Moore v R - [2019] NZCA 205

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA666/2018
[2019] NZCA 205

BETWEEN	ANTHONY ROBERT MOORE Appellant
AND	THE QUEEN Respondent

Hearing:	28 May 2019
Court:	French, Miller and Lang JJ
Counsel:	M Zintl for Appellant R K Thomson for Respondent
Judgment:	6 June 2019 at 11.00 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Moore was unlawfully in possession of a .308 calibre rifle. He gave the loaded weapon to a friend who claimed that he wanted it to deal with gang members who were threatening him. The friend actually used it to kill a woman who had accused him of indecent assault.
Afterward, Mr Moore and an associate of the friend took steps for some time to hide their respective involvement. He eventually admitted to supplying the rifle and was charged with unlawful possession of a firearm and perverting the course of justice. He pleaded guilty, having accepted a sentence indication of three years and four months imprisonment. He was sentenced consistent with that indication, and now appeals.

The facts

The summary of facts records that Mr Moore had been denied a firearms licence in the past. At the time of this incident, in October 2017, he was in possession not only of the rifle but also of a sawn-off shotgun. The friend, a Mr Warren, borrowed the rifle with an associate, Mr Towersey, on what appears to have been the pretext that he was being threatened by gang members. We accept, as did the sentencing Judge, that Mr Moore did not know it would be used to kill the victim. Shortly after leaving Mr Moore’s home, Mr Warren and Mr Towersey drove to the victim’s home where Mr Warren shot her in the presence of her children.
Mr Moore and Mr Towersey agreed to suppress details of their involvement. They discussed threatening other witnesses, destroyed their phones to avoid detection, and told witnesses not to use text messages for fear of disclosing information.
Mr Warren pleaded guilty to murder. Mr Towersey pleaded guilty to manslaughter and perverting the course of justice.

The sentencing

Because his charges were connected to the murder charge faced by Mr Warren, Mr Moore was dealt with in the High Court. He was given a sentence indication on 10 August 2018.[1] Gendall J adopted a cumulative starting point of four years and three months imprisonment.[2] The Judge allowed a discount of 11 months or 20 per cent for a guilty plea, resulting in an indication of three years and four months imprisonment. Mr Moore accepted the indication. He was sentenced on 8 October 2018.[3]
[1]R v Moore [2018] NZHC 2051.
[2]At [6].
[3]R v Moore [2018] NZHC 2618.
At sentencing, Gendall J noted that Mr Moore had known the rifle was to be used for an unlawful purpose. A woman died as a result of his actions. It was an…

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 R

Details

AGLC: Moore v R [2019] NZCA 205
Case: [2019] NZCA 205
Decision Date: 6 June 2019 at 11.00 am

CaseChat Overview and Summary

In the appeal of Moore v R, the appellant, Anthony Robert Moore, challenged the sentence imposed by the High Court for his involvement in the unlawful possession of a firearm and perverting the course of justice. The respondent, the Crown, defended the sentence. The appeal was heard by the Court of Appeal of New Zealand, comprising French, Miller, and Lang JJ. The central legal issues were whether the starting point for the firearms offence was appropriate, if a greater discount should have been given for the guilty plea, and whether there was a failure to consider restorative justice or the presumption against imprisonment. The appeal was dismissed.

The Court found that the starting point for the firearms offence was appropriate, given that the worst risks of possessing an unlawful firearm had materialised. The maximum penalty for such an offence is four years imprisonment, but the court held that in light of the circumstances, a starting point near the maximum was necessary for accountability and deterrence. The court also held that the discount given for the guilty plea was generous, and no further discount was warranted for remorse. Additionally, the court found that it was not a requirement for sentencing to explore restorative justice, and no evidence suggested that such a process would have affected the sentence. The Court held that the sentence was proportionate to the appellant's personal circumstances, including his criminal history.

The appeal against the sentence was dismissed. The court found no merit in the arguments presented by the appellant's counsel, and upheld the sentence imposed by the High Court. The Court of Appeal did not order any further action or changes to the sentence.

Orders