MOFFATT v NEW ZEALAND POLICE [2021] NZHC 2761

MOFFATT v NEW ZEALAND POLICE [2021] NZHC 2761 [15 October 2021]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2021-412-000038[2021] NZHC 2761BETWEEN JOSHUA WILLIAM MOFFATTAppellantAND NEW ZEALAND POLICERespondentHearing: 14 October 2021Appearances: S A Saunderson-Warner for Appellant C J Bernhardt for RespondentJudgment: 15 October 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 15 October 2021 at 10 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, Joshua Moffatt, appeals a sentence of nine months' home detention imposed by Judge Robinson in the Dunedin District Court.1 Mr Moffatt was sentenced in relation to charges of assault on a person in a family relationship (2), trespass (2), breach of the conditions of intensive supervision. He also had an earlier sentence of intensive supervision and community work reviewed as part of this sentencing exercise.1 Police v Moffatt [2021] NZDC 16351.Background[2] On 30 October 2019, Mr Moffatt was sentenced to 15 months' intensive supervision for charges of speaking threateningly (2), behaving threateningly (2), theft (under $500), permitting a telephone to be used (family violence), and breach of home detention conditions. Mr Moffatt's relationship with the victim continued, but she ended the relationship in early 2020. Nevertheless, he continued to try and see her.[3] On 24 July 2020, Mr Moffatt was given a verbal trespass notice over the phone by a Police Constable. He was told he was not to go to the victim's address. It was also a requirement of his conditions of intensive supervision that he not associate with the victim. Mr Moffatt acknowledged the verbal trespass. However, on the evening of 2 August 2020, Mr Moffatt went to the victim's address and looked through the kitchen window. He walked over to his vehicle that was parked in the driveway and, when the victim came outside, requested that she accompany them so they could talk. She told him to leave and Mr Moffatt complied.[4] On the morning of 20 August 2020, Mr Moffatt again went to the victim's address and stood outside her kitchen window. He attempted to speak with the victim but ran off when he heard her calling the police. As a result of these two incidents Mr Moffatt was charged with two charges of wilful trespass. 2 In addition, by going to the victim's address on 20 August 2020 he breached the conditions of his intensive supervision sentence.[5] On 28 May 2021, Mr Moffatt and the victim (his new partner) had a heated verbal argument that resulted in the victim smashing a coffee cup on the kitchen floor. Mr Moffatt approached the victim and pushed her across the room with enough force to cause her to fall to the ground. He then left the address.[6] On 2 June 2021, Mr Moffatt and the victim were travelling in a vehicle when they began to argue again. The victim told Mr Moffatt she was ending their relationship and asked to be let out of the car. Mr Moffatt refused to stop the vehicle2 Trespass Act 1980, ss 4(4) and 11(2)(a). Maximum penalty three months imprisonment, $1,000 fine.and grabbed the victim around the neck with his left arm, forcing her head into the middle console of the vehicle. He held her in this position for several minutes until they arrived at the victim's address.[7] In relation to these two events, Mr Moffatt faced two charges of assault on a person in a family relationship.3District Court decision[8] On 18 June 2021, Judge Robinson provided a sentence indication in which he indicated the maximum sentence would be 10 months' home detention. He reached that by setting a starting point of 16 months' imprisonment for the totality of the offending. When discounts for mitigating factors were applied, the Judge stated this would bring the sentence down to about 12 to 14 months' imprisonment, but accepted that a sentence of home detention could well be available and "the worst outcome" would be a sentence of 10 months' home detention.[9] On 10 August 2021, Judge Robinson sentenced Mr Moffatt to nine months' home detention. In reaching that sentence, the Judge noted the pre-sentence report was unfavourable and the report writer assessed Mr Moffatt to be at high risk of re-offending and at high risk of harm based on his offending history and failure to engage with programmes to address his propensity for violence. That said, the Judge noted Mr Moffatt was entitled to credit for the way he had conducted himself while on electronically monitored bail (EM bail) and the fact he had taken steps in that period to address the issues he faced. Furthermore, Mr Moffatt had engaged in restorative justice and there was a positive report before the court to support that. However, the Judge did not articulate what credit these factors warranted nor how the end sentence reflected them.