NEW ZEALAND POLICE v MOFFAT [2020] NZHC 3057

NEW ZEALAND POLICE v MOFFAT [2020] NZHC 3057 [19 November 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2020-488-000041[2020] NZHC 3057BETWEEN NEW ZEALAND POLICEAppellantAND RYAN ANDREW MOFFATRespondentHearing: 18 November 2020Appearances: R Annandale for AppellantD J Blaikie for RespondentJudgment: 19 November 2020JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 19 November 2020 at 2.30pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:Crown Solicitor, WhangareiD J Blaikie, KaikoheIntroduction[1] The respondent, Ryan Moffat, was charged with arson pursuant to s 267(2)(a)of the Crimes Act 1961. The charge alleged that Mr Moffat acted recklessly and notthat he acted intentionally.[2] Mr Moffat accepted responsibility for detonating an explosion which causedthe fire the subject of the charge. He denied however that his actions in detonating theexplosion were reckless. He sought to be discharged under s 147 of the CriminalProcedure Act 2011. His application in this regard was declined by Judge Collins inthe Kaikohe District Court.1[3] Mr Moffat accepted the Judge's ruling and entered a guilty plea to the chargeas a consequence. He then sought a discharge without conviction and, on 18 August2020, this second application was granted by Judge Shortland, also in the KaikoheDistrict Court.2[4] The police now seek leave to appeal Judge Shortland's ruling dischargingMr Moffat without conviction. It is submitted that the prospective appeal raises twoquestions of law. First, did the Judge err in his assessment of the gravity of theoffending, and secondly, did the Judge err in his assessment of the consequences of aconviction?[5] The application for leave to appeal is opposed. It is argued for Mr Moffat thatno questions of law arise from Judge Shortland's decision.Factual background[6] Mr Moffat is a certified handler of pyrotechnics. This allows him to store,transport and handle restricted pyrotechnic items, such as fireworks.[7] Mr Moffat constructed a homemade pipe bomb. He placed an explosivesubstance into a brass casing. The casing was secured with electrical tape. The1 Police v Moffat [2019] NZDC 19887.2 Police v Moffat [2020] NZDC 16505.explosive was connected to wires which could be used to detonate the device from aremote location.[8] On 19 January 2019, Mr Moffat and three associates travelled to RangihouaHeritage Park on the Purerua Peninsula in the Bay of Islands. A fire ban was in placeat the time and a permit was required to light most types of fires.[9] Mr Moffat intended to detonate his homemade explosive device. He and hisassociates parked their vehicle in the main carpark. They then partially filled twoziplock bags with petrol. They walked one and a half kilometres down a beach,carrying the two ziplock bags containing the petrol, the explosive device and otheritems needed to detonate the device, including a spool of wire and a remote detonator.[10] Once they were well down the beach, Mr Moffat chose a location for theproposed detonation. His associates queried his choice. They believed it was too closeto a nearby cliff and vegetation. Mr Moffat ignored their advice. He used a spade todig a hole in the sand. The hole was within five metres of a cliff face, vegetation andoverhanging trees. Mr Moffat placed the explosive device into the hole along with thetwo ziplock bags containing the petrol and other unknown items. The explosive devicewas connected to the spool of wire, which was run out some distance to what wasconsidered to be a safe point, so that the explosive device could be detonated remotely.[11] Once Mr Moffat and his associates had retreated to the safe point, Mr Moffatdetonated the device. The explosion caused a large fireball to rise approximately 15metres into the air. The fireball set nearby vegetation alight.[12] When they saw the size of the explosion and the resulting flames, Mr Moffatand his associates ran off down the beach and made their way back to the carpark.Mr Moffat was approached by a member of the public a short time later. He still hadin his possession the spool of wire and the other items used to detonate the explosivedevice. He was spoken to by the police shortly thereafter. He declined to make anycomment. A subsequent search of Mr Moffat's address located a large number offireworks, including some that had been deconstructed and had their contentsremoved. Other items such as wire and tape similar to those used to construct theexplosive device were also found.District Court decisionsSection 147 application[13] As already noted, on 27 September 2019, Mr Moffat applied for the dismissalof the charge pursuant to s 147 of the Criminal Procedure Act 2011. He argued thatthere was insufficient evidence from which a Judge at trial could conclude thatrecklessness was proved beyond reasonable doubt.