINLAYSON [2020] NZHC 1892 [31 July 2020]

[1]	Mr Finlayson, you appear for sentence today having pleaded guilty to charges of being in unlawful possession of a firearm and ammunition. The maximum penalty for both charges is four years imprisonment.

[2]	You pleaded guilty following a sentence indication I gave on 18 June 2020.1 In that indication I set the starting point applicable for your offending. I then indicated the discounts I would be prepared to give to reflect the fact that, at 30 years of age, you have never appeared before the courts before. In addition, I indicated the level of discount that would be available for the entry of guilty pleas.

[3]	I left open the prospect that further discounts may be given for mitigating factors that arose after the sentence indication and that might be referred to in a pre- sentence report. As it transpires, there is a further significant mitigating factor I need to take into account at this stage.

The facts

[4]	The factual basis for the sentence to be imposed on you is contained in an agreed summary of facts prepared for the sentence indication hearing. This records that on 28 March 2019 a Mr Garson contacted you via Facebook asking you to buy him a firearm. The two of you obviously knew each other reasonably well, and you have told the writer of the pre-sentence report that you trusted him. You say you understood he intended to apply for a firearms licence and he wanted you to buy a firearm and ammunition in the meantime so that he could learn clay and duck shooting.

[5]	You then communicated with each other over the following months sporadically using the Facebook messenger application. You suggested Mr Garson should find a firearm on TradeMe. You said you would then go with him to pick up the firearm and Mr Garson would give you cash en route to the location at which you were to purchase the firearm.

[6]	On 12 August 2019 the two of you agreed that you would receive the sum of
$400 in exchange for purchasing the firearm for Mr Garson. Mr Garson then told you

1	R v Finlayson [2020] NZHC 1381.

the type of firearm he wanted, and you made arrangements to purchase it the following day. During the course of these communications you acknowledged to Mr Garson that you had “so much to lose” by purchasing a firearm for him. You also discussed the type of ammunition that you were to purchase for use with the firearm. He told you he wanted “strong, deadly ammo” to use for hunting out the back of the farm.

[7]	On the morning of 13 August 2019 Mr Garson picked you up from your home address. You then drove to a gun store, where you purchased a 12G Dickinson XX3 shotgun together with three different types of shotgun ammunition. You were able to purchase the shotgun and ammunition by presenting the owner of the store with your firearms licence as proof of your entitlement to purchase those items. You then returned to your home address. The summary records that you then left Mr Garson’s vehicle. You later told the police you had stored the items appropriately in a gun safe after taking them from Mr Garson’s vehicle. The summary is silent as to when you provided the firearm and ammunition to Mr Garson.

[8]	Following the sentence indication, you made a statement to the police in which you corrected the position. You told them you had given the shotgun and ammunition to Mr Garson on 13 August 2020. You said they were contained in a green canvas bag.

[9]	Tragically, the Crown alleges that the firearm and ammunition were used by Mr Garson on 16 August 2019 to kill an entirely innocent person and threaten to kill another. The Crown expressly acknowledges you had no inkling or knowledge that Mr Garson would subsequently use the firearm in the way that he did. Furthermore, you never received payment of the agreed amount for your services.

[10]	In the sentence indication, I said that several factors informed the starting point to be applied for the sentence you should receive.2 The first was that the offending was clearly premeditated because of the length of time over which the discussions took place. Secondly, you were plainly aware you were purchasing a firearm for someone who was not lawfully entitled to possess one. Thirdly, you were to receive a financial reward for committing an illegal act. It was therefore a commercial transaction, rather than a gratuitous act. Finally, in purchasing both the firearm and the ammunition, you

2	R v Finlayson, above n 1, at [7].

effectively placed Mr Garson in the position of being able to use the weapon to commit an act of serious violence. I therefore accepted the Crown’s submission that your actions were akin to providing Mr Garson with a loaded weapon. I reiterate, however, that the Crown acknowledges you had no knowledge of what Mr Garson would later do.

Starting point

[11]	The Crown and your counsel provided me with several authorities for offending of this type. They are set out in footnotes to the sentence indication, which I annex to these sentencing remarks. Having regard to the principles in those cases and the aggravating factors I identified, I selected a starting point of two years three months imprisonment as being appropriate.

