Mosen v Police
[2023] NZHC 103
•3 February 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2022-463-134
[2023] NZHC 103
BETWEEN ROBERT JOHN MOSEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 February 2023 Appearances:
J W Howell for the Appellant
D P Coulson for the Respondent
Judgment:
3 February 2023
JUDGMENT OF HARVEY J
This judgment is delivered by me on 3 February 2023 at 4.30 pm.
.....................................................
Registrar / Deputy Registrar
Solicitors: Adams Law (K O’Connor), Tauranga
Pollett Legal (Office of the Crown Solicitor), Tauranga
MOSEN v NEW ZEALAND POLICE [2023] NZHC 103 [3 February 2023]
Introduction
[1] Robert Mosen, pleaded guilty to a representative charge of assault with intent to injure.1 On 4 August 2022, Judge Bidois in the District Court at Whakatāne sentenced Mr Mosen to 18 months’ imprisonment.2 Mr Mosen now appeals that sentence to this Court out of time.
[2] The Crown opposed the appeal and submitted that leave should be refused in any event because the appeal was filed out of time, Mr Mosen has served his sentence and any adjustment at best would result in a reduction of only one month. Counsel underscored that such a change would amount to “tinkering”.
[3] At the hearing, Mr Howell noted he had not been able to obtain instructions from Mr Mosen since receiving the Crown submissions and conceded that the correct sentencing approach would have resulted in a one-month reduction.
[4] However, for reasons I expand upon in this judgment, I do not consider the appeal as clear cut as counsel. In summary, putting aside the arithmetical errors made by the Judge, there is a live question as to whether Mr Mosen’s previous convictions should have been taken into account at “stage one” or “stage two” of sentencing.3
Leave to appeal
[5] A preliminary issue arises in that the appeal against sentence was filed out of time. The notice of appeal explained the delay as arising from the fact that the error in calculation was only identified on 6 October 2022.
[6] I have taken into account the fact that Mr Mosen has already served his sentence, reducing the practical utility of the appeal. However, I recognise that there is a public interest in consistent sentencing outcomes. There is also Mr Mosen’s personal interest in his criminal record accurately reflecting the sentence that should have been imposed (if successful).
1 Crimes Act 1961, s 193. Maximum penalty 3 years’ imprisonment.
2 Police v Mosen [2022] NZDC 14869.
3 See Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[7] As foreshadowed, at the hearing I was initially inclined to decline leave to appeal given the apparent consensus on the appeal’s lack of merit. However, with further consideration, there is the issue as to appropriate sentencing methodology in Mr Mosen’s case. I am therefore satisfied that the interests of justice favour granting leave to appeal out of time.4
Background
[8] The appellant pleaded guilty on the basis of an agreed summary of facts. This recorded that the appellant has been in a relationship with the complainant for approximately two years. They share an extensive history of family harm.
[9] On 17 January 2022, the appellant was released from prison after serving a three-month sentence for escaping from police custody. Soon after, on 24 January 2022, the appellant and the complainant planned to travel from Rotorua to Edgecumbe. When the vehicle did not start, the appellant punched the complainant to the side of the head. The complainant, in response, hit him on the nose. The appellant proceeded to throw “a barrage of punches” at the complainant’s face and body.
[10] The next day, the pair were uplifting a mattress from a storage container. The appellant grew impatient and yelled at the complainant to hurry, while striking her on the arm with a level. He then picked up a carved wooden key which he used to strike her twice to the back of the head. The complainant immediately fled the storage facility and ran up the road.
[11] After convincing the complainant to return, the pair travelled to Kawerau where they parked at a reserve for the night. The complainant was later woken by the appellant yelling and throwing a flurry of punches to her face and body. The complainant subsequently fled the vehicle and walked around Kawerau town until the morning of 26 January 2022, when she reported the assault to police.
