DARRYL IAN MORGAN AND NEW ZEALAND POLICE
[2024] NZHC 2615
•11 September 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-27
[2024] NZHC 2615
BETWEEN DARRYL IAN MORGAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 September 2024 (via VMR) Appearances:
A M Mobberley for Appellant K S Barber for Respondent
Judgment:
11 September 2024
JUDGMENT OF McQUEEN J
[1] Darryl Morgan appeals his sentence of 10 months’ home detention, reparation orders and 18 months’ disqualification from driving in respect of the following charges, to which he pleaded guilty:
(a)Four counts of wilful trespass;1
(b)Five counts of shoplifting (under $500);2
(c) Shoplifting ($500–$1,000);3
(d)Shoplifting (over $1,000);4
1 Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty three months’ imprisonment or a fine not exceeding $1,000.
2 Crimes Act 1961, ss 219 and 223(d); maximum penalty three months’ imprisonment.
3 Sections 219 and 223(c); maximum penalty one year imprisonment.
4 Sections 219 and 223(b); maximum penalty seven years’ imprisonment.
MORGAN v NEW ZEALAND POLICE [2024] NZHC 2615 [11 September 2024]
(e)Dangerous driving;5
(f)Drove a motor vehicle while licence suspended;6 and
(g)Two counts of failure to stop when followed by red and blue flashing lights.7
[2] The appeal is brought out of time but no opposition to an extension of time is raised by Police. I allow the appeal to proceed.
Background
The offending
[3] Mr Morgan was sentenced for separate incidents of shoplifting, trespass and driving offences between November 2020 and September 2023.
[4] The shoplifting offences concern taking items from several retail stores in Palmerston North including Hunting and Fishing, Bunnings, the Warehouse, Farmlands and Briscoes as well as petrol from Tiakitahuna.
[5] On 7 July 2023 the Warehouse and Bunnings stores in Palmerston North served Mr Morgan with a trespass notice. He pleaded guilty to breaching the Warehouse notice on three occasions, 6, 8 and 13 September 2023. He pleaded guilty to breaching the Bunnings notice on 27 September 2023.
[6] On 17 November 2021 Mr Morgan drove away from a Police car which had activated its red and blue lights and sirens in the Warehouse parking lot. Mr Morgan exceeded the speed limit, drove through a red light and down the wrong side of the road. He pleaded guilty to failing to stop and dangerous driving.
5 Land Transport Act 1998, s 35(1)(b); maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
6 Section 32(1)(c) and (3); maximum penalty three months’ imprisonment or a fine not exceeding
$4,500.
7 Sections 52A(1)(a)(ii), (3), (6) and 114(2); maximum penalty a fine not exceeding $10,000.
[7] On 22 September 2022 Mr Morgan drove a vehicle with a modified number- plate. He drove away from the Police car that had activated its red and blue lights and sirens, exceeding the speed limit and failing to give way at an intersection. He pleaded guilty to failing to stop.
[8] On 17 March 2023 Mr Morgan executed a driving manoeuvre that drew the attention of Police. He pleaded guilty to driving while suspended.
Criminal history
[9] Mr Morgan has an extensive criminal history. He has previous convictions for offences involving firearms, drugs, drink-driving, receiving property and obstruction. His convictions begin in 1985 and carry through, with fairly regular entries, until the present offending. Of direct relevance to the present sentence, he has previous convictions for driving while disqualified, careless driving and shoplifting. Mr Morgan has previously served sentences of imprisonment.
Decision under appeal
[10] On 4 April 2024 Judge Edwards in the Palmerston North District Court sentenced Mr Morgan to 10 months’ home detention and made orders for reparation and disqualification from driving for 18 months.8
[11] The Judge identified theft of goods valued at over $1,000 as the lead charge. The Judge identified the aggravating features of the dishonesty offending as the total value of the goods taken (around $2,619), an element of premeditation evidenced by some of the thefts occurring in breach of trespass orders, and the long period of time to which the charges relate.
[12] The Judge adopted a starting point of 12 months’ imprisonment for the lead charge and applied an uplift of eight months to reflect the balance of the offending, which she was satisfied was appropriate on a totality basis.
8 New Zealand Police v Morgan [2024] NZDC 7373.
[13] The Judge applied a three-month uplift to reflect Mr Morgan’s conviction history, which includes dishonesty offending and that many offences were committed whilst on bail.9
[14] The Judge applied a 15 per cent (three months) credit for guilty pleas. Although some pleas were early, most pleas were initially not guilty, and the earliest charge went to Judge-alone trial.
