Moa v Police - [2017] NZHC 223

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-010 [2017] NZHC 223

BETWEEN
MICHAEL MOA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 February 2017

Counsel:

J Grainger and G Vear for Appellant
A McConachy for Respondent

Judgment:

21 February 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 21 February 2017 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland

MOA v POLICE [2017] NZHC 223 [21 February 2017]

[1] Mr Moa appeals against his sentence of 12 months’ imprisonment on one count of assault with intent of injure and one count of breach of community work. Mr Moa contends that the District Court Judge erred in:

(a) Imposing a sentence of imprisonment when the least restrictive sentence appropriate in the circumstances was one of home detention;

(b)By giving excessive weight to the fact that the offending was committed while subject to supervision and that the defendant had breached an evening curfew while on bail; and

(c) By giving insufficient weight to the defendant’s limited criminal

history and prospects for rehabilitation.

Sentencing notes

[2] The Judge helpfully summarised the background facts which are not disputed:

[2] You were out clubbing. You were drunk. You got into an altercation over nothing with another patron at the club where you were. You could not let it go. You returned to him and king-hit him. You hit him once hard. He went straight out. He was unconscious for a period of time. You left him to others and left the nightclub. He and you were very fortunate that he fell without causing serious damage to himself. You will have heard many stories where people have been killed in exactly that way.

[3] The starting point of 18 months adopted by the Judge, together with the discount of eight months, also not disputed.

[4] In terms of home detention, the reasons for declining it are succinctly stated:

[7] Mr Grainger has tried hard to convince me that home detention is the least restrictive outcome. That your rehabilitative needs could be met by a sentence of home detention. For many people they can be, but they require a fair degree of cooperation and willingness on your part to engage. We have just come off a sentence of supervision that was designed to get you to do exactly the sort of thing you say you are ready to do now. That was for a very similar violent offence. You were under no allusions when you pleaded guilty what you

needed to do. What your jeopardy was and you were unable to comply with the conditions of your bail as you awaited sentence.

[8] Unfortunately, that means I just cannot have any faith that you are just in the right place to be able to abide by the conditions of a home detention sentence which has a rehabilitative aspect to it at the moment. That means that…

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.

Continue reading Moa v Police

Details

AGLC: Moa v Police [2017] NZHC 223
Case: [2017] NZHC 223
Decision Date: 21 February 2017

CaseChat Overview and Summary

The case of Moa v Police [2017] NZHC 223 involves Michael Moa, who appeals against his sentence of 12 months' imprisonment for assault with intent to injure and breach of community work. The appeal focuses on the District Court Judge's decision to impose imprisonment rather than home detention. Moa argues that the sentence was excessively harsh and did not adequately consider his prospects for rehabilitation and limited criminal history.

The central legal issues revolve around whether the District Court Judge made an error in sentencing by imposing imprisonment instead of home detention, and whether the Judge appropriately balanced the factors for and against home detention. Moa contends that the Judge gave excessive weight to the breach of bail and offending while under supervision, and insufficient weight to Moa's prospects for rehabilitation and limited criminal history. The respondent argues that the Judge considered all relevant factors and concluded that a sentence other than imprisonment was inappropriate.

The High Court assessed the arguments and found that while the decision to imprison Moa was within the Judge's discretion, the analysis of the risks Moa posed and his prospects for rehabilitation needed to be more precise. The Court noted that the offending occurred in a social context involving alcohol and that Moa had strong family support. The Court also highlighted the benefits of home detention, including its potential for rehabilitation and protection of the community. Consequently, the Court commuted Moa's sentence to six months' home detention, reduced to three months for time served, with specific conditions to address alcohol consumption and other risk factors.

Orders