MOSEN v NEW ZEALAND POLICE [2023] NZHC 103

MOSEN v NEW ZEALAND POLICE [2023] NZHC 103 [3 February 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-134[2023] NZHC 103BETWEEN ROBERT JOHN MOSENAppellantAND NEW ZEALAND POLICERespondentHearing: 1 February 2023Appearances: J W Howell for the AppellantD P Coulson for the RespondentJudgment: 3 February 2023JUDGMENT OF HARVEY JThis judgment is delivered by me on 3 February 2023 at 4.30 pm......................................................Registrar / Deputy RegistrarSolicitors: Adams Law (K O'Connor), TaurangaPollett Legal (Office of the Crown Solicitor), TaurangaIntroduction[1] Robert Mosen, pleaded guilty to a representative charge of assault with intentto injure.1 On 4 August 2022, Judge Bidois in the District Court at Whakatānesentenced Mr Mosen to 18 months' imprisonment.2 Mr Mosen now appeals thatsentence to this Court out of time.[2] The Crown opposed the appeal and submitted that leave should be refused inany event because the appeal was filed out of time, Mr Mosen has served his sentenceand any adjustment at best would result in a reduction of only one month. Counselunderscored that such a change would amount to "tinkering".[3] At the hearing, Mr Howell noted he had not been able to obtain instructionsfrom Mr Mosen since receiving the Crown submissions and conceded that the correctsentencing approach would have resulted in a one-month reduction.[4] However, for reasons I expand upon in this judgment, I do not consider theappeal as clear cut as counsel. In summary, putting aside the arithmetical errors madeby the Judge, there is a live question as to whether Mr Mosen's previous convictionsshould have been taken into account at "stage one" or "stage two" of sentencing.3Leave to appeal[5] A preliminary issue arises in that the appeal against sentence was filed out oftime. The notice of appeal explained the delay as arising from the fact that the errorin calculation was only identified on 6 October 2022.[6] I have taken into account the fact that Mr Mosen has already served hissentence, reducing the practical utility of the appeal. However, I recognise that thereis a public interest in consistent sentencing outcomes. There is also Mr Mosen'spersonal interest in his criminal record accurately reflecting the sentence that shouldhave been imposed (if successful).1 Crimes Act 1961, s 193. Maximum penalty 3 years' imprisonment.2 Police v Mosen [2022] NZDC 14869.3 See Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].[7] As foreshadowed, at the hearing I was initially inclined to decline leave toappeal given the apparent consensus on the appeal's lack of merit. However, withfurther consideration, there is the issue as to appropriate sentencing methodology inMr Mosen's case. I am therefore satisfied that the interests of justice favour grantingleave to appeal out of time.4Background[8] The appellant pleaded guilty on the basis of an agreed summary of facts. Thisrecorded that the appellant has been in a relationship with the complainant forapproximately two years. They share an extensive history of family harm.[9] On 17 January 2022, the appellant was released from prison after serving athree-month sentence for escaping from police custody. Soon after, on 24 January2022, the appellant and the complainant planned to travel from Rotorua to Edgecumbe.When the vehicle did not start, the appellant punched the complainant to the side ofthe head. The complainant, in response, hit him on the nose. The appellant proceededto throw "a barrage of punches" at the complainant's face and body.[10] The next day, the pair were uplifting a mattress from a storage container. Theappellant grew impatient and yelled at the complainant to hurry, while striking her onthe arm with a level. He then picked up a carved wooden key which he used to strikeher twice to the back of the head. The complainant immediately fled the storagefacility and ran up the road.[11] After convincing the complainant to return, the pair travelled to Kawerauwhere they parked at a reserve for the night. The complainant was later woken by theappellant yelling and throwing a flurry of punches to her face and body. Thecomplainant subsequently fled the vehicle and walked around Kawerau town until themorning of 26 January 2022, when she reported the assault to police.