Aggravating factors

[12]	As I have already recorded, you have no previous criminal convictions. There were therefore no aggravating factors to increase the starting point I selected.

Mitigating factors

[13]	Turning to mitigating factors, I have already recorded that at 30 years of age you have no previous convictions. This meant you were entitled to a discount to reflect your previous good character. I applied a discount of three months to reflect this factor.

[14]	You were also plainly entitled to a discount for your guilty pleas. I indicated a discount of five months, or around 20 per cent, was appropriate to reflect that factor. This led to an indicated sentence of 27 months imprisonment before taking into account any other mitigating factors that may be available to you.

[15]	Immediately following the sentence indication hearing you went to the police station and made a full statement outlining your involvement in this matter. You have also confirmed you will be giving evidence for the Crown at Mr Garson’s trial on charges of murder and threatening to kill. Your evidence will set out the circumstances in which Mr Garson came to be in possession of the weapon. You will also be able to identify the green bag that was found in circumstances suggesting involvement with

Mr Garson as being the one in which the items were placed when he took them away from you on 13 August 2019. This is an important factor, because it provides background information as to how Mr Garson came into the possession of the weapon that he allegedly later used in the offending with which he is charged.

[16]	The Crown did not need that evidence to prove the charges because it has other circumstantial evidence on which it can rely to show that Mr Garson must have been in possession of the weapon on 16 August 2019. Nevertheless I accept, as does the Crown, that your evidence will fill a gap in the background events leading up to the critical events with which Mr Garson is charged.

[17]	Co-operation of this type is well established as amounting to a mitigating factor the courts can take into account when fixing a sentence. In some cases the evidence is vital to the Crown case and the offender may also be in personal danger as a result of giving evidence for the Crown. Neither of those circumstances is present in your case. Nevertheless, I accept that a significant discount must be given for the assistance you have already provided and will provide at Mr Garson’s trial.

[18]	Wrapped up in this is the issue of remorse, because I accept Mr Dixon’s submission on your behalf that you have decided you need to take these steps in order to atone for what you have done. I accept that you are demonstrating true remorse in doing that.

[19]	Counsel are not far apart in the extent to which they say credit should be given. The Crown says credit of between 15 and 20 per cent should be given to reflect this factor. Your counsel says a discount of 20 per cent is appropriate.  I propose to apply a further discount of six months to reflect this factor.

Home detention or community detention?

[20]	This means the starting point of 27 months imprisonment is reduced by 14 months to produce an end sentence of 13 months imprisonment. In those circumstances a sentence of around six and a half months home detention would ordinarily be imposed because of the fact that you have never offended before and are unlikely to offend again in the future. It would make no sense in my view to sentence

a person in your position to a sentence of imprisonment when they have an unblemished background and are unlikely to offend again in the future. I take the present offending to have been a serious error of judgement on your part in which you were unable to resist the persuasion of a friend. It is obviously aggravated, however, by the fact that you were prepared to accept money for your services.

[21]	I therefore accept the Crown’s submission that a sentence of home detention would ordinarily be appropriate. That sentence would enable you to continue to work to provide for your partner and her children.

[22]	There are two problems with a sentence of home detention in the present case. The first is that the address at which you and your partner reside has been assessed as unsuitable for a sentence of home detention because it does not have a sufficient GPS signal. Secondly, your employment as a heavy machinery operator requires you to move around the countryside. GPS monitoring equipment only allows an offender to be monitored at his or her static place of work. For those reasons I consider a sentence of home detention to be served at the nominated address is not feasible.

[23]	The Crown submits that a sentence of home detention should nevertheless be imposed. This would mean I would need to defer sentencing so you could find an alternative address. In all probability this would require your partner and her children also to shift from their present address. I do not consider they should be put to that imposition, and I also consider sentencing should not be delayed further.

[24]	A sentence of community detention is therefore the only viable option. This would require you to maintain an electronically monitored curfew at your address for up to 80 hours per week.3 It would, however, also enable you to continue to work to provide for your family. I acknowledge the Crown’s concern that this may not be seen a sufficiently deterrent sentence, but it is effectively not greatly different to a sentence of home detention where the offender is permitted to work during daylight hours.

