Moffatt v The Queen

[2021] NZHC 3297

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000045

[2021] NZHC 3297

BETWEEN

TIMOTHY GRAHAM MOFFATT

Appellant

AND

THE QUEEN

Respondent

Hearing:	2 December 2021
Appearances:	S A Saunderson-Warner for Appellant R D Smith for Crown
Judgment:	3 December 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 December 2021 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MOFFATT v R [2021] NZHC 3297 [3 December 2021]

Introduction

[1]    Mr Moffatt pleaded guilty to a charge of possessing methamphetamine for supply, possession of cannabis, possession of a prohibited magazine, unlawful possession of ammunition and two charges of unlawful possession of a firearm.

[2]    He appeared before Judge Robinson in the District Court on 27 October 2021 for sentencing, after accepting a  sentence  indication  delivered  by  the  Judge  on 10 August 2021. The Judge sentenced Mr Moffatt to 24 months’ imprisonment, with leave to apply for home detention (if there is a residential programme he could go to).1

[3]    Mr Moffatt appeals this sentence on the basis that a greater discount should have been granted for his addiction issues.

Facts

[4]    On the evening of 24 March  2021  police  executed  a  search  warrant  at  Mr Moffatt’s home address. They located 15 small ziplock bags of methamphetamine on Mr Moffatt that were packaged in varying amounts from one g to 0.15 g, totalling

5.81 g. Also located on Mr Moffatt were his wallet, which contained $1,440 in cash, and a “tick list” on which names had been recorded with dollar amounts next to them.

[5]Police also located a bag beside Mr Moffatt’s bed which contained a cut down

.22 calibre Ruger 10/22 semi-automatic rifle and three BB/Pellet firing pistols. Also in the bag was a 25 round magazine for the Ruger 10/22 with 19 rounds of .22 ammunition loaded. Other ammunition was found in the bag, being 128 rounds of .22 calibre ammunition, six rounds of 12 gauge shotgun ammunition and 32 rounds of 20 gauge shotgun ammunition.

[6]A single .223 rifle round was found on a shelf in the living room.

[7]    Lastly, police located two tasers in the living room and a black backpack that contained 26.07 g of cannabis plant.

1      R v Moffatt [2021] NZDC 21202.

[8]    Mr Moffatt said the firearm was for his protection but made no further comment.

District Court decision

Sentence indication

[9]    Mr Moffatt received a  sentence  indication  from  Judge  Robinson  on  the 10 August 2021.

[10]   After setting out the background to the offending, the Judge explained that he would treat the charge for possession of methamphetamine for supply as the lead offence. Accordingly, the Judge referenced the bands set out in Zhang v R to determine a starting point.2 He found that Mr Moffatt could correctly be characterised as a low-level dealer given the “modest amount of money” involved and the fact he had not accumulated any significant property. The Judge considered a starting point of  24 months’ imprisonment was appropriate for the possession of methamphetamine for supply charge.

[11]   The Judge then considered the appropriate uplift for the firearms charges. He noted various Court of Appeal decisions that made it clear that courts are obliged to impose sentences which express society’s condemnation of the availability of firearms, given the potential harm that may result from their possession3 and that the presence of firearms was the most serious aggravating feature in drug cases4. He noted that the firearms here were seemingly modified for ease of concealment and were not in a form where there could be any legitimate use for them. With reference to decisions of this Court, the Judge found it  was appropriate to  uplift the starting point  by     18 months.5

[12]   The Judge also considered an uplift of three months would be appropriate for Mr Moffatt’s prior convictions, which involved drug dealing offences. This totalled to 45 months’ imprisonment.

2      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

3      Torea v R [2011] NZCA 96; and R v Richardson CA450/02, 25 March 2003.

4      R v Faifua CA287/05, 27 March 2006.

5      R v Latimer [2015] NZHC 1278; and Rowell v Police [2019] NZHC 471.

[13]   Having regard to totality, the Judge reduced this total to 38 months’ imprisonment. He considered a  20  per  cent  discount  would  be  appropriate  for Mr Moffatt’s guilty pleas, to bring the sentence to 31 months’ imprisonment. He warned that while there was “scope for matters such as addiction to be brought into the mix”, the firearms offending meant an electronically monitored sentence was not available unless Mr Moffatt was attending a residential rehabilitation programme.

