Moore v R [2018] NZHC 1677 (9 July 2018)

Last Updated: 10 April 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-0129 [2018] NZHC 1677

BETWEEN	SHAUN MICHAEL MOORE Appellant
AND	THE QUEEN Respondent

Hearing:	9 July 2018
Appearances:	A Ives for Appellant M Moon for Respondent
Judgment:	9 July 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

A Ives, Barrister, Auckland Meredith Connell, Auckland

MOORE v R [2018] NZHC 1677 [9 July 2018]

[1] Shaun Moore appeals against an end sentence of four years and ten months’ imprisonment, imposed on his guilty plea to charges of: manufacturing methamphetamine;¹ possession of methamphetamine for supply;² unlawful possession of a pistol;³ unlawful possession of ammunition;⁴ and attempted unlawful taking of a motor vehicle.⁵

Mr Moore’s offending

[2] I adopt Judge Ronanye’s summary of the offending, which accurately reflects the agreed summary of facts:⁶

All of these offences aside from the manufacturing occurred on 26 November 2016. You were the driver of a motor vehicle on that day which was stopped by the police in the Auckland area. The vehicle was searched, you were detained for the purposes of the search and located clipped to the front of your shirt was a home-made pen gun, loaded with one round of .22 calibre ammunition.

You were arrested and placed in the back seat of a police car. Once you were placed in the back of the car the search of your vehicle resumed. The patrol vehicle was left with the engine running but without the keys in the ignition. There is a feature of these vehicles that allows the engine to remain running to keep the vehicle powered up, however it is configured in such a way that the engine will cut out if the transmission is put into the drive position. You climbed through the gap between the front seats and you manipulated your handcuffs so as to place your hands around to your front.

You then locked the doors of the vehicle, you placed the gear lever into the drive position attempting to get the vehicle to move. The police officer quite rightly had a fear that you would somehow or other override the feature in the car to which I have made reference and drive away. So justifiably he used his window breaker to smash the driver’s window in order to restrain you further and prevent your escape. Once you were restrained again a further search of your vehicle found in your wallet $1731 in cash. Located in a backpack were 17 rounds of ammunition, a set of electronic scales and numerous small, empty, ziplock plastic bags.

Those are items very well known to the Courts and commonly used to measure and package quantities of methamphetamine for sale. Located in a sunglasses case under the driver's seat were four plastic ziplock bags containing a total of

9.2 grams of methamphetamine. A search of the boot of the vehicle resulted in police locating equipment, materials and precursor substances utilised in the manufacture of methamphetamine. Also located in the boot were a variety

¹ Misuse of Drugs Act 1975, s 6(1)(b). Maximum penalty is life imprisonment.

² Section 6(1)(f). Maximum penalty is life imprisonment.

³ Arms Act 1983, s 50(1)(a). Maximum penalty is 3 years’ imprisonment, or a $4,000 fine.

⁴ Section 50(1)(b). Maximum penalty is 3 years’ imprisonment.

⁵ Crimes Act 1961, s 226(2). Maximum penalty is 2 years’ imprisonment.

⁶ R v Moore [2018] NZDC 5962 at [2]-[6] [“District Court decision”].

of chemicals. The items located included a steam distiller, a frying pan, a 500 millilitre glass jug, a one litre glass jug, hydrochloric acid, acetone and caustic soda. Various of those items were sent for analysis.

Upon analysis it was found that the items contained methamphetamine residue and by-products of the methamphetamine manufacturing process, Three different chemicals found in the boot are used in the methamphetamine manufacturing process. Analysis of the steam distiller showed that it had been used in the manufacture of methamphetamine, your fingerprints were found on two of the items. You claimed ownership of the pistol, the ammunition, and the methamphetamine. You accepted ownership of the items found in the backpack but you denied any knowledge or ownership of the clandestine drug laboratory items found in the boot.

Mr Moore’s sentence

[3] Mr Moore appeared for sentencing on 27 March 2018. In arriving at the effective end sentence of four years and ten months’ imprisonment, Judge Ronayne:

(a) took the manufacturing charge as the lead offending, and adopted a starting point of four years and six months’ imprisonment;

(b) uplifted this by 12 months for the remaining offending;

(c) applied a further uplift of 12 months for relevant previous convictions; and

(d) granted a 20 percent discount for guilty pleas, and a further four months for Mr Moore’s rehabilitative efforts.