[10] On the charges of assault on a person in a family relationship, he was sentenced to nine months' home detention. In relation to the charges of trespass and breach of intensive supervision Mr Moffatt was sentence to three months' home detention to be3 Crimes Act 1961, s 194A. Maximum penalty two years' imprisonment.served concurrently. His intensive supervision sentence was also cancelled and substituted for a concurrent three month home detention sentence.Principles on appeal[11] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court's decision, a "court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles". 5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is "manifestly excessive" and not justified by the relevant sentencing principles. 6SubmissionsAppellant's submissions[12] Mr Moffatt appeals on the grounds the starting point adopted was too high and insufficient credit was given for personal mitigating factors which resulted in a manifestly excessive sentence. It is also submitted the conversion of the sentence of imprisonment to home detention did not follow the usual method.[13] Ms Saunderson-Warner submits the starting point should have been no more than 12 months' imprisonment. In her submission, a two month uplift is appropriate to reflect Mr Moffatt's relevant criminal history and the fact the assault charges were committed while on bail for the trespass and breach of intensive supervision offending.[14] For the mitigating factors of guilty pleas, time spent on EM bail, restorative justice and remorse and efforts towards rehabilitation, Ms Saunderson-Warner submits a total discount of between seven and 10 months' imprisonment ought to be applied.4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].Taking into account considerations of totality, the end sentence should not exceed six months' imprisonment.[15] It is submitted there are no circumstances that indicate the orthodox approach to calculating the sentence of home detention should not have been applied. Specifically, the indicated sentence of imprisonment should be halved to reach the sentence of home detention. Accordingly, on Ms Saunderson-Warner's calculation, the end sentence would be two or three months' home detention.Respondent's submissions[16] The respondent accepts the end sentence of nine months' home detention was manifestly excessive, primarily because insufficient credit was given for mitigating factors. In written submissions, Mr Bernhardt suggested the appropriate end sentence was between five and six months' home detention, although in oral submissions he conceded it could be less and there was no obvious circumstance here justifying the home detention sentence being significantly more than half the indicated prison sentence.[17] The balance of the respondent's submissions are reflected in my analysis below.Analysis[18] I accept the end sentence was manifestly excessive both because it is unclear how the mitigating factors were taken into account, and no reasons are given for the Judge imposing a sentence of home detention which was significantly more than half the calculated sentence of imprisonment. For those reasons, I approach the sentencing exercise afresh.Starting point[19] I take as the lead offence the assault charge arising from the incident in the vehicle on 2 June 2021. The charge carries a maximum penalty of two years'imprisonment.7 The following cases give some guidance to the appropriate sentence to impose:(a) In Ferguson v Police a starting point of four months' imprisonment was adopted on appeal for one charge of assault on a person in a family relationship.8 There, the defendant and the victim entered into a heated argument while the victim was driving a vehicle. The argument resulted in the victim driving poorly and crashing into a car and a sign. When the vehicle was stopped the defendant took over driving and, while doing so, slapped the victim on the head with a hat.(b) In Topia v Police the offending involved a single punch to the victim. A starting point of six months' imprisonment was adopted for the charge of assault on a person in a family relationship. 9(c) In Edwards v Police a starting point of nine months' imprisonment was upheld on appeal for offending which involved the defendant punching the victim in the shoulder blade and on the side of her jaw. 10[20] Here, the offending involved Mr Moffatt grabbing the victim by the neck and holding her for several minutes while driving. The victim suffered a bruised collarbone and scratches around her neck. In my view, the gravity of this offending is greater than in Ferguson and more like Topia, but not as serious as Edwards. I would impose a starting point of six months' imprisonment.[21] The second charge of assault was less serious as it did not result in any physical injury to the victim. It involved pushing the victim during an argument firmly enough that she fell to the ground. I would apply an uplift of two months' imprisonment.