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R v Moore

R v Moore

Case [2022] NZHC 2635 12 October 2022

Criminal Liability

Preventive Detention

Re-offending Risk Assessment

Sentencing

Extended Supervision Order

Recidivism

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-2020-004-7154

[2022] NZHC 2635

THE KING

v

FABIAN WHATI MOORE

Date of hearing: 12 October 2022

Appearances:

J V Barry and L Dittrich for the Crown S J Gray for Mr Moore

Date of sentence:

12 October 2022

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:
S J Gray, Barrister, Auckland Meredith Connell, Auckland

R v MOORE [2022] NZHC 2635 [12 October 2022]

[1] Mr Moore, as you know, on 5 May 2022, a District Court jury found you guilty of one charge of doing an indecent act on a child.1 As a sentence of preventive detention might be appropriate, you have come to me in this Court to sentence you for that offending.2 In sentencing you, as you have just heard me say to Ms Gray, I must accept as proven all facts essential to your established guilt.3

[2] I have read and listened to all the lawyers have had to say, both for you and for the Crown. As you have heard, they agree your offending alone should not see you sentenced to much more than the time you already have been in custody since your arrest in September 2020. Instead, at issue is if you should be sentenced to preventive detention, to protect the community from you if you pose a significant and ongoing risk to its members’ safety.4 That would require me to be satisfied you are likely to commit another serious sexual offence if released on your sentence’s expiry date,5 and then to take into account a range of other factors.6 Preventive detention means you would have to demonstrate you no longer posed a risk to be eligible for parole. Otherwise, your lawyer, Ms Gray, accepts a much longer determinate sentence including a minimum period of imprisonment is necessary.

[3] The lawyers’ submissions are detailed and lengthy. I have given them careful consideration. I am not going to recite them, because sentencing is an intense exercise of my own judgement. I am not bound by the lawyers’ views; I have to come to my own decision. To meet sentencing’s multiple purposes,7 I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your

1      Crimes Act 1961, s 132(3); maximum penalty: 10 years’ imprisonment.
2      Sentencing Act 2002, s 90.
3      Section 24(1)(b).
4      Section 87(1).
5      Section 87(2)(c).
6      Section 87(4). Essentially codifying the common law principles for preventive detention in R v Leitch [1998] 1 NZLR 420 (CA), the factors are: (a) any pattern of serious offending disclosed by the offender’s history; (b) the seriousness of the harm to the community caused by the offending;
(c) information indicating a tendency to commit serious offences in future; (d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and (e) the principle a lengthy determinate sentence is preferable if this provides adequate protection…

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 Moore

Details

AGLC: R v Moore [2022] NZHC 2635
Case: [2022] NZHC 2635
Decision Date: 12 October 2022

CaseChat Overview and Summary

The case of R v Moore was heard in the High Court of New Zealand, Auckland Registry. The defendant, Fabian Whati Moore, was convicted by a District Court jury of committing an indecent act on a child. The primary victim of the offending was the defendant's former housemate's infant daughter, then aged 16 months, who was sleeping on a sofa in the lounge while other children were present in the house. The defendant was found partly naked, asleep on the sofa, curled around the clothed and sleeping infant facing into the back of the sofa. The key legal issue before the court was whether the defendant should be sentenced to preventive detention to protect the community from the risk he posed due to his significant and ongoing risk to public safety. The court considered various factors, including the defendant's criminal history, the seriousness of the harm caused by the offending, and the likelihood of the defendant committing further serious sexual offences in the future. The court concluded that preventive detention was the appropriate sentence for the defendant, and sentenced him to preventive detention with a five-year minimum period of imprisonment.

The court considered the defendant's criminal history, which included 10 sexual offences committed between 1990 and 2005. In 2006, the defendant was sentenced to three years and four months' imprisonment with a minimum term of two years for the last of those offences. Following that sentencing, the defendant was made subject to a 10-year extended supervision order, intended to protect the community from his "real and ongoing risk of committing serious sexual or violent offences." However, the defendant breached the order 22 times. The court also considered the defendant's personal circumstances, including his participation in relapse prevention groups on release from custody in 2012, 2013, and 2015, as well as reports from health assessors, which concluded that the defendant presented a high risk of sexually reoffending. The court was satisfied that the defendant was likely to reoffend if released on expiry of a determinate sentence and that only the incentive of release on his demonstrable reform would be sufficient to afford adequate community protection.

Orders