Moore v Police

[2015] NZHC 3113

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2015-054-2129 [2015] NZHC 3113

BETWEEN

JONATHAN EDWARD JAMES MOORE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

7 December 2015

(Heard at Wellington via AVL)

Counsel:

D J Flinn for Appellant
M J Wynne for Respondent

Judgment:

9 December 2015

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Mr Moore was sentenced to a term of imprisonment of 17 months on charges of:

(a)       male assaults female;

(b)      unlawful possession of a firearm;

(c)       unlawful possession of ammunition; and

(d)      receiving property (less than $500).

[2]      The sentence was structured by taking a 12 month starting point for the firearm and ammunition offending, and adding four months for the assault which gave a starting point for all offending of 16 months’ imprisonment.  There were then

uplifts for personal  aggravating factors totalling five months’ and a four month

MOORE v POLICE [2015] NZHC 3113 [9 December 2015]

reduction (19 per cent) for guilty pleas, leaving the final sentence of 17 months’

imprisonment.  Home detention was rejected.1

[3]      The focus of the appeal is on the uplifts for personal aggravating factors and the lack of any credit for remorse and an offer to participate in restorative justice. There is also challenge to the home detention decision.

[4]      The  male  assault  female  charge  stemmed  from  an  argument  between Mr Moore and the mother of his two year old son.  The couple had what is described in the summary as an “on/off relationship for five years”.   Consequent upon the argument Mr Moore dragged the victim from the car and punched her several times in the head using a closed fist. The victim suffered bruising.

[5]      The firearm charge stemmed from the execution of a search warrant.  Located hidden in a bedroom was a .22 semi automatic rifle.  Mr Moore denied knowledge of the gun.  However, located in his bedroom, in a jacket hanging behind the door, was “a unique style circular magazine for a .22 calibre rifle”.  It was the magazine for the gun.  Further, hidden in a hole in the wall of the wardrobe of Mr Moore’s bedroom were a further 38 rounds of similar ammunition.

[6]      Finally, the receiving charge relates to a security key found during the search. It is a key which opens Coca Cola vending machines.

[7]      In my view the immediate answer to the appeal is that Mr Moore was very fortunate to having the totality of his offending assessed as meriting a 16 month starting point.  That starting point could have been taken just for the possession of firearm  and  ammunition  charges,  each  of  which  carry  a  four  year  maximum. Mr Moore is not licensed to have a gun.  The circumstances in which it was found (not securely stored) and in which the ammunition was found (hidden in a wardrobe and also contained in a separate magazine that fits the gun) are of real concern.  In

R v Robertson2  and Smith v Police,3  18 months was taken as the starting point for

possession  of  two  guns,  one  of  which  was  loaded.    Those  cases  do  not  set  a

1      NZ Police v Moore [2015] NZDC 20366.

2      R v Robertson CA450/02, 25 March 2003.

3      Smith v Police [2014] NZHC 2196.

benchmark, and I note in Robertson, as long ago as 2003, the Court noted the need for sentences that send an unequivocal message.  There is nothing in our society or events  overseas  to  suggest  that  the  need  for  such  an  approach  has  diminished. Indeed, a case may exist for consistently sterner responses.

[8]      Likewise a four month uplift for the male assaults female, involving as it did an initial dragging from the car and then several punches to the head, was the least one  might  expect.    Six  months  or  more  would  not  have  been  excessive  as  an increase.   Had the matter been approached as one meriting separate cumulative sentences, a combined starting point of 16 months would not result, even after a totality adjustment.

[9]      Given  these  assessments,  the  end  sentence  of  17  months’ imprisonment cannot be seen as manifestly excessive.  For completeness, though, I briefly address the appeal points.  A total of five months’ uplift for personal aggravating features is certainly open to challenge, but some uplift was needed, and one is really only debating around the margins. There were two salient features – Mr Moore has a very long record of past offending, and he had only recently been released from prison prior to committing the assault.  That said his criminal offending history is almost exclusively property or driving related, there being a single assault conviction in

2010.  It is to be noted, however, that since that conviction a further 44 convictions have been entered in addition to the present charges.  Mr Moore has, since the 2010 assault, been sentenced to imprisonment on three separate occasions as well as to a sentence of home detention.  Individual deterrence becomes a key consideration with this sort of record. An uplift of at least three months’ would be unremarkable.

[10]     As  for  discounts,  the  dispute  over  the  size  of  the  guilty plea  credit  (19 per cent cf 25 percent) pays insufficient regard to the strength of the prosecution case, especially as regards the firearm offending but also as regards the assault where there was photographic support of the injuries.  Whilst more might have been given, a figure around 20 per cent is not in error.

[11]     As for restorative justice, this issue applies only to the assault component of the sentence.   On the Judge’s approach the lead sentence was for the firearm offending.  That offence carried twice the maximum penalty of the assault offence. This means the potential impact of credit for a restorative justice offer made in relation to the assault was low.

[12]     The final issue raised on the appeal is the refusal to sentence Mr Moore to home detention.  Because of the personal deterrence factors mentioned earlier, home detention would not be an appropriate sentencing disposition.  It is unlikely that one who offends  so  quickly following release from  prison  would  be an  appropriate candidate for home detention. That is of course a generalisation and the nature of the particular offending will be important.  Here, however, the offending represents an escalation into violence and possession of weapons. A firm message was required.

[13]     The appeal is dismissed.

Simon France J

Solicitors:

Blackstone Law, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North