Morgan v Police
[2025] NZHC 1552
•13 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000747 CRI-2024-404-000748 [2025] NZHC 1552
BETWEEN SIMON MORGAN
Appellant
AND NEW ZEALAND POLICE
Respondent
Hearing: 5 May 2025
Counsel: M Choi and C H B Megala for Appellant
W N Fotherby and G R T Lund for Respondent
Judgment: 13 June 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 13 June 2025 at 10.30 am
Registrar/Deputy Registrar
Solicitors:
Public Defence Service (Auckland) for Appellant Meredith Connell (Auckland) for Respondent
MORGAN v POLICE [2025] NZHC 1552 [13 June 2025]
Introduction
[1] Mr Morgan appeals his sentence of two years and three months’ imprisonment imposed by Judge D A Bell on 26 July 2024.1
[2] Mr Morgan needs leave to appeal because he is out of time. I granted leave to appeal at the hearing because Mr Morgan was self-represented at sentencing and had difficulties getting legal advice while in prison.
[3] Mr Morgan is 42 years old. He has a prolific history of offending and has spent most of his adult life serving serial sentences of imprisonment because, as soon as he is released, he re-offends. His offending is a mixture of violent offending and property offending.
[4] This case begins with Mr Morgan pleading guilty to a raft of charges, including assaulting his partner. Judge Lummis, who had dealt with Mr Morgan in the past, stepped back from a sentence of imprisonment and imposed a sentence of intensive supervision and community work.2 In my view, that was a manifestly inadequate sentence. However, Mr Morgan did not take advantage of it. He never engaged with intensive supervision and he never performed any community work. He did, however, commit a further raft of offences, including assaulting the same ex-partner again, although less seriously than before.
[5] Judge Bell had to re-sentence Mr Morgan on the charges which had been dealt with by Judge Lummis and sentence him on the new charges. The end point adopted by the Judge was two years and three months’ imprisonment.
[6] Mr Morgan has applied for leave to adduce further evidence on the appeal, being evidence of his alcohol addiction and struggles with mental health. The Crown accepts that this is cogent evidence and was not readily available previously to Mr Morgan given that he was representing himself. I give leave.
1 Police v Morgan [2024] NZDC 17829.
2 Police v Morgan [2024] NZDC 5312.
The Judges’ decisions
Judge Lummis
[7]The Judge described Mr Morgan’s offending:
[1] I am going to run through things in a little bit of detail because I want to keep a track on you. This is not going to be the last time we meet. Today we are sentencing you on eight charges. There is theft from the Countdown Pukekohe of $471, theft from the Warehouse St Lukes, $374. That was on 28 January and 7 February of this year. Then on 16 February of this year the main charge is assault on a person in a family relationship. I will come back to that in a bit more detail. There is then the 28 February threatening behaviour, 7 April, threatening behaviour, 17 April, there is the theft of the TV from the Warehouse, then we have got on 21 June an intentional damage at the Station Backpackers and disorderly and threatening behaviour at the same time.
[2] In terms of the assault on a person in a family relationship, that is in February of last year when the victim, [SC], who you had been in an on-off relationship with for some months, was with you at your home at around
4.15 am. You were arguing. She attempted to leave. You pulled her back into the bedroom, trying to restrain her. You proceeded to strike her in the head. Police arrived a short time later and found her unconscious on the floor. You were sitting next to her. She had a haematoma on the back of her head and one on the side of her head and you did not comment about that at the time.
[8] Those are the charges that came back to Judge Bell for re-sentencing. I do not need to set out how Judge Lummis reached her sentence.
Judge Bell
[9] Judge Bell described Mr Morgan’s offending which occurred after Judge Lummis’s sentencing:
[3] The charges before me today are one charge that on 13 January 2024 assault with intent to injure on James Kelly Cope Nicholson. Further on the same day an assault on [SC], a person that he has been in a family relationship with. On 23 November 2023 using a telecommunications device knowingly gave a fictious message, namely his ex-partner’s mother, threatened with a gun. He is also then further charged with two breaches of bail on 4 March 2024 at Papakura Court and 14 March at the Auckland District Court. He is then further charged with a breach of intensive supervision on 21 February 2024.
…
[5] The summary of facts for the fictitious phone call set on 23 November 2023, Mr Morgan was at his ex-partner’s address in Māngere. He had a verbal
argument with his ex-partner’s mother due to his level of intoxication. He left the address and called the police claiming that his ex-partner’s mother presented a sawn-off shotgun to his face. Due to this phone call numerous police units made an armed response to the address in which police discovered this was a fictitious phone call from the defendant. The defendant was subsequently arrested.
