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Morgan v Police

Morgan v Police

Case [2019] NZHC 852 16 April 2019

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2019-463-0002

[2019] NZHC 852

BETWEEN
JAHVARN MORGAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 April 2019

Appearances:

J M Owers and CMD Martell for the appellant E F Collis for the respondent

Judgment:

16 April 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Public Defence Service, Tauranga Pollett Legal Limited, Tauranga

JAHVARN MORGAN v NEW ZEALAND POLICE [2019] NZHC 852 [16 April 2019]

[1] This is an appeal against both Jahvarn Morgan’s sentence of three years and nine months’ imprisonment, and four-year disqualification from driving, imposed by Judge Ingram in the District Court at Tauranga on 18 October 2018.1

[2] Mr Morgan was convicted of nine driving charges: driving while disqualified (three charges);2 driving with excess breath alcohol (two charges);3 carelessly operating a vehicle (two charges);4 reckless driving (one charge);5 and failing to stop when followed by red/blue flashing lights (one charge).6 He also was convicted on two charges of possession of cannabis.7

Application out of time

[3] Mr Morgan requires an extension of time to appeal,8 as his appeal was not filed within 20 working days of sentence.9 Mr Morgan’s appeal was filed on 20 December 2018, over two months after his 18 October 2018 sentencing.

[4] Extensions of time are granted in the interests of justice.10 Such applications “routinely reduce to two heads”.11 First, why late; second, what merit?12 Here Mr Morgan advised his counsel, Coby Martell, on 14 November 2018 he wished to appeal. Ms Martell was unable to obtain Judge Ingram’s notes until 10 December 2018. Due to work commitments, the notice of appeal was not filed until 20 December 2018.

[5] The delay is short and explained.13 As I will go on to say, the unorthodox circumstances of Mr Morgan’s sentencing suggest an appeal may have some merit. The respondent does not take issue with the appeal being filed out of time. On those bases, leave is granted.

1      Police v Morgan [2018] NZDC 25186.
2      Land Transport Act 1998, ss 32(1)(a) and 32(4) – third or subsequent.
3      Section 56(1) – third or subsequent.
4      Section 37.
5      Section 35(1)(a).
6      Sections 52A(1)(a)(ii) and s 52A(3).
7      Misuse of Drugs Act 1975, s 7.
8      Criminal Procedure Act 2011, s 248(4).
9      Section 248(2).
10     Mikus v R [2011] NZCA 298 at [26], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.
11     R v Slavich [2008] NZCA 116 at [14].
12     At [14], see also Mikus v R, above n 10, at [26].
13     R v Lee [2006] 3 NZLR 42 (CA) at [115].

Approach to appeals against sentence

[6] I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.14 In any other case, I must dismiss the appeal.15 The approach previously taken by courts on sentencing appeals continues to apply,16 so that the measure of error…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morgan v Police

Details

AGLC: Morgan v Police [2019] NZHC 852
Case: [2019] NZHC 852
Decision Date: 16 April 2019

CaseChat Overview and Summary

Jahvarn Morgan appealed his sentence of three years and nine months' imprisonment and a four-year disqualification from driving, imposed by Judge Ingram in the District Court at Tauranga on 18 October 2018. Morgan was convicted of nine driving charges and two charges of possession of cannabis. The appeal was filed out of time, and Morgan required an extension of time to appeal, as his appeal was not filed within 20 working days of the sentencing. Morgan's appeal was filed on 20 December 2018, over two months after his 18 October 2018 sentencing. The court granted leave for the appeal to proceed out of time, considering the delay short and explained.

The legal issues the court had to decide were whether the sentence was manifestly excessive, whether the Judge failed to identify a global starting point, failed to consider the totality of the offending, and gave insufficient credit for early guilty pleas. The court also had to determine whether the four-year disqualification from driving was manifestly excessive.

The court found that the sentence was not manifestly excessive, despite the Judge not following the orthodox approach to sentencing. The court held that the focus should be on the end sentence, and in this case, the end sentence was not manifestly excessive. The court further held that the four-year disqualification from driving was not manifestly excessive, given Morgan's history as a dangerous driver and his continued risk to public safety.

The court dismissed Morgan's appeal against sentence. The appeal was dismissed as the sentence was not found to be manifestly excessive, and the four-year disqualification from driving was not found to be manifestly excessive.

Orders