Moore v Police - [2019] NZHC 2408

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000338

[2019] NZHC 2408

BETWEEN
GARETH WILLIAM MOORE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 September 2019

Appearances:

S B E Guest and G Harvey for the Appellant T Stuart for the Respondent

Judgment:

23 September 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 23 September 2019 at 4.30 pm

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Public Defence Service, North Shore Meredith Connell, Auckland

MOORE v POLICE [2019] NZHC 2408 [23 September 2019]

[1]Gareth Moore pleaded guilty to the following charges:

(a)driving with excess breath alcohol (third or subsequent);1

(b)failing to stop;2

(c)dangerous driving;3 and

(d)assaulting a police officer.4

[2] On 2 August 2019, Judge Orchard in the District Court at North Shore sentenced him to six months’ imprisonment, with both standard and special release conditions.5 The Judge also disqualified Mr Moore from holding or obtaining a driver's licence for 28 days after his release date. On the dangerous driving charge, he was sentenced to one month’s imprisonment (concurrent) and six months’ disqualification, and on the assaulting a police officer charge, he was also sentenced to one month’s imprisonment (concurrent).

[3] Mr Moore submits the sentence imposed was manifestly excessive. He seeks that the sentence of imprisonment be cancelled and replaced with an electronically monitored sentence by way of community detention.

Background

[4] On 24 January 2019, Mr Moore was driving on Whangaparaoa Road, Gulf Harbour, Auckland on the wrong side of the road, and overtaking other vehicles.

[5] A marked Police patrol car attempted to stop him. Mr Moore refused to stop and continued to drive at 80 kilometres per hour in a 50-kilometre per hour zone. Although his speeds fluctuated from that point, Mr Moore continued to evade the patrol car.

1      Land Transport Act 1998, s 56(1).
2      Section 52A(1)(a)(ii).
3      Section 35(1)(b).
4      Summary Offences Act 1981, s 10.
5      New Zealand Police v Moore [2019] NZDC 15291 at [16].

[6] Mr Moore eventually pulled into a driveway. He exited the vehicle and began to walk towards the patrol car. He was acting aggressively, screaming and swearing at the police officers.

[7] During the process of his arrest, Mr Moore kicked one of the arresting officers multiple times in the legs while he was trying to get back up.

[8] Evidential breath test procedures were carried out. A reading of 768 micrograms of alcohol per litre of breath was obtained.

[9] This is Mr Moore’s third drink-driving conviction. The earlier convictions resulted from offending on 20 November 2016 (833 mg) and 12 January 2001 (523 mg). He also resisted Police, was threatening in his behaviour and drove carelessly in 2018.

District Court sentencing decision

[10] Judge Orchard took the charge of driving with excess breath alcohol, third or subsequent, as the lead charge.

[11]The Judge identified the following aggravating features of the offending:

[9] … It was driving and general behaviour which took place over…

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 [2019] NZHC 2408
Case: [2019] NZHC 2408
Decision Date: 23 September 2019

CaseChat Overview and Summary

Gareth William Moore appealed against his sentence imposed by the District Court, arguing that it was manifestly excessive. The respondent, the New Zealand Police, defended the sentence. Moore pleaded guilty to driving with excess breath alcohol, failing to stop, dangerous driving, and assaulting a police officer. The District Court sentenced Moore to six months’ imprisonment, with both standard and special release conditions, and disqualified him from holding or obtaining a driver's licence for 28 days after his release date. Moore argued that the sentence was manifestly excessive and sought an electronically monitored sentence by way of community detention.

The High Court examined the legal principles relevant to sentencing, including the provisions of the Criminal Procedure Act 2011 and the Sentencing Act. The Court of Appeal in Fraser v R emphasised that the Court must impose the least restrictive outcome appropriate in the circumstances. The Court considered the grounds of appeal, focusing on the failure to impose an electronically-monitored sentence. The Court agreed with Moore that the purposes of denunciation and deterrence could be served just as readily by a sentence of home detention, which would also better support rehabilitation and reintegration and impose the least restrictive sentence possible.

The Court concluded that the Judge was in error and the end sentence of six months’ imprisonment imposed by her was manifestly excessive. The appeal was allowed, and the prison sentence of six months on the driving with excess breath alcohol charge was commuted to home detention of three months. The sentence was to be effective from the date of the judgment, on the terms and conditions set out in the pre-sentence report, and on the additional condition that Moore was not to drive while on home detention. All other penalties imposed by the Judge remained undisturbed.

Orders