[6] He is then further charged that on 13 January 2024 he was in a vehicle being driven by [SC] with James Cope Nicholson … The victim, [SC] was driving and the victim, James was seated in the front passenger seat. Mr Morgan was seated in the rear left passenger seat. The victim, James, was speaking to Mr Morgan and showed him the injuries he received in the vehicle crash a few days prior.
[7] Around 5.30 pm after leaving the Makatu waterfall, Mr Morgan and both victims were travelling north on Great South Road. Mr Morgan asked the victim, [SC] to take him to her address, which she declined. Mr Morgan then started swearing and yelling abuse at her. The victim, James, intervened which enrage Mr Morgan who said to the victim James: “Shut up you little cunt or I’ll knock you out.” The victim, James, attempted to phone police, however, Mr Morgan grabbed his arms around the bruised areas which prevented him from doing so. During the scuffle over the phone, Mr Morgan punched the victim, James, twice in the back of his head in the same area of his head injury.
[8] Mr Morgan then turned to the victim [SC], grabbed at her arm and shoulder while she was driving and attempted to take hold of her phone. The vehicle came to a stop at set of traffic lights and the victim, James, ran from the vehicle to get help. The victim, [SC], continued driving a short distance and pulled into a nearby Gull petrol station when Mr Morgan exited and left on a bus. The victim, James, experienced extreme pain around his pre-existing injuries and the victim, [SC], sustained minor scratches to her arm.
[9] In regard to the breach of intensive supervision, Mr Morgan was sentenced to one-year intensive supervision and 250 hours of community work on 8 December 2023. He was fully inducted into the supervision sentence on 11 December 2023. On the same day he was issued a written instruction to report, which he signed. He failed to report in until 12 February 2024.
[10] On this date he was fully re-inducted into his intensive supervision sentence and acknowledged his understanding of the conditions. He was issued a written instruction to report commencing 14 February 2024. On that date he contacted his probation officer and advised he could not report as he was in hospital with a headache. He agreed to bring confirmation of his attendance at hospital. On 21 February he failed to report as directed. Contact was made with Mr Morgan on 18 March 2024. He said he was going through personal issues but would not elaborate. As such he was breached without reasonable excuse.
[11] As of 20 March 2024, he continued to fail to report. His intensive supervision is set to expire on 7 December 2024. He has not complied with the 240 hours community work that he was sentenced to on 8 December 2023.
[10] The charge of breach of intensive supervision related to that component of Judge Lummis’s sentence.
[11]Judge Bell noted:
[22] You have a total of 148 convictions, 17 violence related convictions, 37 dishonesty related convictions, 15 breaches of community sentences and you have been subject to 68 sentences of imprisonment. There have been 25 alleged family harm incidents recorded against you in the past two years.
[23] I have read the probation report which has been provided. You were assessed as being of high risk of re-offending and as Judge Lummis noted and as the probation report writer notes, your offending related factors have been identified as alcohol and other drug abuse, a heightened sense of self- entitlement, entrenched entitled attitude supportive of offending, poor decision-making, impulsivity and lack of structured lifestyle.
[12] The Judge took as the lead offence for sentencing the charge of assaulting Mr Nicholson with intent to injure him. The starting point adopted was nine months’ imprisonment. The Judge then adopted a starting point of six months on the charge of assaulting the ex-partner, taking into account that he had recently been sentenced by Judge Lummis for assaulting the ex-partner earlier.
[13]The Judge then said:
[38] For the other offending, the telecommunications issues, failing to appear and the breaches of intensive supervision, community work and breach of bail, a cumulative starting point of four months’ imprisonment. So for the offences in front of me, that brings me to a starting point of 19 months’ imprisonment. I then turn to resentencing you on the matters that were before Judge Lummis, the eight charges I referred to earlier. I agree with Judge Lummis that the assault on the victim in that case was more serious and a starting point of 10 months is appropriate. An uplift of four months for the other offending brings me to a total of 14 months’ imprisonment, which is 33 months’ imprisonment.
[39] If I stand back and apply the totality principle, that is I round that down to 30 months’ imprisonment. I then look at the discounts that you are entitled to. Yes, you did plead guilty at a very early stage. However, there have been warrants to arrest to issue on the charges before me, but if I take into account the matters before Judge Lummis where she indicated a guilty plea discount of 20 per cent, I am prepared to give you a discount of 20 per cent for your guilty plea.