[14] Judge Collins heard the application. In an oral judgment, he observed thatMr Moffat was:3 someone with experience with fireworks, he holds industry trained andgranted certification to carry out fireworks displays. However, his level ofchemistry is questionable.[15] The Judge noted that it was argued that, while he turned his mind to the risk offire, Mr Moffat made a considered decision and dismissed the possibility as being, inhis subjective assessment, non-existent. Judge Collins however considered that therewas available evidence which would allow a Judge at trial to "easily" conclude thatMr Moffat did appreciate the risk. He noted the following:4(a) the time of year, 19 January 2019 – the height of summer;(b) "a highly published" total fire ban was in place;(c) Mr Moffat was familiar with fireworks and would have possessed agood appreciation of the risk of fire involved with fireworks and otherexplosive devices;3 Police v Moffat, above n 1, at [5].4 At [9].(d) Mr Moffat chose an isolated location to set off his explosive device:"The legitimate rhetorical question can be asked, if he did notappreciate [the] risk, why go to where he did go?"; and(e) there was a discussion at the beach with his associates about theattendant risk. The Judge considered that this on its own might havebeen sufficient to dispose of the s 147 application.[16] Mr Moffat gave evidence on the application and Judge Collins also consideredhis evidence-in-chief and cross-examination, particularly regarding the location of thehole, its proximity to nearby vegetation, the associates' concern about the likely firerisk, the need to add the petrol, the time of night and that Mr Moffat and his associatesretreated some distance before detonating the device. The Judge said that:5It is an easily available inference the defendant went at night to see a fireballexplode and light up the night sky. It is implausible that if he wanted to seesand expelled into the air, albeit with an accompanying bang, he would do thatat night. However, having added Ziploc bags of petrol to the equation, it isequally implausible that the purpose of the expedition on [the] part of afirework professional was to see anything other than a display of fire. Theretreat away from the bomb to a position of safety in the descending darknessmakes a claim of no appreciation of risk equally implausible.[17] Judge Collins declined to grant the application.Section 106 application[18] Also as noted, Mr Moffat then entered a guilty plea to the charge and sought adischarge without conviction under s 106 of the Sentencing Act 2002.[19] In considering Mr Moffat's discharge application, Judge Shortland said of theoffending:6 recklessly setting [off] an explosive was more than you bargained for everyone agrees, this was a reckless act. I would use the word naïve.Despite your healthy interest in pyrotechnics this is perhaps one that you didnot quite get the calculation right, 5 At [14].6 Police v Moffat, above n 2 at [1].[20] In considering the gravity of the admitted offending, the Judge agreed withMr Moffat's counsel that Mr Moffat's culpability was:7 reasonably low, it was not deliberate, it was not antisocial in any way, itwas not trying to be destructive, it was borne out of a curiosity for your robust,healthy interest in pyrotechnics. I put it down to the fact that it was probablyan experiment that went horribly wrong in the circumstances. it was probably a stupid thing to do. The Judge also noted the degree of damage caused – "the potentially quite extensivecosts", the risk of fire in Northland and the potential for greater harm to have beencaused by the fire. Against this, the Judge again noted that the offending was notdeliberate, and also observed that the fire was contained and that it was put out. Heobserved that while the offending carried a maximum penalty of seven years'imprisonment, it was "not at the most serious end of it".