Sentencing

[14]   The focus at sentencing was on the discount available to Mr Moffatt for factors beyond his guilty pleas. The Judge considered the effects on Mr Moffatt of a fractured family relationship and significant hardship when he was a young person. He considered there was likely a nexus between this and Mr Moffatt’s current circumstances and addiction issues.6 The Judge considered that a 15 per cent discount was appropriate for Mr Moffatt’s family circumstances combined with a reduction for addiction.

[15]   The Judge concluded the appropriate outcome was 24 months’ imprisonment with leave to apply for home detention “if there is a residential programme” that    Mr Moffatt could attend.

Principles on appeal

[16]   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.7 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence

6      R v Moffatt, above n 1, at [5].

7      Criminal Procedure Act 2011, ss 250(2) and 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9

Submissions

Appellant’s submissions

[17]   Ms Saunderson-Warner, for Mr Moffatt, did not take issue with the starting point of 38 months’ imprisonment or the 20 per cent discount for the guilty plea. With reference to authority, she accepted those figures were both in range, but were not generous to Mr Moffatt.10

[18]   Instead, Ms Saunderson-Warner focussed her submissions on the 15 per cent discount the District Court Judge applied for Mr Moffatt’s background factors and his addiction issues. She submitted that inadequate credit was given in this regard, resulting    in    an    end    sentence    that    was    clearly    excessive.     Instead,   Ms Saunderson-Warner submitted that a 15 per cent discount would have been appropriate for Mr Moffatt’s background, but that either a further discrete 15 per cent was required to recognise the impact of Mr Moffatt’s addiction on his offending, or a greater combined credit of 30 per cent. She emphasised that deprivation and hardship in childhood and addiction were not necessarily linked, as one could be present without the other, and they can limit moral culpability in different ways.

[19]   In relation to the appropriate discount for addiction, Ms Saunderson-Warner noted there is no dispute that Mr Moffatt is addicted to methamphetamine and submitted  there  was  little  doubt  that  it   was   causative  of   this   offending.11   Ms Saunderson-Warner then provided a range of authorities in which courts gave significant credit for addiction:

(a)In Roberts v R Woolford J allowed a credit of 15 per cent for the appellant’s causative addiction and ADHD.12 The appellant in that case was using methamphetamine from each batch that he manufactured for

9      Ripia v R [2011] NZCA 101 at [15].

10     Citing Zhang, above n 2; and Harris v R [2021] NZCA 143.

11     Citing Zhang v R, above n 2.

12     Roberts v R [2019] NZHC 3319 at [36].

his own use, and was pressured to manufacture the methamphetamine due to his drug debts.

(b)In R v Carnachan Gault J allowed a credit of 25 per cent to reflect the defendant’s addiction.13 He allowed a separate 10 per cent credit to reflect both the effects of the defendant’s upbringing and the rehabilitative prospects for his future.

(c)In Tarau v Police Toogood J allowed a 10 per cent credit for methamphetamine addiction, with a further 15 per cent credit afforded for the appellant’s dysfunctional background.14

(d)In R v Minns an overall credit of 30 per cent was allowed to reflect both the defendant’s background and addiction issues.15 This was in circumstances where the defendant had been dependent on drugs for most of his adult life after an extremely distressing childhood.

[20]   Ms Saunderson-Warner said it is clear that addiction drove this offending and that Mr Moffatt’s moral culpability is accordingly reduced. She submitted that a lengthy sentence of imprisonment is unlikely to deter Mr Moffatt from offending, and that the focus should be on rehabilitation, which there is evidence that Mr Moffatt is motivated to engage in.

