Judge negotiates lesser firearms charge for two young men

Two young South Canterbury men facing serious firearm charges have managed to avoid convictions after a judge downgraded the charges.

Cody James Blake, of Orari, and Riley William Anderson, of Timaru, were pulled over in a routine police stop at Metherell Rd, Pleasant Point, at 9.30pm on August 6 last year.

A rifle was observed in their vehicle, along with ammunition, some empty shells, a spotlight and a hunting knives.

Neither of the 20-year-olds had a firearms licence, and police charged them with unlawfully possessing a .243 rifle, and unlawful possession of 22 .243 rounds of ammunition.

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They had pleaded guilty to the original charges, but Judge Tom Gilbert suggested amending them to the less serious charges of possessing the rifle without a firearms licence, in the Timaru District Courton Thursday.

Judge Gilbert said after speaking to the defence lawyers the day before, he believed the evidence was “all entirely consistent with going hunting”.

“Sometimes people can say ‘I had it for hunting’, and it’s a sawn-off shotgun which is clearly not right, but these guys had [the rifle] for hunting,” Judge Gilbert said.

Prosecutor Dave Ellis said police accepted Judge Gilbert’s assessment, that the charges needed to be amended to the lesser charge.

The pair then pleaded guilty to the new charges, and the ammunition charges were withdrawn.

Anderson’s lawyer, Matthew Bonniface, said his client had already paid a $750 donation to Victim Support (loaned to him by his parents), and he was “paying his parents back”.

Blake’s lawyer Paul Bradford said his client was not able to immediately pay a donation, but said he could pay $300 next week and then $250 twice over the next two weeks.

Ellis said the amended charges were now at a such a level that a formal warning would have appeared appropriate.

“They explained to police they are both very keen hunters and that appears to be entirely consistent with evidence in the vehicle,” Judge Gilbert said.

“This is not a case of having a firearm for an illegal purpose, a crime, or intimidation.”

Judge Gilbert said both had applied for discharges without conviction and one of the reasons was that an Arms Act conviction at their age could become a barrier in their life, “a stain on your character” and also bring work and travel limitations.

“The original charge was a much more serious charge than what they should have faced.”

Judge Gilbert ruled the submissions for discharge without convictions just met the threshold.

“You will not get another shot at this. You are now on notice that if you want to go hunting in the future, you need to do it with someone with a licence or get firearms licence.”

Anderson’s discharge without conviction was entered, but Blake’s was delayed by Judge Gilbert for two months to ensure his payments were made.

Judge Gilbert ordered the destruction of the rifle and ammunition, and warned the men that if any part of the incident had shown the firearm was for an unlawful purpose, there was “no way we would be having this conversation, and the starting point for sentencing would be in the region of 18 months jail”.

What is a discharge without conviction

On the website for the District Courts of New Zealand, Judge Lance Rowe writes that a discharge without conviction means the defendant, although guilty of an offence, will have no criminal record.

The judge must be satisfied on the evidence that the consequences of conviction will be out of all proportion to the gravity or seriousness of the offence. And “out of all proportion” is a significantly higher threshold than “outweigh”.

To reach a conclusion a judge must ask themselves three things: How serious is the offence? What are the direct and indirect consequences of a conviction? And finally, are the direct and indirect consequences of a conviction out of all proportion to the seriousness of the offence?

Judge Rowe says seriousness includes the type of offence committed, the conduct and the consequences for a victim. An offence will be viewed more seriously if it has a higher maximum penalty.

Determining the seriousness of conduct may include a combination of factors: whether the harm was intended; the type of conduct, and whether the conduct is prolonged or repeated. Generally, an offence is more serious when the harm is more serious.

Direct consequences of a conviction might include loss of a job, exclusion from a profession, or loss of immigration status.

Indirect consequences might include loss of a future career, inability to travel overseas, difficulty getting insurance, and effects on others such as family members or employers.

There must be a real risk that the consequences will occur. It will not be enough that a consequence might happen because of a conviction. And the consequences must be out of all proportion to the seriousness of the offence. This is a high standard.

When considering this question, a judge will consider factors such as:

• The purposes of sentencing. For example, rehabilitation may count in favour of a discharge, but protecting the public, or a victim, may count against it.
• The principles of sentencing. For example, a more serious offence (such as a bad assault) may count against a discharge but, strong whānau or community support that makes it unlikely a defendant will offend again may count in favour.
• A defendant’s personal characteristics or actions. These may include, youth, remorse, efforts to put things right for a victim, or having a disability which may partly explain their conduct – any of which may count in favour of a discharge. On the other hand, previous convictions, discharges or warnings or lack of remorse may count against.

Generally, the more serious the offence, the more serious the consequences need to be to make them out of all proportion to a conviction.

Where a judge discharges a defendant without conviction, the judge may still make certain orders such as costs, compensation to a victim and disqualification from driving.

Judges also have options to convict and discharge, or convict and order an offender to come up for sentence if called.

Judge Rowe says these are difficult decisions, not made lightly, and only after careful consideration of all the relevant matters.