[21] As to the consequences of a conviction, the Judge noted that Mr Moffat workedin his family's roof tiling business, and that some of the contracts the companyundertakes require employees to have security clearances. The Judge considered thatthere was a risk to Mr Moffat and also to the family business if a conviction were tobe entered. He disregarded a claimed impact on Mr Moffat's ability to travel. TheJudge did however consider that a conviction would "impact [Mr Moffat's] abilityto borrow money, to get mortgages, to buy things on credit". He further notedMr Moffat's wish to do more "in the pyrotechnics area", but stated that this was not amatter for the Courts and "is for those that regulate that type of thing". The Judgeconcluded as follows:8In all circumstances I consider if you were to have a conviction that wouldgreatly impact on your potential future, your ability to work, on your family'sbusiness and therefore, I am prepared to grant the s 106 discharge. I note, asI said earlier, Judge Collins indicated that your actions were reckless, and Ialso add the word naïve and note, as Mr Blaikie has said, they were notdeliberate and those are quite important distinctions, in the circumstances,which [have] swayed my decision. I think having a conviction [for] this typeof offence, would carry a lot more speculation in terms of people who willbe in regulating positions to ask more questions of you and it may definitelyprejudice any potential decisions that you may make in terms of business,financial or any other thing that is important for a young man makingdecisions in the next 10 years.7 At [4].8 At [9].[22] The Judge considered that a discharge under s 106 of the Sentencing Act wasappropriate in the circumstances, and he granted Mr Moffat's application.The appeal[23] The appeal is brought pursuant to s 296 of the Criminal Procedure Act 2011.It provides as follows:296 Right of appeal(1) This section applies if a person has been charged with an offence.(2) The prosecutor or the defendant may, with the leave of the first appealcourt, appeal under this subpart to that court on a question of lawagainst a ruling by the trial court.(3) The question of law in a first appeal under this subpart must arise—(a) in proceedings that relate to or follow the determination of thecharge; or(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution).(4) The question of law must not be one that—(a) arises from a jury verdict; or(b) arose before the trial and has already been decided undersubpart 2.[24] As can be seen, it is a prerequisite to an appeal that the defendant has beencharged with an offence. Here, that is not in issue. Secondly, any appeal is confinedto a question of law against a ruling made by the trial Court. Again, this is not anissue. A discharge without conviction is a ruling made by the trial Court – it is a rulingmade in determination of the charge.9 As can be seen from s 296(2), leave to appealis required and leave can only be granted if a question of law is identified.[25] The dispute in this case is whether or not there were questions of law involvedin the Judge's ruling.9 R v Smyth [2007] NZCA 350; R v Malu [2017] NZCA 546.[26] In this regard, the Court of Appeal, in Brown v R,10 has confirmed as follows:"Questions of law" in the context of s 296(2) must raise one or more of thethree standard errors classified by modern authorities as creating a question oflaw:(a) misdirection of law apparent in the decision (what Fisher J called "aconventional legal question on unchallenged facts");(b) oversight of a relevant matter, or consideration of an irrelevant matter;or(c) a factual finding unsupported by any evidence, or an omission to drawan inference of fact which is the only one reasonably possible on theevidence.(citations omitted)[27] An error of law can also arise where the decision made is plainly wrong.11 TheCourt of Appeal has observed that, on a defendant's appeal against a discharge withoutconviction, the appellate Court must be persuaded that the Court below was wrong,and it reaches it decision as to this on its own view of the merits. In contrast, wherethere is a prosecutor's appeal (as in the present case), the appellate Court must bepersuaded not that the Court below was wrong, but rather " that no Judge actingrationally within the scope of ss 106 and 107 of the Sentencing Act 2002 could havemade the decision under appeal".12SubmissionsPolice[28] Mr Annandale for the Police seeks leave to appeal on the basis of two questionsof law.(a) First: did the Judge err in law in his assessment of the gravity of theoffending by overlooking relevant considerations? Mr Annandalenoted that the Judge did not refer to the summary of facts to whichMr Moffat pleaded guilty. He submitted that, as a result, the Judgefailed to properly evaluate the circumstances of the offending. He10 Brown v R [2015] NZCA 325 at [16]; and see R v Smyth, above n 9 at [8].11 R v Taulapapa [2018] NZCA 414 at [18].12 R v Cleaver [2020] NZCA 397 at [20].submitted that the Judge overlooked that Mr Moffat was put on noticeby his associates that the hole he dug and into which he put theexplosive device was too close to vegetation, that there was a total fireban in place at the relevant time, and that Mr Moffat was familiar withand held pyrotechnic certification and experience. Mr Annandaleargued that Mr Moffat must have had an appreciation of the risksinvolved, and he pointed to Judge Collins' decision in this regard. Itwas submitted that had all relevant factors been taken into account, thegravity of the offending would have been considered as being moreserious.