Morehu v The King

[2023] NZHC 3684

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/ PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2023-483-19

[2023] NZHC 3684

BETWEEN

JAKE MOREHU

Appellant

AND

THE KING

Respondent

Hearing:	13 December 2023
Appearances:	D M Goodlet for the Appellant K D Turner for the Respondent
Judgment:	13 December 2023

JUDGMENT OF PALMER J

Solicitors

D M Goodlet, Barrister, Whanganui Crown Solicitor, Whanganui

MOREHU v R [2023] NZHC 3684 [13 December 2023]

What happened?

[1]    In early December 2021, in Whanganui, Mr Jake Morehu, aged 26, messaged and met up with the complainant, a vulnerable 15-year-old girl with mental health and neurodevelopmental issues. He supplied her with methamphetamine and demanded sex as payment. She felt she had no choice and complied. On 28 December 2021,  Mr Morehu messaged and met the complainant again. His female partner and co-offender asked for the complainant’s phone. When the complainant refused, the co-offender  verbally abused, assaulted, and punched the complainant in the face.  Mr Morehu and the co-offender blocked the door to prevent her from leaving. The complainant punched the co-offender and Mr Morehu punched the complainant, who fell and was kicked. The victim impact statement shows that the offending and trauma resulting from it exacerbated the complainant’s vulnerabilities and mental health issues, as well as causing extensive emotional harm and ongoing physical effects.

[2]    Following a sentencing indication, Mr Morehu pleaded guilty to supplying methamphetamine and being a party to assault with intent to injure, which are punishable by maximum terms of life and three years’ imprisonment respectively.1

[3]    The  pre-sentence  report  by  the  Department  of  Corrections  stated  that  Mr Morehu minimised his involvement in the assault but showed remorse for the impact of the offending. It recommended imprisonment. A report was provided to the sentencing Judge from Huarahi Rereke Services under s 27 of the Sentencing Act 2002. It identified events in Mr Morehu’s childhood, and other trauma, that contributed to his behaviour, including his addiction to methamphetamine. He grew up around heavy drug users. His aunty referred to him as a “drug baby”. To cope with trauma he used drugs from the age of 13 and methamphetamine from the age of 18. He was smoking between two and three grams of methamphetamine by the time he was 22. He appears motivated to rehabilitate and has the support of his father. He is open to attending a residential rehabilitation facility, wants to start counselling, and is doing self-help modules. He wants to learn more about his Māori heritage and gain full-time employment.

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2); and Crimes Act 1961, ss 66 and 193.

[4]    On    18 October    2023,    in    the    District    Court   at    Whanganui,    Judge J M Marinovich sentenced Mr Morehu to two years and two weeks’ imprisonment:2

(a)The Judge adopted a starting point of two years and two months’ imprisonment.

(b)He uplifted that by seven months for the assault, given the door being blocked, the prolonged nature of the attack, and the relatively serious injuries of the complainant.

(c)The Judge did not uplift the sentence for Mr Morehu’s previous convictions for property and dishonesty offences, family violence, threatening to kill, and possession of methamphetamine and utensils.

(d)The Judge gave a 20 per cent discount for an early guilty plea.

(e)He provided a discount of two months, or around six per cent, for Mr Morehu’s addiction and background circumstances, while expressing his concern about the implications of Mr Morehu’s membership of the Nomads gang for his rehabilitation.3

(f)The Judge remitted Mr Morehu’s outstanding fines of $2,686 and increased the sentence of imprisonment by two weeks.4

(g)The Judge also cancelled Mr Morehu’s community work order that he was subject to when the offending took place.

[5]Mr Morehu appeals his sentence.

Submissions

[6]    Ms Goodlet, for Mr Morehu, submits that the discount for personal mitigating factors were insufficient to fairly reflect the linkage between Mr Morehu’s deprivation,

2      R v Morehu [2023] NZDC 23057 [Judgment on Appeal].

3      At [15] and [18]–[19].

4 At [20].

addiction, and trauma, to the offending. It should have been 15 per cent given his background of growing up around drugs. It is unfair to view Mr Morehu’s gang associations as detracting from that. Before the hearing, I asked counsel to address the legal authority for the increased term of imprisonment due to the remission of fines. Ms Goodlet submits the legal preconditions for a substituted sentence in the Summary Proceedings Act 1957 were not met so the Court did not have authority to remit the fines and impose an additional two weeks’ imprisonment.

[7]    Ms Turner, for the Crown, submits the District Court did not err and the end sentence was within range. This offending was not fuelled by addiction and a discount at the lower end of the range, only, was justified. Mr Morehu instead exploited the complainant’s addiction. Background or cultural factors are usually assessed alongside prospects of rehabilitation, which the Judge assessed. Those prospects were tempered by the effect of his ongoing association with the Nomads gang. The discount of two months was within the range available. Ms Turner agrees with Ms Goodlet that the requirements for the substituted sentence were not met so the remittance of fines and the additional two weeks’ imprisonment should be quashed.

Was there an error in the sentence and should a new sentence be imposed?

[8]    Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied that there is an error in the sentence imposed and a different sentence should be imposed. I must be satisfied that the sentence is manifestly excessive.5 The focus is on whether the end sentence was within the range available.6

Personal background

[9]    I agree that Mr Morehu’s personal background did not directly fuel the offending. But that is not the legal test. The Supreme Court stated in Berkland v R that an offender’s background can affect the extent of their agency, or ability to make conscious choices about offending, on which punishment and deterrence is premised.7 The Court stated that, where background factors help to explain how the offender came

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].