[21]   As    to    Mr    Moffatt’s    social,     cultural     and     economic     factors,  Ms Saunderson-Warner explained that Mr Moffatt’s father was an alcoholic, indicating a predisposition towards substance dyscontrol. His parents separated when he was four and he then experienced rejection from his father and received physical abuse from his new stepfather. Mr Moffatt also experienced sexual abuse from a member of the church. He was introduced to alcohol and substances from a young age, was expelled from school when aged 15 and attempted suicide when aged 16 or

17. Ms Saunderson-Warner submitted a discount of 15 per cent would be appropriate for these factors alone.

13     R v Carnachan [2019] NZHC 3025 at [49]–[50].

14     Tarau v Police [2021] NZHC 1793 at [18]–[19].

15     R v Minns [2021] NZHC 638.

Respondent’s submissions

[22]   Mr Smith, for the Crown, submitted that the starting point adopted by the Judge was generous to Mr Moffatt and that the credit of 15 per cent was within the available range, but to the extent more credit could have been allowed, the generous starting point means the end sentence was still within range.

[23]   Mr Smith submitted that the starting point for the methamphetamine offending was at the lower end of the available range. With reference to authority,16 he suggested that, in these circumstances, a starting point of two and a half years—at the lower end of band two in Zhang —would have properly reflected the offending.

[24]   Mr Smith submitted the uplift of 18 months to reflect the firearms charges was well within range.17

[25]   It was then emphasised that the District Court Judge  allowed  7  months (15.5 per cent) for totality when reducing the initial starting point of 45 months’ imprisonment to 38 months’ imprisonment. Mr Smith submitted this, combined with the availability of the higher starting point for the methamphetamine charge, meant the starting point of 38 months’ imprisonment was generous.

[26]   As to the discounts afforded to Mr Moffatt, Mr Smith submitted the Judge was correct to take a global approach in assessing Mr Moffatt’s disadvantaged background and his addiction issues. He said that to do otherwise would risk “discount creep”18 or an excessive discount19. He submitted it was implicit that Mr Moffatt’s background lead to his drug abuse, which in turn played a role in the offending. Without that inter-relationship, Mr Smith submitted there would be no nexus between Mr Moffatt’s background, addiction and offending.

[27]   Mr Smith then referred to the case law cited by Ms Saunderson-Warner. He submitted that each of those decisions involved a sentencing at first instance and no

16     Crighton v R [2020] NZCA 33.

17     Citing Herewini v Police [2014] NZHC 2396; and Joyce v R [2020] NZCA 124.

18     Citing Fisi’iahi v New Zealand Police [2016] NZHC 2683.

19     Citing Carr v R [2020] NZCA 357.

analysis of relevant authorities when determining the level of credit and are therefore of little assistance. Mr Smith provided further comparative cases, as follows:

(a)In Wira v R the Court of Appeal considered a credit of 20 per cent reflected the appellant’s background, personal circumstances and rehabilitative prospects. The appellant’s background involved the appellant having witnessed a beheading at age 12.20 The appellant was also diagnosed with ADHD and severe PTSD.

(b)In Harris v R there were two spates of offending, the most serious involving methamphetamine.21 The appellant was described as having a “difficult childhood” where her father introduced her to methamphetamine at the age of 15 and she was subject to “personal trauma” when she was aged 14. By age 19 she was dealing drugs and suffered a long-standing drug dependency with only limited periods of abstinence. The Court of Appeal held that a discount of 15 per cent was appropriate for all of the matters in the s 27 report, including the appellant’s drug addiction, and noted this discount was consistent with other cases.22

(c)In Court-Clausen v R the appellant pleaded guilty to a charge of aggravated robbery.23 A s 27 report detailed that the appellant was a 30-year-old man who left school at 12, had a childhood marred by physical and sexual abuse from family members. The appellant had more recently been deported to New Zealand from Australia, dislocating him from his support networks. The Court of Appeal accepted that a credit of 15 per cent appropriately reflected these matters.

20 Wira v R [2021] NZCA 98.

21 Harris v R [2021] NZCA 143.

22 At [28], citing Waho v R [2020] NZCA 526 at [33]; Court-Clausen v R [2020] NZCA 488 at [40]; Woodstock v R [2020] NZCA 472 at [35]; Carr v R, above n 19, at [67] and [71]; Moses v R [2020] NZCA 296 at [70]; and Davidson v R [2020] NZCA 230 at [34].

