Moon v The King

[2025] NZHC 444

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2024-416-000022

[2025] NZHC 444

BETWEEN

JOHN MOON

Appellant

AND

THE KING

Respondent

Hearing:

12 February 2025; further submissions 7 March 2025

Counsel:

M J Lynch for Appellant

O A Jessop Boivin and M J Lillico for Respondent

Judgment:

7 March 2025

JUDGMENT OF LA HOOD J

(Appeal against Sentence)

[1]    Mr Moon was sentenced to three years’ imprisonment with a minimum period of imprisonment (MPI) of two years1 after pleading guilty to one charge each of strangulation2 and assault on a person in a family relationship.3 He appeals the sentence solely on the basis that the MPI should not have been imposed.

The offending

[2]    Mr Moon has been in  an on and off relationship  with the victim for over    20 years. They have three children together that are under the age of 18 and live at home.

1      R v Moon [2024] NZDC 26713 [Sentencing decision].

2      Crimes Act 1961, s 189A(b); maximum penalty seven years’ imprisonment.

3      Crimes Act, s 194A; maximum penalty two years’ imprisonment.

MOON v R [2025] NZHC 444 [7 March 2025]

[3]    The offending took place on 17 January 2024. At that time, the couple were living at Mr Moon’s mother’s address. The children and Mr Moon’s mother were all at home. Mr Moon became jealous after searching through the victim’s phone. He proceeded to assault her over several hours.

[4]    While the victim was sitting on the bed, Mr Moon punched her in the side of the head before throwing her onto the floor by grabbing her hair. The victim landed on her stomach. Mr Moon then put his knee on the victim’s back and hit her head into the ground. He strangled the victim by putting his arm around her neck, not stopping despite her saying she was unable to breathe, and continuing until she became unconscious. When the victim awoke, she tried to stand up. Mr Moon continued to hit the victim, telling her to “snap out of it”. He threw the victim onto the couch and punched her in the back. The defendant then used a stick type object to hit the victim approximately 10 times on her back.

[5]    The victim asked to leave during the assault multiple times. Mr Moon refused and prevented her from doing so, standing between her and the bedroom door. When the victim yelled for help, Mr Moon closed the windows and pushed her face into the bed so no one would hear her. He told the victim he would throw her out of the window if she wanted to leave and that if she left, he would kill her. As a result, the victim was too afraid to try to escape because she thought she would be further beaten or killed.

[6]    Mr Moon’s mother called the police because of the yelling and screaming she heard. The assault ended when police arrived, although Mr Moon continued to act aggressively toward the victim. The victim assured the police she was fine and walked away from the address with Mr Moon. The next day, however, the victim contacted police and made a statement. Mr Moon was initially charged with one charge each of kidnapping, threatening to kill, strangulation and assault with a weapon, and seven charges of assault on a person in a family relationship. However, these charges were amended, and Mr Moon pleaded guilty to one charge each of strangulation and assault on a person in a family relationship on the day his trial was scheduled to begin.

History of offending

[7]    Mr Moon has a substantial history of inflicting family violence on the victim. Of his 20 previous convictions for violence, 19 have been family harm offending against her. The 19 convictions relate to 10 separate incidents, taking place at frequent intervals from 2004 to 2021.

[8]    The sentencing Judge in this case had also sentenced Mr Moon for offending against the same victim that took place in 2015. The Judge sentenced Mr Moon to a total of seven years’ imprisonment4 on one charge of wounding with intent to cause grievous bodily harm and several more minor charges.5 The Judge summarised that offending as follows:

[2]        In essence, he punched her a few times to her head and body, kicked her two to three times in the head when she was on the floor, and banged her face on the floor a few times.

[3]        He then took her into a bathroom where he punched her head further and grabbed her throat choking her. He then cut her ear with scissors through the full thickness of her outer ear including through cartilage. He then threatened to kill her if she complained.

[9]    Importantly, the Judge declined to impose an MPI despite Mr Moon’s “very high risk of reoffending”, desire to “minimise his offending” and a “lack of remorse” because there was evidence suggesting he was “moving towards rehabilitation”.6 This was in some ways a “last chance” warning, with the Judge saying, “It is because of [rehabilitation prospects] alone I do not intend to impose a minimum period of imprisonment”.7

Sentencing decision

[10]   Mr Moon was sentenced on 1 November 2024 by the same Judge. The Judge reached an end sentence of three years’ imprisonment by setting a global starting point of three years and eight months’ imprisonment.8 He then uplifted that starting point

4      R v Moon [2017] NZDC 20556 [2017 Sentencing decision of Judge Cathcart].

5      One charge of injuring with intent to injure, two charges of assault with intent to injure and one charge of threatening to kill.

