IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000024 [2013] NZHC 1675

BETWEEN	REX IAN BLACKETT Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	3 July 2013

Appearances:	J Gurnick for Appellant
T Clark for Respondent

Judgment:	3 July 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

REX IAN BLACKETT v NEW ZEALAND POLICE [2013] NZHC 1675 [3 July 2013]

[1]       Mr Blackett pleaded guilty in the District Court to a charge of unlawfully being in possession of ammunition.  On 13 May 2013, Judge Burnett sentenced him to 21 months imprisonment on that charge.    He now appeals to this Court against the sentence the Judge imposed on the basis that it was manifestly excessive.

The facts

[2]       The charge arose as a result of events that occurred on 21 December 2012. On that date the police went to Mr Blackett’s home to execute a warrant issued for his arrest for the purpose of returning him to prison. At that time Mr Blackett was on parole, having been sentenced to four years four months imprisonment on a charge of unlawful sexual connection on 17 December 2008.   He was recalled to prison because he had breached his parole conditions by travelling to Rotorua when he was expressly forbidden to do so.

[3]       When the police went to Mr Blackett’s address, they asked him if he had anything in his possession that he should not have.  He initially indicated that he did not, but when asked again he conceded that he was in possession of something that he should not have.  He then showed the police a small lockable safe. When this was opened, the police found that it contained two rifle bolts and 366 rounds of ammunition.  Mr Blackett conceded that he did not hold a current firearms licence. His licence had in fact been revoked in 2002.

[4]       Mr Blackett explained that, when he had gone to Rotorua, he had visited a friend who was looking after some firearms and ammunition.  He said that he wanted the safe, but was unable to open it.  For that reason he had brought the safe and its contents back to Hamilton.

The structure of the sentence

[5]       The  Judge  considered  that  this  was  serious  offending.     It  involved  a considerable  quantity  of  ammunition  of  different  types.     She  considered  the

offending to be premeditated, and that it warranted a starting point of 20 months imprisonment.

[6]       The Judge then noted that Mr Blackett has five previous convictions for unlawfully being in possession of firearms.  The last of these occurred in 1998.  On that occasion, he was sentenced to six months periodic detention and given a final warning that a sentence of imprisonment would follow if he was convicted of similar offending in the future.

[7]       The Judge considered the previous convictions warranted an uplift of eight months.     She  was  therefore  left  with  an  end  starting  point  of  28  months imprisonment before having regard to mitigating factors personal to Mr Blackett. She applied a discount of seven months, or 25 per cent, to reflect Mr Blackett’s early guilty pleas. This produced the end sentence of 21 months imprisonment.

The arguments

[8]     Counsel for Mr Blackett contends that the starting point of 20 months imprisonment was outside the available range.   He referred me to several cases in which sentences of between nine months and two years imprisonment have been imposed on firearms related charges.  I have found the most helpful of these to be
Long v New Zealand Police and Hemopo v Police.

[9]       In Long v Police, the appellant had been found in possession of two rifles, a pistol, numerous firearms parts, a smoke grenade and approximately 900 rounds of ammunition.   Of these, 190 rounds were compatible with the pistol found in the appellant’s possession.  The sentencing Judge had taken a starting point of two and a half years imprisonment.   On appeal, Ronald Young J considered that the overall culpability of the offending did not warrant a starting point of greater than 20 months
imprisonment.

[10]     In Hemopo v Police, Allan J reviewed several authorities involving unlawful possession of firearms.    In the case before him, the appellant had been found in possession of an airgun.   Allan J considered that the culpability of this offending warranted a starting point of eight to nine months imprisonment.

[11]     Counsel for the respondent accepted that the starting point the Judge selected was high.   She submitted, however, that it was nevertheless within the available range, and that the Judge may well have taken into account two factors that were of relevance.  First, the Judge may have taken into account the fact that the friend in Rotorua was apparently storing firearms on behalf of Mr Blackett.  If that was the case, Mr Blackett would have been unlawfully in possession of the firearms because he maintained control over them.

[12]     Secondly, counsel for the respondent submits that the starting point may also have included a component to reflect the fact that the offending had occurred whilst Mr Blackett was on parole.   The Judge clearly identified that as an aggravating factor, but did not provide any discrete uplift in respect of it.

Decision

[13]     I agree that the manner in which a sentence is structured is not determinative of an appeal against sentence.   The critical issue is whether or not the end sentence is manifestly excessive.  Having regard to the authorities, however, I have concluded that a starting point of 20 months imprisonment was outside the available range. When the facts in Long are compared with the facts of the present case, a starting point of 20 months imprisonment was obviously too high.  The appellant in Long was found in possession of three times the amount of ammunition that was found in Mr Blackett’s  possession.    In  addition,  the appellant  in  that  case was  found in
possession of three firearms.

[14]     I do not consider that a starting point of greater than 12 months imprisonment could be justified in the present case.

[15]     To that starting point an uplift needed to be applied to reflect the fact that Mr Blackett has five previous convictions for similar offending.  Although the last of these was in 1998, he nevertheless must have been aware that the Court would be likely to view seriously any further similar transgression on his part.   Previous community-based sentences have obviously had no effect.  The amount of any uplift needs, however, to be proportionate to the starting point selected.  I do not consider an uplift of greater than three months could be justified to reflect previous convictions.

[16]     An uplift also needed to be applied to reflect the fact that this offending occurred whilst Mr Blackett was on parole.  The unlawful possession of ammunition whilst on parole is a serious issue.   Again, however, any uplift needs to be proportionate.  I consider that an uplift of two months would be sufficient to reflect this factor.

[17]     This means that, applying a Taueki  approach, an end starting point of 17 months imprisonment would have been appropriate before taking into account mitigating factors personal to Mr Blackett.  This is obviously far less than the end starting point of 28 months imprisonment that the Judge selected.

[18]     Both counsel agree that a discount of 25 per cent was appropriate to reflect Mr Blackett’s early guilty pleas.  In those circumstances a discount of four months imprisonment was appropriate.

[19]     Counsel for Mr Blackett submits that a further discount ought to have been given to reflect remorse.   This was expressed in a letter Mr Blackett wrote to the sentencing Judge.

[20]     Whether or not a sentencing Judge applies a discount for remorse is very much a matter of sentencing discretion.   In circumstances where Mr Blackett had

offended in a similar way on five previous occasions, little credit could be given for remorse.  I do not consider the Judge was wrong to refuse to provide a discount to reflect that factor.

[21]     It follows that the only discount to be given is that to reflect Mr Blackett’s

guilty pleas. This produces an end sentence of 13 months imprisonment.

Result

[22]     The appeal is allowed.  The sentence of 21 months imprisonment is quashed. In its place I substitute a sentence of 13 months imprisonment.

Lang J

Solicitors:
Crown Solicitor, Hamilton
Counsel:
J Gurnick, Public Defence Service, Hamilton