Moore v Police
[2019] NZHC 2408
•23 September 2019
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 a protracted distance, so a period of time, and it put on at least two occasions innocent members of the public at serious risk of injury or death in my view.
[10] The only thing between you and your driving and tragedy was the fact that first of all the police car avoided having a head-on collision with you and second, in relation to the blind corner, happily no-one was coming in the other direction, but that was through sheer good luck and not good management. You were driving with 768 aboard, which is a very high level.
[12] Given those factors, and the fact it was Mr Moore’s third conviction for driving with excess breath alcohol, the Judge stated, “… a starting point of imprisonment is appropriate”. The Judge adopted a starting point of nine months’ imprisonment.
[13] The Judge then discounted the sentence for “any mitigating factors”, including the fact that Mr Moore has been employed and “other positive aspects put forward in the pre-sentence report”. Lastly, the Judge applied a discount of 25 per cent for
Mr Moore’s guilty pleas. This was a total discount of three months’ imprisonment and equated to a discount of 11 per cent for mitigating factors and then 25 per cent for the guilty pleas.
[14] However, the Judge was “not prepared to step back from a sentence of imprisonment”. She stated:
[15] … In my view, Mr Moore, the time has well and truly come where you need to be held accountable for your offending. Where you need to understand that if there is further offending of this nature it will be met with a sentence which is more directed at denunciation and deterrence than rehabilitation, and in those circumstances the sentence is going to be imprisonment.
[15] Therefore, the Judge sentenced Mr Moore to six months’ imprisonment on the lead charge of driving with excess breath alcohol, third or subsequent. The Judge also stated:
[26] … You are not granted leave to apply for home detention and the standard release conditions to sentence expiry date and special release conditions as per pre-sentence report also. And you are also disqualified from holding or obtaining a driver's licence for 28 days commencing 28 days after your release date. Thereafter you will be eligible to apply for an alcohol interlock disqualification and after one year you will be eligible to apply for a zero-alcohol licence.
[16] I have already set out the other concurrent sentences. On the charge of failing to stop, Mr Moore was convicted and discharged.
Legal principles
[17] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[18] A sentence may be set aside where it is manifestly excessive. Whether a sentence is manifestly excessive depends on the end sentence, not the process by
which the sentence was reached. The Court will not intervene where the sentence is within range. But, if the Court determines that the sentence imposed is manifestly excessive, it will form its own view of the appropriate sentence.
[19]The Court of Appeal in Fraser v R said:6
[20] … There is nothing in the Sentencing Act suggesting a presumption for or against imposing home detention rather than imprisonment, only the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances. Further, this Court has made it clear that an appeal against a refusal to grant home detention is not an opportunity to review or revisit the merits. What the appellant must do is demonstrate an error by the Judge in exercising his sentencing discretion.
(citations omitted)
Grounds of appeal
[20]Mr Moore submits the sentence was manifestly excessive for three reasons:
(a)Judge Orchard relied on an inaccurate pre-sentence report;
(b)she failed to appropriately account for his personal mitigating circumstances; and
(c)she erred by failing to consider the imposition of an electronically-monitored sentence.
[21] However, in oral submissions, Mr Moore advances only the last of these. He accepts little turns on the first point and while one could quibble over the discount of 11 per cent allowed by the Judge, it is not too short of the potential mark.
Failure to impose electronically-monitored sentence
[22] I have decided that the Judge did err in failing to impose an electronically-monitored sentence, which I consider should have been home detention, not community detention as proposed.
6 Fraser v R [2013] NZCA 250.
[23] I am conscious that this is not the first time that Mr Moore is before the Courts in relation to drink-driving, careless driving, and altercations with Police. I have already referred to his drink-driving convictions on 20 November 2016 (833 mg) and 12 January 2001 (523 mg). He also resisted Police while driving carelessly in 2018. I accept that the present charges demonstrated a complete disregard for the safety of others, and I note the Judge’s comments in that regard.
[24] I also agree with the Judge that the end sentence imposed should reflect the need to denounce this conduct and deter Mr Moore and others from committing similar offences going forward.
[25] However, I agree with Mr Moore that those purposes have overwhelmed or pre-empted the decision. Further, I consider those purposes can be served just as readily in this case by a sentence of home detention. At the same time, home detention will better serve the other principles of the Act of supporting rehabilitation and reintegration, and imposing the least restrictive sentence possible.
[26]I note:
(a)Mr Moore has not previously received a sentence of home detention, let alone imprisonment.
(b)Mr Moore has longstanding mental health issues – not well-suited to prison.
(c)The pre-sentence report-writer recommends a sentence of intensive supervision and community detention (which seems too light).
(d)Mr Moore’s parents’ home at Papamoa is an available address. He also has ongoing support in the community.
(e)I do not agree with the report-writer or the Judge, that Mr Moore has failed to address his rehabilitation needs or that it could be said that his offending is escalating simpliciter. It is true that his record has deteriorated over the last three years, but that may be explained partly
by the break-up of his relationship in 2016. Also, he did at least complete a CADS Getting Started programme in May 2018. It is highly relevant that for 15 years prior to 2016, Mr Moore had only two minor dishonesty convictions. He should not be written-off.
(f)I consider it also relevant that Mr Moore is genuinely remorseful.
Conclusion
[27] Weighing up all of these points, I consider the Judge was in error and the end sentence of six months’ imprisonment imposed by her was manifestly excessive. The Judge should have exercised her discretion to convert Mr Moore’s sentence to home detention.
[28] The appeal is therefore allowed and the prison sentence of six months on the driving with excess breath alcohol charge is commuted to home detention of three months. I indicated I might allow less of a deduction, but I have decided given the prison time served, I should halve the period in the usual way.
[29]Mr Moore has already served over seven weeks in prison.
[30] I therefore order that the sentence of home detention is three months. The number of days Mr Moore has served in prison is to be subtracted from that sentence. The sentence is to be effective from today, on the terms and conditions set out in the pre-sentence report and on the additional condition that Mr Moore is not to drive while on home detention.7 All other penalties imposed by the Judge, remain undisturbed. As I understand it, the alcohol interlock order will automatically take effect once the period of home detention has ended.
7 As noted earlier, Mr Moore seems to have been disqualified for six months anyway, but as counsel seemed uncertain, I add this condition.
[31] Hopefully, Mr Moore will be able to attend a further alcohol prevention course. AA seems to be the most effective. He needs to work hard on rehabilitation and he needs serious help.
Hinton J
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