[12] Later that day, the complainant was admitted to Rotorua Hospital where shewas treated for her injuries. These included bruising to her arms, upper and lower4 R v Davis [2007] NZCA 577; and R v Knight [1998] 1 NZLR 583 (CA).back, and lumps to the head. She also experienced dizzy spells. That evening, atapproximately 9:30 pm, Police received a family harm call-out to the appellant'saddress. The appellant was located there by the police and arrested.Sentence indication[13] The Judge selected a starting point on the representative charge of two years'imprisonment.5 He then applied an uplift of three months to reflect the appellant'sprevious convictions.[14] Following discussion with counsel, it appears that the Judge adjusted thestarting point by one month to correct a misapprehension.6 This is not entirely clearfrom the oral judgment but I accept Mr Howell's explanation. The Judge had initiallythought the offending occurred the day after the appellant's release from prison, whenin fact it was the following week. The adjustment on that basis could only havereflected a reduced starting point and was not relevant to the uplift. The indicatedsentence was therefore one of two years, two months' imprisonment, or 26 months.7Sentencing[15] The appellant accepted the indication. At sentencing, the Judge stated that theindicated starting point was two years, three months' imprisonment or 27 months, andwent on to apply a further three-month uplift for previous convictions.8 This produceda final starting point of two years, six months' imprisonment. The Judge thenidentified discounts totalling 40 per cent, which led to an end sentence of 18 months'imprisonment.9Submissions[16] Mr Howell submitted that the Judge erred in departing from the indicatedstarting point of 26 months, there being no additional information before the Court at5 Police v Mosen DC Whakatane CRI-2022-063-000260, 1 June 2022 at [6].6 At [11]-[12].7 At [13].8 Police v Mosen, above n 2, at [8].9 At [10].sentencing to enable this departure.10 Had this error not been made, the end sentenceafter applying the 40 per cent discount for mitigating factors to the starting point of 26months would have been approximately 15.6 months. Counsel contended that thislikely would have been rounded down to 15.[17] Mr Howell argued that the end sentence of 18 months' imprisonment wasmanifestly excessive, as there was a three-month discrepancy between the sentenceimposed and that which ought to have been imposed.[18] Counsel contended that the appellant was released from prison on 26 October2022, having served his sentence of imprisonment, but that he still wished to pursuethe appeal so that his criminal history reflects the correct sentence.[19] Even so, in his oral submissions counsel confirmed that, having now receivedthe Crown's submissions, he had not had the chance to secure instructions from MrMosen as to their content. Moreover, Mr Howell accepted that, ultimately, anyadjustment to Mr Mosen's sentence would at best amount to a one month reduction.[20] Mr Coulson, for the Crown, acknowledged that the Judge made an error inadopting a starting point of 27 months' imprisonment at sentencing. However, hesubmitted that this was offset by a second error in the appellant's favour. This was toapply an uplift for prior convictions at the first stage of the sentencing process, andthen to apply the discount for mitigating factors to the uplifted starting point.Mr Coulson contended that this approach is inconsistent with authority,11 and that thecorrect approach if followed would have produced an end sentence of approximately17 months' imprisonment.12[21] Therefore, Mr Coulson submitted that the end sentence of 18 months'imprisonment was not manifestly excessive and that reducing the sentence by onemonth would amount to "tinkering".1310 Criminal Procedure Act 2011, s 116.11 Stuart v R [2021] NZCA 539; and Moses v R, above n 3.12 This is calculated as follows: 23 – (40% or 9.2) = 13.8 + 3 = 16.8 (rounded up to 17).13 Ward v Police [2022] NZHC 1051 at [18].Approach on appeal[22] It is well settled that an appeal against sentence is an appeal against the exerciseof a discretion. I must only allow the appeal if satisfied that for any reason, there isan error in the sentence imposed and a different sentence should be imposed.14 It iswell recognised that the sentence must be manifestly excessive if the appeal is to beallowed. The appeal must be dismissed in any other case.15Discussion[23] Two errors have occurred in the present case. The first was the adoption of astarting point of 27 months' imprisonment at sentencing, in contrast to that of26 months at the sentence indication. The second was the application of a furtherthree-month uplift for the appellant's previous convictions at sentencing, when thisfactor had been taken into account in setting the 26-month starting point.