THE QUEEN v JOSHUA WILLIAM MOFFATT [2001] NZCA 244 (30 October 2001)

IN THE court of appeal of new zealand

ca193/01

THE QUEEN

V

JOSHUA WILLIAM MOFFATT

Hearing:	29 October 2001
Coram:	Gault J Gendall J William Young J
Appearances:	D N Bunce for Appellant M N Zarifeh for Crown
Judgment:	30 October 2001

judgment of the court DELIVERED BY GAULT J

[1] The appellant was convicted after pleading guilty in the District Court at Christchurch to charges of kidnapping, robbery and assault with intent to injure.He was sentenced to four and a half years imprisonment.He now appeals against that sentence.

[2] The appellant is a member of a local white supremacist gang known as the Backyard Boozers.The victim was also a member at the time of the offending but had been trying to leave the gang.The offending in question resulted from an attempt by the gang, organised by the appellant, to extract a $500 leaving fee from the victim.

[3] On 21 December 2000, after spending the day drinking heavily, the appellant, the victim and others travelled by car to New Brighton where another group of gang members met them.The victim was forced from the car and on to the ground and then kicked and punched about the head and body.He was placed in another vehicle and driven back to the gang's headquarters.During the twenty-minute journey the victim was again hit about the head and kicked with steel capped boots.On arrival he was beaten yet again and robbed of his boots (said to be worth $300), cash ($40) and tobacco before being thrown into an empty bedroom.The victim eventually escaped through the bedroom window and managed to alert the police.On being admitted to Christchurch Public Hospital he was treated for cuts, bruising and a suspected fractured skull.He remained there for four days under observation and later required surgery to clear a nasal passage.

[4] When spoken to by the police the appellant admitted being present at the time of the attack but stated that he ran away.He was wearing the complainant's boots when apprehended.Following a depositions hearing he pleaded guilty to kidnapping, assault with intent to injure and robbery.An alternative charge of aggravated robbery was not proceeded with.

[5] In sentencing the appellant the Judge set out the aggravating features as being the gang related nature of the offending, premeditation, the appellant's criminal history, the sustained attack to the victim, and the fact that the offending occurred only a few weeks after the appellant's release from a previous prison sentence.By reference to R v Crow (CA207/86, judgment 13 April 1987) the Judge took a starting point of six years imprisonment for the principal sentence in respect of the kidnapping.He reduced that by 18 months in recognition of the appellant's guilty plea.On the charges of robbery and assault with intent to injure the Judge sentenced the appellant to concurrent sentences of three years and two years imprisonment respectively.

[6] In support of the appeal Mr Bunce submitted that the six year starting point adopted by the sentencing Judge was too high having regard to the relevant authorities and to the appellant's actual role in the offending.He referred to the sentencing, by the same Judge some two months later, of two of the co-offenders Conyers and Adams in respect of whom a starting point of three and a half years imprisonment was adopted.

[7] For the Crown Mr Zarifeh emphasised the totality of offending and supported the sentence imposed.

[8] This is another case in which difficulty has arisen from the use of the expression "starting point" in sentencing.When sentencing the present appellant, the Judge appears to have intended by "starting point" the sentence he considered appropriate for the totality of offending having regard to the appellant's role and his personal circumstances.The only adjustment made to the six year starting point he adopted was a deduction of 18 months for the pleas of guilty.

[9] When he came to sentence the two co-offenders, the Judge adopted a starting point of three and a half years imprisonment.Before doing that he referred to factors distinguishing the co-offenders from the present appellant, including their personal circumstances such as that they were virtually first offenders. Yet after fixing his starting point he made further adjustments, particularly in the case of Adams, for other personal circumstances.Conyers was sentenced to imprisonment for two and a half years.Adams was sentenced to two years which was suspended for 18 months with a period of six months periodic detention.

[10] We are not in a position to consider any issue of disparity in the appellant's final sentences against those for the two co-offenders.While we have the Judge's sentencing remarks on the second sentencing, we do not have (as the practice note requires) all of the other information that would have been before the Judge.But in any event, as we apprehend, counsel's purpose in relying on the later sentencing was to compare not the final sentences but rather the different "starting points" adopted by the Judge.They are not comparable however.In the case of the co-offenders the offences for which they were sentenced did not include robbery.They were convicted only of kidnapping and injuring with intent.In the case of the appellant his criminal history was seemingly taken into account in fixing the starting point because nowhere else was it referred to as aggravating his culpability as it plainly did.

[11] In the circumstances we consider our correct course is to focus on the sentence actually imposed on the appellant and assess whether it is excessive. We are not so concerned with the sentences imposed for the separate offences and how they were fixed.The issue is whether the sentence of four and a half years imprisonment for the total offending was within the range open to the sentencing Judge.

[12] These were serious crimes.Kidnapping carries the highest maximum sentence and was rightly treated as the offence for which the lead sentence should be imposed.The complainant was deprived of his liberty for a substantial period.He was detained first in the footwell of a car and later at a gang headquarters.His shirt and boots were removed.Only his escape brought an end to that frightening experience during which he reasonably feared for his life.

[13] The robbery seems to have been a gratuitous additional indignity - in the case of the boots perhaps to prevent escape.In any event it does not appear to have directly related to the leaving fee that had been demanded of him.

[14] The violence was repeated, sustained and cruel.It could well have warranted a more serious charge.

[15] In totality the offending involved a gang operation both violent and prolonged against a defenceless victim who, ultimately, felt he should leave the country to ensure his safety. He was badly injured.

[16] The appellant acknowledged that he arranged for the attack to take place. He made phone calls to organise the presence of the other gang members in the second car at the pier.He went to speak to them before they set upon the complainant.Mr Bunce submitted that the Judge may have over-stated the appellant's role.We do not accept that.He was accurately described as the organiser.In the later sentencing of the co-offenders the Judge referred to a submission of counsel that Moffatt was the leader of the gang.That was not established, but could not have had any impact on the earlier sentencing.

[17] The appellant, though only 19 at the time, had accumulated a long list of convictions.On our count there were 9 in 1999 and 14 in 2000.He had been released from prison only about five weeks before the present offending.His history precludes his being considered as a young immature offender.He has a history of drug and alcohol abuse and engaged in offending to which s5 Criminal Justice Act applies.

[18] We find little by way of mitigation beyond the pleas of guilty entered after a depositions hearing.

[19] While the sentencing levels in R v Mako [2000] 2 NZLR 170 give some guide, this offending was not primarily robbery.The authorities relating to kidnapping are more helpful.They are Crow and R v Ratana and Sole CA357 and 358/90, judgment 25 February 1991.We consider that, with its gang involvement and greater violence, this is a more serious case than Crow.Ratana received the same sentence as the appellant.He did not plead guilty but that was on a Solicitor-General's appeal so that a higher sentence would not have been disturbed.

[20] Overall we are not persuaded we should interfere with the sentence imposed.It must be seen as at the high end of the range open to the Judge but it is not outside it.

[21] The appeal therefore is dismissed.

Solicitors

Crown Solicitor, Christchurch