Moses v Police - [2016] NZHC 3078

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-000039 [2016] NZHC 3078

BETWEEN
TAT LANCE MOSES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 December 2016

Counsel:

N H Wright for appellant
M J M Mitchell for respondent

Judgment:

15 December 2016

RESERVED JUDGMENT OF DOBSON J

[1] Mr Moses has appealed from concurrent sentences of 10 months’ imprisonment imposed in the Gisborne District Court on 17 November 2016 by Judge Adeane, for convictions for male assaults female and unlawfully taking a motor vehicle valued at $5,000.1

[2] This offending occurred on 31 December 2015. The victim is Mr Moses’ former partner. In breach of bail conditions, he visited her home and an altercation occurred after she told him he was not supposed to be there. The violence involved a head-butt to the victim’s face, throwing her across the room by her hair and then taking her vehicle (the December offending).

[3] Earlier, on 29 September 2015, Mr Moses had attacked the same victim, having forced his way into a locked bathroom and thrown her several times against a wall. On that occasion, he pushed her to the ground and punched her in the face
when she tried to get up.

1 Police v Moses [2016] NZDC 23837.

MOSES v POLICE [2016] NZHC 3078 [15 December 2016]

[4] Then on 11 October 2015, Mr Moses again assaulted the same victim, this time punching her around the head and arms, throwing her to the ground, and forcibly detaining her when she tried to leave the house.

[5] The September incident resulted in a charge of male assaults female, and the October incident resulted in a charge of assault (the September and October offending). Mr Moses was on bail in relation to those charges when the December offending occurred.

[6] Mr Moses entered early guilty pleas to the September and October offending, and on 10 May 2016 was sentenced to concurrent terms of four months’ imprisonment on each of those charges.

[7] At that time, Mr Moses was maintaining not guilty pleas to the charges arising from the December offending. The male assaults female charge had been reduced from one of assault with intent to injure. Then, on 8 August 2016, Mr Moses changed his plea, apparently as a result of amendments the prosecution agreed to make to the summary of facts, which removed references to features that would have increased the relative seriousness of the assault. The Judge was invited to take into account the sentence imposed for the September and October offending, when assessing the sentence for the December offending. The Judge declined to do
so:2

In my view, it is not proper to speculate at this point in a way which would involve this matter being treated as a washing up charge. It is a matter which stands on its own. Any adjustment to the length of time spent in custody will be done by the prison authorities in accordance with the release provisions and the credit provisions…

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 Moses v Police

Details

AGLC: Moses v Police [2016] NZHC 3078
Case: [2016] NZHC 3078
Decision Date: 15 December 2016

CaseChat Overview and Summary

Tat Lance Moses appeals against concurrent sentences of 10 months’ imprisonment imposed by Judge Adeane in the Gisborne District Court for convictions of male assaults female and unlawfully taking a motor vehicle valued at $5,000. The offending occurred on 31 December 2015, following two prior incidents of domestic violence in September and October 2015. Moses was sentenced to concurrent terms of four months’ imprisonment on each of the September and October charges in May 2016 and subsequently changed his plea to guilty for the December charges in August 2016. The Judge declined to take into account the sentence imposed for the September and October charges when assessing the sentence for the December charges. The appeal concerns the Judge’s approach in considering cumulative sentences and whether the end result was proportionate to the overall gravity of the offending.

The key issue for the Court was whether the Judge erred in not considering the earlier sentencing when assessing the sentence for the December charges. The Court found that the obligation to consider the totality of the offending under s 85(2) of the Sentencing Act 2002 did not apply because the sentences for the September and October charges had been completed before sentencing for the December charges. The Court also found that the Judge’s refusal to revisit the earlier sentencing did not necessarily constitute an error in approach and that the Judge was within his discretion to treat the December charges as separate instances of offending. The Court rejected the argument that the Judge’s failure to consider the totality of the offending resulted in an excessive sentence. The Court found that the end sentence for the December charges, when added to the earlier sentence, was within range for the level of criminality involved in the three instances of domestic violence.

The appeal was dismissed as the Court found that the total sentence, including the component of 10 months imposed for the December charges, was not out of line. The Court found that the sentence was not manifestly excessive and that the criticisms of the component parts of the sentence could be seen as cancelling out the prospective uplift for offending whilst on bail.

Orders