Mosen v Police - [2023] NZHC 103

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…

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.

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Details

Case: [2023] NZHC 103
Decision Date: 3 February 2023

CaseChat Overview and Summary

Robert Mosen, the appellant, has appealed against the sentence imposed on him by Judge Bidois in the District Court at Whakatāne. The appellant pleaded guilty to a representative charge of assault with intent to injure and was sentenced to 18 months’ imprisonment. The Crown opposed the appeal, arguing that the appeal was filed out of time and that the appeal was without merit. Mr Mosen’s counsel initially contended that the sentence was manifestly excessive. However, he later conceded that the correct sentence would have resulted in a reduction of only one month. The court had to determine whether the appeal should be granted leave to proceed out of time and whether the sentence was manifestly excessive.

The court acknowledged that the appeal was indeed filed out of time, and Mr Mosen had already served his sentence. However, the court recognised the public interest in consistent sentencing outcomes and Mr Mosen’s personal interest in his criminal record accurately reflecting the sentence that should have been imposed. The court also recognised that there was an issue as to the appropriate sentencing methodology in Mr Mosen’s case. Therefore, the court was satisfied that the interests of justice favoured granting leave to appeal out of time.

The court found that there were two errors in the sentencing process. Firstly, the starting point for sentencing was set at 27 months instead of the indicated 26 months. Secondly, an uplift for previous convictions was applied at the first stage of sentencing, which is not in line with the usual practice. The court considered the approach taken by the Court of Appeal in Mitchell v R, which allows for previous convictions to inform the gravity and culpability of the present offending and therefore be taken into account in setting the starting point where the offending involves domestic violence and there is a history of such offending. However, the court noted that this approach appears to be restricted to sentencing for breaches of protection orders in the family violence context. The court also noted that the focus for the appellate court is on the end sentence rather than the process by which it is reached.

The court concluded that a final sentence of 15 months would not have been appropriate in this case, given the multiple incidents of physical family violence over several days and the conclusion with a family harm callout. The court found that the end sentence of 18 months imposed by the Judge was appropriate.

Robert Mosen’s application for leave to appeal out of time against the 4 August 2022 decision of the District Court is granted. The appeal against sentence is dismissed.

Orders