(b) Secondly: did the Judge err in his assessment of the consequences of aconviction by making factual findings that were unsupported by theavailable evidence? Mr Annandale noted that Mr Moffat said that aconviction would impact on:(i) his employment;(ii) his family's business;(iii) his ability to travel overseas;(iv) his ability to obtain mortgages and bank loans in the future.Mr Annandale noted that Mr Moffat filed an affidavit annexing a letterfrom his brother, who manages the family business. He submitted thatthe claimed consequences were not supported by the evidence putbefore the Court and that the available evidence did not demonstratethat there was a 'real and appreciable risk' of the claimed consequences.[29] As a result of these two errors of law, it was argued that the Judge was plainlywrong when he concluded that the consequences of a conviction were all out ofproportion to the gravity of the offending.Mr Moffat[30] Mr Blaikie, for Mr Moffat, submitted that no questions of law arise.(a) He argued that Mr Moffat turned his mind to the risk of fire andsubjectively, but incorrectly, viewed it as non-existent. He submittedthat the Judge correctly described Mr Moffat as naïve because he didnot realise that the petrol would explode as it did. He also submittedthat Mr Moffat's previous good character and potential forrehabilitation should count in the assessment of the gravity of theoffending. He argued that the Judge was aware of all relevant matters,and that while he could have articulated them more fully, this wasunderstandable given that the Judge was dealing with the application inthe course of a busy list. He argued that the Judge's ruling disclosed noerror of law.(b) Mr Blaikie further submitted that the Judge correctly assessed theconsequences of a conviction, arguing that actual consequences do nothave to be proved – rather it is enough to show that the possibility ofthe identified consequences occurring is real and that they couldhappen. Mr Blaikie submitted that the Court can properly look at thelikely consequences in a "more general sense". Accordingly,Mr Blaikie submitted that it was open for the Judge to conclude that aconviction for arson would have an impact on Mr Moffat's ability toget the security clearances required for aspects of his work, and on hisfamily business, and would also have an impact on his ability to obtainmortgages, loans and insurance.[31] Mr Blaikie submitted that it was open to the Judge to view the consequencesas being all out of proportion to the gravity of the offending, and that it cannot be saidthat the Judge was plainly wrong or that his conclusion was irrational.Analysis[32] The starting point in considering the application for leave to appeal (and anyresulting appeal if leave is granted), is found in ss 106 and 107 of the Sentencing Act.They provide as follows:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.(2) A discharge under this section is deemed to be an acquittal.107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[33] The approach that should be taken to s 107 was set out by the Court of Appealin Z (CA447/2012) v R.13 The Court must:(a) consider all aggravating and mitigating factors of the offence and theoffender to establish the gravity of the offence;(b) identify the direct and indirect consequences of the conviction for theoffender; and(c) consider whether those consequences are out of all proportion to thegravity of the offence.If the Court is satisfied of these various matters, it must then go on and decide whetherto exercise its discretion to discharge without conviction under s 106.[34] It is settled law that the Court might be satisfied that there exists a real andappreciable risk that the relevant consequence will happen.14 This standard has beenadopted of necessity because the Court is considering what the consequences would13 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].14 DC (CA47/2013) v R [2013] NZCA 255 at [43].be if a conviction were entered. The Court is concerned with future events which arenot capable of proof on the balance of probabilities. The procedure however is notinquisitorial. The applicant bears a practical onus in the sense that he or she mustordinarily point to evidence or circumstances tending to establish that the consequencewill happen. The Court must identify the consequence, assess the evidence offered forit, evaluate the risk that the consequence will happen to the applicant, and form anoverall assessment of seriousness.15[35] If it is so satisfied, application of the disproportionality test under s 107requires consideration of all relevant circumstances of the offence, the offending andthe offender, as well as the wider interests of the community, including the factorsrequired by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.16[36] Against this background, I turn to the alleged errors of law.Did the Judge overlook relevant considerations when assessing the gravity of theoffending?