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)

1. 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. 

2. 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

1. 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. 

2. 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.

3. Mr Warren pleaded guilty to murder.  Mr Towersey pleaded guilty to manslaughter and perverting the course of justice.

The sentencing

1. 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.

2. 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 aggravating feature that Mr Moore continued to possess the shotgun.  That had to be weighed against the least restrictive sentence principle.[4]  The appropriate starting point remained three and a half years.  An additional 12 months was appropriate for perverting the course of justice.  There were no uplifts for Mr Moore’s previous convictions.  The only mitigating factor was the guilty plea.

The appeal

[4]Sentencing Act 2002, s 8(g).

1. Mr Zintl, who did not represent Mr Moore in the High Court, submitted that the starting point for the firearms charge was too high, and a full discount of 25 per cent ought to have been given for the guilty plea.  He further argued that Mr Moore was genuinely remorseful and ought to have received an additional discount for that, and that no attempt was made to explore restorative justice or focus on Mr Moore’s rehabilitation.  Indeed, Mr Moore was not told that a restorative justice conference could be held.  Counsel submitted that too much weight was given to the purpose of deterrence; the Judge did not consider the presumption against imprisonment in s 16 of the Sentencing Act 2002.  He pointed out that Mr Moore had written a letter of apology saying that he was a friend of the victim and never had any untoward feelings towards her.

Discussion

1. We do not accept any of these submissions.  The starting point for the firearms offence was appropriate.  The maximum sentence is four years imprisonment,[5] but as Ms Thomson, for the Crown, submitted the worst of the risks inherent in the unlawful possession of firearms came to pass.  Mr Moore did not know that the firearm would be used to kill the victim but he did know that it was loaded and it would be used to “deal with” gang members.  These considerations distinguish this case from those cited by Mr Zintl.[6]  In the circumstances a sentence of imprisonment was inevitable, and it was appropriate that a starting point near to the maximum should be adopted to hold Mr Moore accountable and in the interests of deterrence. 

   [5]Arms Act 1983, s 45(1).

   [6]R v Drever (2003) 20 CRNZ 96 (CA);  R v Richardson CA450/02, 25 March 2003;  and Nuku v R [2016] NZCA 179.

2. We accept that Mr Moore expressed remorse, though not all of it was for the victim.  Gendall J recognised that, although he gave no separate discount for it.  It must be borne in mind that Mr Moore conspired for a significant period to suppress evidence of his involvement.  He refused to identify the person who had supplied him with the rifle.  The discount given for the guilty plea was in our opinion generous; he pleaded guilty some nine months after being charged and faced a strong case.  No further allowance for remorse was warranted.

3. As Ms Thomson submitted, it was not a pre-requisite to sentencing that restorative justice be explored either.[7]  (Mr Moore had appeared earlier in the District Court but there is no suggestion that the Registrar advised a suitable process could be accessed so as to require an adjournment to allow that process to take place.)  The questions are whether such a process would have been available, and if so, whether it would have made a difference.  We have not been pointed to anything, such as the attitude of the victim’s family, that suggests any restorative justice process would have affected sentence.[8]  Nor have we been pointed to anything to suggest that the sentence is disproportionately severe having regard to Mr Moore’s personal circumstances.  He has a significant though mostly low-level criminal history.  It includes convictions for domestic assaults and one for unlawful possession of a firearm.

Decision

[7]Sentencing Act, s 24A(1).

[8]Sentencing Act, s 10.

1. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent