Moffatt v The King
[2023] NZHC 1023
•2 May 2023
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 Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.7 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
6 Criminal Procedure Act, ss 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15].
District Court Decision
[8] In assessing the starting point, Judge Robinson referred to R v Terewi8 and Smith v R, 9 both being cases concerning cannabis-related offending. The Judge adopted a starting point of 22 months’ imprisonment for the charge of selling cannabis.
[9] The Judge observed the seriousness of the presence of firearms in drugs cases, noting this firearm was cut down for concealment, and there was ammunition close to hand. Citing Joyce v R, 10 the Judge applied a 12-month uplift for the firearm and ammunition charges.
[10] A total uplift of 10 per cent was applied for previous convictions and the fact the offending had occurred shortly, indeed very shortly, after Mr Moffatt was released from prison for similar offending and whilst Mr Moffatt was subject to release conditions.
[11] The Judge then applied a 15 per cent reduction for addiction and other background factors, being a discount consistent with that which was provided and confirmed on appeal in a previous sentencing of Mr Moffatt. While the Judge recognised Mr Moffatt’s rehabilitative efforts, this was balanced against his failed drug test while in residential treatment on EM bail which was, of itself, a breach of the EM bail conditions.
[12] Recognising that the guilty plea did not come at the earliest opportunity, a 20 per cent discount was provided for the pleas.
[13] This led to a sentence of 25.5 months. The Judge reduced this further to reflect time spent on bail and in rehabilitation, leading to an end sentence of 22 months.
[14] The Judge did not consider Mr Moffatt to be a suitable candidate for home detention, given he had offended almost immediately after his release, had breached
8 R v Terewi [1999] 3 NZLR 62 (CA).
9 Smith v R [2022] NZCA 606.
10 Joyce v R [2020] NZCA 124.
EM bail, continued to access and possess a firearm and ammunition, and had been assessed in a PAC report as at a high risk of re-offending.
Submissions
Appellant submissions
[15] Mr Kilkelly submits that, consistent with s 8(g) of the Sentencing Act, the appropriate and least restrictive outcome for Mr Moffatt was a sentence of home detention.
[16] He contends that an uplift of six months for the unlawful possession of the firearm and ammunition charges would have been sufficient.
[17] Mr Kilkelly submits that the 15 per cent allowance for addiction and background factors did not adequately reflect the rehabilitative and therapeutic efforts Mr Moffatt had made since his arrest. He highlights Mr Moffatt’s long history of addiction and his post-arrest entry into the managed rehabilitation, for which Mr Moffatt had personally paid $18,000, and his excellent performance on the programmes. The failed drug test whilst in treatment is said to be a “one-off glitch” following Mr Moffatt being offered drugs soon after he had found out that his son had suffered a stroke. That breach, it is submitted, ought to be given little weight given Mr Moffatt’s many months of sobriety. The Judge’s characterisation of the failed drug test as indicating a lack of motivation is said by counsel to be unfair. Counsel contends the discount for personal factors, including rehabilitation, should have been at least 20 per cent.
[18] Mr Kilkelly submits the appropriate sentence was one of one year and six months’ imprisonment that ought to have then been commuted to home detention.
[19] In that regard, counsel refers to the Judge’s concern regarding the protection of the community in preferring a sentence of imprisonment. Mr Kilkelly submits that if Mr Moffatt was sentenced to home detention, he would not be residing in the Dunedin community. Rather, he would be residing at the Nga Kete Wananga Solutions programme, which offers a 12-week residential treatment programme to be followed
up by several months of support. Mr Kilkelly submits that, notwithstanding Mr Moffatt’s failure, being his relapse, the Court ought to give Mr Moffatt the opportunity to continue his promising rehabilitative path.
Respondent submissions
[20] As to the uplift for firearms offending, Mr Smith, on behalf of the Crown, submits that, on their own, this firearms offending could have attracted a starting point of at least two years.11 Mr Smith referred to Court of Appeal authorities holding that a firearms uplift would generally be within a range of 12 to 18 months.12 Mr Smith submits that even on a totality basis the uplift imposed of 12 months could not be described as outside the permissible range.
[21] Mr Smith submits the 10 per cent uplift for previous convictions and offending whilst subject to sentence was generous.
