Police v Moffat
[2020] NZHC 3057
•19 November 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-488-000041
[2020] NZHC 3057
BETWEEN NEW ZEALAND POLICE
Appellant
AND
RYAN ANDREW MOFFAT
Respondent
Hearing: 18 November 2020 Appearances:
R Annandale for Appellant D J Blaikie for Respondent
Judgment:
19 November 2020
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 19 November 2020 at 2.30pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Crown Solicitor, Whangarei D J Blaikie, Kaikohe
NEW ZEALAND POLICE v MOFFAT [2020] NZHC 3057 [19 November 2020]
Introduction
[1] The respondent, Ryan Moffat, was charged with arson pursuant to s 267(2)(a) of the Crimes Act 1961. The charge alleged that Mr Moffat acted recklessly and not that he acted intentionally.
[2] Mr Moffat accepted responsibility for detonating an explosion which caused the fire the subject of the charge. He denied however that his actions in detonating the explosion were reckless. He sought to be discharged under s 147 of the Criminal Procedure Act 2011. His application in this regard was declined by Judge Collins in the Kaikohe District Court.1
[3] Mr Moffat accepted the Judge’s ruling and entered a guilty plea to the charge as a consequence. He then sought a discharge without conviction and, on 18 August 2020, this second application was granted by Judge Shortland, also in the Kaikohe District Court.2
[4] The police now seek leave to appeal Judge Shortland’s ruling discharging Mr Moffat without conviction. It is submitted that the prospective appeal raises two questions of law. First, did the Judge err in his assessment of the gravity of the offending, and secondly, did the Judge err in his assessment of the consequences of a conviction?
[5] The application for leave to appeal is opposed. It is argued for Mr Moffat that no questions of law arise from Judge Shortland’s decision.
Factual background
[6] Mr Moffat is a certified handler of pyrotechnics. This allows him to store, transport and handle restricted pyrotechnic items, such as fireworks.
[7] Mr Moffat constructed a homemade pipe bomb. He placed an explosive substance into a brass casing. The casing was secured with electrical tape. The
1 Police v Moffat [2019] NZDC 19887.
2 Police v Moffat [2020] NZDC 16505.
explosive was connected to wires which could be used to detonate the device from a remote location.
[8] On 19 January 2019, Mr Moffat and three associates travelled to Rangihoua Heritage Park on the Purerua Peninsula in the Bay of Islands. A fire ban was in place at the time and a permit was required to light most types of fires.
[9] Mr Moffat intended to detonate his homemade explosive device. He and his associates parked their vehicle in the main carpark. They then partially filled two ziplock bags with petrol. They walked one and a half kilometres down a beach, carrying the two ziplock bags containing the petrol, the explosive device and other items needed to detonate the device, including a spool of wire and a remote detonator.
[10] Once they were well down the beach, Mr Moffat chose a location for the proposed detonation. His associates queried his choice. They believed it was too close to a nearby cliff and vegetation. Mr Moffat ignored their advice. He used a spade to dig a hole in the sand. The hole was within five metres of a cliff face, vegetation and overhanging trees. Mr Moffat placed the explosive device into the hole along with the two ziplock bags containing the petrol and other unknown items. The explosive device was connected to the spool of wire, which was run out some distance to what was considered to be a safe point, so that the explosive device could be detonated remotely.
[11] Once Mr Moffat and his associates had retreated to the safe point, Mr Moffat detonated the device. The explosion caused a large fireball to rise approximately 15 metres into the air. The fireball set nearby vegetation alight.
[12] When they saw the size of the explosion and the resulting flames, Mr Moffat and his associates ran off down the beach and made their way back to the carpark. Mr Moffat was approached by a member of the public a short time later. He still had in his possession the spool of wire and the other items used to detonate the explosive device. He was spoken to by the police shortly thereafter. He declined to make any comment. A subsequent search of Mr Moffat’s address located a large number of fireworks, including some that had been deconstructed and had their contents
removed. Other items such as wire and tape similar to those used to construct the explosive device were also found.
District Court decisions
Section 147 application
[13] As already noted, on 27 September 2019, Mr Moffat applied for the dismissal of the charge pursuant to s 147 of the Criminal Procedure Act 2011. He argued that there was insufficient evidence from which a Judge at trial could conclude that recklessness was proved beyond reasonable doubt.
[14] Judge Collins heard the application. In an oral judgment, he observed that Mr Moffat was:3
… someone with experience with fireworks, he holds industry trained and granted certification to carry out fireworks displays. However, his level of chemistry is questionable.
