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 – one on the left side and the other in the middle. These again caused pain and tightening. You said to her “I hope that has done it.” She yelled back at you and you punched her full on the face hitting her between the eyebrows. You went to make a cup of coffee and she ran out making the emergency call for assistance on her cellphone. She went to Wanganui Hospital and was seen by a doctor and a nurse. She suffered soreness in her lower abdomen, a headache and bruising to her left arm and near her left eye.

[7] Now despite the sentencing indication, I have rehearsed these facts because, according to the pre-sentence report, you say that things were not as bad as the summary makes out. And according to the report you have (since your guilty plea) expressed a great deal of anger towards H, and are not at all sorry for what you did to her. Whatever your feeling now, you have pleaded guilty to these charges on the basis of the summary of facts that I have just summarised again. And that’s the basis upon which I am to sentence you today.

[8] Your lawyer made two points. He said, well that may be right in the pre- sentence report but when you pleaded guilty at the hearing, your head was bowed indicating some kind of contrition – remorse – sorrow for what you did. And then you have written a letter in which you say I take responsibility for what’s happened but I’m not a violent guy. I’m sorry for what’s happened. I wish I could change things. But I can’t, and I’m very sorry. I’m very sorry and remorseful for what’s happened. But, let me say, please understand (you’re saying to me), I have no violent history. Please take this letter into account.

[9] So maybe there’s another side to this. I’m willing to accept that you acknowledge what you did, and you are sorry. I understand relationships  are complex things but what was recounted here, I take it, you say you are sorry and you acknowledge your role. And frankly Mr Mosen that’s good enough for me.

[10] H, as you have heard, remains extremely angry at you for what you did. And she’s got a pretty good reason for being so angry. What you did was extraordinarily dangerous as well as cruel.

[11]   From what I have read of the victim impact statement, what I can say about H is that she’s moving on. She’s addressing the pain and dealing with it, and she’s raising a son.

[12] You on the other hand must pay the price, and you are going to prison. I have heard nothing from the pre-sentence report to suggest that I should adjust the indication I gave to you on 26 August, or the reasons for that sentence indication.

[13] So you are convicted and sentenced to three years’ imprisonment on the lead count of attempting to procure a miscarriage, in accordance with the indication. On the count of assault with intent to injure, you are convicted and sentenced to one year’s imprisonment, and on the count of assault with a weapon, you are convicted and sentenced to one year’s imprisonment. All sentences to be served concurrently.

[14] For the avoidance of any doubt, the effective sentence here of three years’ imprisonment is to be served cumulatively with that imposed in the District Court on 28 August 2013 in respect of other unrelated charges – that sentence being two years’ imprisonment. Do you understand that?

[15]    Mr Mallalieu has asked that I make a protection order in favour of H under s 123B of the Sentencing Act 2002 – that is an order protection her from you requiring you to have no further contact with her. That order is not opposed, and I make it. I am satisfied that it is required and lawful.

[16] You have opposed the lifting of name suppression but I do not see any grounds upon which name suppression can continue to be justified. I am bound therefore to lift the name suppression, and an order is made accordingly.

[17]     Stand down please.

Williams J