Moss v Police - [2020] NZHC 1065

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000051

[2020] NZHC 1065

BETWEEN
JONATHAN DUNBIER MOSS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 May 2020

Appearances:

S Bonnar QC for the Appellant J Herring for the Respondent

Judgment:

21 May 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 21 May 2020 at 11.30 am

Registrar/Deputy Registrar Date:

Solicitors: Crown Solicitor, Auckland Counsel: S Bonnar QC, Auckland

MOSS v POLICE [2020] NZHC 1065 [21 May 2020]

Introduction

[1] The appellant, Jonathan Moss, pleaded guilty in the Auckland District Court to two charges of criminal harassment.1

[2] On 14 February 2020, Judge Glubb refused Mr Moss’ application for a discharge without conviction. He convicted Mr Moss and sentenced him to eight months’ supervision.2 A protection order was issued in favour of the victim.3

[3] Mr Moss appeals that decision. He claims that the Judge was wrong when he refused to grant a discharge without conviction and, in any event, the sentence is manifestly excessive.

[4] The Police oppose the application on the grounds that there was no error on the part of the sentencing Judge who was correct to refuse the application and impose a sentence which the Police submit was within the available range and not manifestly excessive.

Factual background

[5] The factual background was set out fully by the Judge in his sentencing notes which I reproduce in relevant part below:

[1] … The facts are that you and the victim in this matter were in a relationship for about 12 months and it ended in December 2018. Due to ongoing issues after the separation you were served with a criminal harassment warning letter which listed the types of behaviour that you were not to engage in. That letter was served on you on 3 February 2019 and you acknowledged that you understood the content of that letter. …

[2] At about 4.00 pm on 19 February 2019, you were in your Subaru car near the Auckland University. You made several requests to the victim in this matter via instant messaging on the Instagram Smart Phone application, offering her a ride home. She declined these offers and took the bus to get home. You drove your car to the bus stop where you knew that she would be getting off the bus and you parked nearby.

[3] She told you to leave and entered her home. She was then subjected to approximately 70 phone calls from you that evening. In explanation you

1      Harassment Act 1997, s 8.
2      Police v Moss [2020] NZDC 2548.
3      Sentencing Act 2002, s 123B.

said that you were aware of the criminal harassment warning and you admitted using multiple Instagram accounts to send the victim instant messages and that you had made approximately 70 calls to her.

[4] Subsequent to that offending, you appeared before the Court on 21 February 2019 at which point you were released on…

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 Moss v Police

Details

AGLC: Moss v Police [2020] NZHC 1065
Case: [2020] NZHC 1065
Decision Date: 21 May 2020

CaseChat Overview and Summary

In Moss v Police, the appellant, Jonathan Moss, pleaded guilty to two charges of criminal harassment and appealed against the District Court's decision to refuse a discharge without conviction and sentence him to eight months' supervision. The Police opposed the appeal. The High Court assessed the appeal against the refusal of a discharge without conviction under the Sentencing Act 2002, and the proportionality of the sentence. The Court found that the offending was of low seriousness due to the causal link to Mr Moss' mental health condition. It was not satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence. The sentence was found to be within the available range. The appeal was dismissed.

In Moss v Police, the Court found that the District Court did not err in its assessment of the gravity of the offending. The Court found that the Judge should not have treated Mr Moss' previous convictions and previous discharge as aggravating factors. The Court found that there was no real and appreciable risk that the consequences of conviction would be out of all proportion to the gravity of the offending. The Court found that the sentence was within the available range. The appeal was dismissed.

Orders