Moore v Police
[2024] NZHC 3063
•18 October 2024
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] A warrant to arrest issued on 11 January 2024 following the appellant’s failures to appear and on the basis of the 9 January assault.
[7] On 13 January, the complainant was getting ready to leave the house. Mr Moore became angry because he felt that she was taking too long. He threatened to break the windows of her car. The complainant walked outside. Mr Moore picked up a baseball bat and smashed the passenger windows of her car. The complainant, fearing for her safety, ran across the road in her underwear and called the police. Mr Moore later left on his bicycle. The complainant and Mr Moore later returned, he threw a large rock at her, which hit the roof of her car.10
[8] On 16 January, Police were making inquiries as there was a warrant for Mr Moore’s arrest. When Mr Moore opened the door to police, he pushed back against them and managed to close the door. He said repeatedly that he had a gun and would harm anyone who came in. Eventually, Mr Moore surrendered after a sponge round and police dog were deployed.11
[9] Mr Moore pleaded guilty to the above offending on 29 February 2024 and was granted bail the same day. While on bail, Mr Moore offended again. On 9 April, he contacted the complainant and asked her to come and settle the baby whom he was looking after at the time. She did so. Mr Moore became verbally abusive while she was holding the baby. He punched her in the face multiple times and dragged her along the floor by her arms while she was holding the baby.12 This resulted in the final assault charge.
Decision on appeal
[10] Having set out the background to the offending, the Judge went on to note Mr Moore’s conviction history.13 He has 81 convictions between 2002 and 2023; 21 for violence, of which nine are for family violence. Mr Moore has three convictions for assaulting Police and eight for wilful damage.14
10 At [7].
11 At [9].
12 At [11].
13 Decision on appeal, above n 1, at [13].
14 At [13].
[11] Mr Moore, at 39 years old, had been before the courts consistently. The Judge acknowledged that Mr Moore’s methamphetamine and alcohol use, as well as his attitude, were problems for him.15 He was assessed as being at a high-risk of reoffending and as having many rehabilitative needs. However, despite him being motivated to do better, he had made only limited engagement with support previously offered and demonstrated an unwillingness to comply with court directions once in the community.16 The Judge acknowledged Mr Moore’s tough family background and his expression of remorse.17
[12] The Judge said that Mr Moore was not, as a condition of his bail, to have had contact with the complainant following the January offending. The Judge explained that, due to being sleep-deprived after having to look after the baby and having just been in a motorbike accident, Mr Moore lost control and was violent on 9 April.18 The Judge referred to the submission made to him that the complainant had “disappeared” for five days, leaving the baby with him, when he did not have experience in caring for babies.
[13] The Judge was concerned that Mr Moore was unable to use alternative behaviours, like walking away. And he was concerned about a number of features of the offending, such as the number of offences, the vulnerability of the complainant, the fact that she was pregnant and, later on, the presence of a two-month-old baby.19 He said that, even for such a young child, there would be an impact on her and a “visceral response”.20 Moreover, an aggravating factor for Mr Moore was the fact that he had offended while on bail.21
[14] The Judge gave a three-month starting point for the breach of release conditions, with cumulative uplifts of nine months for the damage and assault charges on 8 January, six months for the second representative assault charge, one month for
15 At [16].
16 At [17].
17 At [18].
18 At [20].
19 At [23].
20 At [24].
21 At [26].
obstructing police, and 12 months for the April offending. This all led to a total starting point of 31 months’ imprisonment.22
[15] The Judge applied a full 25 per cent guilty plea discount. He applied a six- month uplift for Mr Moore’s prior history.23 A 10 per cent credit was then given for rehabilitative prospects.24 $500 in emotional harm reparation was ordered.25 Outstanding fines of $3,463 were cleared.26 The end sentence was 26 months’ imprisonment.27 The Judge expressed his belief that, while Mr Moore no doubt wanted to do better, it needed to be managed well and the Parole Board was better placed for that.28
Approach on appeal
[16] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. The Court retains no discretion in the event that these criteria are not satisfied and must dismiss the appeal.
