Moore v Police
[2015] NZHC 616
•30 March 2015
IN THE HIGH COURTOF NEW ZEALAND DUNEDIN REGISTRY
CRI-2014-412-000042 [2015] NZHC 616
BETWEEN MACAYLA RENEE MOORE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 30 March 2015 Appearances:
B P Kilkelly for Appellant
R D Smith for RespondentJudgment:
30 March 2015
ORAL JUDGMENT OF GENDALL J
Background and District Court sentencing
[1] On 10 December 2014, Judge Phillips in the District Court sentenced the
appellant to three months’ home detention (with standard post-detention conditions),
150 hours’ community work, and ordered her to pay $500 as emotional harm reparation to the victim by 31 March 2015.1 This sentence arose from the appellant’s guilty plea to a charge of assault with intent to injure on 6 October 2013.2
[2] The facts giving rise to these charges were set out in Judge Phillips’
sentencing notes as follows:
[3] It is just another example however of drunken young people in groups in areas in Dunedin, in the early hours of the morning, and violence then ensuing. This occurred in October of last year. You and your sister were in a car park, just after midnight, grossly intoxicated. The victim was in the same car park. You say you had issues with her before. I understand that really there were not any earlier issues but she was brought into an
1 R v Moore DC Dunedin CRI-2013-012-2986, 10 December 2014. These sentences were suspended by the District Court on 22 December 2014, pending determination of this appeal.
2 Crimes Act 1961, s 189(2). Punishable by imprisonment for a term not exceeding five years.
argument situation that you and your sister had put together with other people who were in the car park. You grabbed her by the hair, you punched her in the back of the head and then you punched her a further three or four times in the head. She fell to the ground, holding onto you, trying to stop further blows. She suffered injuries. I have a victim impact statement from her and the impact of all of this on her, where she suffered an injury to the back of her head. You say that was not your doing. I note that you and her went to the ground together. She had problems with the tendons and muscles in her neck and shoulders, a sore and swollen nose, grazes and bruising, two weeks off work; she was scared about going into town; she has incurred costs and describes your attack as vicious and unnecessary. I think that is a summary that is effective and realistic of your actions that night.
[4] Your role here is just entirely aggravated by the fact that you have a prior conviction within a short space of time – October 2013 where you were convicted of a charge of assault with intent to injure and you were on release conditions at the time – sentence conditions – when you were again acting violently in a drunken condition.
[3] Judge Phillips then progressed to consider sentencing, noting that the pre- sentence report and defence submissions both attested to the appellant’s acknowledged history of alcohol abuse and her “positive sides”. His Honour also stated that it was necessary:3
… to denounce and deter this type of conduct – repeat, serious violent conduct, by a young woman. It is noticeable to me (and quite remarkable) that it is not a normal occurrence to have a 19-year-old female in Court who has been convicted on two charges of assault with intent to injure within a period of six months. I have to take note of and consider rehabilitation/reintegration but I also have to be consistent and look at the impact of this offending on the victim.
[4] After weighing up the submissions of Crown and defence counsel, Judge Phillips directly addressed the appellant, urging her to show the discipline that had characterised the past 12 months of her life. His Honour then stated:
[7] … I find, and you will be sentenced on the basis, that it was entirely unprovoked, that the victim was vulnerable and that she suffered injury, but I accept that those injuries could be described as moderate. I must take as aggravating factors the blows were aimed at the head and that she was vulnerable. I note that the charge in which you face carries a maximum sentence of three years’ imprisonment. I have read the authorities (again) of Nuku and Hackell. Here your offending would fall somewhere towards the middle of the range of sentencing for this type of charge in my view. I consider that the starting point for your sentence should be 12 months’ imprisonment. Your prior matter that I have discussed calls for an uplift. I would have thought that the uplift should be well in excess of three months taking into account its proximity and you had not completed your sentence
3 R v Moore, above n 1, at [4].
prior to committing this crime, but I will take into account what the Crown says and use what they consider to be an appropriate uplift of three months, taking your end point before your personal mitigating factors, to 15 months’ imprisonment.
[8] You are entitled to credit for your guilty plea; I do not have any argument with that at all. You are entitled to a credit for your rehabilitation. You are entitled to a degree of credit for the fact that you complied with your curfew on bail. It would be entirely wrong of me to deal with you on the basis that you stand here as the violent, aggressive young woman who was around the streets in October 2013; hopefully she has left us forever.