[25]	I have therefore concluded that a sentence of community detention for the maximum available period of six months is appropriate in your case. That is also the

3	Using a radio frequency signal rather than GPS.

recommendation in the pre-sentence report. The pre-sentence report also recommends a sentence of supervision, but I see no purpose in that sentence being imposed because the report does not identify any rehabilitative needs that need to be addressed in your case.

Sentence

[26]	On each of the charges you are sentenced to six months community detention. That sentence is to be served at the address referred to in the pre-sentence report. You are to observe an electronically monitored curfew at that address between the hours of 7 pm and 6 am each Monday to Thursday. Each Friday to Sunday you will be required to observe an electronically monitored curfew at the address between the hours of 6 pm and 6 am.

[27]	Stand down.

Lang J

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A
SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE HTTP://WWW.LEGISLATION.GOVT.NZ/ACT/PUBLIC/2011/0081/LATEST/D LM3865734.HTML	
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CRI-2019-019-5053
[2020] NZHC 1381	

THE QUEEN	

v	

RODERICK JAMES FINLAYSON	

Hearing:	18 June 2020	
Appearances:	J N Hamilton for Crown G Dixon for Defendant	
Judgment:	18 June 2020	

SENTENCE INDICATION OF LANG J

Solicitors:
Crown Solicitor, Hamilton

[1]	Mr Finlayson faces charges of being in unlawful possession of a firearm and ammunition.4 The maximum penalty for both charges is four years imprisonment.

[2]	Mr Finlayson seeks a sentence indication. This is an indication of the sentence the Court would impose if Mr Finlayson was to enter guilty pleas to the charges in the near future. If he does not accept the indication within the time stipulated, it will be of no further force or effect. If he goes to trial and is convicted, Mr Finlayson will be sentenced on the facts as the trial Judge finds them to be.

Facts

[3]	The factual basis for the indication is contained in an agreed summary of facts. This records that on 28 March 2019 Mr Finlayson’s co-defendant, Mr Garson, contacted him via Facebook asking Mr Finlayson to buy him a firearm. The two men then communicated with each other over the following months sporadically using the Facebook Messenger application. Mr Finlayson suggested that Mr Garson should find a firearm on TradeMe. He said he would then go with him to pick up the firearm and Mr Garson would give him cash to pay for it on the way.

[4]	On 12 August 2019 the two men reached an agreement that Mr Finlayson would purchase a firearm for Mr Garson in exchange for $400 in cash. Mr Garson told Mr Finlayson of the type of firearm he wanted, and the two men made arrangements to purchase it together the following day. During the course of the communications Mr Finlayson acknowledged to Mr Garson that he had “so much to lose” by purchasing a firearm for Mr Garson. The two men also discussed the type of ammunition that was to be purchased. Mr Garson told Mr Finlayson he wanted a “strong deadly ammo” to use for hunting out the back of the farm.

[5]	On the morning of 13 August 2019 Mr Garson picked up Mr Finlayson from his home address. The two men then drove to a gun store. There, Mr Finlayson purchased a 12G Dickinson XX3 shotgun together with three different types of shotgun ammunition. He was able to purchase the firearm and ammunition by

4	Arms Act 1983, s 45(1).

presenting the owner of the store with his firearms licence as proof of his entitlement to purchase the items.

[6]	The two men then returned to Mr Finlayson’s home address. The summary records that Mr Finlayson then left Mr Garson’s vehicle. He later told police he stored the items appropriately in a gun safe after taking them from Mr Garson’s vehicle. The summary is silent as to when Mr Finlayson provided the firearm and ammunition to Mr Garson. Tragically, however, the firearm and ammunition were in the possession of Mr Garson by 16 August 2019. On that date Mr Garson is alleged to have used the firearm to kill an entirely innocent person and threaten another. He currently faces charges of murder, aggravated burglary and threatening to kill as a result of that incident. The Crown expressly acknowledges that Mr Finlayson had no knowledge or inkling Mr Garson would subsequently use the firearm in the way he did. Furthermore, Mr Finlayson never received payment of the sum of $400 for his services.