[17] When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.29 It must be shown that there has been an error made by the sentencing Judge.30 The Court cannot “tinker” with a sentence imposed where that end sentence is nevertheless in range.31
22 At [27].
23 At [28].
24 At [29].
25 At [30].
26 At [31].
27 At [31].
28 At [33].
29 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
30 Tutakangahau v R, above n [29], at [27].
31 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
Positions of the parties
Mr Moore
[18] Ms Silk has advanced three primary grounds of appeal. First, it is said, the 12- month period adopted for the April assault is excessive. While it is acknowledged that the guidance provided by the Court of Appeal in R v Taueki and Nuku v R do not apply to assaults in family relationships, it was submitted that factors set out in those decisions can provide some guidance when considering where Mr Moore’s offending sits within the available range.32 The point is made that, had the complainant not been Mr Moore’s partner, he would be facing common assault charges, which attract a lesser statutory maximum of six- or 12-months’ imprisonment.33 Ms Silk points to the absence of aggravating factors such as predetermination or serious injury. It is said that the complainant was herself involved in a breach of the non-contact condition that applied for Mr Moore in April by leaving their child with him for a time. Ms Silk refers to Mr Moore being sleep-deprived at the time of the April offending after having to care, unexpectedly, for a two-month-old baby for five days. Reference is made also to him recovering from a motorcycle accident during that period of time. It is said that a nine-month sentence for the April assault would have been appropriate.
[19] Secondly, it is said for Mr Moore that the three-month period of imprisonment applied to the charge of breaching release conditions was too high. Mr Moore’s 16 breaches of sentence charges, it is observed, were mostly before 2016. The last relevant charge of this sort was in 2023 when he received a sentence to come up if called upon for breaching conditions. The most appropriate sentence for breach of the release conditions here would have been, it is said, one month’s imprisonment.
[20] Thirdly, it is said that, if the submissions for the appellant are accepted and a 26-month starting point applied, then a six-month uplift for prior offending becomes manifestly high also. An uplift at this level would, in those circumstances, it is said, be about 20 to 25 per cent of the sentence itself. Rather, it is said, an uplift of about three months would have been appropriate and consistent with the principle of totality.
32 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372; Nuku v R [2012] NZCA 584, [2013] 2 NZLR
39.
33 Depending on whether the charge is brought under the Summary Offences Act or the Crimes Act.
[21] The approach taken by Mr Moore would result in an end sentence of approximately 20 months’ imprisonment. Should an end sentence of less than 24 months be reached, Mr Moore seeks leave for a home detention application to be made, should a suitable address be available.
The Police
[22] Ms Hicklin submits that the starting points imposed for the various charges, and the uplifts and credits applied, were all within appropriate ranges. It is said that a starting point of 27 months’ imprisonment on the family violence and wilful damage charges, viewed as a whole, was well within range. The offending involved, it is said, a pattern of violence against a vulnerable victim. A young child was involved. And there was damage to property.
[23] It is said that the summary of facts does not record any form of provocation by the complainant or suggests that any factors could be advanced in mitigation. The 12- month, nine-month and six-month starting points for the assault charges, it is said, were all commensurate with the seriousness of the offending.34
[24] It is said that offending while on release conditions is not an insignificant factor.35 That is especially so here, where the family violence offending was committed while in breach of his conditions. The three-month sentence for this charge was, it is said, warranted. Equally, it is said, the six-month uplift for previous convictions was in range when regard is had to Mr Moore’s extensive criminal history. He has received, it is said, the “full ambit” of sentences and his current offending demonstrates that no approach has the desired rehabilitative or deterrent effect.
[25] The 10 per cent credit for the appellant’s “potential” was, it is said, generous in the circumstances.
34 Relying on Barlao v Police [2021] NZHC 1828; Parsons v Police [2018] NZHC 2214; Kaa v Police [2016] NZHC 2139; and Wawatai v Police [2015] NZHC 406.
35 Goodman v R [2016] NZCA 64 at [15].
Discussion
[26] The immediately confronting feature in this appeal is the extent of Mr Moore’s criminal history. He has received 26 sentences of imprisonment36 and his offending has not stopped over the past 22 years. The pre-sentence (PAC) report writer observed that he has made “very little effort to moderate his behaviour”. Methamphetamine and alcohol use are assessed as having contributed to his ongoing offending, as are his “[o]ffence supporting attitudes and entitlements”.
[27] While Mr Moore has said to the report writer that he was “highly motivated” and would participate in rehabilitation offered by the court, his consistent failure to engage with programmes aimed at addressing his drug and anger-related issues means that the Court cannot place any weight on those expressions of intention on his part. There have been so many opportunities given to Mr Moore. Yet the pattern continues.