23 Court-Clausen v R, above n 22.

(d)In Wratt v R the appellant imported 452 g of methamphetamine over a five-month period.24 The appellant had been diagnosed with ADHD. He explained that he had been importing methamphetamine because of a long-standing addiction to the drug. The Court of appeal upheld a discount of 10.5 per cent for his ADHD diagnosis and addiction issues.

[28]   Having regard to the range (from 10 to 20 per cent) set out in these cases,   Mr Smith submitted the 15 per cent discount was available to the Judge in these circumstances. Based on the authorities set out above, he also submitted it was appropriate to treat the mitigating factors of a disadvantaged background and drug addiction globally because they were inevitably intertwined.

[29]   Mr Smith also noted that Mr Moffatt had successfully run his own business for several years and had previously had the benefit of rehabilitative sentences that he failed to take advantage of. Mr Moffatt also enjoyed the support of his sister and his mother. By implication, both his background and his addiction had not disadvantaged him to the same extent as in other cases.

Analysis

[30]   The focus of this Court on appeal is whether the end sentence is within the available range.25

[31]   With reference to the cases provided by counsel, it is clear the starting point adopted by the Judge was available to him. Indeed, I accept Mr Smith’s submission that a higher starting point may have been reached, with particular regard to the Judge’s generous approach to totality. The sentence for the drug-related offending was clearly supported by reference to the bands in Zhang. The firearms-related offending involved possession of a prohibited semi-automatic weapon, which had been modified for easier concealment, along with other weapons and ammunition. It readily warranted an uplift at the top end of the range endorsed in Joyce v R for possession of

24     Wratt v R [2021] NZCA 128.

25     Tutakangahau v R, above n 8.

firearms in association with drug offending, put in any event that uplift was reduced by the reduction for totality.26

[32]   As to the discounts available to Mr Moffatt, I consider that 15 per cent was also within range, albeit at the lower end, in accordance with the authorities provided by Mr Smith and the particular circumstances of his background. It is notable that at sentencing (where he was represented by a different lawyer), Mr Moffatt sought a total discount of 20 per cent for these factors.

[33]   The Court was provided with a pre-sentence report, a s 27 report, a letter from Mr Moffatt’s sister and  a  drug  and  alcohol  report.  These  reports  focussed  on  Mr Moffatt’s personal background and his addiction issues.

[34]   It is clear that Mr Moffatt, now aged 45, had a troubled background. His parents separated when he was four years old and he described his father as an alcoholic who prioritised work over his family. His mother was described as a “strict loving” person who provides Mr Moffatt with support. He has no real relationship with his stepfather, who would  often  discipline  Mr  Moffatt  by  strapping  him.  Mr Moffatt reports being sexually abused by a Church family friend when he was   10 years old, for which he is currently undergoing counselling.

[35]   After leaving his hometown, Mr Moffatt has engaged in meaningful employment. The drug and alcohol report noted he has completed his Heavy Goods Licence and a course in warehousing. He last worked as a plasterer and ran his own business for several years.

[36]   Much of the drug and alcohol report focusses on Mr Moffatt’s addiction issues, interspersed with his background. It identifies Mr Moffatt’s propensity to use alcohol, cannabis and methamphetamine.  The  report  found that at the time of  offending  Mr Moffatt was “probably” physically dependent on methamphetamine and cannabis and described this as a “substantial” although not “severe” addiction requiring assessment. It also concluded that previous trauma “may have resulted in an inability to self-regulate that has probably led to use of drugs and alcohol”. Similarly,

26     Joyce v R, above n 17.

Mr Moffatt himself told the pre-sentence report writer that his childhood issues “contributed to his addiction issues”.

[37]   In these circumstances,  especially given the heavily interlinked nature of   Mr Moffatt’s background, his addiction and the offending, I consider a “global approach” to the discount was justified.

[38]   As both the starting point and the discounts adopted by the Judge were within range, I am satisfied the end sentence is not manifestly excessive.

Conclusion

[39]The appeal is dismissed.

Solicitors:

RPB Law, Dunedin

Copy To:
S A Saunderson-Warner, Barrister, Dunedin