[15] The Judge noted that it was argued that, while he turned his mind to the risk of fire, Mr Moffat made a considered decision and dismissed the possibility as being, in his subjective assessment, non-existent. Judge Collins however considered that there was available evidence which would allow a Judge at trial to “easily” conclude that Mr Moffat did appreciate the risk. He noted the following:4
(a)the time of year, 19 January 2019 – the height of summer;
(b)“a highly published” total fire ban was in place;
(c)Mr Moffat was familiar with fireworks and would have possessed a good appreciation of the risk of fire involved with fireworks and other explosive devices;
3 Police v Moffat, above n 1, at [5].
4 At [9].
(d)Mr Moffat chose an isolated location to set off his explosive device: “The legitimate rhetorical question can be asked, if he did not appreciate [the] risk, why go to where he did go?”; and
(e)there was a discussion at the beach with his associates about the attendant risk. The Judge considered that this on its own might have been sufficient to dispose of the s 147 application.
[16] Mr Moffat gave evidence on the application and Judge Collins also considered his evidence-in-chief and cross-examination, particularly regarding the location of the hole, its proximity to nearby vegetation, the associates’ concern about the likely fire risk, the need to add the petrol, the time of night and that Mr Moffat and his associates retreated some distance before detonating the device. The Judge said that:5
It is an easily available inference the defendant went at night to see a fireball explode and light up the night sky. It is implausible that if he wanted to see sand expelled into the air, albeit with an accompanying bang, he would do that at night. However, having added Ziploc bags of petrol to the equation, it is equally implausible that the purpose of the expedition on [the] part of a firework professional was to see anything other than a display of fire. The retreat away from the bomb to a position of safety in the descending darkness makes a claim of no appreciation of risk equally implausible.
[17]Judge Collins declined to grant the application.
Section 106 application
[18] Also as noted, Mr Moffat then entered a guilty plea to the charge and sought a discharge without conviction under s 106 of the Sentencing Act 2002.
[19] In considering Mr Moffat’s discharge application, Judge Shortland said of the offending:6
… recklessly setting [off] an explosive … was more than you bargained for
… everyone agrees, this was a reckless act. I would use the word naïve. Despite your healthy interest in pyrotechnics this is perhaps one that you did not quite get the calculation right, …
5 At [14].
6 Police v Moffat, above n 2 at [1].
[20] In considering the gravity of the admitted offending, the Judge agreed with Mr Moffat’s counsel that Mr Moffat’s culpability was:7
… reasonably low, it was not deliberate, it was not antisocial in any way, it was not trying to be destructive, it was borne out of a curiosity for your robust, healthy interest in pyrotechnics. I put it down to the fact that it was probably an experiment that went horribly wrong in the circumstances.
… it was probably a stupid thing to do. …
The Judge also noted the degree of damage caused – "the potentially quite extensive costs", the risk of fire in Northland and the potential for greater harm to have been caused by the fire. Against this, the Judge again noted that the offending was not deliberate, and also observed that the fire was contained and that it was put out. He observed that while the offending carried a maximum penalty of seven years’ imprisonment, it was “not at the most serious end of it”.
[21] As to the consequences of a conviction, the Judge noted that Mr Moffat worked in his family’s roof tiling business, and that some of the contracts the company undertakes require employees to have security clearances. The Judge considered that there was a risk to Mr Moffat and also to the family business if a conviction were to be entered. He disregarded a claimed impact on Mr Moffat’s ability to travel. The Judge did however consider that a conviction would “…impact [Mr Moffat’s] ability to borrow money, to get mortgages, to buy things on credit…”. He further noted Mr Moffat’s wish to do more “in the pyrotechnics area”, but stated that this was not a matter for the Courts and “is for those that regulate that type of thing”. The Judge concluded as follows:8
In all circumstances I consider if you were to have a conviction that would greatly impact on your potential future, your ability to work, on your family’s business and therefore, I am prepared to grant the s 106 discharge. I note, as I said earlier, Judge Collins indicated that your actions were reckless, and I also add the word naïve and note, as Mr Blaikie has said, they were not deliberate and those are quite important distinctions, in the circumstances, which [have] swayed my decision. I think having a conviction [for] this type of offence, … would carry a lot more speculation in terms of people who will be in regulating positions to ask more questions of you and it may definitely prejudice any potential decisions that you may make in terms of business, financial or any other thing that is important for a young man making decisions in the next 10 years.
7 At [4].
8 At [9].
[22] The Judge considered that a discharge under s 106 of the Sentencing Act was appropriate in the circumstances, and he granted Mr Moffat’s application.