[22] Mr Smith contends that, having regard to Mr Moffatt’s previous sentencing (determined by this Court on appeal), while further discounts for personal factors may have been available, in light of the Supreme Court’s decision in Berkland v R and the discounts provided in circumstances where Mr Berkland’s background gave rise to what were described as the full suite of criminogenic factors in a case involving extensive rehabilitative efforts, the credit offered to Mr Moffatt was not inadequate.13 Mr Smith submits it was not necessary, although it was open to the Judge, to provide a discrete discount for rehabilitation.
[23] As to whether a sentence of home detention was appropriate, Mr Smith refers to the relapse into drug use, the offending occurring so soon after release from prison and while subject to conditions, and to the PAC report writer’s opinion that Mr Moffatt demonstrates a “relentless pattern of offending” and “escalation of seriousness” of his offending.
11 Campbell v R [2022] NZCA 579 at [18].
12 Joyce v R, above n 10; and R v Faifua CA287/05, 27 March 2006.
13 Berkland v R [2022] NZSC 143.
[24] Mr Smith submits that, ultimately, the Judge was entitled to form the view that the protection of the public was paramount and that it was not appropriate to commute this short-term sentence to a sentence of home detention.
[25] He supports the Judge’s reasoning that the sentence should condemn the presence of firearms given the potential harm they cause and, accordingly, submits imprisonment was the appropriate outcome.
Analysis
[26] No issue is taken with the starting point of 22 months’ imprisonment for the cannabis offending. I will deal with the three issues raised by Mr Kilkelly in turn.
Uplift for previous offending
[27] This offending took place very shortly after Mr Moffatt was released from prison, having served a sentence for drug dealing, the unlawful possession of firearms, ammunition, and a magazine, and while subject to release conditions. Strong similarities exist between that prior offending and the current offending. The repeated unlawful possession of firearms and ammunition so soon after release from prison is alarming and highlights the need for deterrence. Mr Moffatt has other relevant but lesser convictions, including possessing a firearm without a licence in 2015, cultivating cannabis in 2015, selling ecstasy in 2007 and conspiring to deal in Class B controlled drugs in 2003.
[28] The uplift of 10 per cent for prior offending equates to about three and half months. In my view, and given this was offending while subject to a sentence and recognising the pattern of escalating offending reflected by similar previous convictions, I agree with Judge Robinson that the uplift was modest.
Uplift for firearms and ammunition offending
[29]The firearms-related offending involved the possession of a bolt-action
.22 rifle which had been cut down for concealment, along with 40 rounds of ammunition.
[30] It was recognised by the Court of Appeal recently in Campbell v R14 that although it is uncommon for a starting point to have been set with reference to firearms offending as the lead offence, “possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment”.15 While lesser starting points have been adopted in comparable cases,16 the uplift imposed in this case was available to the Judge.
[31] Firearms offending committed in the context of drug dealing is consistently met with uplifts of 12 to 18 months’ imprisonment.17 That this firearm was cut down and, although not loaded, was stored in a vehicle alongside 40 rounds of ammunition points to a high level of criminal culpability engaging the extreme risk of harm to others. In those circumstances, I consider the uplift of 12 months’ imprisonment to be within the available range.
Personal circumstances and rehabilitation
[32] The 15 per cent discount allowed by the Judge in recognition of Mr Moffatt’s personal factors, including his addiction and as set out in a s 27 report, was within range and consistent with the credit fixed in reliance on the very same report at a previous sentencing. The Judge did not, however, consider that a further discrete discount to reflect rehabilitative efforts post-charging was appropriate in light of the failed drug test and the continued offending.
[33] I take a different view of the post-charging rehabilitative efforts. Having re- offended, it is clear that Mr Moffatt resolved to focus on his personal rehabilitation. That was undoubtedly a wise decision. At the age of 46 years, he must surely appreciate that if he cannot break his cycle of addiction and offending, a cycle which has been in place for well over 20 years, he is destined to spend many years in prison. If he continues to arm himself with firearms and ammunition, he runs a high risk of killing someone.
14 Campbell v R, above n 11, at [18].
At [18], citing Rawiri v R [2021] NZHC 1573 at [35]; R v Fonoiia [2007] NZCA 188, [2007] 3
NZLR 338 at [41]; Torea v R [2011] NZCA 96 at [13]—[14]; and Herewini v Police [2014] NZHC
2396 at [26]. See also Bowring v Police [2021] NZHC 3198 at [17]— [22].
