Moore v Police - [2024] NZHC 3063

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-000022

[2024] NZHC 3063

BETWEEN
KEVIN MOORE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 October 2024

Counsel:

C A Silk for Appellant

R L Hicklin for Respondent

Judgment:

18 October 2024

JUDGMENT OF RADICH J

[1] On 7 June 2024, Kevin Moore was sentenced by Judge Hikaka to 26 months’ imprisonment on the following charges, to which he pleaded guilty:1

(a)breaching release conditions;2

(b)wilful damage (representative);3

(c)three charges of assault on a person in a family relationship (one charge being representative);4 and

1      Police v Moore [2024] NZDC 13183 [Decision on appeal].
2      Sentencing Act 2002, s 96(1) (maximum penalty of one year’s imprisonment or fine not exceeding
$2,000).
3      Summary Offences Act 1981, s 11(1)(a) (maximum penalty of three months’ imprisonment or fine not exceeding $2,000).
4      Crimes Act 1961, s 194A (maximum penalty of two years’ imprisonment).

MOORE v NEW ZEALAND POLICE [2024] NZHC 3063 [18 October 2024]

(d)obstruction of police.5

[2] Mr Moore was ordered to pay $500 in reparations (outstanding fines of $3,463 were cleared by the Judge). He now appeals his sentence on the basis that it is manifestly excessive.

The offending

[3] Mr Moore was charged with breaching his release conditions on 4 January 2024 after his third failure to report to his probation officer.6

[4] One of the assault on a person in a family relationship charges and the wilful damage charge arose from events on 8 January 2024. The complainant was Mr Moore’s partner, who is the complainant in all the assault charges. The complainant was about 37 weeks pregnant with the pair’s first child. There had been some earlier family harm.7 On 8 January, Mr Moore broke the head unit of the complainant’s car and punched her in the mouth. She locked herself in her car and called the police. When they arrived, Mr Moore ignored their attempts to speak to him and rode away on his bike.8

[5] The representative assault charge arose out of events on 9 and 13 January. On 9 January 2024, Mr Moore and the complainant were together in the early hours of the morning. She left and was walking towards her car, parked up the street. Mr Moore chased her. As she hid behind other vehicles, he began throwing rocks at her. The complainant managed to get into her car and lock the door. Mr Moore began attacking the car and broke the left wing mirror. He ran away when the complainant called police.9

5 Summary Offences Act, s 23(a) (maximum penalty of three months’ imprisonment or fine not exceeding $2,000).
6 Decision on appeal, above n 1, at [3]; Mr Moore was released from prison on 15 September 2023 where he was on charges of threatening to kill, unlawfully in a closed yard, and theft. His conditions were due to expire on 10 May 2024.
7 At [4].
8 At [5].
9 At [6].

[6]…

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 [2024] NZHC 3063
Case: [2024] NZHC 3063
Decision Date: 18 October 2024

CaseChat Overview and Summary

Kevin Moore appeals his sentence of 26 months' imprisonment for breaching release conditions, wilful damage, three charges of assault on a person in a family relationship, and obstruction of police. Moore contends that the sentence is manifestly excessive, particularly in relation to the 12 months' imprisonment for the April assault, the three months for breaching release conditions, and the six-month uplift for his prior offending. The Police argue that the sentence was appropriate given the severity and frequency of Moore's offending, as well as his extensive criminal history. The court held that the starting points and uplifts applied by the sentencing Judge were within appropriate ranges, and the end sentence of 26 months' imprisonment was not manifestly excessive. The appeal is dismissed. The court noted that Moore's criminal history and ongoing offending demonstrated a need for a significant custodial sentence. While the discount given for Moore's rehabilitative potential was generous, it was appropriate given his rejection of previous opportunities to rehabilitate. The court saw no tenable basis for reducing the sentence below two years' imprisonment. It was unlikely that home detention would be suitable given Moore's history.

Orders