Moses v Police
[2016] NZHC 3078
•15 December 2016
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 that apply.
[8] Mr Moses’ principal ground of appeal is that this constituted an error in the Judge’s approach and that, in considering cumulative sentences, the Court was obliged to ensure that the end result was not wholly out of proportion to the overall gravity of the offending.3 The authorities cited in support of the contended approach
involved second sentencings of offenders where sentences imposed on earlier
2 Police v Moses, above n 1, at [4].
3 Sentencing Act 2002, s 85(2).
sentencings were still being served.4 However, in Mr Moses’ case, he had completed his sentence for the September and October offending some time before the Judge was considering sentencing for the December offending.
[9] Arguably, if the amendments to the summary of facts on which Mr Moses pleaded guilty to the December offending had been agreed before the May 2016 sentencing for the September and October offending, then the Court would have been presented with the prospect of sentencing Mr Moses for all the offending, so that they would all be considered together. That did not happen. All of the offences were of the same type, against the same victim, and arose in a domestic context.
[10] I am not satisfied that Ms Wright correctly characterised the sentences for the December offending as being cumulative on the sentences previously imposed for the September and October offending. There is no definition of the concept in the Sentencing Act 2002, but I consider in this context it should be confined to potential sentences being considered at the same sentencing for offences of different types, or sentencing for a further conviction that is undertaken whilst an existing sentence for other convictions is still being served. It follows that the obligation to consider the totality of the offending under s 85(2) of the Sentencing Act does not apply to the sentencing assessment confronting the Judge at the sentencing for the December offending.
[11] Ms Wright also argued that the sequence of offending and sentencings meant that the Court could not treat Mr Moses as having been insufficiently deterred by the sentence imposed for the September and October offending, when he was not aware of the sentence to be imposed for that offending before the December offending occurred. She also argued that the Judge erred as a matter of principle in disregarding the circumstances of the earlier offending and the sentence imposed.
[12] If this last point was accepted, Ms Wright argued that it inevitably followed that the imposition of separate sentences that were appropriate within the confines of
each instance of offending must necessarily be excessive once the totality principle
4 Opetaia v R [2013] NZCA 434.
was taken into account because that principle would inevitably produce a reduction in the combined length of sentences required.
[13] For the Crown, Ms Mitchell did not contest the proposition that some regard should have been had to the earlier sentencing, when assessing the appropriate sentence for the December offending. Rather, she submitted that combined sentences of 14 months for all of the domestic violence convictions were well within range.
[14] I do not accept that the sentencing exercise undertaken for the December offending necessarily required the Judge to revisit the circumstances of the September and October offending, and to have regard to the totality principle when considering the appropriate sentence for the December offending. It was a matter within the Judge’s discretion. Whilst the Judge could treat it as part of a pattern of similar conduct and impose a sentence having regard to the earlier one, his refusal to do so does not necessarily make out an error in approach.
[15] The issue is whether, in assessing the appropriate sentence for the December offending, the Judge failed to have regard to one or more matters that were relevant to a determination of the correct sentence.
[16] It follows that I also do not accept Ms Wright’s argument that the sentence imposed must necessarily be wrong because the Judge did not consider the totality of the gravity of the offending relative to a combined sentence for the September and October, and December offending.
[17] The other criticisms of the sentence were that the Judge gave insufficient credit for Mr Moses’ guilty plea, and for completion of a meaningful restorative justice process. Those two mitigating factors were not explicitly assessed by the Judge. Ms Wright infers that the Judge was critical of the delay in Mr Moses entering a guilty plea. The only reference to the point was in the following terms:
… [His not guilty plea] was maintained right through until 8 August when, with the same legal advice, Mr Moses changed his plea.
[18] There is then no consideration of a restorative justice meeting before the Judge simply acknowledged that the starting point was 12 months’ imprisonment and that there should be some discount, resulting in the end sentence of 10 months’ imprisonment. That approach is challenged because Mr Moses is said to have entered a guilty plea at the first reasonable opportunity after the summary of facts was materially altered to remove the risk of his being sentenced for more serious offending.
[19] The Crown response is that criticisms of the component parts of a sentence cannot be determinative, and the only test on appeal is whether the end sentence was within range.
[20] Ms Mitchell argued that, standing on its own, an end sentence for the December offending of 10 months imprisonment was well within range, after allowing a reasonable discount for guilty pleas and appropriate acknowledgement for participation in a restorative justice conference.
[21] When added to the end sentence for the September and October 2015 offending, Ms Mitchell submitted that the combined sentences were well within the appropriate range for the level of criminality involved in the three instances of domestic violence.
[22] Ms Mitchell cited the Court of Appeal decision in Wallace v R, which repeated the previous recognition that there is no tariff applicable to male assaults female offending because the circumstances vary so greatly.5 It includes a review of a number of earlier appellate decisions in assessing an appeal from an end sentence of 16 months’ imprisonment for two counts of male assaults female, two counts of common assault and one count of intentional damage. The sentencing Judge had adopted a starting point of 15 months’ imprisonment, which was then uplifted by six months for previous convictions. An end sentence, including an uplift for common
assault, was 24 months, reduced to 16 months for guilty pleas and time spent on
electronically monitored bail.
5 Wallace v R [2012] NZCA 546.
[23] On the summary in Wallace, the assaults there were materially less serious than those committed by Mr Moses. In particular, the Court of Appeal noted that the attacks were “quite serious”, despite none of them involving any attack to the victim’s head. Although stern, the Court of Appeal did not treat the starting point in Wallace as out of line.6
[24] I agree that, were all three of the domestic violence incidents assessed together, a combined starting point reflecting the totality of offending of 18 months’ imprisonment would be well within range. In addition, a modest uplift could be warranted to reflect that the December incident occurred whilst Mr Moses was on bail, and subject to an order not to visit the victim.
[25] On Ms Wright’s criticism of the failure to have regard to restorative justice and the prospects for rehabilitation, they can be seen as more or less cancelling out the prospective uplift for offending whilst on bail.
[26] Therefore, before a discount for guilty pleas, the combined sentence could readily have been 18 months. Affording Mr Moses a 25 per cent discount would result in an end sentence of 13 and a half months. On that analysis, the total sentence, including the component of 10 months imposed for the sentencing under appeal, is not out of line.
[27] I do not accept that the sentence was manifestly excessive and accordingly the appeal is dismissed.
Dobson J
Solicitors:
Nicola Wright, Gisborne for appellant
Crown Solicitor, Gisborne for respondent
6 The Court of Appeal accepted that the uplift of six months for previous convictions was excessive and the appeal was allowed on that basis.
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