Moon v Police HC Rotorua CRI-2011-470-12

[2011] NZHC 2059

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-470-12

BETWEEN  BRENDON SHANE MOON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 August 2011 (Heard at Hamilton)

Counsel:         I Farquhar for Appellant

H Booth for Respondent

Judgment:      15 August 2011

(ORAL) JUDGMENT OF POTTER J

on sentence appeal

Solicitors:           Crown Solicitor, Tauranga – [email protected]

Copy to:            I Farquhar, Taupo –  [email protected]

MOON V NEW ZEALAND POLICE HC ROT CRI-2011-470-12 15 August 2011

[1]      Brendon Moon entered guilty pleas to charges of burglary, unlawfully taking a motor vehicle and driving whilst disqualified (third or subsequent), those offences being committed on 31 August 2009.  He further entered guilty pleas to a charge of offering to supply methamphetamine in the period 20 to 30 September 2009 and threatening behaviour on 20 September 2009.

[2]      Judge  Ingram[1]    sentenced  him  to  a  total  of  three  years  nine  months imprisonment. This was comprised as follows:

[1] New Zealand Police v Moon District Court Tauranga CIV-2009-070-008234, 14 December 2009.

(a)       Two years six months imprisonment for the burglary charge.

(b)15 months imprisonment for the methamphetamine charge imposed cumulatively on the sentence for burglary.

(c)      Concurrent sentences were imposed of two years imprisonment for the unlawfully taking a motor vehicle, twelve months imprisonment for driving while disqualified, and two months imprisonment for threatening behaviour.

[3]      Mr Moon appeals the sentence on the basis that it is manifestly excessive and wrong in principle.

[4]      He also applies for an extension of time to appeal under s 123(1) of the Summary  Proceedings Act.    He  has  filed  affidavits  by  himself  and  his  former counsel, Mr Balme, in support of that application.   They explain the considerable delay (in the vicinity of twelve to fourteen months) which appears to have resulted from a breakdown of communication between counsel and client leading to Mr Moon for a period being self represented and himself ultimately filing an appeal against sentence on 17 March 2011.  I accept on the basis of the material provided

that there is a reasonable explanation for the delay in this case.

Background facts

[5]      At 7am on 31 August 2009 Mr Moon was released from the Hawkes Bay Regional Prison.   He was dropped off at a bus stop with the fare to return  to Tauranga.   Instead, Mr Moon made his way to Napier.   At 9.06pm that night he entered the premises of a commercial car yard in Napier, breaking in through a window.  After searching for items to take, he located the keys to a silver Subaru Impreza vehicle situated on the car yard.  He entered the vehicle, started the vehicle and drove away from the address.  After travelling approximately 30 kilometres from the car yard, Mr Moon parked the car in a small lay on the side of a road.   He attempted to remove the speakers and other items from the vehicle but was unsuccessful.  He then left the vehicle and made his way to Taupo.  The next day, he caught a bus in Taupo and returned to Tauranga.  When the vehicle was recovered, Mr Moon’s fingerprints were found on it.   Mr Moon in explanation said the fingerprints were those of an associate of his who had gone for a drive in the car.

[6]      On 30 September 2009 the police were dealing with Mr Moon in relation to some unrelated matters.   A search warrant was executed for the text data on his phone.  It revealed that Mr Moon was dealing methamphetamine, having offered a number of people methamphetamine by text message over a 10-day period.  He had offered “dollar bags” and “half dollar bags” (referring to 0.1g and 0.05g of methamphetamine, with street values of around $100 and $50 respectively).   In particular, on 22 September 2009, Mr Moon sent a text asking if anyone wanted to buy a “dollar bag”.  On 23 September 2009 he sent a text stating that after getting the dollar bag and tasting it, the recipient was to see if he was “keen for a quarter” (0.25g of methamphetamine).

[7]      At approximately 11.20 pm on 21 September 2009 Mr Moon and an associate went to the address of a person with whom  Mr Moon had been in  a previous relationship.  He approached the front door and knocked loudly.  He then walked to the rear of the house, continued to knock loudly on a sliding door and began to shout.   When the victim sighted him, Mr Moon started to kick the ranch slider, shouting “where’s Jay” and that they were going to “smash him”.  The victim feared for her safety and the safety of her 8-month-old baby.   Mr Moon began shouting

louder and threw a beer bottle at the ranch slider before leaving.  Mr Moon admitted the facts and stated that the victim had been harassing his girlfriend, and he wanted to give her a fright.

Personal circumstances

[8]      Mr Moon is 20 years old.  He has spent the previous three years incarcerated with intermittent periods of freedom totalling five months.  He is assessed at ninety five per cent risk of re-offending.  He acknowledges his methamphetamine use is the driving factor behind his offending but states he genuinely wants to seek help for his addiction.

[9]      Mr Moon has 81 previous convictions.   His offending includes dishonesty, property, driving, violence, non-compliance and drug offences.  Of relevance he has:

66 previous convictions for unlawfully taking a motor vehicle or theft of a

motor vehicle

four previous convictions for unlawfully getting into or interfering with a

motor vehicle.