6      2017 Sentencing decision of Judge Cathcart, above n 4, at [19]–[21].

7 At [21].

8      Sentencing decision, above n 1, at [18].

by three months to reflect Mr Moon’s previous convictions for violent assault against the same victim and to reflect the “strong propensity towards high-level domestic violence” those convictions demonstrated.9    The Judge allowed a five-month, or    10 per cent, credit for pleading guilty on the first day of trial.10 He allowed a further reduction of six months to reflect Mr Moon’s personal circumstances, including his upbringing,11 and the potential that he had gained insight and was taking steps to address the substance abuse problems that were linked with his offending.12 He did not allow any credit for remorse.13

[11]   As already noted, Mr Moon’s sole ground of appeal is that the Judge erred by imposing the MPI of two years, which is two-thirds of the end sentence. Had the Judge not done so, Mr Moon would become eligible for parole after serving one-third of the sentence, or one year.14 The Judge said that the totality of Mr Moon’s offending took it “over the threshold” for an MPI,15 and he did not accept the argument that Mr Moon was beginning to take rehabilitative steps which meant that parole was best left to the assessment of the Parole Board.16 The Judge said:

[40] In my view, Mr Moon, it is  not sufficient to  simply leave it in the hands of the Parole Board here. I consider that whilst a rehabilitation focus may have begun its genesis in your mind, you failed in that regard earlier and remains a substantial work in progress. I am not satisfied it has moved along sufficiently for me to say the factors relied upon which weigh in favour of the minimum period are displaced.

[12]   The Judge concluded that an MPI was “appropriate but at the minimum statutory level” before imposing an MPI of two years’ imprisonment.

9      At [19]–[22].

10 At [23].

11 At [25]. His upbringing involved deprivation and exposure to drugs, alcohol and domestic violence.

12     At [28] and [30].

13 At [32].

14     Parole Act 2002, s 86(1).

15     Sentencing decision, above n 1, at [37]; citing Tereora v R [2015] NZCA 120.

16 At [39].

Approach on appeal17

[13]   In Tutakangahau v R the Court of Appeal confirmed that a successful sentence appeal under s 250(2) of the Criminal Procedure Act 2011 requires both the identification of a material error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.18 Appeals against the imposition of a minimum period of imprisonment  also  take  place  under  s  250(2)  of  the  Criminal Procedure Act because they are appeals against sentence.19

[14]   Sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer”.20 The court will not generally intervene unless a sentence is manifestly excessive21 and outside the range available to the sentencing judge.22 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.23

[15]   As I have previously said, the “well-engrained”24 error principle recognises that reasonable minds can differ about where an appropriate sentence should sit within an available range.25 This reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.26

[16]   In R v Palmer the Court of Appeal confirmed that the Tutakangahau v R approach is applicable to an appeal against the type of sentence imposed (in that case the imposition of imprisonment instead of home detention).27 The Court noted that the previous approach of applying the general test for appeals against the exercise of

17    I received supplementary written submissions on the appropriate approach on appeal because     Mr Lynch’s submissions appeared to suggest that I could simply substitute my view on the appropriateness of the MPI for the view of the sentencing Judge.

18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

19     See, by way of example, Huata v R [2024] NZCA 521 at [25]; and Frost v R [2023] NZCA 294 at [63].

20     Tutakangahau v R, above n 18, at [30] and [35].

21 At [35].

22 At [36].

23     At [30]–[36].

24     Tutakangahau v R, above n 18, at [34]–[35].

25     Johnson v R [2023] NZHC 3748 at [6]; M v R [2024] NZHC 3632 at [9].

26     Johnson v R, above n 25, at [6]; M v R, above n 25, at [9].

27     Palmer v R [2016] NZCA 541.

a discretion is no longer appropriate in this context.28 The Court said it is not an error to describe sentencing decisions as discretionary “so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation”.29 However, the Court noted that this change of approach is unlikely to make a difference to the result, as the margin of appreciation given to sentencing judges is usually significant.30 Absent an error of principle, the appeal came down to whether imprisonment was clearly excessive.31