[15] The Judge observed that Mr Morgan had a proposed address for an electronically monitored sentence which Community Corrections assessed as suitable. Although the Judge acknowledged Mr Morgan’s health issues relating to apparent memory loss from a motorcycle accident and that he was on a methadone programme, she did not consider that a further specific discount would be appropriate to recognise those circumstances. However, the Judge concluded that these matters would make imprisonment “particularly difficult”.
[16] The Judge then commuted the sentence of 20 months’ imprisonment to 10 months’ home detention in relation to the lead charge. The Judge sentenced Mr Morgan to home detention for a month for each of the other charges (excluding the fine only offences), on a concurrent basis.
[17] The Judge ordered reparation for goods not recovered. She expressly recorded amounts totalling $1,382.86 in reparation but then said the “reparation total exceeds
$2,600.”10 She remitted Mr Morgan’s $2,181 in fines outstanding so that the payments
from the attachment order to his benefit will go to paying reparations.
[18] The Judge also disqualified the appellant from driving for a period totalling 18 months.
9 At [5].
10 How this total figure is reached is unclear, but it is contributed to by the seeming omission to refer back to the value of the good taken in the context of the theft charge taken as the lead charge, namely the $1,064 worth of tools from Bunnings.
Approach on appeal
[19] Section 244 of the Criminal Procedure Act 2011 provides for Mr Morgan’s right of first appeal against his sentence. Under s 250 of the Criminal Procedure Act, the appeal court must allow the appeal if it is satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed.
[20] Despite the statute making no express reference to “manifestly excessive”, this principle is well-established in the courts’ approach to sentence appeals.11 An appeal court must not tinker with the end sentence if the end sentence is within range12 as it must be shown that the sentence was manifestly excessive or wrong in principle.13 The focus is more upon the end sentence than the process by which the Judge reached that end sentence.
Parties’ positions
[21] Counsel for Mr Morgan, Ms Mobberley, submits the appeal should be allowed because the starting point adopted was manifestly excessive, given the available range of six to nine months’ imprisonment in comparable cases. Ms Mobberley also argues that the uplift of eight months’ imprisonment was excessive and the 15 per cent discount for guilty pleas was insufficient. Ms Mobberley submits that had these matters been in range, there would be sufficient discrepancy such that appellate intervention is warranted.
[22] Counsel for the Police, Ms Barber, submits that although the starting point for the lead offence was at the higher end of the range, it was available given the aggravating factors of the offending and by refence to other comparable cases. She says the uplift for the other offences and the guilty plea discount were appropriate and the end sentence was not manifestly excessive. Ms Barber submits the appeal should be dismissed.
11 Ripia v R [2011] NZCA 101 at [15].
12 At [15].
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].
Analysis
Starting point
[23] The sentencing Judge applied a starting point of 12 months imprisonment for the one charge of theft over $1,000. Her Honour then added eight months for the balance of the offending which was applied on a totality basis.14
[24] There is no guideline judgment for sentencing for shoplifting due to the variability in circumstances, as demonstrated by the staggered approach to sentencing for theft which is required by s 223 of the Crimes Act 1961.15 The maximum penalty for the charge of theft over $1,000 is seven years’ imprisonment. The difference in penalties turns on the value of the items stolen so the threshold is an important differentiation, although this Court has observed that repeated thefts at or about the threshold might easily attract the maximum 12-month sentence for the lower charge (theft between $500 to $1,000).16
[25] In terms of comparable case law, Ms Mobberley relies on four decisions to support her submission that the available range for the starting point ought to have been between six- and nine-months’ imprisonment.17 Ms Barber, however, relies on three different decisions in support of her submission that the starting point of 12 months’ imprisonment is within range, as the decisions she refers to have starting points between 12 to 18 months.18
[26] I have considered the decisions. The variance in the details of each decision can make it difficult to assess their comparability to the present case. Nonetheless, I find the judgment of this Court in Atkins of most assistance. Atkins was an appeal that considered the appropriateness of a starting point for theft offending (together with issues of parity and home detention). The Court held that 12 months’ imprisonment
14 The Judge recorded that individually the sentences could have been longer if totality was not considered: New Zealand Police v Morgan, above n 8, at [4].
15 Kelly v New Zealand Police [2013] NZHC 1250 at [32].
16 Davies v New Zealand Police [2019] NZHC 3081 at [10].
17 Honeybun v New Zealand Police [2022] NZHC 3445; Samuels v New Zealand Police [2019] NZHC 694; Davies v New Zealand Police, above n 16; and Asres v New Zealand Police [2019] NZHC 2760.