15 previous convictions for burglary  one conviction for shoplifting

six for theft and one for receiving.

eight   previous   convictions   for   driving   while   disqualified   along   with numerous convictions for driving a vehicle dangerously or recklessly.

three previous convictions for cannabis related offending, include one of

possessing cannabis for supply.

one conviction for threatening behaviour

three previous convictions for aggravated and common assault.

Sentencing

[10]     It is not surprising then, that in his judgment, Judge Ingram referred to Mr Moon as a “walking crime wave”.  He said the facts of the offending for which he was required to sentence Mr Moon demonstrated that he was hopelessly unable to behave in a manner that allowed him to stay out of prison.   He observed that Mr Moon has a methamphetamine addiction, no prospect of ever paying any reparation and also referred to his high risk of reoffending, assessed at ninety five per cent.  He said there was a substantial risk of institutionalisation, as indicated by this immediate offending by Mr Moon after his release.

[11]     In relation to the methamphetamine offending, Judge Ingram accepted that the offending fell within Band 1 of  Fatu[2]  warranting a sentence (presumably a reference to the starting point) of two to four years, as there was only minor commerciality and no methamphetamine was  actually found.   In relation to the burglary charge Judge Ingram referred to the cases of Senior v Police[3], R v Southon[4] and R v Nguyen.[5]    He said it was clear that someone in Mr Moon’s position as a recidivist burglar can expect on the basis of those authorities, an end sentence of around three years imprisonment even for a single burglary.

[2] R v Fatu [2006] 2 NZLR 72.

[3] Senior v Police (2000) 18 CRNZ 340 (HC).

[4] R v Southon (2003) 20 CRNZ 104 (CA).

[5] R v Nguyen CA110/01, 2 July 2001.

[12]     He referred to the aggravating and mitigating factors.  Aggravating factors included offending while subject to release conditions, the extent of the loss in relation to the burglary, the threatened violence, the premeditation and vulnerability of the victim in the intimidation charge and Mr Moon’s prior convictions.

[13]     In relation to mitigating factors, he referred to Mr Moon’s young age of

twenty and his guilty pleas.

[14]     Significantly Judge Ingram stated:[6]

... In this particular case I have had to have careful consideration in relation first, the risk of institutionalisation; secondly, your high risk of re-offending and thirdly, totality.  On one view, all of these cases could be dealt with by way of cumulative sentences, which would produce for you a sentence in the order of a decade long.  In my view that is too long for someone aged 20, but the sentence imposed needs to bring home to you that you are going to spend the rest of your life in prison, if you do not change your ways.

[6] At [24].

[15]     For  the  burglary  offence  he  adopted  a  starting  point  of  three  years imprisonment.   He applied an uplift of four months for the charge of unlawfully taking a vehicle and a further four months to take account of Mr Moon’s history of offending.  He gave a credit of fourteen months for the guilty plea to reach an end sentence of two years six months imprisonment.   For the unlawful taking offence two years imprisonment was imposed concurrently.   A starting point of eighteen months imprisonment was taken for driving while disqualified which was reduced to one year and imposed concurrently.  For the methamphetamine offending a starting point of two years was adopted.  This was reduced to fifteen months to take account of the guilty plea and was imposed cumulatively on the sentence for burglary.  A concurrent sentence of two months imprisonment was imposed for the threatening behaviour offence.

Submissions

[16]     The principal grounds of appeal advanced by Mr Farquhar were that the Judge was wrong to uplift the starting point of three years imprisonment for the burglary offence by four months to account for the unlawful taking offence.  I do not accept that submission.  Although the offending arose out of the same incident, it was entirely appropriate to reflect the separate offence of unlawful taking by an uplift to the starting point for the burglary offence, Mr Moon having pleaded guilty to both offences.

[17]     The  second  point  taken  by  Mr  Farquhar  was  that  the  Judge  did  not sufficiently take account of totality as required by s 85 of the Sentencing Act.  He

submitted  that  the  end  sentence  of  three  years  nine  months  imprisonment  was

disproportionate to the gravity of the offending.  In this context he noted the youth of the appellant.

[18]     The Crown’s submissions referred to the misinterpretation of Judge Ingram’s decision on the totality point.  Indeed, I understood Mr Farquhar to accept that he had perhaps overlooked that Judge Ingram at [24] of his judgment specifically turned his mind to the issue of totality.

Conclusions

[19]     This was serious offending by a recidivist burglar.  I do not consider that the sentencing exercise undertaken by the Judge can be criticised.  On the authority of Senior and Southon a sentence of around three years imprisonment, for the burglary offence alone, was indicated.  The Judge applied no uplift for offending on parole. However, he did need to take account of the principles of deterrence and protection of the public from recidivist burglars such as Mr Moon.   The sentence cannot be regarded as clearly excessive or inadequate or inappropriate in any respect.

Result

[20]     The extension of time to appeal is granted but the appeal is dismissed.