[37] As noted, the Judge was required to consider all aggravating and mitigatingfactors of the offence and the offender in establishing the gravity of the offencecommitted.[38] I agree with Mr Annandale that the Judge did overlook relevant factors. Hedid not refer to the summary of facts which Mr Moffat had accepted by his guilty plea.He did not discuss in any detail Judge Collins' decision. This would normally beunderstandable – one District Court Judge's decision does not bind another DistrictCourt Judge. Here, however, Mr Moffat in his affidavit filed in support of theapplication for discharge expressly stated that he accepted Judge Collins' ruling andthat he could understand how the Judge came to his conclusion. In these circumstancesmore than passing reference to Judge Collins' decision and the conclusions he reachedcould have been expected. The Judge, however, did not evaluate the factual narrativerelating to the offence in any detailed way at all. Rather, he made a number ofconclusory comments.15 R v Taulapapa [2018] NZCA 414 at [22], [45] and [46].16 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.[39] I note the following:(a) the Judge overlooked the fact that Mr Moffat was put on notice by hisassociates that the hole he dug and into which he placed the explosivedevice, was too close to vegetation. This was a factor emphasised byJudge Collins in his decision dismissing the s 147 application. It wasrecorded in the summary of facts to which Mr Moffat pleaded guilty.There is no reference to this factor in the Judge's decision onMr Moffat's s 106 application;(b) the Judge did not refer to the fact that Mr Moffat is a certified handlerof pyrotechnics. Again, this was a factor emphasised by Judge Collins,and again it was recorded in the summary of facts. The Judge did referto Mr Moffat's "healthy interest in pyrotechnics", but not when he wasconsidering the gravity of the offending. I agree with the submissionfor the police that Mr Moffat's knowledge and experience was arelevant factor which should have been taken into account in assessingthe gravity of his offending. The Judge did not take it into account inthis context; and(c) the Judge did not refer to the fact that there was a fire ban in place atthe relevant time, covering the Rangihoua Heritage Park. Again, thiswas referred to by Judge Collins and again it was accepted by the pleaand was contained in the summary of facts.[40] Each of these factors goes to the gravity of the offending. This list is not andis not meant to be exhaustive. However, that the Judge overlooked these relevantfactors bears on the question of law – did the Judge err in his assessment of the gravityof the offending? In my view, the answer to that question is yes. I agree withMr Annandale's submission that, had the Judge taken into account these variousmatters, he would have readily concluded that the gravity of Mr Moffat's offendingwas rather more serious. Mr Moffat's actions were more than naïve as the Judgesuggested. They were also much more than "a stupid thing to do", again as the Judgesuggested. In my view, if the Judge had taken into account these various factors, hewould have concluded that Mr Moffat was seriously reckless when he put a highlyinflammable substance – petrol – in the hole along with an explosive device and thendetonated the explosive device. The observation made by Judge Collins and set outabove at [15] and [16] are pertinent. Mr Moffat may not have known that an explosivedetonated together with petrol in a hole a metre underground would erupt in a fireball,but he was seriously reckless in detonating the explosive device when petrol waspresent and in the vicinity of nearby vegetation. The risk of a resulting fire must havebeen obvious. The offending was, in my judgment, relatively serious offending of itskind.Was there evidence to support the Judge's conclusions as to the direct and indirectconsequences of a conviction?[41] I now turn to the question of whether or not there was evidence to support theJudge's view of the likely direct and indirect consequences of a conviction.