The appeal
[23] The appeal is brought pursuant to s 296 of the Criminal Procedure Act 2011. It provides as follows:
296 Right of appeal
(1)This section applies if a person has been charged with an offence.
(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3)The question of law in a first appeal under this subpart must arise—
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(4)The question of law must not be one that—
(a)arises from a jury verdict; or
(b)arose before the trial and has already been decided under subpart 2.
[24] As can be seen, it is a prerequisite to an appeal that the defendant has been charged with an offence. Here, that is not in issue. Secondly, any appeal is confined to a question of law against a ruling made by the trial Court. Again, this is not an issue. A discharge without conviction is a ruling made by the trial Court – it is a ruling made in determination of the charge.9 As can be seen from s 296(2), leave to appeal is required and leave can only be granted if a question of law is identified.
[25] The dispute in this case is whether or not there were questions of law involved in the Judge’s ruling.
9 R v Smyth [2007] NZCA 350; R v Malu [2017] NZCA 546.
[26]In this regard, the Court of Appeal, in Brown v R,10 has confirmed as follows:
“Questions of law” in the context of s 296(2) must raise one or more of the three standard errors classified by modern authorities as creating a question of law:
(a)misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
(citations omitted)
[27] An error of law can also arise where the decision made is plainly wrong.11 The Court of Appeal has observed that, on a defendant’s appeal against a discharge without conviction, the appellate Court must be persuaded that the Court below was wrong, and it reaches it decision as to this on its own view of the merits. In contrast, where there is a prosecutor’s appeal (as in the present case), the appellate Court must be persuaded not that the Court below was wrong, but rather “… that no Judge acting rationally within the scope of ss 106 and 107 of the Sentencing Act 2002 could have made the decision under appeal”.12
Submissions
Police
[28] Mr Annandale for the Police seeks leave to appeal on the basis of two questions of law.
(a)First: did the Judge err in law in his assessment of the gravity of the offending by overlooking relevant considerations? Mr Annandale noted that the Judge did not refer to the summary of facts to which Mr Moffat pleaded guilty. He submitted that, as a result, the Judge failed to properly evaluate the circumstances of the offending. He
10 Brown v R [2015] NZCA 325 at [16]; and see R v Smyth, above n 9 at [8].
11 R v Taulapapa [2018] NZCA 414 at [18].
12 R v Cleaver [2020] NZCA 397 at [20].
submitted that the Judge overlooked that Mr Moffat was put on notice by his associates that the hole he dug and into which he put the explosive device was too close to vegetation, that there was a total fire ban in place at the relevant time, and that Mr Moffat was familiar with and held pyrotechnic certification and experience. Mr Annandale argued that Mr Moffat must have had an appreciation of the risks involved, and he pointed to Judge Collins’ decision in this regard. It was submitted that had all relevant factors been taken into account, the gravity of the offending would have been considered as being more serious.
(b)Secondly: did the Judge err in his assessment of the consequences of a conviction by making factual findings that were unsupported by the available evidence? Mr Annandale noted that Mr Moffat said that a conviction would impact on:
(i)his employment;
(ii)his family’s business;
(iii)his ability to travel overseas;
(iv)his ability to obtain mortgages and bank loans in the future.
Mr Annandale noted that Mr Moffat filed an affidavit annexing a letter from his brother, who manages the family business. He submitted that the claimed consequences were not supported by the evidence put before the Court and that the available evidence did not demonstrate that there was a ‘real and appreciable risk’ of the claimed consequences.
[29] As a result of these two errors of law, it was argued that the Judge was plainly wrong when he concluded that the consequences of a conviction were all out of proportion to the gravity of the offending.
Mr Moffat
[30]Mr Blaikie, for Mr Moffat, submitted that no questions of law arise.
(a)He argued that Mr Moffat turned his mind to the risk of fire and subjectively, but incorrectly, viewed it as non-existent. He submitted that the Judge correctly described Mr Moffat as naïve because he did not realise that the petrol would explode as it did. He also submitted that Mr Moffat’s previous good character and potential for rehabilitation should count in the assessment of the gravity of the offending. He argued that the Judge was aware of all relevant matters, and that while he could have articulated them more fully, this was understandable given that the Judge was dealing with the application in the course of a busy list. He argued that the Judge’s ruling disclosed no error of law.