[9] I am going to deal with you by considering that an end point for your sentence would be somewhere in the vicinity of 10 months’ imprisonment. I am going to deal with you in this way, short of sending you to a full-time custodial sentence, but I should say to you, Ms Moore, that in the normal course of events a person who offends twice on this type of charge does go to prison. You have saved yourself from going to prison by what you have done in the past 12 months.
Basis for the appeal
[5] Turning now to the basis for the appeal, the appellant now appeals the sentence of three months’ home detention, submitting that a sentence of community detention would have been more appropriate in the circumstances, with the added benefit of enabling the appellant to resume study at Otago Polytechnic.
Jurisdiction
[6] The appellant is able to appeal the sentence imposed as of right.4 As first appeal Court, this Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.5 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in
the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).6
4 Criminal Procedure Act 2011, s 244.
5 Sections 247 and 250.
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
Submissions
Appellant
[7] Turning now to the appellant’s submissions before me. There are four discrete grounds of appeal. The first is that the sentencing Judge failed to give due regard to the personal mitigating circumstances of the appellant, as required by s 8(h) of the Sentencing Act 2002.
[8] It is submitted that both the appellant’s current and previous offending occurred at a time when the appellant was suffering emotional trauma together with significant use of K2 (synthetic cannabis) and alcohol. The appellant has, however, undertaken considerable therapeutic work over an extended period of time to address those issues in a meaningful way prior to her sentencing. Counselling addressed her parents’ acrimonious separation, her mother’s new partner, the attendant shift of both residence and school, and the attempted suicide and subsequent death of the appellant’s cousin in December 2012. Counsel for the appellant before me submitted that all the events of 2012 impacted significantly on the appellant’s mental health and emotional wellbeing, and that she experienced negative emotions well beyond what might be expected for a young person then aged 16 and 17 years.
[9] It is further submitted that both offences were committed at a time when the appellant was most vulnerable to making poor choices, and that the current offending occurred when the appellant was at her lowest ebb in terms of emotional stability. Counsel adds that it should be noted that the appellant made a self-referral back to her counsellor immediately following the commission of the current offence.
[10] The counsellor’s report is cited to support the submission the appellant has recognised the repercussions of her past actions on her future, and now understands how her unresolved grief led to her emotional instability.
[11] Secondly, Mr Kilkelly, for the appellant, submits that the Judge in rejecting counsel’s argument in support of a sentence of community detention and imposing a sentence of home detention placed too great an emphasis on the previous conviction for assault with intent to injure.
[12] The clear tenor of the information before the Judge was that both the previous and the current offences were committed at a time when the appellant was suffering very real emotional distress, and that the appellant had done everything possible to address those issues in a meaningful way with outstanding success.
[13] Fourthly, it is submitted that the Judge was wrong to disregard the Probation Officer’s view that a sentence of home detention would make it unlikely that the appellant could take up her scholarship with the Otago Polytechnic or attend study because of the monitoring requirements.
[14] In addition to undertaking counselling, counsel submits that the appellant had applied herself positively and successfully to her hospitality course at the Otago Polytechnic. The appellant’s creditable efforts in her studies throughout 2014 resulted in her being granted an industry scholarship for 2015.
[15] In light of this background, and the s 8(g) requirement that the Court impose the least restrictive outcome appropriate in the circumstances, it is submitted for the appellant that a sentence of community detention would have been the least restrictive and the most appropriate sentence here.
[16] It is further submitted that, in contravention of s 8(h) of the Act, the Judge in the District Court did not give due regard to the circumstances of the appellant that mean that a sentence that would otherwise be appropriate, is, in the particular instance, disproportionately severe. The sentence of home detention, which effectively precluded the appellant from continuing her studies, it is said is “disproportionately unfair”.
[17] Finally, it is submitted that the Judge should have given greater acknowledgement to the fact that the appellant had been on bail with a strict curfew for 14 months between the offence and sentencing, and had complied with that bail condition in all respects.