Mr Moore’s appeal against sentence

[4] Counsel for Mr Moore, Annabel Ives, appeals on the basis his end sentence was manifestly excessive, suggesting a more appropriate sentence would fall somewhere between three years, six months’ imprisonment and four years’ imprisonment.

[5] At issue is whether Judge Ronanye erred by:

(a) double counting Mr Moore’s criminal history, taking it into account in adopting a starting point, and then also in applying an additional uplift (issue 1);
(b) adopting an excessive uplift for previous criminal history (issue 2);

(c) adopting an excessive uplift for other offending (issue 3);

(d) failing to give credit for Mr Moore’s personal circumstances, especially his untreated ADHD (issue 4); and

(e) overall, reaching an end sentence that is manifestly excessive (issue 5).

Approach to appeals against sentence

[6] I must allow Mr Moore’s appeal against sentence if I am satisfied, for any reason, there is an error in the sentence imposed on him, and a different sentence should be imposed. In any other case, I must dismiss the appeal against sentence.⁷

[7] The approach previously taken by courts on sentencing appeals continues to apply,⁸ so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.⁹

[8] I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is ‘manifestly excessive’ is to be assessed by reference to the sentence given, rather than the process by which it is reached.¹⁰

Issues on appeal

—Issue 1: double counting criminal history

[9] Ms Ives says Mr Moore’s criminal history has been double-counted. This submission relies on her contention Judge Ronanyne:

(a) first, factored in his history in setting what would otherwise be an unjustifiably high starting point of four years, six months; and

⁷ Criminal Procedure Act 2011, s 250(3).

⁸ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].

⁹ At [33], [35].

¹⁰ Ripia v R [2011] NZCA 101 at [15].

(b) second, nonetheless went on to count that history again in applying a 12-month uplift for previous offending.

[10] I do not accept that characterisation of the Judge’s reasoning. Methamphetamine manufacture is inherently commercial, and the role of the offender in such manufacturing is material to determination of a starting point within the applicable tariff.¹¹ That is what Judge Ronanye is to be understood as referring in noting as an aggravating feature of the offending:¹²

The extent of your commerciality. In this regard, your history as a manufacturer cannot realistically be ignored, I have to take a realistic view of the dynamics of what was provably going on here. You were never going to indulge in a single cook. Residue was found on the equipment which you were obviously transporting to another location. A practical potential of your manufacturing operation is self-evident in those circumstances. You were not set up to manufacture for purely personal use or for charitable donations of methamphetamine to your associates. I reject your vague excuse for having over $1700 cash, it lacks in all the circumstances any detail or credibility.

[11] Judge Ronayne was paraphrasing the Court of Appeal’s “Those who gear up to manufacture methamphetamine are not likely to be content with a single ‘cook’” in R v Fatu.¹³ Together with the “equipment, materials, and precursor substances utilised in the manufacture of methamphetamine” found being transported in Mr Moore’s car,¹⁴ and his unexplained possession of a large sum of cash, Judge Ronayne was justified in adopting a starting point at the low end of Band 2’s 4 to 11 years’ imprisonment,¹⁵ then to apply an uplift for the aggravating factor of Mr Moore’s criminal history.

[12] I do not think the marginal difference illustrated by R v Fisiihoi’s 4-year starting point for four to five times the quantity of methamphetamine as was located with Mr Moore to make much difference.¹⁶ Both quantities are at the lower end of Band 2’s “up to 250g”, in which the fact of manufacture has its own significance. “[A] lower or similar starting point” for Mr Moore, as Ms Ives seeks, would be to remove

¹¹ R v Fatu [2006] 2 NZLR (CA) at [42]-[43].

¹² District Court decision at [19](a).

¹³ R v Fatu, above n 11, at [40].

¹⁴ District Court decision at [5] and [15].

¹⁵ R v Fatu, above n 11, at [43].

¹⁶ R v Fisiihoi [2014] NZHC 3048 at [31].

him from Band 2 altogether (which is the case for the 3-year starting point in the other case Ms Ives cites).¹⁷ Pedantic arithmetic is undesirable.

—Issue 2: excessive uplift for previous criminal history

[13] Pointing to a range of comparable cases, Ms Ives submits a 12-month uplift for offending which occurred over a decade ago was excessive, quite apart from the issue of double-counting. She says three to six months would have been more appropriate.

