Moore v The Queen - [2015] NZHC 2565

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-42 [2015] NZHC 2565

BETWEEN
MARK HARTLEY MOORE

Appellant

AND

THE QUEEN Respondent

Hearing: 19 October 2015

Counsel:

L L Owen for Appellant
A J Gordon for Respondent

Judgment:

20 October 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 20 October 2015 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Rotorua Law Shop Ltd (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent

MOORE v THE QUEEN [2015] NZHC 2565 [20 October 2015]

Introduction

[1] On 3 July 2015, the appellant, Mr Moore was sentenced by Judge PW Cooper to 18 months’ imprisonment on the following charges:1

(a) One charge of selling a psychoactive substance,2 which carries a

maximum penalty of two years’ imprisonment;

(b) Three charges of possession of psychoactive substances for supply,3

each of which carries a maximum penalty of two years’ imprisonment.

[2] Mr Moore appeals the sentence on the basis that it was manifestly excessive in the light of the prescribed maximum penalty, his overall culpability and the sentence that another offender received.

Facts

[3] The Psychoactive Substances Amendment Act 2014 came into effect on

8 May 2014. Section 88 of the Act made it unlawful to be in possession of or sell or supply a psychoactive substance.

[4] Psychoactive substances are commonly known as “synthetic cannabis”. There is a number of different product names for these banned psychoactive substances. The names include “Karma”, “Puff”, “Southern Lights”, “Apocalypse”, “Hydro Budz AK-47”, “Hydro Budz Hindu Kush”, “Voodoo”, “W.T.F”, “Haze”, “White Rhino” and “Anarchy”. The products are usually packaged in 2 or 2.5 gram measures and are sold in small cardboard packets or metal tins. The street value of these products in Rotorua is approximately $15 to $20 per gram, which is $30 to $40
per tin or packet.

1      R v Moore [2015] NZDC 12738.
2      Psychoactive Substances Act 2013, s 70(1)(a).
3      Section 70(1)(c).

Possession for supply: charge one

[5] On 4 September 2014, the Police executed covertly a search warrant at a storage shed in the Superior Storage Facility at Katoro Drive, Rotorua. The Police entered shed number 243 which was being rented by Mr Moore. In the shed the Police found three cardboard boxes:

(a) The first box contained 21 x 2.5 gram tins of “W.T.F” and 40 x 2.5 gram tins of “Apocalypse”.

(b)The second box contained 35 x 2.5 gram tins of “W.T.F” and 13 x 2.5 gram tins of “Karma”.

(c) The third box contained 70 x 2.5 gram tins of “Karma”.

[6] In total, 179 tins containing 447.5 grams of banned psychoactive products were located in the search of the shed. The street value was between $6,712.50 and
$8,950.

[7] The Police left the shed undisturbed.

Possession for supply: charge two

[8] On 19 September 2014, the Police searched shed 243 again. It was still being rented by Mr Moore. The drugs present on 4 September 2014 had gone. In their place the…

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 [2015] NZHC 2565
Case: [2015] NZHC 2565
Decision Date: 20 October 2015

CaseChat Overview and Summary

In the case of Moore v The Queen, the appellant, Mark Hartley Moore, appealed against his sentence for selling and possessing psychoactive substances for supply. The Crown accepted the appeal on the basis that the sentence was manifestly excessive. The court was required to determine whether the sentence was excessive, whether the trial judge erred in failing to give Mr Moore credit for his lack of criminal history, and whether the trial judge erred in failing to exercise his discretion to sentence Mr Moore to home detention. The court found that the sentence imposed by the trial judge was manifestly excessive and reduced the sentence to 10 months' imprisonment, while maintaining the release conditions imposed by the trial judge. The court did not find any error in the trial judge's consideration of Mr Moore's lack of criminal history or his failure to sentence Mr Moore to home detention. The court found that an appropriate sentence of imprisonment for Mr Moore's offending would be 10 months' imprisonment, which was considerably less than the sentence Judge Cooper imposed on Mr Moore. The court found the Judge's sentence to be manifestly excessive.

Orders