Moore v The Queen - [2018] NZHC 1677

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-0129

[2018] NZHC 1677

BETWEEN
SHAUN MICHAEL MOORE

Appellant

AND

THE QUEEN

Respondent

Hearing: 9 July 2018

Appearances:

A Ives for Appellant

M Moon for Respondent

Judgment:

9 July 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
A Ives, Barrister, Auckland Meredith Connell, Auckland

MOORE v R [2018] NZHC 1677 [9 July 2018]

[1] Shaun Moore appeals against an end sentence of four years and ten months’ imprisonment, imposed on his guilty plea to charges of: manufacturing methamphetamine;1 possession of methamphetamine for supply;2 unlawful possession of a pistol;3 unlawful possession of ammunition;4 and attempted unlawful taking of a motor vehicle.5

Mr Moore’s offending

[2] I adopt Judge Ronanye’s summary of the offending, which accurately reflects the agreed summary of facts:6

All of these offences aside from the manufacturing occurred on 26 November 2016. You were the driver of a motor vehicle on that day which was stopped by the police in the Auckland area. The vehicle was searched, you were detained for the purposes of the search and located clipped to the front of your shirt was a home-made pen gun, loaded with one round of .22 calibre ammunition.

You were arrested and placed in the back seat of a police car. Once you were placed in the back of the car the search of your vehicle resumed. The patrol vehicle was left with the engine running but without the keys in the ignition. There is a feature of these vehicles that allows the engine to remain running to keep the vehicle powered up, however it is configured in such a way that the engine will cut out if the transmission is put into the drive position. You climbed through the gap between the front seats and you manipulated your handcuffs so as to place your hands around to your front.

You then locked the doors of the vehicle, you placed the gear lever into the drive position attempting to get the vehicle to move. The police officer quite rightly had a fear that you would somehow or other override the feature in the car to which I have made reference and drive away. So justifiably he used his window breaker to smash the driver’s window in order to restrain you further and prevent your escape. Once you were restrained again a further search of your vehicle found in your wallet $1731 in cash. Located in a backpack were 17 rounds of ammunition, a set of electronic scales and numerous small, empty, ziplock plastic bags.

Those are items very well known to the Courts and commonly used to measure and package quantities of methamphetamine for sale. Located in a sunglasses case under the driver's seat were four plastic ziplock bags containing a total of
9.2 grams of methamphetamine. A search of the boot of the vehicle resulted in police locating equipment, materials and precursor substances utilised in the manufacture of methamphetamine. Also…

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 The Queen

Details

AGLC: Moore v The Queen [2018] NZHC 1677
Case: [2018] NZHC 1677
Decision Date: 9 July 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Shaun Michael Moore appeals against his sentence of four years and ten months’ imprisonment, imposed after his guilty plea to charges of manufacturing methamphetamine, possession of methamphetamine for supply, unlawful possession of a pistol, unlawful possession of ammunition, and attempted unlawful taking of a motor vehicle. The appeal focuses on the severity of the sentence and whether it was manifestly excessive. Counsel for Moore argues that a sentence between three years and six months, and four years would have been more appropriate.

The legal issues considered by the court were whether the sentencing judge erred by double counting Moore's criminal history, adopting an excessive uplift for previous criminal history, adopting an excessive uplift for other offending, failing to give credit for Moore's personal circumstances, specifically his untreated ADHD, and overall, reaching an end sentence that was manifestly excessive. The court examined the sentence's appropriateness by assessing the sentence given, rather than the process by which it was reached.

The court found that the sentencing judge had not double-counted Moore's criminal history. The starting point of four years and six months was justified by the nature of the offending and Moore's criminal history, while the uplift for previous criminal history was appropriate given the extent of his criminal record. The court also found the uplift for other offending was justified by Moore's multiple drug and arms-related convictions and his attempt to escape custody. Regarding Moore's personal circumstances, the court determined that a further discount was not warranted, as there was insufficient medical evidence to substantiate his ADHD diagnosis. The court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal.

The final orders of the court were to dismiss the appeal against sentence, affirming the original sentence imposed by the sentencing judge.

Orders