18 Ralph v R [2021] NZHC 1434; Faben v R HC Hamilton CRI-2007-419-109, 26 September 2007; and Atkins v New Zealand Police [2024] NZHC 1730.
was an appropriate starting point on a lead charge of theft over $1,000 where the property taken from a Mitre 10 Mega was $2,959, taking into account the value of the goods stolen and the degree of premeditation involved. An uplift of 16 months was considered appropriate for the remaining theft charges which included eight charges for theft over $1,000 and one between $500 and $1,000.19 I find Samuels, Honeybun and Asres to be of less assistance given that issues other than the starting points were the greater focus of those appeals.20 I accept that an eight-month starting point was used in Davies but there is no specific discussion of why it was considered appropriate. In any event, I do not consider that this excludes the application of a 12-month starting point in the present case given the aggravating factors in Mr Morgan’s offending.
[27] I am satisfied that the Judge approached the sentencing on an orthodox basis in identifying the theft over $1,000, having the highest maximum penalty, as the appropriate lead charge.21 I also agree with the aggravating features of the dishonesty offending identified by the Judge, namely:
(a)the total value of the goods taken, amounting to around $2,619;
(b)the premeditation involved, despite a lack of sophistication, including the revisiting of businesses from which Mr Morgan was previously trespassed and therefore there is an element of repetitive offending against some of the victims; and
(c)the number of charges occurring over an extended period of time, namely from November 2020 to September 2023.
[28] Given these matters, I consider that the starting point of 12 months’ imprisonment is within range for the lead charge of theft faced by Mr Morgan.
[29] Ms Mobberley also contends that the uplift of eight months for the balance of the offending (one charge of theft at between $500 and $2,000, five charges of theft of
19 Atkins v New Zealand Police, above n 18, at [20]–[21].
20 Samuels v New Zealand, above n 17; Honeybun v New Zealand Police, above n 17; and Asres v New Zealand Police, above n 17.
21 See Davies v New Zealand Police, above n 16, at [12]; and Atkins v New Zealand Police, above n 18, at [18].
goods valued under $500, four charges of trespass, the driving charges and the failing to stop charges) is too high. She says that a six-month uplift is appropriate on a totality basis.
[30] I consider that the eight-month uplift for the other offences on a totality basis was appropriate. As the District Court Judge recognised, if these had been sentenced separately, the sentence could have been much longer. The balance of the offending involves a high number of shoplifting offences, spanning a three-year period. Several are in the upper half of the band $1 to $500, and one is between $500 to $1,000, albeit at the lower end of that band. The maximum sentences for those bands are respectively three months’ imprisonment and 12 months’ imprisonment. Further, the driving offences seriously endangered public safety, including to such an extent that the Police abandoned their pursuit for safety concerns. These are not trivial offences. I agree with Ms Barber that the Judge could equally have reached an eight-month uplift by calculating a five-month uplift for the balance of the theft charges, one month for the trespass charges and two months for the driving-related charges. The uplift of eight months appropriately reflects the totality of the balance of the offending.
[31] In my view, the length of the period of offending and the driving charges combined with the aggravating factors relating to the dishonesty offending mean that the overall starting point of 20 months’ imprisonment is within range.
Uplifts and discounts
[32] There is no objection to the three-month uplift for the appellant’s previous convictions. Those previous convictions are numerous and recent. Uplifting the sentence to reflect them goes towards achieving the deterrence principle of sentencing.22
[33] Ms Mobberley raised concerns about the discounts for personal factors, but acknowledged the points were not strong. She submits that the implications of Mr Morgan’s head injury could have justified a further discount but accepts there was no material before the Court to assist with this conclusion. Ms Mobberley also submits
22 Sentencing Act 2002, ss 7 and 8.
that in assessing a discount for guilty plea, it is clear from Hessell v R that timing of entry of plea is not necessarily significant, rather it is the surrounding circumstances,23 however, once again, she accepts that it is difficult to contend that a 15 per cent discount is in error.
[34] I consider that the 15 per cent reduction for the guilty plea was appropriate. The full discount of 25 per cent is properly reserved for cases where there the defendant pleads guilty at the earliest possible opportunity. Here, Mr Morgan first pleaded not guilty to most offences and eventually changed his plea following negotiations. 15 per cent is an appropriate reduction in those circumstances.
[35] Ultimately, I conclude that the global starting point is within range for the offending and the overall sentence is not manifestly excessive.
Result
[36]The appeal is dismissed.
McQueen J
Solicitors:
Crown Solicitor, Palmerston North for Respondent
23 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
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