Crown
[18] Turning now to the submissions of the Crown, in summary, Mr Smith, on behalf of the Crown, submits that the Judge did not err in his approach, that his Honour placed appropriate weight on all relevant matters and did not take into account an irrelevant matter. Moreover, the sentence imposed he suggested cannot be described as manifestly excessive nor was it inappropriate given the circumstances of the offending and the appellant’s personal circumstances. In particular, the Crown notes that at the time of the offending, the appellant was subject to a sentence of community work for the same type of offence, having been sentenced only one month prior to the current offending.
Least restrictive sentence
[19] Here, the Crown submits that all relevant purposes and principles of sentencing must be taken into account, and while s 8(g) is part of the sentencing exercise, the Court is also required to impose a sentence that deters, denounces and holds the offender accountable. The Judge must also have regard to the interests of the victim and endeavour to be consistent. Accordingly, s 8(g) requires the imposition of the least restrictive outcome that duly reflects all relevant purposes and principles of sentencing.
[20] The Crown here seems to accept that if the appellant had been a first-time offender, a greater focus on rehabilitation and reintegration may have been appropriate. However, given the interests of the victim and the appellant’s recent (and remarkably similar) offending, the Crown submits that deterrence and denunciation carried some primacy as purposes of sentencing. The Crown accordingly submits that the sentence of home detention was the most appropriate, and that in fact a lengthier sentence would have been open to the Judge.
Disproportionately severe
[21] Turning now to the issue of whether the sentencing was disproportionately severe, regardless of the possibility of deferring her scholarship, it is submitted that the interruption to the appellant’s studies is not disproportionately severe, given the
circumstances and consequences of the offending according to the Crown. The appellant carried out a serious and vicious assault within one month of having been sentenced for an offence of the same type. Interruption to daily life and consequences for work and study are ordinary impacts of offending. The mere existence of consequences flowing from the offending it is said does not render a sentence disproportionately severe.
[22] The Judge did not, it is said, disregard the likely impact of sentencing on the appellant’s life, but took the view that other sentencing purposes and principles were paramount to the appellant’s interests in the circumstances.
Judge’s regard to injury suffered by the victim
[23] At sentencing, the appellant appeared before the Judge on an agreed summary of facts, which included a description of injuries suffered by the victim. On that basis, the Judge was entitled to have regard to those injuries, although he did note that the appellant disputed having caused the laceration to the back of the
victim’s head.7
[24] The Crown submits that there is no evidence from the appellant supporting her belated claim of a “clear understanding” that her sister had caused this injury. Indeed, the appellant’s statement to the Police attested that her sister did no more than pull the appellant away from the victim during the attack. Further, the evidence to support this re-allocation of blame is vague as to whether the victim was hit with a bottle and as to who was responsible for this blow.
[25] The Crown submits that this ground of appeal is an example of the appellant’s minimising her involvement and endeavouring to take an approach on appeal other than that which was agreed in the resolution by way of guilty pleas. Regardless, the Judge does not seem to have placed significant weight on the causation of injury. Accordingly, it can hardly be said that the Judge erred in his approach in this regard.
Analysis
Least restrictive sentence
[26] Turning to my analysis of these matters and looking at first the least restrictive sentence here, the Crown is correct in asserting that s 8(g) cannot be assessed in isolation. Rather, the Act requires the imposition of a sentence which reflects all the relevant purposes and principles of sentencing. It would be inappropriate for the Court to rely exclusively on s 8(g), to the exclusion of the remaining mandatory principles of s 8.
[27] The decisions in Nuku v R and R v Hackell both suggest the inevitability of a starting point of imprisonment, with the Court of Appeal observing in Hackell that end sentences in the range of nine to 12 months were generally upheld for assault offences with similar circumstances to the present case.8 Judge Phillips in the District Court here substituted a sentence of home detention for a full-time custodial sentence because of the appellant’s personal circumstances and her significant progress whilst on bail.9
[28] As the Crown has submitted, his Honour was not then required to further descend the hierarchy of sentences so as to cause least inconvenience to the appellant. Assisting in the rehabilitation and reintegration of the appellant is a relevant purpose of sentencing (s 7(1)(h)), but this is not the paramount purpose, nor should it override consideration of the other purposes outlined in s 7 of the Act. Home detention in my view was the least restrictive sentence appropriate in the circumstances, taking into account the significant impact of the offending on the interests of the victim, and the appellant’s recent offending of an almost identical nature.