[28] In considering the current offending, I do not see the guidance provided by the Court of Appeal on aggravating and mitigating factors in Taueki and Nuku as being appropriate to cases of family violence offending such as this. The offending discussed in those cases was intended to apply to particular statutory offences, arising from offending causing grievous bodily harm or acts intended to cause injury.
[29] The Judge applied, in total, a period of 27 months’ imprisonment for the damage and assault charge arising out of events on 8 January, the representative assault charge and the charge relating to the April offending. That was, in my view, well within range, given the circumstances of this offending and when regard is had to cases such as Barlao v Police, Kaa v Police, and Parsons v R.
[30] In Barlao,37 a starting point of 10 months’ imprisonment with a two-month uplift for prior offending was adopted for a single charge of assault on a person in a family relationship. Mr Barlao had, two years earlier, been sentenced to nine months’ supervision on another charge of assault on a person in a family relationship against the same victim and there had been seven previous family harm incidents since 2019.
36 The pre-sentence (PAC) report refers, incorrectly, to 28 prior sentences of imprisonment.
37 Above n 34.
[31] In Kaa v Police,38 a starting point of 10 months’ imprisonment was adopted for a lead charge of male assaults female with an eight-month uplift for a second male assaults female charge.
[32] In Parsons v R,39 a starting point of 20 months was applied for three charges of male assaults female with a three-month uplift for two prior relevant convictions.
[33] While the facts and circumstances of those cases are similar in some respects with those in this, there are particular aggravating features here. The April offending is similar in terms of culpability to the offending in Kaa and Barlao and to the first assault in Parsons. However, Mr Moore’s offending went further. It involved multiple punches to the complainant’s face. It included Mr Moore dragging the complainant along the ground while she was holding the two-month-old baby. The starting points for the other assault charges, while still significant in their own rights, are less serious and attracted, appropriately, starting points of nine months and six months respectively. The offending here as a whole is, in my view, in line with the Court of Appeal’s observation that a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months.40
[34] I cannot accept the suggestion that Mr Moore’s culpability in relation to the April assault can be mitigated in any way because he was tired from looking after his child for five days. While, as has been said, he was not expecting that he would be looking after the child, I cannot properly give a credit to Mr Moore for him fulfilling basic parental duties.
[35] Not only, in my view, was the starting point of 12 months for the April offending within range, but the 27 months’ imprisonment as a starting point for the assault and damage charges considered together was within range. That is apparent when the Parsons case is considered. That case involved a similar pattern of moderately serious family violence offending against Mr Parsons’ partner over some
38 Above n 34.
39 Above n 34.
40 Goodman v R, above n 35, at [12].
time. The 27 months given to Mr Moore, as compared with the 20 months given for Mr Parsons, reflects the additional assault charge in this case.
[36] I see the three months’ starting point for the breach of release conditions as being within range also. In Goodman v R, the Court of Appeal observed that offending while on release conditions is not an insignificant aggravating factor.41 In that case, a two-month uplift was given to account for the fact that Mr Goodman was on release conditions at the time of his offending. There is an appropriate proportionality here when regard is had to the fact that Mr Moore received no discreet uplift for offending while on bail; itself an aggravating factor.
[37] The six-month uplift for previous convictions was, as I see it, justified. It is proportionate to the uplifts received in the Kaa, Barlao and Parsons case when one has regard to Mr Moore’s steady stream of prior convictions – a list that is significantly longer than those in the other cases.
[38] I agree with the submissions for the Crown that the discount the Judge applied for Mr Moore’s “potential”, as the Judge put it, was generous. In the face of Mr Moore’s rejection of the many opportunities given to him to rehabilitate and his failure to engage with support services, the discount given here is more than might have been expected.
[39] All of this leads me to the conclusion that the end sentence of 26 months’ imprisonment was not manifestly excessive. There is no error that I can discern in the Judge’s approach.
[40] Even if there was a basis upon which a sentence of less than two years’ imprisonment could be reached (and I cannot see a tenable way to get there), I would hesitate to grant leave to Mr Moore to apply for home detention. A significant turn in Mr Moore’s pattern of behaviour would need to become apparent before a non- custodial approach could be taken.
41 Goodman v R, above n 35, at [15].
Outcome
[41] There is, in my view, no error in the sentence imposed. The appeal is dismissed.
Radich J
Solicitors:
Caroline Silk Barrister, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent
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