[17]   Accordingly, the issue on this appeal is whether there has been a material error of principle in the imposition of the MPI, and if not, whether the imposition of an MPI has resulted in a manifestly excessive sentence. Put simply, the question is whether “it was open to the Judge to impose an MPI”?32

Principles applicable to imposition of an MPI

[18]   Section 86 of the Sentencing Act 2002 provides the Court with the power to impose an MPI. Subsection (2) provides:

(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a)holding the offender accountable for the harm done to the victim and the community by the offending:

(b)denouncing the conduct in which the offender was involved:

(c)deterring   the   offender   or    other   persons   from committing the same or a similar offence:

(e)       protecting the community from the offender.

[19]   Where an MPI is contemplated, the sentencing Judge must carry out a two- stage process. First, they must fix the maximum length of sentence by reference to all of the relevant sentencing considerations. Secondly, as a separate exercise, they must

28 At [18].

29 At [17].

30 At [19].

31 At [24].

32     E (CA522/2021) v R [2022] NZCA 368 at [77].

consider whether the normal parole eligibility of one-third of the length of the sentence is insufficient to meet one or more of the four specified purposes in s 86(2), and if so how long the minimum non-parole period should be.33 This requires a reconsideration of the relevant sentencing principles found in ss 7, 8 and 9 of the Act and should not be done in a routine or mechanistic way without regard to the circumstances of the individual case.34

[20]In what is necessarily a holistic inquiry, the ultimate objective is to establish

— by reference to the factors identified in s 86(2) — whether release after one-third of the sentence would constitute an insufficient response to the offending, so that an MPI is required to confer a degree of reality on the sentence and the overall outcome.35

The parties’ positions

[21]   Mr Lynch, counsel for Mr  Moon,  says  the  one-year  period  after  which  Mr Moon would become eligible for parole was sufficient for the s 86(2) purposes of holding Mr Moon accountable, denouncing his conduct, deterring him and protecting the community. First, he submits there was nothing unusual about Mr Moon’s offending that elevated it above other strangulation or assault offending. Second, he submits there are several personal factors that mitigate Mr Moon’s risk to the community and mean that one year of imprisonment would be sufficient for the s 86(2) purposes. He submits that Mr Moon’s history of offending against the same victim cannot be determinative. Mr Lynch also criticised the length of the MPI, which is the maximum length that can be imposed for an end sentence of three years’ imprisonment.36

[22]   The Crown opposes the appeal on the basis an MPI of two years is needed to deter Mr Moon from committing similar offending in the future and to protect the victim from Mr Moon.

33     R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA) at [51]–[56]; and Ohlson v R [2024]

NZCA 268 at [14].

34     R v Gordon [2009] NZCA 145 at [48]; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].

35     R v Gordon, above n 34, at [15]–[16].

36     Under s 86(4) of the Sentencing Act 2002, the maximum length an MPI may be is the lesser of two-thirds the length of the end sentence or 10 years.

Decision

[23]   The starting point here is that Mr Moon’s offending was, as Mr Moon conceded at sentencing, at a moderate to high level of seriousness. As the Judge pointed out in the sentencing decision, aggravating factors included the victim’s vulnerability during the strangulation, prior family violence, further violence after the act, the harm suffered by the victim and the fact the victim lost consciousness.

[24]   I accept the Crown submission that the history of family violence in this case is very serious. Family violence is unfortunately prevalent in New Zealand Society.  It is often repeated and usually escalates in severity.37 This is because intimate partner violence is a pattern of harm, not a series of individual incidents,38 which generally escalates in response to attempts to resist it.39 The Court of Appeal has said:40

[27] Family violence has become one of the scourges of New Zealand society. The family home is a place where an occupant is entitled to feel, and be, safe. The courts have repeatedly emphasised the importance of respect for the sanctity of the home. As we noted almost 20 years ago, “Conduct of this kind affects the sense of security of the whole community.”…

[25]   Strangulation, in particular, has been described as a uniquely effective form of intimidation, coercion and control.41 It is a demonstration of the ability to kill, and is a significant risk indicator of later homicide.42 These concerns are reflected in Parliament’s decision to make strangulation a separate offence.43 While the PAC report did not, as Mr Lynch points out, specifically state that Mr Moon has a high risk of reoffending, it is obvious from his history of offending against the victim and the inherent recidivist risks of the offence of strangulation.