(b)Mr Blaikie further submitted that the Judge correctly assessed the consequences of a conviction, arguing that actual consequences do not have to be proved – rather it is enough to show that the possibility of the identified consequences occurring is real and that they could happen. Mr Blaikie submitted that the Court can properly look at the likely consequences in a “more general sense”. Accordingly, Mr Blaikie submitted that it was open for the Judge to conclude that a conviction for arson would have an impact on Mr Moffat’s ability to get the security clearances required for aspects of his work, and on his family business, and would also have an impact on his ability to obtain mortgages, loans and insurance.
[31] Mr Blaikie submitted that it was open to the Judge to view the consequences as being all out of proportion to the gravity of the offending, and that it cannot be said that the Judge was plainly wrong or that his conclusion was irrational.
Analysis
[32] The starting point in considering the application for leave to appeal (and any resulting appeal if leave is granted), is found in ss 106 and 107 of the Sentencing Act. They provide as follows:
106Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
107Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[33] The approach that should be taken to s 107 was set out by the Court of Appeal in Z (CA447/2012) v R.13 The Court must:
(a)consider all aggravating and mitigating factors of the offence and the offender to establish the gravity of the offence;
(b)identify the direct and indirect consequences of the conviction for the offender; and
(c)consider whether those consequences are out of all proportion to the gravity of the offence.
If the Court is satisfied of these various matters, it must then go on and decide whether to exercise its discretion to discharge without conviction under s 106.
[34] It is settled law that the Court might be satisfied that there exists a real and appreciable risk that the relevant consequence will happen.14 This standard has been adopted of necessity because the Court is considering what the consequences would
13 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
14 DC (CA47/2013) v R [2013] NZCA 255 at [43].
be if a conviction were entered. The Court is concerned with future events which are not capable of proof on the balance of probabilities. The procedure however is not inquisitorial. The applicant bears a practical onus in the sense that he or she must ordinarily point to evidence or circumstances tending to establish that the consequence will happen. The Court must identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen to the applicant, and form an overall assessment of seriousness.15
[35] If it is so satisfied, application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, as well as the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.16
[36]Against this background, I turn to the alleged errors of law.
Did the Judge overlook relevant considerations when assessing the gravity of the offending?
[37] As noted, the Judge was required to consider all aggravating and mitigating factors of the offence and the offender in establishing the gravity of the offence committed.
[38] I agree with Mr Annandale that the Judge did overlook relevant factors. He did not refer to the summary of facts which Mr Moffat had accepted by his guilty plea. He did not discuss in any detail Judge Collins’ decision. This would normally be understandable – one District Court Judge’s decision does not bind another District Court Judge. Here, however, Mr Moffat in his affidavit filed in support of the application for discharge expressly stated that he accepted Judge Collins’ ruling and that he could understand how the Judge came to his conclusion. In these circumstances more than passing reference to Judge Collins’ decision and the conclusions he reached could have been expected. The Judge, however, did not evaluate the factual narrative relating to the offence in any detailed way at all. Rather, he made a number of conclusory comments.
15 R v Taulapapa [2018] NZCA 414 at [22], [45] and [46].
16 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
[39]I note the following:
(a)the Judge overlooked the fact that Mr Moffat was put on notice by his associates that the hole he dug and into which he placed the explosive device, was too close to vegetation. This was a factor emphasised by Judge Collins in his decision dismissing the s 147 application. It was recorded in the summary of facts to which Mr Moffat pleaded guilty. There is no reference to this factor in the Judge’s decision on Mr Moffat’s s 106 application;
(b)the Judge did not refer to the fact that Mr Moffat is a certified handler of pyrotechnics. Again, this was a factor emphasised by Judge Collins, and again it was recorded in the summary of facts. The Judge did refer to Mr Moffat’s “healthy interest in pyrotechnics”, but not when he was considering the gravity of the offending. I agree with the submission for the police that Mr Moffat’s knowledge and experience was a relevant factor which should have been taken into account in assessing the gravity of his offending. The Judge did not take it into account in this context; and
(c)the Judge did not refer to the fact that there was a fire ban in place at the relevant time, covering the Rangihoua Heritage Park. Again, this was referred to by Judge Collins and again it was accepted by the plea and was contained in the summary of facts.
