Moon v Police
[2024] NZHC 3958
•20 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-567
[2024] NZHC 3958
BETWEEN STEVEN MOON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 December 2024 Appearances:
A H Jones for appellant
R H Vercoe for respondent
Judgment:
20 December 2024
JUDGMENT OF JOHNSTONE J
(appeal against sentence)
This judgment was delivered by me on 19 December 2024 at 11am pursuant to r 11.5 of the High Court Rules.
Solicitors:
Kayes Fletcher Walker, Auckland
MOON v POLICE [2024] NZHC 3958 [20 December 2024]
[1] On 13 September 2024, Steven Moon was sentenced in the District Court at Manukau to serve 29 months’ imprisonment.1 He appeals against that sentence, saying it is manifestly excessive.
[2] I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.2 The focus is on the overall end sentence rather than the process by which it was reached. I should not intervene if the sentence is within range and can be justified by accepted sentencing principles.3
Mr Moon’s prior offending
[3] At the age of 36, Mr Moon has an extensive criminal history, including 29 convictions for dishonesty-related offending such as burglary, theft, and unlawfully getting into a car, accrued in the period from 2006 to 2023.
[4] On 4 March 2024, Mr Moon was sentenced, in respect of a bout of retail thefts committed during August to November 2023, to serve six months’ imprisonment, with standard and special release conditions. And he was disqualified from driving for six months. Mr Moon had been in custody, prior to the 4 March 2024 sentencing, for some months. He was therefore released from custody on 13 March 2024.
Mr Moon’s offending, sentenced in September 2024
[5] The offending the subject of this sentence appeal commenced less than three weeks after Mr Moon’s release, when on 31 March 2024 he was found driving in Ōtara while still disqualified.4 He said he knew he should not be driving, but was taking his children to see friends.
[6] It appears Mr Moon was not charged until 15 April 2024, when on that day a summons to appear on 23 April 2024 was issued.
1 New Zealand Police v Moon [2024] NZDC 24712.
2 Criminal Procedure Act 2011, s 250.
3 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
4 Land Transport Act 1998 (LTA), ss 32(1)(a) and 32(3). Maximum penalty: three month’s imprisonment or $4,500 fine.
[7] In the meantime, on 1 April 2024, Mr Moon and an associate stole some clothes from a chain store at Botany.5 They had arrived in a Toyota displaying stolen registration plates. He was not charged until 24 June 2024.
[8] And on 6 April 2024, Mr Moon was again found driving in Ōtara while disqualified.6 He was not charged until 21 April 2024, when a further summons was issued.
[9] On 23 April 2024, Mr Moon failed to appear on the driving while disqualified charge at [5], and a warrant was issued for his arrest. The warrant was withdrawn on 26 April 2024, when it appears Mr Moon made an unscheduled appearance at the Manukau District Court. He was remanded on bail.
[10] Mr Moon remained on bail until 24 June 2024, when he appeared again having been arrested and charged with many of the offences described below, and remanded in custody. All of the following offences were committed while Mr Moon was on bail, between 26 April and 24 June 2024.
[11] On 6 May 2024, Mr Moon and his associate again stole clothes from the Botany chain store, this time using a Mazda with stolen registration plates.7
[12] On 8 May 2024, Mr Moon appeared in the Manukau District Court on the charge of driving while disqualified described at [8]. He was again bailed, this time on instructions not to drive any motor vehicle unless appropriately licenced.
[13] On 10 May 2024, Mr Moon and his associate stole $500 worth of clothing from the same Botany chain store, using the same Mazda with stolen registration plates.8
5 Crimes Act 1961, ss 219 and 223(d). Maximum penalty: three months’ imprisonment.
6 LTA, above n 4.
7 Crimes Act, above n 5.
8 Crimes Act, above n 5.
[14]On 27 May 2024, Mr Moon committed a spate of offences:
(a)He drove on East Tamaki Road, while disqualified,9 to a car yard. At this car yard, while Mr Moon talked to a staff member to distract them, his associate took the registration plates from a vehicle in the yard.10
(b)Immediately after, Mr Moon and his associate drove to a car workshop on Newark Place, Ōtara, where his associate tried to take the front number plate off one of the workshop’s cars.11 When a staff member confronted the associate, Mr Moon threatened to injure him, approaching aggressively, with closed fists displaying a punching gesture, and yelling “fuck off”.12
(c)Mr Moon then returned to the driver’s seat of his car shouting “do you want me to run you over” at the staff member. He reversed the car at speed towards him, again driving while disqualified13, and in this way assaulting the staff member, using the car as a weapon.14 The staff member jumped out of the way to avoid being hit, and had to do so again when Mr Moon then drove forward swerving towards him.
[15] At another point on 27 May 2024, Mr Moon also stole $119.56 worth of petrol, leaving a petrol station without paying for petrol put into another vehicle with stolen registration plates.15
[16] On 30 May 2024, Mr Moon received a set of stolen number plates.16 On 14 June 2024, he stole groceries from a supermarket.17 On 17 June 2024, he and his associate stole food and a tip jar from a bakery.18
9 LTA, above n 4.
10 Crimes Act, above n 5.
11 Crimes Act, s 226(2). Maximum penalty: two years’ imprisonment.
12 Summary Offences Act 1981, s 21(1)(a). Maximum penalty: three month’s imprisonment, or
$2,000 fine.
