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…

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 [2015] NZHC 3113
Case: [2015] NZHC 3113
Decision Date: 9 December 2015

CaseChat Overview and Summary

In the case of Moore v Police, the appellant, Jonathan Edward James Moore, challenged the sentence imposed on him by the High Court of New Zealand. Mr Moore was sentenced to a term of imprisonment of 17 months for charges including male assaults female, unlawful possession of a firearm, unlawful possession of ammunition, and receiving property. The appeal focused on the uplifts for personal aggravating factors, the lack of credit for remorse and an offer to participate in restorative justice, and the decision to reject home detention. Mr Moore argued that the sentence was excessive, and that he should have received more credit for his guilty pleas and offer of restorative justice.

The court considered the legal issues surrounding the sentence, including whether the starting point of 16 months was appropriate, whether the uplifts for personal aggravating factors were justified, whether the discount for guilty pleas was sufficient, and whether home detention was an appropriate alternative to imprisonment. The court found that the starting point of 16 months was appropriate, given the seriousness of the charges and the need to send a strong message about the illegal possession of firearms and violence against women. The court also found that the uplifts for personal aggravating factors were justified, as Mr Moore had a long history of offending and had been released from prison shortly before committing the current offences. The court found that the discount for guilty pleas was not in error, and that home detention was not an appropriate alternative to imprisonment in this case.

The court dismissed the appeal, finding that the sentence was appropriate and that the appellant had not demonstrated that the sentence was manifestly excessive or disproportionate. The court emphasised the importance of sending a strong message about the illegal possession of firearms and violence against women, and noted that the sentence reflected the seriousness of the offending and the need to protect the community. The court also noted that the appellant had a long history of offending and had been released from prison shortly before committing the current offences, which justified some uplift for personal aggravating factors. The court found that the discount for guilty pleas was appropriate, given the strength of the prosecution case, and that home detention was not an appropriate alternative to imprisonment in this case.

The final orders of the court were that the appeal was dismissed, and that the sentence of 17 months' imprisonment was upheld. The court emphasised the importance of sending a strong message about the illegal possession of firearms and violence against women, and noted that the sentence reflected the seriousness of the offending and the need to protect the community. The court also noted that the appellant had a long history of offending and had been released from prison shortly before committing the current offences, which justified some uplift for personal aggravating factors. The court found that the discount for guilty pleas was appropriate, given the strength of the prosecution case, and that home detention was not an appropriate alternative to imprisonment in this case.

Orders