Moseley v Police HC Dunedin CRI 2010-412-44

[2010] NZHC 2282

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2010-412-000044

CRAIG ROBERT MOSELEY

Appellant

s v

POLICE

Respondent

Hearing:         16 December 2010

Counsel:         M Newell for Appellant

R D Smith for Respondent

Judgment:      16 December 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a sentence imposed by Judge O’Driscoll to an overall term of two years 11 months in respect of charges of burglary, threatening to kill, a breach of a protection order, criminal damage and assault on police, which all arose out of a domestic incident.

[2]      In  uncontroversial  terms  the  domestic  incident  had  these  features:    the appellant, on a Sunday afternoon, after he had been drinking and had been on a trip with some friends, called at the dwelling of his former partner, for the purpose of picking up his dog.   He knocked on the door and then broke the glass around the

door, either deliberately or as a consequence of hammering on the door, came into

MOSELEY V POLICE HC DUN CRI 2010-412-000044  16 December 2010

the apartment bleeding fairly heavily, caused at least one bit of damage to a wall, largely passed out or collapsed on the carpet, and then struggled with the police when they were trying to arrest him.  That is a rather sanitised version of events.  But it is at least the key elements.

[3]      There were a number of other charges that the police were pursuing.  They had collected two other breaches of protection order out of the same incident.  So there was a rather complicated procedure.  There were pleas of guilty at the status hearing in, I think it was May, and then the other charges were adjourned for a fixture in October.  In the end those charges were withdrawn and on the fixture date Mr Newell was faced with a situation where the appellant’s current partner, not the victim in this case, was herself the victim of another assault.  The appellant and his partner wanted his sentence to be sorted out reasonably quickly.  Mr Newell says, however, he did not expect the sentence to be imposed on that day by Judge O’Driscoll.  There may have been misapprehensions. Certainly Judge O’Driscoll did have a Department of Corrections’ report on that day.

[4]      Prior to the sentencing Mr Newell had exchanged emails with the relevant police officer taking issue with some of the facts contained in the summary of facts. However, the summary of facts had not been amended at the time of the sentencing and it is quite plain that Judge O’Driscoll was working off the summary of facts on the file which was in truth a contested summary of facts.  By way of an example, Judge O’Driscoll received it on the basis that the appellant was claiming he owned the dog when the other version of events is that the appellant’s former partner had wanted to talk to him about some relationship property issues.  The couple actually owned the property the victim was occupying, had equity in it, but the appellant did not want to talk about those property relationship issues, but had agreed with his ex-partner that  he would come around to pick up the dog.

[5]      I have heard argument essentially along the lines that the Judge overstated the culpability of the breaches of the protection order and the criminal damage due to not understanding the more acceptable basis for the visit, namely, these earlier conversations when Mr Newell says the victim had actually invited the appellant to come round, notwithstanding the protection order, in order to discuss relationship

property issues, and also, that the Judge had not understood that the offer of reparation and the offer of emotional damage was real because of the equity of the property, and the fact that those offers would be delivered in a substantial sense in the divvy up of the property.

[6]      But I am also satisfied, this is not a criticism of Mr Newell.  The fact that the sentencing took place in October was, to a degree, because the appellant wanted a reasonably swift  resolution  of  the  matter.    What  does  stand  out  though  is  that however one views the facts one has to view them against a violent history of this man who has been convicted on three previous occasions for violent conduct and who has also been imprisoned for violent conduct.

[7]      The appellant is a man with some personal difficulties.   He does have a mental health history.   He has been diagnosed as having a poorly integrated personality.   He has been for some time on prescription drugs, Diazepam and Quetiapine.  He has had significant contact with mental health clinicians.  He has a significant alcohol problem and he is violent.

[8]      The Judge was, however, correct not to take into account as a mitigating factor the fact that he was intoxicated.  There is, by the way, a dispute about that as to whether he was very intoxicated, as the police summary of facts would indicate, or only somewhat intoxicated.  Of course, the Sentencing Act 2002 gives little room for the Courts to mitigate sentences on the grounds of mental health problems.

[9]      The important point, I think, is that the Judge was entitled to take the view that this man, the appellant, must know that he has both a combination of mental health problems and a significant alcohol problem so that he is prone to outbursts of violence.   Under the way in which the criminal law works then he should be conducting himself with great care not to place himself into situations where he will become violent and cause harm.

[10]     Overall then I am satisfied that the Judge was entitled to impose a reasonably severe sentence, which he did.  The question in my mind is whether or not it was too severe by reason of the unresolved issues of fact in the summary of facts; secondly,

whether or not the process whereby the Judge gave a 20% discount for the offending before adding six months on for aggravation for prior offending, should be maintained.   That latter process was done by the Judge citing Hessell v R [2010]

2 NZLR 298 (CA). That case required aggravating features to be added first so that the discount for a guilty plea is overall. It is further complicated by the fact that the Supreme Court has reversed (Hessell v R [2010] NZSC 135). In my view the appropriate course is for this Court to treat Hessell as reversed in this appeal.

[11]     Standing back and looking at the whole matter I am satisfied, and this is not a criticism of the Judge, that he did not understand that the reparation offers and emotional damage offers were significant; that they meant something in the context of the equity in the house; and applying Hessell in the Supreme Court, that they can be understood as indicating a genuine degree of remorse and a genuine desire to make some reparation.

[12]     For these reasons I think that some discount needs to be made to the sentence.

[13]     I note that the Judge has made an order of reparation in the sum of $2,342.90 and an order of reparation in the sum of $2,500.  I also note that it is clear that the Judge did understand that the property settlement might well be the source of satisfaction of these sums.  But I am a little puzzled as to why he states he had been in two minds to make an order for reparation for emotional harm to the victim.

[14]     In the end though I am still of the view that the Judge did not adequately reflect alongside those two orders the remorse and reparation entailed in them.  They were made after he had settled on the sentence of two years 11 months.

[15]     I am of the view that the appropriate solution, taking into account these orders, and what I think was a genuine remorse of the man in a sober state, is to reduce the end sentence by six months.

[16] Accordingly, the appeal is allowed reducing the end sentence to two years five months allocated in the same way as in paragraph [16]. I leave the other concurrent sentences of 15 months and 12 months in place.

Solicitors:

Michael Newell, Dunedin, for Appellant

Wilkinson Adams, Dunedin, for Respondent