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 respondentJudgment:
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…
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- Moses v Police [2016] NZHC 3078
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- [2016] NZHC 3078
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CaseChat Overview and Summary
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.
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