[40] As to remorse, I am sceptical with what you have told me and the letters you have written and what you have told Judge Lummis and that combined with the few steps you have taken towards rehabilitation, which in
my view are only just the beginning with the certificates you have completed, I apply a discount for both of those of five per cent.
[41] That brings me to a 23-month total and given the offending before me was offending whilst on sentence and you have offending on bail and an uplift for your previous history, that is another four months applied. So that brings me to a total of 27 months’ imprisonment.
The appeal
[14] In written submissions, the grounds of appeal are given as:
5.The appellant respectfully submits that the sentence imposed was manifestly excessive on the basis that the learned District Court Judge failed to appropriately consider, and to apply appropriate sentencing discounts for, the appellant’s personal mitigating factors, specifically their addiction and mental health issues.
6.Counsel submits that a discount of at least 10 – 15 per cent should have been applied to account for Mr Morgan’s addiction issues and mental health, which contributed to the offending in a demonstrable way.
7.In addition, the appellant submits that the full guilty plea discount should have been applied at sentencing in terms of Moses3 and Hessell.4 Leave is sought to amend the grounds of appeal to include this ground. Counsel details this ground and why the failure to apply the full discount resulted in a manifestly excessive sentence in these submissions.
8.The appellant holds no issue with the starting point adopted by the learned District Court Judge.
9.The appellant submits that appropriate recognition of personal mitigating factors, and the full guilty plea discount, would bring the sentence to one of less than two years’ imprisonment.
Discussion
[15] I must allow Mr Morgan’s appeal if there is an error in the sentence such that a different sentence should be imposed.5
[16] My focus is on the end sentence rather than the mechanism by which it was reached. If the end sentence of two years and three months’ imprisonment is
3 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
4 R v Hessell [2009] NZCA 450, [2020] 2 NZLR 298.
5 Criminal Procedure Act 2011, s 250(2).
manifestly excessive, having regard to the offending itself and Mr Morgan’s personal circumstances, then I will need to impose a lesser sentence.
[17] First, although Mr Morgan explicitly, and the Crown implicitly, accept the overall starting point of 30 months’ imprisonment, I must still evaluate it. I find the starting point is light. The three assaults, I accept, justified the overall starting point of 25 months. But, the eight month uplift for all the other offending was below what could be expected given the facts as set out by Judge Bell. In my view, there was no need to then reduce the overall starting point by three months to account for totality.
[18] I consider also that the uplift of four months for Mr Morgan’s history of criminal offending could have been higher. He is a prolific offender and a continuing risk to the community.
[19] As to the 10 to 15 per cent discount for Mr Morgan’s addiction issues and mental health (taking into account the new material which I have admitted), I accept the Crown’s submissions:
5.6The evidence speaks to Mr Morgan’s struggles with addiction, his mental health and the causative connection between these and his offending. Whilst the respondent accepts that the evidence and the AOD report in particular speak to the specific nature of Mr Morgan’s struggles, it is submitted that Judge Bell was well aware of these issues when sentencing him.
5.7Judge Lummis, when sentencing Mr Morgan acknowledged that alcohol was a significant factor in the offending. A sentence of intensive supervision was imposed with the focus of that supervision being on alcohol.6 Mr Morgan laughed when this aspect of the sentence was imposed. He was directed to attend an assessment for an alcohol and other drug programme which could include a residential programme if that was required. As is clear from Judge Bell’s sentencing notes, Mr Morgan has “considered but not attended or completed any intensive or residential alcohol and drug treatment programmes”.7 He offended again within weeks of being sentenced by Judge Lummis.
5.8The respondent notes and would support Judge Bell’s observation that Mr Morgan’s sentence by Judge Lummis was “very generous”. It was undoubtedly one that took into account Mr Morgan’s struggles and provided him with a clear path towards rehabilitation. When substituting this for a sentence of imprisonment, Judge Bell was aware
6 Police v Morgan, above n 2, at [8].
7 Police v Morgan, above n 1, at [26].
of such and it was open for her Honour to not impose an additional discount for addiction and mental health.
[20] This is not a situation where rehabilitation is a realistic prospect and to be encouraged. It might be that if Judge Bell had the material I have seen then a discount above five per cent would have been afforded. But it would not have been necessary.
[21]The discount of 20 per cent for pleas of guilty was clearly available.
Decision
[22] In my view, the end sentence of two years and three months’ imprisonment is not manifestly excessive. It is light.
[23]The appeal is dismissed.
Brewer J