Moyes v Police - [2018] NZHC 582

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000449 [2018] NZHC 582

BETWEEN
NICHOLAS MOYES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 March 2018

Appearances:

P Dacre QC for the Appellant

R McCoubrey for the Respondent

Judgment:

29 March 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 29 March 2018 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
P Dacre QC, Barrister, Auckland
Meredith Connell (Office of the Crown Solicitor), Auckland

MOYES v NEW ZEALAND POLICE [2018] NZHC 582 [29 March 2018]

Introduction

[1] On 23 March 2017, Nicholas Elliot Moyes pleaded guilty to one charge of intentionally and without claim of right damaging his partner’s clothing by fire intending to cause loss to her under s 267(2)(b) of the Crimes Act 1961.

[2] On 1 December 2017, Judge Burns refused an application for a discharge without conviction and instead convicted and discharged Mr Moyes. Mr Moyes now appeals on the basis that the Judge was wrong to refuse his application for a discharge without conviction.

Factual background

[3] Mr Moyes separated from his wife in December 2016. In the early hours of 26 December 2016, he went to the former family home in Titirangi, Auckland. His wife and three children were not at home, but staying with her parents in Wellington.

[4] While at the property, Mr Moyes took all his wife’s clothes, including socks, nightwear, swimsuits, shorts, underwear, jackets, designer dresses and her wedding dress from her wardrobe and drawers. Mr Moyes then set fire to his wife’s clothes on the driveway, causing them to be destroyed.

[5] The next morning Mr Moyes was ashamed about what he had done. He took the ashes to an organic compost area on the property, then hosed and swept the driveway. Mr Moyes’ wife and children were, however, badly affected by what had happened. Mr Moyes paid $15,000 reparation to his wife. He also paid for counselling for his children. He now has joint custody of his children with his wife, although Family Court proceedings are still underway.

District Court decision

[6] At the outset, Judge Burns noted that Mr Moyes had originally been charged under the Summary Offences Act 1981, but that the charge had subsequently been upgraded to one which carried a maximum penalty of seven years imprisonment. The Judge then noted the impact of the offending on Mr Moyes’ wife and children before turning to Mr Moyes’ application for a discharge without conviction. The Judge

recorded that he was required to undertake a three-stage inquiry. First, he had to determine the severity of the charge, then he had to identify the consequences, which had to be real and appreciable. Third, he had to then decide whether to exercise the discretion vested in the Court under ss 106 and 107 of the Sentencing Act 2002 as to whether the consequences of a conviction would be out…

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 Moyes v Police

Details

AGLC: Moyes v Police [2018] NZHC 582
Case: [2018] NZHC 582
Decision Date: 29 March 2018

CaseChat Overview and Summary

The appeal heard in Moyes v Police was brought by Nicholas Elliot Moyes, who was convicted by Judge Burns in the District Court for damaging his wife's clothing by fire with the intention of causing her loss. The conviction was entered on 1 December 2017, and the appellant appealed the decision on the basis that the Judge was wrong to refuse his application for a discharge without conviction. The appeal was heard in the High Court of New Zealand on 29 March 2018, and the appeal was allowed. The appellant's conviction was quashed and he was discharged without conviction.

The legal issues before the court were whether the Judge was wrong in his exercise of discretion in refusing the appellant's application for a discharge without conviction, and whether the consequences of a conviction were out of all proportion to the gravity of the offence. The court found that the Judge's focus on the nature of the particular offence with which Mr Moyes had been charged, rather than what he actually did, was incorrect. The court held that the gravity of the offence should have been assessed properly by what Mr Moyes actually did, rather than the section under which he was charged. The court also found that the consequences of a conviction for Mr Moyes were relatively serious and wide-ranging, stemming from Mr Moyes' position as an architect specialising in airport infrastructure. However, the gravity of Mr Moyes' offending did not warrant the consequences of a conviction.

The court's reasoning was based on the fact that Mr Moyes took his wife's clothing from the family home and placed them in the middle of the concrete driveway, away from any vegetation. From the photographs it appears the fire was confined to an area of approximately two metres by two metres. There is no damage to the driveway, apart from soot marks, and the vegetation either side of the driveway is also undamaged. Mr Moyes lit the fire on his own property, while his wife and children were in Wellington. There was no, or minimal, danger to life or property. Mr Moyes cleared it up afterwards and washed and hosed down the driveway. The court held that the Judge fell into error when he focused on the nature of the particular offence with which Mr Moyes had been charged, rather than what he actually did.

The final orders of the court were that the appeal was allowed, Mr Moyes' conviction was quashed and he was discharged without conviction. The court noted that Mr Moyes had made good through the payment of reparation to his wife and counselling for his children.

Orders