[40] Each of these factors goes to the gravity of the offending. This list is not and is not meant to be exhaustive. However, that the Judge overlooked these relevant factors bears on the question of law – did the Judge err in his assessment of the gravity of the offending? In my view, the answer to that question is yes. I agree with Mr Annandale’s submission that, had the Judge taken into account these various matters, he would have readily concluded that the gravity of Mr Moffat’s offending was rather more serious. Mr Moffat’s actions were more than naïve as the Judge suggested. They were also much more than “a stupid thing to do”, again as the Judge suggested. In my view, if the Judge had taken into account these various factors, he
would have concluded that Mr Moffat was seriously reckless when he put a highly inflammable substance – petrol – in the hole along with an explosive device and then detonated the explosive device. The observation made by Judge Collins and set out above at [15] and [16] are pertinent. Mr Moffat may not have known that an explosive detonated together with petrol in a hole a metre underground would erupt in a fireball, but he was seriously reckless in detonating the explosive device when petrol was present and in the vicinity of nearby vegetation. The risk of a resulting fire must have been obvious. The offending was, in my judgment, relatively serious offending of its kind.
Was there evidence to support the Judge’s conclusions as to the direct and indirect consequences of a conviction?
[41] I now turn to the question of whether or not there was evidence to support the Judge’s view of the likely direct and indirect consequences of a conviction.
[42] As I have noted, a Court faced with an application for a discharge without conviction must be satisfied that there is a real and appreciable risk that the identified consequences will happen. An offender is ordinarily expected to put before the Court sufficient evidence so that the Court can properly conclude that the identified real and appreciable risks exist.17
[43] Here, the only relevant evidence before the Judge was the affidavit from Mr Moffat and the letter from Mr Moffat’s brother, Jason Moffat, which was annexed to the affidavit.
(a)In his affidavit Mr Moffat stated that he does tiling work for the family business. He said that he is required on many occasions to have a security clearance for work undertaken by the family firm. He expressed concern that if he has a conviction for arson, this will automatically rule him out from obtaining a security clearance, and therefore rule him out from a wide range of employment opportunities. He said that being employed and one day being self-employed is his
17 R v Taulapapa, above n 15, at [45].
ambition. He expressed concern about his ability to travel overseas – even to Australia. He also said that a conviction for arson would be likely to cause him difficulty in arranging insurance, and in “commercial dealings particularly if money has to be borrowed”.
(b)In his letter, Jason Moffat reiterated his brother’s concerns about future work and future travel. He said that if the family business had a worker who is unable to work on certain sites, this would affect both Mr Moffat’s wages and his business, and be a loss to both. Rather curiously, he went on to say:
If [Mr Moffat] has a conviction he will be able to get security clearance for job sites such as schools and retirement villages which where most of our work is, resulting in more costs to me.
I suspect a “not” has been left out. The Judge did not comment on this.
[44] There was, in my view, nothing in the evidence which supported the Judge’s conclusion that Mr Moffat’s potential employment, and the future of the family business would be at risk if a conviction was entered. There was nothing to suggest that Mr Moffat would be unable to continue working for the family business. Rather, the Judge commented that Mr Moffat has the support of his family. The concern about future employment prospects was simply too vague to be helpful. No indication was given in the evidence about what the future employment prospects might be. There was no real or appreciable risk that Mr Moffat’s vague aspirations in this regard might be affected. Further, there was nothing to suggest that there would be other than short- term interruption to the family business while another employee is trained up, who can undertake the work which Mr Moffat currently does on sites where security clearances are required. Indeed, there was no real certainty that security clearances would not be available to Mr Moffat even if a conviction was entered. That was a question of present fact capable of proof in the normal way – for example, by adducing evidence from the owner of a site where security clearances are required. There was nothing to suggest that the feared consequence would eventuate. Further, there was no specific or reliable evidence to suggest that a conviction for arson would be likely to have an impact upon Mr Moffat’s ability to obtain bank loans or mortgages, or even on his ability to obtain insurance in the future. In my view, more specific and reliable
evidence was needed before the Judge could properly reach the conclusions recorded in his judgment.
Was the Judge plainly wrong?
[45] In my judgment, had the Judge properly assessed all relevant matters, he could not have concluded that the gravity of Mr Moffat’s offending was other than relatively serious. Further, he could not on the available evidence have found that there was a real and appreciable risk that the consequences asserted by Mr Moffat would eventuate. Had the Judge not erred in law as I have set out, he would not have entered a discharge without conviction – the consequences of a conviction could not have been considered to be out of all proportion to the gravity of the offending. To put it another way, had the matter been approached correctly, the Judge would have had no jurisdiction to discharge Mr Moffat without conviction.18
Result
[46] In my judgment, this appeal does raise questions of law, such that the leave to appeal should be granted. I grant leave accordingly.
[47] The appeal is allowed and the decision of Judge Shortland discharging Mr Moffat without conviction is set aside. I enter a conviction against Mr Moffat for arson. The matter is remitted to the District Court for sentencing.
Wylie J
18 R v Smyth, above n 9, at [24]-[25].
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