13 LTA, above n 4.
14 Crimes Act, s 202C. Maximum penalty: five years’ imprisonment.
15 Crimes Act, above n 5.
16 Crimes Act, ss 246 and 247(c). Maximum penalty: three months’ imprisonment.
17 Crimes Act, above n 5.
18 Above n 5.
[17] On 19 June 2024, Mr Moon stole $107.14 worth of petrol, again leaving a petrol station without paying for petrol put into another vehicle with stolen registration plates.19 Also that day, he stole a rear licence plate ($500).20
[18]On 22 June 2024, Mr Moon:
(i)drove while disqualified,21 arriving at a supermarket in a vehicle bearing the stolen registration plates he had received knowing of that theft;22 and
(ii)stole groceries from the supermarket.23
[19] It appears that Mr Moon’s offending on 22 June 2024 resulted in his arrest, and the filing of 15 charges relating to the bulk of the offending outlined above. He was remanded in custody. On 10 July 2024, Mr Moon appeared again on those charges, and pleaded guilty to them. His sentencing was set down for 13 September 2024.
[20] Also on 10 July, further charges were filed relating to the above offending. On 15 July 2024, Mr Moon pleaded guilty to and was convicted of the balance of six charges described above, which were added to the list for sentencing on 13 September 2024.
Summary of offending
[21] In summary, Mr Moon drove while disqualified twice, and committed a theft, in the month following the imposition of the disqualification on 4 March 2024.
[22] He was then granted bail, and proceeded to commit a further retail theft before appearing again, a pattern of events he repeated just days later.
19 Above n 5.
20 Above n 5.
21 LTA, above n 4.
22 Crimes Act, above n 16.
23 Above n 5.
[23] Four days after being bailed the second time, Mr Moon drove while disqualified to a car yard and stole registration plates, before driving to a different car workshop and attempting to do the same. When confronted by a staff member, Mr Moon acted threateningly before returning to his car and twice attempting to drive it into the staff member. At another point that day, Mr Moon also stole petrol.
[24] At the end of May and in June 2024, Mr Moon continued to steal or receive stolen goods and drive while disqualified.
[25] In all, Mr Moon committed the offence of driving while disqualified five times during the six-month disqualification period, committed 10 retail thefts of goods totalling $2,329.70 in value, interfered with a vehicle, acted threateningly, assaulted a person using a car as a weapon, and received stolen licence plates three times. Mr Moon was on bail when he committed 18 of his 21 offences.
The Judge’s approach
[26] The sentencing Judge identified the offence of assault with a weapon as the lead offence for sentencing, with a starting point of 24 months’ imprisonment. The Judge then applied a 10-month uplift, to account for the entire balance of Mr Moon’s offending.
[27] Turning to Mr Moon’s personal circumstances, the Judge allowed a 20 per cent reduction for his guilty plea (which the Judge calculated by rounding up 20 per cent of the adjusted starting point of 34 months, from 6.8 months to 7 months), and imposed an uplift of two months for his prior criminal history, arriving at a final sentence of 29 months’ imprisonment.
[28] That was the sentence imposed on the offence of assault using a vehicle as a weapon. Lesser concurrent sentences were applied to the other offences, other than those of disqualified driving. On those driving offences, the Judge convicted and discharged Mr Moon, applying a further disqualification, albeit one which will expire prior to Mr Moon’s release.
Mr Moon’s position
[29]For Mr Moon, Ms Jones submits that the sentencing Judge erred, because:
(a)the 24-month starting point for the assault with a weapon was too high (but accepting the 10-month uplift applied for the other offending was within range); and
(b)the Judge failed to consider Mr Moon’s mitigating personal factors, beyond his guilty pleas.
[30] In support of the latter point, Ms Jones seeks to rely on a report into matters of Mr Moon’s personal background. The report is dated 10 May 2022, and appears to have been prepared for the purpose of a sentencing on 27 May 2022. On that occasion, Mr Moon was sentenced to concurrent terms of 21 months’ imprisonment, in respect of five burglaries and a theft, committed in the period from 25 July to 19 September 2021.
[31] The report appears to have been prepared by qualified sociologists of Report Writers Limited. It indicates Mr Moon’s significant exposure to childhood abuse, neglect and household dysfunction. It suggests the possibility of undiagnosed attention-deficit hyperactivity disorder and post-traumatic stress disorder. The writers perceive a linkage between Mr Moon’s offending (it seems in 2021), and methamphetamine addiction, poor mental wellbeing, childhood adversity and disordered parent-child relations, systemic deprivation and antisocial peers.
[32] The report records that by May 2022, Mr Moon had been in a 10-year relationship with a named partner.
