Moka v Police - [2017] NZHC 2177

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CRI-2017-419-000053
CRI-2017-419-000057

CRI-2017-419-000058 [2017] NZHC 2177

BETWEEN
SANTANA BREEZE MOKA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 September 2017

Appearances:

M N Sturm for the Appellant
M L Dillon for the Respondent

Judgment:

8 September 2017

JUDGMENT OF PALMER J

Counsel/Solicitors:
M N Sturm, Barrister, Hamilton
Crown Solicitor, Hamilton

MOKA v NEW ZEALAND POLICE [2017] NZHC 2177 [8 September 2017]

Facts

[1] Ms Santana Moka, aged 21, was charged with an array of offences in 2016 and 2017.

[2] Judge Lynch imposed an initial set of sentences on 21 February 2017 for five charges:

(a) Ms Moka breached a nine month supervision sentence imposed on

12 May 2016, carrying a maximum penalty of three months’ imprisonment, which had in turn been imposed for breach of a community work sentence.1

(b)At 4.35 am on 19 January 2017, while driving a car, she was signalled, with flashing lights, to stop when travelling well above the speed limit on Te Rapa Rd. She evaded police. They deployed a tyre deflation device, one tyre blew but she kept on going and went around a roundabout the wrong way. She was eventually stopped, 38 kilometres after being told to stop. On more than one occasion she travelled at an estimated speed of 160 km/h in a 100 km/h zone. This resulted in charges of failing to stop when followed by flashing lights, carrying a maximum penalty of a $1000 fine and disqualification from
driving,2 and dangerous driving, carrying a maximum penalty of three

months’ imprisonment.3

(c) Following arrest Ms Moka was required to undergo a search. She refused and pulled away, hitting the officer on the arm. That formed the basis of a charge of resisting police, carrying a maximum penalty of three months’ imprisonment.4

(d)When searched pursuant to arrest, Police located 0.1 g of methamphetamine and for that she was charged with possession of

1      Sentencing Act 2002, s 70(b).
2      Land Transport Act 1998, ss 114 and 52A
3      Land Transport Act, s 35(1)(b).
4      Summary Offences Act 1981, s 23(a).

methamphetamine, carrying a maximum penalty of six months’ imprisonment.5 She admitted being under the influence of methamphetamine and was lucky not to receive a charge for that.

[3] Judge Lynch noted that Ms Moka did not have a big criminal history, to that point, and had lost her way with a methamphetamine problem. For all those charges, Judge Lynch sentenced Ms Moka to three months’ community detention and
12 months intensive supervision and disqualified her from driving for a total of nine months.

[4] Then Ms Moka appeared before Judge Connell for sentencing on eight further charges on 21 July 2017.

(a) She was charged with theft of a motor vehicle, carrying a maximum penalty of seven years’ imprisonment.6 She took a car from the Hamilton Centre Place Mall carpark when she noticed its keys in the door. She sold it on to a…

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 Moka v Police

Details

AGLC: Moka v Police [2017] NZHC 2177
Case: [2017] NZHC 2177
Decision Date: 8 September 2017

CaseChat Overview and Summary

In Moka v Police, the appellant, Ms Santana Moka, appealed against the sentence imposed on her by the District Court for various charges, including drug possession, dangerous driving, and theft. The court had to decide whether the sentence was manifestly excessive or an error had been made in imposing it. The appeal hinged on the starting points and cumulative nature of the sentences. The appellant argued that the starting points were too high and the sentences were cumulatively excessive, while the Crown maintained that the sentence was within the acceptable range. The court considered the principles of sentencing, including the appropriateness of cumulative sentences and the principle of totality. The High Court found that the Judge's approach was correct and that the sentence was within the range warranted for such persistent and varied offending. The court held that the sentence reflected the overall criminality of the offending and the offender, and dismissed the appeal.

The court emphasized that there is no one way to arrive at a sentence and the construction of a sentence is a matter of individual judicial discretion. The court found that the Judge had considered the principle of totality, as indicated by his remarks when setting a starting point for the ammunition charge. The court also found that the starting points for each offence, while possibly steep, were less important when considering the matter of totality. The court concluded that the sentence was within the range warranted for such persistent offending, of a variety of different kinds, over a prolonged period and where the majority of offending occurred while subject to sentences. The court declined to impose a different sentence, stating that it did not consider the sentence to be manifestly excessive or an error.

Orders