Moore v Police - [2013] NZHC 3213

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000026 [2013] NZHC 3213

BETWEEN MACAYLA RENEE MOORE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 21 November 2013

Appearances: B P Kilkelly for Appellant
CER Power for Respondent

Judgment: 3 December 2013

JUDGMENT OF D GENDALL J

[1] On 12 September 2013 the appellant pleaded guilty in the District Court to a charge of assault with intent to injure. This carries a maximum penalty of three years imprisonment. The appellant had been charged with this offence conjointly with two others: Ms Hanley and Ms Law.

[2] Judge Coyle in the District Court refused an application by the appellant for a discharge without conviction pursuant to s 106 Sentencing Act 2002. The appellant was convicted and sentenced to 200 hours community work.

[3] A notice of appeal against that conviction was filed on 16 September 2013.

Background facts

[4] On 6 April 2013 the appellant assaulted the victim in Fryatt Street, Dunedin. A co-offender, Ms Hanley, punched the victim in the face first and was then dragged away. The appellant and the other co-offender, Ms Law, punched the complainant repeatedly who fell to the ground. Both then punched the victim in the face and
kicked her about the head and body. The victim curled up into a foetal type position

MOORE v NEW ZEALAND POLICE [2013] NZHC 3213 [3 December 2013]

and attempted to protect her head and face while this was occurring. The appellant and her co-offenders only stopped when an onlooker stepped in.

[5] The victim suffered bruising to her face, arm and neck and swelling to her face and head. The victim impact statement said she was in hospital for seven hours, received scratches to her neck and face, bruising to her arm and left eye, and she had pains in her head, chest, arms and back, and generally her whole body for about two weeks. She was eight weeks pregnant at the time.

[6] In the District Court when Judge Coyle refused her application for a discharge without conviction, the appellant was aged 17 years and six months. Her date of birth is 16 September 1995.

[7] In refusing the application in the District Court for a discharge without conviction Judge Coyle considered and referred to Z v R1 and the requirements set out by the Court of Appeal in that decision.

Appellant’s affidavit

[8] Prior to her sentencing, the appellant had filed an affidavit which referred to the following matters:

(a) She is a year 13 student studying at Kaikorai Valley College. At the time of the offending she was suffering from personal difficulties and had used the synthetic cannabis derivative drug “K 2” on the night of the offending.

(b)She had now signed up for counselling and got help from her family doctor for a depressive illness. In addition she had returned to school after being away from late March 2013 to the middle of May 2013.

(c) She believes a conviction would detrimentally affect her…

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 Moore v Police

Details

AGLC: Moore v Police [2013] NZHC 3213
Case: [2013] NZHC 3213
Decision Date: 3 December 2013

CaseChat Overview and Summary

In the case of Moore v Police, the appellant, Macayla Renee Moore, appealed against her conviction and sentence in the District Court. The appellant pleaded guilty to a charge of assault with intent to injure, which resulted in a sentence of 200 hours of community work. Moore sought a discharge without conviction under section 106 of the Sentencing Act 2002, which was denied by Judge Coyle in the District Court. The appellant argued that the direct and indirect consequences of her conviction would be disproportionate to the gravity of the offence, and that the sentencing judge failed to properly exercise his discretion in denying her request for a discharge without conviction.

The legal issues before the court were whether the District Court judge had correctly applied the balancing test between the gravity of the offence and the consequences of conviction, and whether he had properly exercised his discretion in denying the discharge without conviction. The High Court found that the District Court judge had considered all relevant factors in his assessment of the case and had not improperly exercised his discretion. The court concluded that the consequences of the conviction were not out of proportion to the gravity of the offence, and dismissed the appeal.

The High Court's reasoning was based on the fact that the appellant had pleaded guilty to a serious offence involving violence, and that the sentencing judge had considered all relevant factors, including the appellant's age, lack of prior convictions, and personal difficulties at the time of the offending. The court found that the appellant's offending fell into band 2 of the sentencing guidelines for assault with intent to injure, which justified a community-based sentence. The court also found that the appellant's submission that the offending was a one-off episode was not supported by the facts. The court concluded that the appellant might still be able to pursue her intended career in the future, and that the consequences of her conviction were not disproportionate to the gravity of the offence.

Orders