Analysis
Assault using car as weapon
[33] In support of her submission that the 24-month starting point was too high, Ms Jones referred to Emery v Police,24 R v Te Pou,25 and Bonniface v New Zealand Police.26 I do not draw great assistance from those cases. In Emery, the starting point selected in the District Court was not challenged on appeal. And in Te Pou, where a starting point of 10 months was selected in the High Court, the circumstances were quite different to the present.27 The assault in that case was inflicted upon a person seated in another car. Of greatest relevance is Bonniface, although again the starting point was not challenged on appeal. In that case, following an argument, Mr Bonniface went to his car and veered towards people as he drove along a driveway. The Judge on appeal observed that the 16-month starting point was not at the top, but instead could be viewed as being “in the middle of the available range”.28
[34] That said, comparable offending in Manuel v Police, where the offender drove at a police officer who had sought to arrest him, striking a glancing blow but not inflicting any serious injury, gave rise to Moore J’s comment on appeal that the offending should not have attracted a starting point of more than 18 months’ imprisonment.29 And other sentences involving a similar mode of offending have seen starting points of 18 months’ imprisonment.30
[35] Allowing for the aggravating feature of Mr Moon twice, in the same course of events, using his car to drive at his victim, I consider that the starting point selected in this case should not have exceeded 20 months’ imprisonment.
24 Emery v Police [2021] NZHC 851.
25 R v Te Pou [2022] NZHC 1004.
26 Bonniface v New Zealand Police [2023] NZHC 3674.
27 R v Te Pou, above n 25, at [25].
28 At [32].
29 Manuel v Police [2014] NZHC 2648 at [32].
30 Waa v Police HC Masterton CRI-2004-435-2, 21 May 2004 and R v Lloyd [2022] NZHC 1044.
Uplift for other offending
[36]Mr Moon’s other offending was broadly of two types:
(a)dishonesty offending, involving retail thefts, and theft and receiving of stolen licence plates; and
(b)persistently driving while disqualified.
[37]I accept Ms Vercoe’s submissions for the Crown that:
(a)In respect of the dishonesty offending alone, an uplift of 10 months’ imprisonment was well justified. In Kennedy v New Zealand Police, six instances of retail theft generated an approved starting point of 12 months’ imprisonment.31 And in Tout v Police, a spree of theft-related charges, albeit with a somewhat more significant value than that in this case, resulted in an uplift of 18 months, which the High Court Judge considered was modest but within range.32
(b)A further uplift, of a similar or slightly smaller period than the 10 months, could have been added in respect of Mr Moon’s five offences of driving while disqualified.
[38] In my view, Mr Moon’s persistent course of dishonesty- and driving-related offending should have attracted combined uplifts of at least 14 months’ imprisonment.
[39] It follows that I do not consider the sentencing Judge’s adjusted starting point of 34 months’ imprisonment to be excessive.
Adjustment for personal circumstances
[40] The 10 May 2022 report on Mr Moon’s personal background was not before the sentencing Judge. Nor were certificates of completion for two rehabilitative
31 Kennedy v New Zealand Police [2013] NZHC 714.
32 Tout v Police [2021] NZHC 2227.
programmes that Mr Moon had completed on remand, dated 27 August 2024. As evidence that is not fresh, it should not be admitted on appeal unless a risk of miscarriage of justice arises if it is excluded.33
[41] In this case, the causative contribution of Mr Moon’s methamphetamine addiction was addressed in the Provision of Advice to Courts (PAC) report which was before the sentencing Judge. Also the subject of comment in the PAC report were Mr Moon’s “offending supportive attitudes, sense of entitlement, lack of impulse control, and poor decision making”.
[42] However, the more deep-seated factors relating to Mr Moon’s deprived childhood were not addressed. Mr Moon might thus have anticipated a somewhat larger reduction from the sentencing Judge’s adjusted starting point, intended to take account of those matters, set out in detail in the 10 May 2022 report. And similarly, the two certificates of rehabilitative programmes completed on remand might (in another case) have warranted a small reduction from the adjusted starting point.
[43] But in this case, the uplift imposed to account for the aggravating personal circumstances of Mr Moon’s criminal history, and the fact of offending on bail, was only two months. It should have been significantly greater.
[44] Mr Moon’s extensive criminal history is described at [3] above. His most recent episode of imprisonment prior to commencing the offending the subject of this appeal was completed only three weeks before the offending began. And as also described above, most of the offending in this appeal was undertaken when Mr Moon was on bail. Mr Moon’s habit of acquiring stolen licence plates, and using them when stealing petrol to enable further offences of driving despite his disqualification, provides clear illustration of his criminogenic mindset. An uplift of at least six months was necessary to respond to the increased relevance of the sentencing purposes of promoting in Mr Ahokava a sense of responsibility,34 and of community protection.35
33 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120], the principles applying in the context of appeals against sentence: Mark v R [2019] NZCA 121 at [16].
34 Sentencing Act 2002, section 7(1)(b).
35 Section 7(1)(g).
[45]In light of this, Mr Moon’s sentence was not manifestly excessive.
Result
[46] Given the lack of risk of a miscarriage of justice, arising in the event Mr Moon’s 10 May 2022 report is not admitted into evidence in this appeal, his application for its admission is declined.
[47]Further, Mr Moon’s appeal against sentence is dismissed.
Johnstone J
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