[12] Later that day, the complainant was admitted to Rotorua Hospital where she was treated for her injuries. These included bruising to her arms, upper and lower
4 R v Davis [2007] NZCA 577; and R v Knight [1998] 1 NZLR 583 (CA).
back, and lumps to the head. She also experienced dizzy spells. That evening, at approximately 9:30 pm, Police received a family harm call-out to the appellant’s address. The appellant was located there by the police and arrested.
Sentence indication
[13] The Judge selected a starting point on the representative charge of two years’ imprisonment.5 He then applied an uplift of three months to reflect the appellant’s previous convictions.
[14] Following discussion with counsel, it appears that the Judge adjusted the starting point by one month to correct a misapprehension.6 This is not entirely clear from the oral judgment but I accept Mr Howell’s explanation. The Judge had initially thought the offending occurred the day after the appellant’s release from prison, when in fact it was the following week. The adjustment on that basis could only have reflected a reduced starting point and was not relevant to the uplift. The indicated sentence was therefore one of two years, two months’ imprisonment, or 26 months.7
Sentencing
[15] The appellant accepted the indication. At sentencing, the Judge stated that the indicated starting point was two years, three months’ imprisonment or 27 months, and went on to apply a further three-month uplift for previous convictions.8 This produced a final starting point of two years, six months’ imprisonment. The Judge then identified discounts totalling 40 per cent, which led to an end sentence of 18 months’ imprisonment.9
Submissions
[16] Mr Howell submitted that the Judge erred in departing from the indicated starting point of 26 months, there being no additional information before the Court at
5 Police v Mosen DC Whakatane CRI-2022-063-000260, 1 June 2022 at [6].
6 At [11]-[12].
7 At [13].
8 Police v Mosen, above n 2, at [8].
9 At [10].
sentencing to enable this departure.10 Had this error not been made, the end sentence after applying the 40 per cent discount for mitigating factors to the starting point of 26 months would have been approximately 15.6 months. Counsel contended that this likely would have been rounded down to 15.
[17] Mr Howell argued that the end sentence of 18 months’ imprisonment was manifestly excessive, as there was a three-month discrepancy between the sentence imposed and that which ought to have been imposed.
[18] Counsel contended that the appellant was released from prison on 26 October 2022, having served his sentence of imprisonment, but that he still wished to pursue the appeal so that his criminal history reflects the correct sentence.
[19] Even so, in his oral submissions counsel confirmed that, having now received the Crown’s submissions, he had not had the chance to secure instructions from Mr Mosen as to their content. Moreover, Mr Howell accepted that, ultimately, any adjustment to Mr Mosen’s sentence would at best amount to a one month reduction.
[20] Mr Coulson, for the Crown, acknowledged that the Judge made an error in adopting a starting point of 27 months’ imprisonment at sentencing. However, he submitted that this was offset by a second error in the appellant’s favour. This was to apply an uplift for prior convictions at the first stage of the sentencing process, and then to apply the discount for mitigating factors to the uplifted starting point. Mr Coulson contended that this approach is inconsistent with authority,11 and that the correct approach if followed would have produced an end sentence of approximately 17 months’ imprisonment.12
[21] Therefore, Mr Coulson submitted that the end sentence of 18 months’ imprisonment was not manifestly excessive and that reducing the sentence by one month would amount to “tinkering”.13
10 Criminal Procedure Act 2011, s 116.
11 Stuart v R [2021] NZCA 539; and Moses v R, above n 3.
12 This is calculated as follows: 23 – (40% or 9.2) = 13.8 + 3 = 16.8 (rounded up to 17).
13 Ward v Police [2022] NZHC 1051 at [18].
Approach on appeal
[22] It is well settled that an appeal against sentence is an appeal against the exercise of a discretion. I must only allow the appeal if satisfied that for any reason, there is an error in the sentence imposed and a different sentence should be imposed.14 It is well recognised that the sentence must be manifestly excessive if the appeal is to be allowed. The appeal must be dismissed in any other case.15
Discussion
[23] Two errors have occurred in the present case. The first was the adoption of a starting point of 27 months’ imprisonment at sentencing, in contrast to that of 26 months at the sentence indication. The second was the application of a further three-month uplift for the appellant’s previous convictions at sentencing, when this factor had been taken into account in setting the 26-month starting point.