[29] As evinced by his Honour’s repeated comments to the appellant during sentencing in the District Court, it is clear that Judge Phillips was mindful of the interference that any custodial sentence would cause on the appellant’s ongoing
studies. Accordingly, the Judge might be said to have taken a generous approach and
8 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39, R v Hackell CA131/02, 10 October 2002.
he kept the home detention sentence, in my view, to the absolute minimum of the appropriate range.
Disproportionately severe
[30] At the core of the appellant’s submissions lies the assertion that the Judge failed to give due regard to the personal mitigating circumstances of the appellant, and consequently imposed a sentence of disproportionate severity (s 8(h)). In my view, Judge Phillips did take these circumstances into account, but ultimately found that other principles and purposes of sentencing warranted a sentence of home detention. As noted above, the principles of sentencing listed in s 8 are not to be considered in a vacuum – they are mandatory, cumulative considerations, and not mutually exclusive. In the exercise of the sentencing discretion, the Judge is entitled to consider any combination of the purposes in s 7 and obliged to consider the principles in s 8.
[31] In addition to the aggravating factor of the appellant’s recent offence, Judge Phillips, as I see it, adequately considered the particular circumstances of the appellant here. His Honour addressed the appellant’s struggles with drug and alcohol addictions, the “absolutely remarkable” report from her counsellor, and her
positive report from the Polytechnic.10 The Judge commended the appellant for her
personal development and engagement with her underlying issues, and hoped that she would show the same discipline in the future.11 However, his Honour noted that rehabilitation and reintegration of the appellant was not the sole criterion. The Judge also considered there was a compelling need to hold the appellant accountable for her actions (s 7(1)(a), to denounce and deter this type of serious violent conduct (s 7(1)(e) and (f)), to be consistent (s 8(e)) and to recognise the impact of this offending on the victim (s 8(f)),12 and in my view acted appropriately here. The Judge did not disregard the appellant’s personal circumstances, as I see it, nor did he ignore the likely impact of a sentence of home detention on the appellant’s academic life. Rather, his Honour took the view that other sentencing purposes and principles were paramount to the appellant’s interests in the circumstances. As the Crown
submits, and I accept, the mere existence of consequences flowing from the offending does not render a sentence disproportionately severe. Given the circumstances and consequences of the offending here, the interruption to the appellant’s studies is not disproportionately severe.
Judge’s regard to injury suffered by the victim
[32] Finally, with regard to consideration of injuries suffered by the victim, Judge Phillips was entitled to have regard to the description of injuries suffered by the victim, forming as it did part of the agreed summary of facts which was before his Honour at sentencing. The appellant has adduced no evidence supporting her claim of a “clear understanding” as to the causation of the victim’s head injury. Unsubstantiated by evidence, this ground of appeal can be dismissed as an attempt to proceed on appeal in a manner other than that which was agreed in the resolution by way of guilty pleas.
[33] In any event, the Judge’s decision did note, as I see it, that the appellant disputed having caused the laceration to the back of the victim’s head, and further described the victim’s injuries as “moderate”.13 As the Crown notes, the Judge does not seem to have placed significant weight on the causation of this particular injury. In recognising the contention over causation, and relying on the evidence which was properly before him, the Judge, as I see it, did not err in his approach in this regard.
Compliance with bail conditions
[34] Finally, in regards to the submission that the Judge should have given greater acknowledgement to the appellant’s compliance with the curfew condition of her bail, Judge Phillips explicitly stated that the appellant was “entitled to a degree of credit” for this fact.14 Furthermore, the Judge alluded to this compliance when informing the appellant: “You have saved yourself from going to prison by what you have done in the past 12 months.”15 The appellant received sufficient credit in my view and a reduction in sentence for her compliance with bail conditions.
Conclusion
[35] In conclusion I find that the appellant has failed to surmount either hurdle of s 250 of the Criminal Procedure Act, and thus the appellant has not met the threshold for granting an appeal against sentence in this case.
[36] Accordingly, this appeal is dismissed.
...................................................
Gendall J
Addendum
[37] This is an addendum to the judgment. A direction is now made that the home detention sentence for the appellant, Ms Moore, is to commence from 4 p.m. on Thursday next, 2 April 2015, to enable her to complete this semester’s study at Otago Polytechnic.
...................................................
Gendall J
Solicitors:
Brian Kilkelly, Dunedin
RPB Law, Dunedin
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