[22] The charges of wilful trespass carry a maximum penalty of three months' imprisonment.11 The breach of intensive supervision charge arises from the same7 Crimes Act, s 194A.8 Ferguson v Police [2019] NZHC 2753.9 Topia v Police [2019] NZHC 3235.10 Edwards v Police [2019] NZHC 932.11 Trespass Act, ss 4(4) and 11(2)(a).facts. In my view, the appropriate uplift for these three charges is three months' imprisonment.[23] In relation to the review of the 2019 sentence, Mr Moffatt had completed two-thirds of the sentence of intensive supervision and almost all of the sentence of community work. In my view, an uplift of one months' imprisonment is appropriate.[24] This results in an overall starting point of 12 months' imprisonment. I have considered the principle of totality in reaching this starting point and do not consider further adjustment is required.Personal aggravating and mitigating factors[25] In my view, an uplift of 15 per cent is justified to reflect Mr Moffatt's relevant criminal history which includes convictions for breaching a protection order, male assaults female, and threatening to kill.[26] In sentencing Mr Moffatt, the court is required to take into account any demonstrated remorse. 12 Mr Moffatt has attended a restorative justice conference and the report for that conference is positive. Mr Moffatt expressed remorse for his actions and apologised to the victim. I also accept that Mr Moffatt has been making significant strides towards his rehabilitation. During his time on EM bail he conducted himself well, he had engaged with his GP, had attended an assessment for a Stopping Violence Programme, was advancing an ACC sensitive claim and had obtained his forklift ticket which boded well for his future employment prospects. In my view, a global discount of 20 per cent is warranted for both remorse and rehabilitative prospects.[27] I consider a guilty plea discount of 20 per cent is appropriate. In reaching this conclusion I note the guilty pleas on some did not come at the earliest stage, although they did come relatively early on the most serious charges. This results in a net discount of 25 per cent for personal aggravating and mitigating factors, to reach a sentence of nine months' imprisonment.12 Sentencing Act 2002, s 9(2)(f).[28] Time spent on EM bail is a mitigating factor. 13 As the discount is calculated by reference to the number of months the defendant has spent on EM bail it is commonly articulated as a number of months, rather than as a percentage. In Moses v R the Court of Appeal stated the two-step methodology does not preclude the time spent on EM bail from being deducted from the end sentence. 14 Mr Moffatt spent seven and a half weeks' on EM bail. There were no recorded breaches. In my view, a credit of one month should be applied.[29] This brings the end sentence to eight months' imprisonment.Conversion to home detention[30] A sentence of home detention is often half the term of imprisonment, which reflects the fact that those serving short-term sentences of imprisonment are automatically released after serving half of it.15 However, determining whether to impose home detention, and the length of that sentence is within the sentencing judge's discretion and is not automatic. It requires "an overall assessment of all factors relevant to the offender, and consistent with the purposes and principles of the Sentencing Act, including imposing the least restrictive sentence appropriate." 16[31] In the present case, the Judge appeared to reach an end sentence of imprisonment of between 12 and 14 months,17 but then converted it to a sentence of nine months' home detention. He did not give any reason for doing so. While a Judge is not bound to impose a home detention sentence of half the indicated sentence, it is important the Judge indicate why a longer sentence of home detention is appropriate in the particular case. In the absence of an identified reason to depart from the conventional approach to calculating a home detention sentence, I am not prepared to depart from it.13 Section 9(2)(h).14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [48].15 Parole Act 2002, s 86(1).16 R v Bisschop [2008] NZCA 229 at [18].17 Based on his sentencing indication.[32] In my view, the appropriate end sentence is four months' home detention. It follows that the sentence imposed by the District Court Judge was manifestly excessive and should be substituted on appeal.Conclusion[33] The appeal is allowed. The sentence of nine months' home detention is quashed. In its place a sentence of four months' home detention is imposed on the assault charges. The concurrent sentences on the remaining charges are unaffected as are all the other aspects of sentencing, including the imposition of standard and special conditions, the making of a protection order, and the substitution of home detention for the balance of the intensive supervision sentence.Solicitors:Crown Solicitor, DunedinCopy To: Ms S A Saunderson-Warner, Barrister, Dunedin