6      Ripia v R [2011] NZCA 101 at [15].

7      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [91]–[92].

to offend, they will amount to causative contribution and be relevant to sentencing, even if they are not operative or proximate causes.8 The Court must consider all the circumstances, including in relation to claims of addiction.9

[10]   The pre-sentence report, s 27 report, and alcohol and other drug report clearly demonstrate that Mr Morehu’s early trauma and addiction amounted to causative contribution to his offending here. It helps to explain why he came to offend. His contact with the complainant came about through methamphetamine. So, I agree with the Judge that some discount was warranted.

[11]   The question of how much that discount should be is more difficult. The causative contribution here is less than in many cases. I consider Mr Morehu’s deprivation and addiction, in relation to his offending, is not particularly comparable to cases where a 15 to 20 per cent discount has been made.10 Mr Morehu’s intention to continue his membership of the Nomad’s gang can fairly be taken into account in assessing the likelihood that his professed intentions for rehabilitation will be realised. I consider the available range in relation to his background is five to 10 per cent (or around six weeks to just over three months).11 Accordingly, although on the lighter side, I do not consider the two-month discount to be outside the range available to the Judge.

[12]   Furthermore, I consider it would have been available to the Judge to impose a small uplift to the sentence for Mr Morehu’s previous convictions for methamphetamine and violence. And there may have been room for the discount of 20 per cent for the guilty plea to be lower. So, the overall sentence, putting aside the sentence substitution, is not manifestly excessive.

8 At [109].

9 At [129].

10 See Waho v R [2020] NZCA 526 at [33]; and Poi v R [2020] NZCA 312 at [34] and [39].

11 Compare to Kreegher v R [2021] NZCA 22 at [44]–[50]: Mr Kreegher had a similar but comparatively worse background, yet his offending was more serious, and a 10 per cent discount was awarded. And see Berkland, above n 7, at [151]–[158] and [162]: Mr Berkland had a somewhat similar background to Mr Morehu, however, there are aspects which were comparatively worse. The offending was more serious, but Mr Berkland also showed higher rehabilitative prospects. A discount of 10 per cent for addiction and personal background was awarded.

Sentence substitution

[13]   I am satisfied the remission of Mr Morehu’s fines and substitution by a two-week increase in the term of imprisonment was an error. The Judge stated:

[20] In terms of your fines, what I will do is remit your fines. The total is
$2,686. In lieu of those fines I will impose two weeks’ imprisonment.

[14]   Section 106E of the Summary Proceedings Act provides the legal authority to remit fines and substitute them with imprisonment, providing, relevantly:

(1)A District Court Judge … must not impose a substituted sentence on a defendant for non-payment of 1 or more fines under this Part unless—

(a)an assessment of the defendant’s financial capacity has been recently completed, being an assessment that does not include information given by a third party unless it also gives details of the source of the information and the date to which the information relates; and

(b)the Judge … has considered the assessment; and

(c)the Judge … is satisfied that all other methods of enforcing the fine or fines have been considered or tried and that they are inappropriate or have been unsuccessful.

…

(3)A District Court Judge may, subject to the restrictions set out in this section,—

…

(b) issue, or direct the issue of, a warrant of commitment for the imprisonment of a defendant for non-payment of 1 or more fines under this Part.

(4)In sentencing a defendant for non-payment of 1 or more fines under this Part, the court must impose the least restrictive sentence that is appropriate in the circumstances.

[15]   The preconditions for the Judge’s imposition of a substituted sentence  under s 106E(1) were not fulfilled here. There is no record of an assessment of Mr Morehu’s financial capacity. There is nothing on which to base an inference that there was such an assessment or that the Judge considered it or other methods of enforcing the fines. Unlike other cases, the Judge did not refer to any financial information or the power

to substitute the sentence.12 The pre-sentence report indicated that Mr Morehu was in paid employment. As both counsel agree, I conclude that there was no power for the Court to make substitution, which was made in error. Accordingly, I reinstate the fines and quash the sentence of two weeks’ imprisonment imposed in substitution for them.13

[16]   Because the resulting sentence is two years’ imprisonment, I must consider whether the sentence of imprisonment should be replaced by a sentence of home detention. Counsel did not submit that it should, and Mr Morehu does not offer an address for home detention. I also consider that the nature of the offending here means that denunciation, deterrence, the protection of the community, and the interests of the victim are key purposes of this sentencing. Home detention would not achieve those purposes in these circumstances.

[17]   However, I do adopt the special conditions for release, relating to alcohol and drug assessment and treatment, as proposed in Corrections’ pre-sentence report if a sentence of two years or less is imposed.

Result

[18]   The appeal is allowed to the extent that the order remitting fines and substituting a sentence of two weeks’ imprisonment is quashed. The outstanding fines are reinstated. The total sentence of imprisonment is for two years, with the following special release conditions:

(a)To attend and complete an assessment with an alcohol and drug provider, and attend and complete any counselling, treatment or programme that may be directed as a result of that assessment.

(b)To attend an assessment for a Departmental programme, and if assessed as suitable, to attend and complete the programme to the satisfaction of the Probation Officer and Programme Provider.

12     Herlund v Police [2013] NZHC 1531 at [33]–[34].

13     Hunt v R [2010] NZCA 78 at [16]; Ward v R [2011] NZCA 44 at [4]; and Manga v Police [2023] NZHC 3185.

(c)Not to have contact, directly or indirectly with the complainant, without the prior written consent of the Probation Officer.

(d)To engage with the Howard League as directed.

(e)Not to possess or consume alcohol or non-prescribed drugs for the duration of the special conditions.

(f)To attend and complete any other counselling, programme and/or treatment that may be recommended, aimed at reducing the risk of re-offending.

Palmer J