Morgan v Police - [2012] NZHC 938

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-20 [2012] NZHC 938

CHARLES THOMAS MORGAN
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 24 April 2012

Appearances: S J Connell and M Menzies for the appellant
M Ferrier for the respondent

Judgment: 7 May 2012

JUDGMENT OF CLIFFORD J

Introduction

[1] In the early hours of 9 September 2011 the appellant, Mr Morgan, together with an associate, Mr Barrett, went on what can only be described as a “tagging spree” in Upper Hutt. They each etched tags onto glass windows and spray painted tags onto other structures. As a result, Mr Morgan faced 22 charges of intentional damage under s 269(2)(a) of the Crimes Act 1961 for the etched tags, and 21 charges of graffiti vandalism under s 11A of the Summary Offences Act 1981 for the spray painted tags. For his part, Mr Barrett faced 29 Crimes Act charges of intentional damage, 25 charges of graffiti vandalism under s 11A of the Summary Offences Act
1981 and one charge of wilful damage under s 11 of the Summary Offences Act.

MORGAN v POLICE HC WN CRI-2012-485-20 [7 May 2012]

[2] Both Mr Barrett and Mr Morgan pleaded guilty and were sentenced on 14

December 2011 and 22 February 2012 by Judges Johnston and Grace respectively.[1]
[1] Police v Barrett DC Upper Hutt CRI-2011-078-001460, 14 December 2011; Police v Morgan
DC Upper Hutt CRI-2011-078-000098, 22 February 2012.

Mr Barrett was ordered to pay reparation of $22,000 and sentenced to four months’ community detention with a 7.00pm to 7.00am daily curfew, nine months’ supervision, and 200 hours community work. Mr Morgan was ordered to pay reparation of $12,000, and sentenced to four months’ home detention and 200 hours community work together with special release conditions – including one of non- association with Mr Barrett. Reflecting Mr Morgan’s end home detention sentencing, Judge Grace identified a sentence of six to eight months’ imprisonment as an appropriate “all up” penalty. In sentencing Mr Barrett, Judge Johnston observed that repeat offending of this type attracted prison sentences but that, given Mr Barrett’s efforts to reform, he would be treated leniently by community detention.

[3] Mr Morgan does not challenge the reparation order, nor the 200 hours community work that he was sentenced to. But he appeals against the home detention element of his sentence on the basis that it was wrong in law and failed to take into account relevant matters, including parity with his co-offender’s sentence.

[4] Mr Morgan’s concerns can, I think, be fairly summarised as follows:

(a) On the face of things, Mr Barrett’s offending was more serious than his: Mr Barrett faced a greater number of the intentional damage charges and, reflecting the greater damage caused by his actions, was ordered to pay a greater amount of reparation.

(b)Whilst Mr Morgan was older, and had a more troubling criminal history, those factors were or should have been offset by the greater seriousness of Mr Barrett’s offending.

(c) To the extent…

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 [2012] NZHC 938
Case: [2012] NZHC 938
Decision Date: 7 May 2012

CaseChat Overview and Summary

In this case, Mr Morgan appealed against the home detention element of his sentence, arguing that it was wrong in law and failed to take into account relevant matters, including parity with his co-offender's sentence. Mr Morgan's co-offender, Mr Barrett, was sentenced to community detention with a curfew and other conditions. Mr Morgan argued that the disparity in their sentences was unjust, given that Mr Barrett's offending was more serious and he had attended a rehabilitative course, while Mr Morgan had not. The court had to decide whether the disparity in sentences was justified or whether it indicated an error in the administration of justice.

The court considered whether there was a disparity between the sentences imposed on Mr Morgan and Mr Barrett, and if so, whether that disparity could be explained by different levels of culpability or mitigating factors. The court found that there was a clear disparity, as Mr Barrett faced more charges and his offending was more serious, but Mr Morgan was sentenced to home detention while Mr Barrett was sentenced to community detention. The court also considered whether Mr Barrett's sentence was unduly lenient, but concluded that it was not. The court found that the disparity between the sentences could not be justified by different levels of culpability or mitigating factors, and that a reasonably minded independent observer would regard the disparity as reflecting something having gone wrong with the administration of justice.

The court allowed the appeal and substituted Mr Morgan's sentence of four months' home detention with a sentence of four months' community detention and supervision for nine months, the same sentence as that imposed on Mr Barrett. The court also ordered that Mr Morgan's curfew address and hours be the same as those imposed on Mr Barrett. If Mr Morgan had not been serving his sentence of home detention already, the substitute sentence would be the four months' community detention unadjusted. Leave was reserved if issues arose in giving effect to this judgment.

Orders