[42] As I have noted, a Court faced with an application for a discharge withoutconviction must be satisfied that there is a real and appreciable risk that the identifiedconsequences will happen. An offender is ordinarily expected to put before the Courtsufficient evidence so that the Court can properly conclude that the identified real andappreciable risks exist.17[43] Here, the only relevant evidence before the Judge was the affidavit fromMr Moffat and the letter from Mr Moffat's brother, Jason Moffat, which was annexedto the affidavit.(a) In his affidavit Mr Moffat stated that he does tiling work for the familybusiness. He said that he is required on many occasions to have asecurity clearance for work undertaken by the family firm. Heexpressed concern that if he has a conviction for arson, this willautomatically rule him out from obtaining a security clearance, andtherefore rule him out from a wide range of employment opportunities.He said that being employed and one day being self-employed is his17 R v Taulapapa, above n 15, at [45].ambition. He expressed concern about his ability to travel overseas –even to Australia. He also said that a conviction for arson would belikely to cause him difficulty in arranging insurance, and in"commercial dealings particularly if money has to be borrowed".(b) In his letter, Jason Moffat reiterated his brother's concerns about futurework and future travel. He said that if the family business had a workerwho is unable to work on certain sites, this would affect bothMr Moffat's wages and his business, and be a loss to both. Rathercuriously, he went on to say:If [Mr Moffat] has a conviction he will be able to get securityclearance for job sites such as schools and retirement villageswhich where most of our work is, resulting in more costs to me.I suspect a "not" has been left out. The Judge did not comment on this.[44] There was, in my view, nothing in the evidence which supported the Judge'sconclusion that Mr Moffat's potential employment, and the future of the familybusiness would be at risk if a conviction was entered. There was nothing to suggestthat Mr Moffat would be unable to continue working for the family business. Rather,the Judge commented that Mr Moffat has the support of his family. The concern aboutfuture employment prospects was simply too vague to be helpful. No indication wasgiven in the evidence about what the future employment prospects might be. Therewas no real or appreciable risk that Mr Moffat's vague aspirations in this regard mightbe affected. Further, there was nothing to suggest that there would be other than short-term interruption to the family business while another employee is trained up, who canundertake the work which Mr Moffat currently does on sites where security clearancesare required. Indeed, there was no real certainty that security clearances would not beavailable to Mr Moffat even if a conviction was entered. That was a question ofpresent fact capable of proof in the normal way – for example, by adducing evidencefrom the owner of a site where security clearances are required. There was nothing tosuggest that the feared consequence would eventuate. Further, there was no specificor reliable evidence to suggest that a conviction for arson would be likely to have animpact upon Mr Moffat's ability to obtain bank loans or mortgages, or even on hisability to obtain insurance in the future. In my view, more specific and reliableevidence was needed before the Judge could properly reach the conclusions recordedin his judgment.Was the Judge plainly wrong?[45] In my judgment, had the Judge properly assessed all relevant matters, he couldnot have concluded that the gravity of Mr Moffat's offending was other than relativelyserious. Further, he could not on the available evidence have found that there was areal and appreciable risk that the consequences asserted by Mr Moffat wouldeventuate. Had the Judge not erred in law as I have set out, he would not have entereda discharge without conviction – the consequences of a conviction could not have beenconsidered to be out of all proportion to the gravity of the offending. To put it anotherway, had the matter been approached correctly, the Judge would have had nojurisdiction to discharge Mr Moffat without conviction.18Result[46] In my judgment, this appeal does raise questions of law, such that the leave toappeal should be granted. I grant leave accordingly.[47] The appeal is allowed and the decision of Judge Shortland dischargingMr Moffat without conviction is set aside. I enter a conviction against Mr Moffat forarson. The matter is remitted to the District Court for sentencing.____________________________Wylie J18 R v Smyth, above n 9, at [24]-[25].