Starting point

[7]	Several factors inform the starting  point  to  be  applied  for  the  sentence  Mr Finlayson should receive. The first is that the offending was clearly premeditated because of the length of time over which the  discussions took place.   Secondly,   Mr Finlayson was plainly aware he was purchasing a firearm for someone who was not lawfully entitled to possess one. Thirdly, Mr Finlayson was to receive a financial reward for committing an illegal act. It was therefore a commercial transaction rather than a gratuitous act.  Finally, in purchasing both the firearm and the ammunition   Mr Finlayson effectively placed Mr Garson in the position of being able to use the weapon to commit an act of serious violence. I therefore accept the Crown’s submission that his actions were akin to providing Mr Garson with a loaded weapon. I reiterate, however, that the Crown acknowledges Mr Finlayson had no knowledge of what Mr Garson would later do.

[8]	The Crown has provided me with several authorities for offending of this type.5 In those cases starting points of between 18 months and three and a half years

5	Moore v R [2019] NZCA 205; R v Jeffries-Smith [2019] NZHC 2067; and R v Ohuka [2018]

imprisonment were selected for offending involving the supply of firearms by one person to another. Mr Dixon on behalf of Mr Finlayson has likewise provided authorities in which starting points of 12 to 18 months imprisonment have been selected.6 As is always the case, the authorities are distinguishable on factual bases. Nevertheless, they provide a general indication of the range of starting points to be selected for offending of this type.

[9]	I consider the aggravating factors of the present case, and in particular the fact that Mr Finlayson was prepared to accept financial reward for his offending, means that a starting point of two years three months imprisonment is appropriate.

Aggravating factors

[10]	Mr Finlayson has no previous criminal convictions and there are therefore no aggravating factors that increase the starting point I have selected.

Mitigating factors

[11]	At this point I would only be prepared to provide an indication of the credit to be given for two mitigating factors. The first is that, at 30 years of age, Mr Finlayson has no previous convictions. This means he is entitled to a discount to reflect previous good character. I would apply a discount of three months to reflect this factor.

[12]	Mr Finlayson is also entitled to a discount for guilty pleas should he enter them. The Crown suggests a discount of around 15 per cent is appropriate because the pleas would not come at an early stage. I consider a greater discount is required because Mr Finlayson was not arrested until 11 September 2019 and he appeared for the first time in this Court on 17 March 2020. He sought a sentence indication when he next appeared on 26 May 2020. I would allow a discount of five months, or just over 20 per cent, to reflect that factor.

NZHC 3304.
6	Gunbie v R [2019] NZHC 250; R v Kane [2017] NZHC 340; R v Smith [2016] NZHC 851 and
Police v Waite [2015] NZHC 585.

[13]	I acknowledge that other mitigating factors may be evident at sentencing either in the pre-sentence report or in other material to be provided to me by Mr Finlayson’s counsel. If so, I am open to the prospect of providing further discounts to reflect these factors. As matters currently stand, however, the end indicated sentence would be one of one year seven months imprisonment.

[14]	A sentence of home detention is therefore an available option, particularly given the fact that Mr Finlayson has no previous convictions. Whether or not such a sentence is appropriate will depend on the information contained in the pre-sentence report if Mr Finlayson accepts the indication, together with such other material as his counsel may provide at sentencing.

[15]	The sentence indication will remain open for acceptance by Mr Finlayson up until 9 am on Tuesday 23 June 2020. Mr Dixon is to file and serve a memorandum on Monday 22 June 2020 to advise the Court and the Crown whether Mr Finlayson accepts the indication. If he does, Mr Finlayson will need to appear at the criminal callover in the High Court at Hamilton on 23 June 2020 so that he can be arraigned.

Postscript

[16]	Following the hearing Mr Finlayson accepted the indication and entered guilty pleas to both charges. He has been convicted and remanded on bail on existing terms for sentence in the High Court at Hamilton on 31 July 2020 at 9.15 am. The pre- sentence report is to contain home detention appendices.

Lang J