[24] The question, then, is what Mr Mosen's sentence would have been had theJudge not made these errors, and whether the sentence he did receive was manifestlyexcessive in light of that.[25] I have accepted that the sentencing indication provided a starting point of23 months plus a three-month uplift for previous convictions. The total discounts of40 per cent were not challenged on appeal.[26] The Crown's approach, which Mr Howell accepted, is that an uplift forprevious convictions comes at stage two of sentencing and is applied at the same timeas discounts. Accordingly the Crown's calculation of the correct sentence was:23 – (23 x 40%) + 3 = 16.8Starting point – discount + uplift = 16.8 months final sentence14 Criminal Procedure Act 2011, s 250(2).15 Section 250(3).[27] However, while it is considered best practice to factor in previous convictionsat stage two of the sentencing process, this is not an immutable rule.16 The Court ofAppeal in Mitchell v R held that where the offending involves domestic violence, andthere is a history of such offending, prior convictions can inform the gravity andculpability of the present offending and therefore be taken into account in setting thestarting point.17 The appellant has at least 15 convictions for offending of this natureover the past 10 years alone.[28] Accordingly, following Mitchell, it was open to the Judge to apply the upliftfor previous convictions in stage one. If the errors identified at [23] are corrected, thisleads to the following calculation:(23 + 3) = 26Nominal starting point + uplift = starting point of 26 months26 – (26 x 40%) = 15.6Starting point – discounts = 15.6 months final sentence[29] As a result, the sentence initially reached by Mr Howell in his writtensubmission was one that would have been open to the Judge had he not erred.[30] However, I note that the Mitchell line of authority appears so far to be restrictedto sentencing for breaches of protection orders in the family violence context. Therationale is that convictions that form an ongoing and frequent pattern of the sameoffending is likely to render the current offending more serious.18 In particular, theoffending is in breach of or indeed flouting a court order.19 The Court of Appeal hasnoted that "[t]o ignore the history of the relationship would be artificial, and preventa proper analysis of the gravity of the offending".20 The Court also noted that s 8(a)of the Sentencing Act 2002 requires a sentencing court to carry out an assessment of16 Mitchell v R [2013] NZCA 583 at [12].17 At [12]; Carlyon v Police [2017] NZHC 2526 and Whiu v Police [2020] NZHC 298 at [16]–[18].18 Tetau v New Zealand Police [2015] NZHC 1284 at [27].19 Mitchell v R, above n 16, at [14].20 At [12].culpability, and s 8(f) requires it to take into account the effect of the offending on thevictims.[31] The general rationale has some applicability to family violence offending atlarge. The context of a violent relationship can certainly inform the gravity of familyviolence offending. But care should be taken if the Mitchell approach is to be appliedto broader family violence offences, in particular when considering whether previousfamily violence convictions are more relevant to the gravity of the offending (stageone), the character of the defendant and their propensity to enact family violenceoffending (stage two), or both—taking care not to double count convictions.21[32] Further, the focus for the appellate court is on the end sentence rather than theprocess by which it is reached.22 It is paradoxical that, by recognising that previousoffending makes the present offending more serious, the approach results in a lesseroverall sentence when a discount is applied, in this case, to a significant degree.[33] Overall, I do not consider that a final sentence of 15 months would have beenappropriate in this case. The offending consists of multiple incidents of physicalfamily violence over several days and was concluded with a family harm callout.Family violence is unacceptable and should be strongly denounced. The end sentenceof 18 months imposed by the Judge was appropriate.Decision[34] Robert Mosen's application for leave to appeal out of time against the 4 August2022 decision of the District Court is granted.[35] The appeal against sentence is dismissed._____________________________Harvey J21 Carlyon v Police, above n 17, at [20].22 Ripia v R [2011] NZCA 101 at [15].