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R v Moala

R v Moala

Case [2019] NZHC 758 9 April 2019

Criminal Liability

Sentencing

Mens Rea & Intention

Three-Strikes Legislation

Victim Impact

Rehabilitation

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-004682

[2019] NZHC 758

THE QUEEN

v

SIONE UIANE MOALA

Hearing: 9 April 2019

Appearances:

R McCoubrey for Crown E Priest for Defendant

Sentencing:

9 April 2019

SENTENCING NOTES OF WYLIE J

Solicitors:
Crown Solicitor, Auckland E Priest, Auckland

R v MOALA [2019] NZHC 758 [9 April 2019]

Introduction

[1] Mr Moala, you appear for sentence today, having been convicted, following a jury trial, of causing grievous bodily harm with intent to injure. The maximum penalty for this offence is one of seven years’ imprisonment.1

[2] You also pleaded guilty to one charge of fighting in a public place. The Crown seeks no additional penalty for this offending and suggests that you should be convicted and discharged in relation to that charge. This offending on its own does not warrant a sentence of imprisonment and it would be out of proportion to impose such a sentence, given that a sentence of imprisonment is inevitable for your primary offending. Accordingly, I enter a conviction against you in respect of that charge but discharge you in relation to it.

Second strike

[3] Your conviction for causing grievous bodily harm with intent to injure is a stage two offence in terms of the three-strikes provisions contained in the Sentencing Act 2002. The term of imprisonment which I am about to impose on you will therefore be served in full without parole or early release.

[4] When I entered the conviction against you following the trial, I gave you a second-strike warning. I did not then but now understand that you had already received a second-strike warning under s 86C of the Sentencing Act. That warning was given to you in the District Court at Auckland on 12 August 2016, when you were convicted of aggravated robbery. You were sentenced to a term of imprisonment of five years and nine months for that aggravated robbery on 16 September 2016. This was treated as a second-strike offence and you are currently serving the sentence imposed on you without parole.

[5] The offending in respect of which you were convicted by me occurred before the second-strike warning was given in the District Court, and while you were on bail awaiting trial in the District Court. Even though the present conviction for causing

1 Crimes Act 1961, s 188(2).

grievous bodily harm with intent to injure was entered after the second strike warning was given in the District Court, the offending does not fall to be treated as a third strike offending. This is because the definition of the words “stage 2 offence” in the Sentencing Act refers to the date on which the offence was committed.2 At that time, you only had a first strike warning. In this regard, you are a lucky man. You have avoided the consequences of a third strike conviction, notwithstanding that you have committed three separate strike offences since the amendments to the…

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 R v Moala

Details

AGLC: R v Moala [2019] NZHC 758
Case: [2019] NZHC 758
Decision Date: 9 April 2019

CaseChat Overview and Summary

In the case of R v Moala, the defendant was sentenced for causing grievous bodily harm with intent to injure, an offence that carries a maximum penalty of seven years' imprisonment. The defendant, who had already received a second-strike warning for a previous offence of aggravated robbery, was convicted following a jury trial. The court also convicted the defendant for fighting in a public place, but discharged him in relation to this charge. The sentencing court had to consider the three-strikes provisions of the Sentencing Act 2002, which meant that the defendant's term of imprisonment would be served in full without parole or early release.

The court considered several factors in sentencing the defendant, including the unprovoked nature of the attack, the harm caused, and the victim's vulnerability. The court determined that the defendant's offending fell at the top end of band two or the bottom end of band three in terms of sentencing bands for serious violent offending. The court adopted a starting point of three years' imprisonment, taking into account the authorities referred to by counsel and the similarities and differences between the defendant's case and previous cases.

The court also considered the defendant's personal circumstances, criminal history, and the fact that the sentence would be served without parole. The court deducted nine months from the starting point to take into account that the sentence would be served without parole, as it believed that this would incentivise the defendant to further rehabilitative efforts. The court rejected the argument for a sentence of preventive detention, noting that the defendant had largely remained out of trouble while in prison and had expressed a desire to engage in treatment to address his offending.

Ultimately, the court sentenced the defendant to a term of imprisonment of two years and six months, to be served cumulatively upon the sentences imposed for his previous offences. The court emphasised that the sentence was consistent with the principles of denunciation and deterrence and was of sufficient length to enable the defendant to undertake the rehabilitative programmes that would be offered to him. The court encouraged the defendant to take full advantage of the programmes and opportunities that would be available to him.

Orders