[26]   The Crown submit that the most analogous case is Tawhai v R,44 which involved family violence offending of similar seriousness. In R v Tawhai, the

37     Hassani v Police [2019] NZHC 1378 at [9].

38     Julia Tolmie and others “Social Entrapment: A Realistic Understanding of the Criminal Offending of Primary Victims of Intimate Partner Violence” [2018] NZ L Rev 181 at 209–210.

39     At 205.

40     Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 (footnotes omitted).

41     Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at [1.2].

42     Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [29]; and Law Commission, above n 41, at [1.3].

43     Shramka v R, above n 42, at [14]–[29].

44     R v Tawhai [2023] NZCA 444.

sentencing Judge imposed a sentence of preventive detention, but noted that if she had not done so she would have imposed a sentence of three years’ imprisonment with an MPI of two years.45 The defendant had punched the victim multiple times, including in the face at least seven times, causing a tooth to fall out, several fractures, and bruising. He had also grabbed the victim’s clothing around the neck. The pair had been in a relationship for about a year but had recently separated. The defendant had a significant history of violence offending against other victims (including a rape conviction). On appeal, the Court of Appeal quashed the sentence of preventive detention and substituted the alternative sentence of three years’ imprisonment with an MPI of two years.

[27]   Of the s 86(2) factors, I agree with the Crown that the most relevant are the need to protect the current victim and any future partners Mr Moon may have, and to deter Mr Moon (and others) from family violence offending.

[28]   I reject the submission that there is nothing unusual or abnormal in Mr Moon’s offending that elevates it above other offending of this kind.46 The Court of Appeal made it clear in Shramka v R that previous serious family violence is an aggravating factor in strangulation offending.47 That is not intended to re-punish a defendant, but to recognise the increased risk of fatality for the victim.48 Mr Moon has an extensive history of acts of violence against the same victim, including the very serious offending committed in 2015 and further offending committed in mid-2021.49 It is a serious aggravating factor of the offending that, when combined with the other aggravating factors, elevates it above other offending of this kind. Even if there were no such feature here, the ultimate question is not whether an unusual feature exists, but whether release after one-third is insufficient to meet the purposes of community protection, deterrence, accountability, and denunciation.

45 R v Tawhai [2022] NZHC 998 at [38]–[39].

46 As noted in R v Wirangi [2007] NZCA 25 at [17], while s 86(2) no longer requires unusual or abnormal feature of the offending, considerations of that kind may still be relevant to the overall assessment required.

47 Shramka v R, above n 42, at [42(b)].
48 At [42(b)].

49 Assault with a weapon and assault on a person in a family relationship.

[29]   I also reject the submission that Mr Moon’s personal mitigating factors mean an MPI is not required. I consider there is no error in the Judge’s approach to these factors. It was open to the Judge to conclude that Mr Moon’s late guilty plea, limited remorse, and some recent insight into the benefits of engaging in rehabilitation (at the age of 40) were insufficient to outweigh the need for an MPI.

[30]   I consider Mr Moon’s long history of offending against the victim and the serious ongoing risk to her safety meant imposition of an MPI of two years was clearly open. I agree that release after one year would be clearly insufficient to protect the victim (and other potential partners of Mr Moon) and meet the purposes of deterrence, accountability and denunciation. While Mr Moon’s need to engage in rehabilitative steps to address the consequences of his deprived background cannot be ignored, the point has been reached where protection of the victim must take precedence.

[31]   I accept there appears to be an inconsistency in the Judge’s decision when he said he was setting the MPI at the “minimum statutory level” and then set it at the statutory maximum of two-thirds. It is difficult to know whether this was an infelicity in the language used, or whether the Judge thought the statutory minimum MPI is two- thirds of the sentence. Even if it was the latter, the Judge was aware that the term of the MPI would be two years and decided this was a necessary response to the offending. Whether or not there was an error in the Judge’s reasoning, I consider an MPI of two years was appropriate in this case. This is a case where the victim should be given the maximum protection available from the significant risk of further serious offending by Mr Moon.

[32]I therefore dismiss the appeal.

La Hood J

Solicitors:

MJL Law, Gisborne for Appellant

Crown Law Office, Wellington for Respondent