[24] The question, then, is what Mr Mosen’s sentence would have been had the Judge not made these errors, and whether the sentence he did receive was manifestly excessive in light of that.
[25] I have accepted that the sentencing indication provided a starting point of 23 months plus a three-month uplift for previous convictions. The total discounts of 40 per cent were not challenged on appeal.
[26] The Crown’s approach, which Mr Howell accepted, is that an uplift for previous convictions comes at stage two of sentencing and is applied at the same time as discounts. Accordingly the Crown’s calculation of the correct sentence was:
23 – (23 x 40%) + 3 = 16.8
Starting point – discount + uplift = 16.8 months final sentence
14 Criminal Procedure Act 2011, s 250(2).
15 Section 250(3).
[27] However, while it is considered best practice to factor in previous convictions at stage two of the sentencing process, this is not an immutable rule.16 The Court of Appeal in Mitchell v R held that where the offending involves domestic violence, and there is a history of such offending, prior convictions can inform the gravity and culpability of the present offending and therefore be taken into account in setting the starting point.17 The appellant has at least 15 convictions for offending of this nature over the past 10 years alone.
[28] Accordingly, following Mitchell, it was open to the Judge to apply the uplift for previous convictions in stage one. If the errors identified at [23] are corrected, this leads to the following calculation:
(23 + 3) = 26
Nominal starting point + uplift = starting point of 26 months 26 – (26 x 40%) = 15.6
Starting point – discounts = 15.6 months final sentence
[29] As a result, the sentence initially reached by Mr Howell in his written submission was one that would have been open to the Judge had he not erred.
[30] However, I note that the Mitchell line of authority appears so far to be restricted to sentencing for breaches of protection orders in the family violence context. The rationale is that convictions that form an ongoing and frequent pattern of the same offending is likely to render the current offending more serious.18 In particular, the offending is in breach of or indeed flouting a court order.19 The Court of Appeal has noted that “[t]o ignore the history of the relationship would be artificial, and prevent a proper analysis of the gravity of the offending”.20 The Court also noted that s 8(a) of the Sentencing Act 2002 requires a sentencing court to carry out an assessment of
16 Mitchell v R [2013] NZCA 583 at [12].
17 At [12]; Carlyon v Police [2017] NZHC 2526 and Whiu v Police [2020] NZHC 298 at [16]–[18].
18 Tetau v New Zealand Police [2015] NZHC 1284 at [27].
19 Mitchell v R, above n 16, at [14].
20 At [12].
culpability, and s 8(f) requires it to take into account the effect of the offending on the victims.
[31] The general rationale has some applicability to family violence offending at large. The context of a violent relationship can certainly inform the gravity of family violence offending. But care should be taken if the Mitchell approach is to be applied to broader family violence offences, in particular when considering whether previous family violence convictions are more relevant to the gravity of the offending (stage one), the character of the defendant and their propensity to enact family violence offending (stage two), or both—taking care not to double count convictions.21
[32] Further, the focus for the appellate court is on the end sentence rather than the process by which it is reached.22 It is paradoxical that, by recognising that previous offending makes the present offending more serious, the approach results in a lesser overall sentence when a discount is applied, in this case, to a significant degree.
[33] Overall, I do not consider that a final sentence of 15 months would have been appropriate in this case. The offending consists of multiple incidents of physical family violence over several days and was concluded with a family harm callout. Family violence is unacceptable and should be strongly denounced. The end sentence of 18 months imposed by the Judge was appropriate.
Decision
[34] Robert Mosen’s application for leave to appeal out of time against the 4 August 2022 decision of the District Court is granted.
[35]The appeal against sentence is dismissed.
Harvey J
21 Carlyon v Police, above n 17, at [20].
22 Ripia v R [2011] NZCA 101 at [15].
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