R v Mosen - [2013] NZHC 2540

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2012-083-1217 [2013] NZHC 2540

THE QUEEN

v

JESSIE ALBERT MOSEN

Counsel:	H C Mallalieu for Crown R Crowley for Prisoner
Sentencing:	26 September 2013

SENTENCING NOTES OF WILLIAMS J

[1] Mr Mosen, you appear for sentence on three counts:

(a)one count of assaulting H with a shovel;

(b)one count of assault with intent to injure covering the events of 4 June 2012; and

(c)one count using unlawful means with intent to procure a miscarriage on 8 June 2012.

[2] You pleaded guilty prior to trial and following a sentence indication I gave you on 26 August 2013, as you will recall.

R v MOSEN [2013] NZHC 2540 [26 September 2013]

[3] The summary of facts says you were in a relationship with H for nine months until about June of last year. She had become pregnant in March.

[4] The assault with the weapon occurred on 21 April. H wanted to leave and you told her she could not. You picked up a shovel that was in the bedroom, swung at her and hit her right leg about an inch below the knee. That blow produced a large painful bruise and some swelling. H went to the hospital and was seen by a nurse but left before she could be treated.

[5] On 4 June 2012, you and H were arguing. You told her she had to have an abortion or you will do it. You punched her twice in the stomach, slapped her on the side of the head and pushed your hand with force into her stomach. H told you that she would get an abortion in order to stop the assault. The assault caused H considerable abdominal pain and she had to be treated at Wanganui Hospital for that.

[6] The procuring count occurred four days later at your address in Gisborne Street. You were fighting again over the baby, and this time H’s ex-partner (prior to your time), it seems. Once again she threatened to leave and you wanted to prevent her. You punched her “full force” on the upper left arm. She swore at you, tried to walk past you, but you pushed her onto the bed and held her down by the hair. You told her the foetus would be aborted now. You held her hair with your right hand threatening to punch her unless she agreed to get a proper abortion. You then let her go and she began grabbing her belongings to leave. You exchanged insults, swearing at one another, then you hit her, once again “full force” in the stomach. The blow was apparently very painful and H was winded. She crouched to protect both herself and of course the unborn baby. You then grabbed her by the hair and dragged her onto the bed and punched her twice in the stomach –…

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 Mosen

Details

AGLC: R v Mosen [2013] NZHC 2540
Case: [2013] NZHC 2540
Decision Date: 26 September 2013

CaseChat Overview and Summary

In the case of R v Mosen, the defendant, Jessie Albert Mosen, faced sentencing following his guilty pleas to three charges: assaulting H with a shovel, assault with intent to injure, and using unlawful means with intent to procure a miscarriage. The court, presided over by Williams J, was required to determine the appropriate sentences for these offences, taking into account the severity and nature of the assaults, the impact on the victim, and any mitigating factors presented by the defence. Mosen's defence counsel argued that, despite his lack of remorse as indicated in the pre-sentence report, Mosen had shown signs of contrition during his plea hearing and in a letter to the court. The court acknowledged Mosen's acknowledgment of his actions and expressed remorse, but ultimately found the severity of the assaults against H warranted a significant custodial sentence. The court sentenced Mosen to three years' imprisonment for attempting to procure a miscarriage, one year for assault with intent to injure, and one year for assault with a weapon, all to be served concurrently. The sentences were to be cumulative with a prior two-year sentence imposed by the District Court for unrelated charges. Additionally, a protection order was made under section 123B of the Sentencing Act 2002, prohibiting Mosen from having any contact with H. The court also lifted the name suppression order, finding no grounds to continue it.

Orders