Moffatt v The King - [2023] NZHC 1023

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-23

[2023] NZHC 1023

BETWEEN
TIMOTHY GRAHAM MOFFATT

Appellant

AND

THE KING

Respondent

Hearing: 2 May 2023

Appearances:

B P Kilkelly for Appellant R D Smith for Respondent

Judgment:

2 May 2023

ORAL JUDGMENT OF EATON J

MOFFATT v R [2023] NZHC 1023 [2 May 2023]

Introduction

[1] On 23 February 2023, Timothy Moffatt was sentenced in the District Court1 to one year and ten months’ imprisonment on charges of selling cannabis,2 possessing methamphetamine,3 unlawfully possessing a firearm,4 and unlawfully possessing ammunition.5

[2] Mr Moffatt appeals the sentence on the grounds that an excessive uplift for previous offending was applied, insufficient credit was given for mitigating factors, and the Judge failed to properly account for rehabilitative potential in sentencing Mr Moffatt to imprisonment as opposed to home detention.

Facts

[3] On 10 July 2022, Mr Moffatt and an associate were driving to Dunedin. The associate lost control of the vehicle, causing it to crash. Members of the public stopped to help, and the two waited for emergency services in a bystander’s vehicle. Mr Moffatt’s associate returned to the vehicle to retrieve some items and placed them in a backpack.

[4]Police found a number of items in the vehicle, including:

(a)a cut-down bolt action .22 rifle;

(b)40 rounds of .22 ammunition;

(c)$1,500 in cash in a cash belt as well as further cash bundles containing
$12,920;

(d)two plastic ziplock bags containing a total of 48 g of cannabis;

1      R v Moffatt [2023] NZDC 3676.
2      Misuse of Drugs Act 1975, s 6; maximum penalty 8 years’ imprisonment.
3      Misuse of Drugs Act, s 7; maximum penalty 6 months’ imprisonment and/or a fine not exceeding
$1,000.
4      Arms Act 1983, s 45(1); maximum penalty 4 years’ imprisonment and/or a fine not exceeding
$5,000.
5      Arms Act, s 45(1); maximum penalty 4 years’ imprisonment and/or a fine not exceeding $5,000.

(e)a taser;

(f)meth pipes;

(g)three cell phones; and

(h)a Nike bag owned by Mr Moffatt which contained several ziplock plastic bags with a total of 7 g of methamphetamine attributed to Mr Moffatt, empty ziplock bags, a tick list, sim card packaging, and a small set of digital scales.

[5] Mr Moffatt did not accept responsibility for all the items, and that is reflected in the charges that he faced. His cell phone messages revealed he had been selling cannabis since mid-April in varying amounts of between $100 bags and ounce-bags. The exact status of the cash located was unclear but appears to have either been proceeds of drug deals or intended to facilitate further drug offending.

[6] A search warrant was executed by the police on 13 July 2022 at Mr Moffatt’s associate’s address. A search of the address revealed four cell phones, electronic scales, and cash in the sum of $3,570 under a pillow.

Principles on appeal

[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure…

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 Moffatt v The King

Details

AGLC: Moffatt v The King [2023] NZHC 1023
Case: [2023] NZHC 1023
Decision Date: 2 May 2023

CaseChat Overview and Summary

The case of Moffatt v The King involves an appeal by Timothy Moffatt against his sentence, which was imposed by the District Court for selling cannabis, possessing methamphetamine, unlawfully possessing a firearm, and unlawfully possessing ammunition. The primary issues for the High Court to decide were whether the uplift for previous offending was excessive, if sufficient credit was given for mitigating factors, and whether the judge properly accounted for rehabilitative potential in sentencing Moffatt to imprisonment instead of home detention.

The Court found that the uplift for previous offending, which was set at 10%, was modest given the pattern of escalating offending and the similarity between the prior and current offenses. The 12-month uplift for the firearms and ammunition charges was also deemed within the permissible range, considering the high level of criminal culpability and risk of harm. The Court acknowledged Moffatt's commendable rehabilitative efforts, awarding a further two-month discount to recognize his commitment to breaking the cycle of addiction and offending. However, the Court concluded that the possession of a cut-down firearm and ammunition while drug dealing warranted a deterrent sentence to address the serious risks of lethal harm to others. The possession of firearms in the context of drug dealing was seen as delving into the darkest depths of criminal drug offending, necessitating stern treatment by the courts.

The appeal was allowed, and the sentence of 22 months' imprisonment imposed on the charges of selling cannabis and unlawful possession of a firearm was quashed and substituted with a sentence of 20 months' imprisonment. The Court encouraged Moffatt to continue his rehabilitative efforts, which could be pursued as part of the special conditions imposed in the District Court upon his release.

Orders