[14] Many of the authorities on which Ms Ives relies are distinguishable on the basis Mr Moore’s history is far more extensive,¹⁸ or the other offending was already far more seriously penalised (ie, for totality).¹⁹ Mr Moore’s history includes 29 convictions, the bulk of these being Arms Act related offending or drug offending (both possession and manufacturing). On his criminal record, the Judge observed:²⁰

Your history reveals a recidivist drug manufacturer and dealer and you have previously been convicted of possession of a pistol and of a knife, albeit that the knife conviction was a long time ago, but also for possession an offensive weapon in 1997. Overall, bearing in mind the number, nature, and dates and sentences imposed for previous convictions, reflecting the seriousness of your history, I adopt a 12 month uplift,

[15] There is no basis to conclude the ten years since Mr Moore’s last methamphetamine-related conviction “show real progress in breaking the longstanding pattern of offending”.²¹ Instead Mr Moore’s low-level drugs and property offending continued. In the context of the justified starting point, an uplift of less than 25 per cent is not so severe as to take it out of the legitimate range.

—Issue 3: excessive uplift for other offending

[16] Ms Ives submits the 12-month uplift for the other offending – possession of methamphetamine for supply, a firearm, and ammunition – was unnecessarily high.

¹⁷ R v Taihia [2014] NZHC 2811.

¹⁸ R v Hannon [2016] NZHC 2161 (only one previous drug related conviction and other Arms Act charges); and R v Richardson [2017] NZHC 1970 (only two previous methamphetamine related convictions in 2002).

19. R v Stevens [2015] NZHC 2336 (17½-year starting point, plus a minimum period of imprisonment).

²⁰ District Court decision at [21].

²¹ R v Piddeck [2017] NZHC 1016 at [9].

[17] While she accepts the Arms Act requires an uplift of six to nine months, she disputes any uplift was necessary for possession of methamphetamine for supply. She submits the 9.2g of methamphetamine found in Mr Moore’s possession already was taken into account in setting the starting point for the manufacturing charge.

[18] The submission misses the point: the manufacturing charge is to reflect “the quantity of the drug involved”,²² not the quantity of the drug possessed. Mr Moore is convicted of manufacturing at least 9.2g of methamphetamine; he is also convicted of possessing that quantity. The uplift appropriately takes into account Mr Moore’s index multiple drugs and arms offending. It could also accommodate Mr Moore’s attempt to convert the police car after his arrest, which Judge Ronayne did not expressly include.

—Issue 4: credit for Mr Moore’s personal circumstances

[19] Mr Moore claims he has untreated attention-deficit/hyperactivity disorder (ADHD). He takes exception no separate discount was given for this untreated ADHD in addition to his efforts at rehabilitation.

[20] In addressing Mr Moore’s personal circumstances, Judge Ronayne said:²³

Your personal circumstances do not in my view justify a deduction. I have not ignored them but in the circumstances of this case, aside from an adjustment I am about to make, do not justify anything.

He refers to the undiagnosed ADHD earlier in the judgment:²⁴

You sought to blame much of your drug use and offending on the presence of undiagnosed ADHD and you claimed getting medical treatment for your undiagnosed ADHD as the key.

[21] I accept, in principle, discounts for personal circumstances can be given in drug cases in appropriate cases: for example, where those circumstances have contributed to the offending in some material way; or else on purely compassionate grounds.²⁵

²² R v Fatu, above n 11, at [43].

²³ District Court decision at [22].

²⁴ At [11].

²⁵ Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [14].

This is true notwithstanding deterrence carries more weight in drug offending than offenders’ personal circumstances.²⁶

[22] But on the facts of this case, I see no justification for granting a further discount for personal factors generally or his undiagnosed ADHD specifically. The case relied upon by Ms Ives – Rodrigo v Police,²⁷ in which the Court of Appeal applied a discount for ADHD – is distinguishable at least on the basis here there is no medical evidence before the Court substantiating the diagnosis, or explaining its causal relevance to Mr Moore’s offending. We have only the statements of Mr Moore, his mother and other family members, and an addiction clinician reporting what Mr Moore had told her, to evidence and explicate the ADHD diagnosis. A discrete and further discount is not appropriate in these circumstances.

—Issue 5: overall assessment

[23] I find no error in the sentence imposed on Mr Moore. It cannot be said manifestly excessive for the admitted offending.

Result

[24] The appeal is dismissed.




—Jagose J

²⁶ At [12].

²⁷ Rodrigo v Police [2014] NZCA 68.