16 Mills v R [2016] NZCA 245.
17 Joyce v R, above n 10, at [24].
[34]Mr Moffatt has demonstrated his resolve to address his addiction in paying
$18,000 to engage with The Retreat’s residential rehabilitation programme. Mr Kilkelly informs me, and I accept, that those monies were sourced from inheritance received by Mr Moffatt with some support from his parents. Regardless, it demonstrates in concrete terms his commitment to his rehabilitation. After he had completed the initial six-week treatment at The Retreat, he elected to continue participating within the supported living accommodation. It was in that period that unfortunately, but to my mind perhaps not unexpectedly, having lived with such a longstanding addiction, he relapsed and was then expelled from the programme and had his grant of EM bail revoked, having tested positive for methamphetamine.
[35] To his credit, however, that did not deter him from the path of rehabilitation because, during his custodial remand, Mr Moffatt gained acceptance into another residential programme and, on 14 February 2023, Community Corrections received a letter confirming Mr Moffatt had been offered a place on the Nga Kete Wananga Solutions programme with a start date of 27 February 2023, that programme being described as a 12-week rehabilitation and reintegration programme incorporating both AA and NA meetings. Mr Moffatt had proposed, with support from Corrections, that he participate in that programme on an electronically-monitored sentence.
[36] The rehabilitative efforts that I have described are commendable and are not, in my view, rendered nugatory by what is described as a “one-off” relapse into drug use. Mr Kilkelly has referred me this morning to a letter Mr Moffatt wrote to him about his relapse where he expresses his concern that:
It looks like my recovery is a joke but it is not. I just made a bad choice being confronted on the day. From doing drugs daily to being sober and drug free for six months is amazing for me. I never thought I could do a week in rehab, let alone the 16 weeks I did at rehab.
[37] I accept the position advanced by Mr Moffatt. Although I have ultimately concluded that the seriousness of Mr Moffatt’s offending, and particularly his resort to possessing a cut down firearm and ammunition while drug dealing prohibits a purely rehabilitative sentence, I am, nevertheless, persuaded that his efforts at rehabilitation are genuine and determined. To recognise those efforts and to encourage Mr Moffatt
to continue on that path on his ultimate release from prison, I allow a further discrete discount of two months. That equates to about ten per cent.
Home detention
[38] The final issue is whether the adjusted sentence of 20 months’ imprisonment ought to be commuted to a sentence of home detention. Given Mr Moffatt’s long history of drug abuse, and his recent efforts at breaking the cycle of offending, there is no doubt, to my mind, that a rehabilitative sentence is attractive. That he would serve a significant part of a community-based sentence at a residential drug programme adds weight to the proposal. However, Mr Moffatt’s personal circumstances must assume less relevance when his offending involves the unlawful possession of a cut down firearm and ammunition. To my mind, that offending cannot be categorised as a simple relapse into addiction where possessing and supplying drugs simply serves to feed an addiction. The possession of a weapon, deliberately modified for concealment, points to far more serious and sinister offending and gives rise to risks of lethal harm to others. As I indicated during the course of argument, to engage in drug dealing with cut down firearms and ammunition is to delve into the darkest depths of criminal drug offending. Firearms offending must be treated sternly by the courts and must engage deterrence and public protection as important sentencing principles. That Mr Moffatt has a history of arming himself with firearms and ammunition when carrying out drug dealing to feed his addiction highlights, to my mind, the need for a deterrent sentence.
[39] I endorse the findings of Judge Robinson who found the protection of the public was paramount.
[40] I do not, therefore, consider a sentence of home detention would meet the principles and purposes of sentencing.
Result
[41] The appeal is allowed. The sentence of 22 months’ imprisonment imposed on the charges of selling cannabis and unlawful possession of a firearm are quashed and a sentence of 20 months’ imprisonment substituted. The sentence is otherwise as
imposed in the District Court. The standard and special conditions as imposed in the District Court remain in place.
[42] Mr Kilkelly has helpfully advised this morning that Mr Moffatt’s place on the Nga Kete Wananga Solutions programme is not only available today but remains open. This is, therefore, a potential option on his release at one-half of his short-term sentence as part of the special conditions imposed in the District Court. I certainly encourage Mr Moffatt to remain committed to his rehabilitation and to now focus on continuing those efforts following his release.
...................................................
Eaton J
Solicitors/Counsel:
Brian Kilkelly, Barrister, Dunedin RPB Law, Dunedin