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Moeroa v Police

Moeroa v Police

Case [2015] NZHC 2226 15 September 2015

Sentencing

Appeal

Aggravating and Mitigating Factors

Double Counting

Discount for Guilty Plea

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000211 [2015] NZHC 2226

IN THE MATTER OF an appeal against sentence

BETWEEN

TUAINEKORE MOEROA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 September 2015

Counsel:

D M M Dickinson for the Appellant
S B C O'Connor for the Respondent

Judgment:

15 September 2015

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 15 September 2015 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: D M M Dickinson, Auckland

Solicitors: Meredith Connell, Auckland

MOEROA v POLICE [2015] NZHC 2226 [15 September 2015]

Introduction

[1] Mr Moeroa was sentenced to two years, four months imprisonment for one charge of burglary and one charge of unlawfully being in an enclosed yard.

[2] Mr Moeroa appeals on the ground that the District Court Judge double counted his previous convictions and erred in failing to allow any discount for remorse. He says this resulted in an end sentence that was manifestly excessive. He suggests an end sentence of between 16 and 21 months imprisonment would be appropriate.

Background

[3] The burglary charge relates to an incident on 5 February 2015. On that day, Mr Moeroa went on to a property in Mt Eden and was confronted by a neighbour. He told the neighbour he was picking flowers. He tried to enter the property through a window but was seen by the occupant. He left in his car.

[4] The unlawfully being in an enclosed yard charge relates to an incident on

25 January 2015 where Mr Moeroa’s car was parked in a driveway on St John’s Road. The owner of the property came home to find his car there and sounded her horn. He drove away.

[5] Mr Moeroa was arrested on 5 March 2015 following Police enquiries. He initially pleaded not guilty, but then changed his plea to guilty.

District Court sentencing

[6] The Judge identified the fact that dwelling houses were involved as an aggravating feature and noted that the occupants were put in danger. The Judge also noted that the pre-sentence report recorded that Mr Moeroa was at a high risk of re- offending. His Honour also noted the letter of apology written by Mr Moeroa, but expressed scepticism of it, saying that he thought the apology “rang a little hollow”.

[7] Judge Ronayne canvassed Mr Moeroa’s previous criminal history at various points during the sentencing. Counsel for Mr Moeroa, Mr Dickinson, notes that the Judge’s discussion of previous convictions runs to six paragraphs of the sentencing notes.

[8] His Honour referred to Senior v Police and imposed a starting point of two years six months for the burglary, uplifted by six months to recognise previous convictions, and allowed a discount of approximately eight months for the guilty plea.1 A concurrent sentence of one month was imposed for the charge of being in an enclosed yard.

Approach on appeal

[9] Section 250(2) of the Criminal Procedure Act 2011 states…

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 Moeroa v Police

Details

AGLC: Moeroa v Police [2015] NZHC 2226
Case: [2015] NZHC 2226
Decision Date: 15 September 2015

CaseChat Overview and Summary

The case of Moeroa v Police concerned an appeal against the sentence imposed on the appellant, Tuainekore Moeroa, by the District Court. Moeroa was sentenced to two years and four months imprisonment for charges of burglary and unlawfully being in an enclosed yard. The appellant argued that the District Court Judge had erred by double counting his previous convictions and failing to allow a discount for remorse, resulting in a manifestly excessive sentence. Moeroa suggested an appropriate sentence would be between 16 and 21 months imprisonment. The High Court was required to determine whether there was an error in the sentence imposed on conviction and if a different sentence should be imposed. The Court examined the sentence in terms of the sentence given rather than the process by which the sentence was reached. The Court found that while the starting point of two years and six months for the burglary was stern, it was within the available range. However, the uplift of six months for previous convictions was considered light, and the Court adopted an uplift of 12 months. Additionally, no further discount for remorse was allowed. The Court found the total end sentence of two years and four months imprisonment to be manifestly excessive and set it aside. The appeal was allowed, and a sentence of one year and nine months imprisonment was substituted for the burglary charge, with the concurrent sentence of one month for unlawfully being in an enclosed yard remaining unchanged.

Orders