Morgan v Police
[2012] NZHC 938
•7 May 2012
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 that a distinction was drawn between Mr Morgan and
Mr Barrett, by reason of the fact that Mr Barrett had attended a rehabilitative course but that Mr Morgan had not, Judge Grace had
been wrong to conclude that Mr Morgan had displayed less remorse or commitment to changing his ways. Mr Morgan had been on restrictive bail away from the Hutt area in Masterton. It simply was not possible for him in those circumstances to attend a similar
rehabilitative course.
Analysis
[5] Section 8 (e) of the Sentencing Act 2002 requires the Court to take into account the desirability of consistency of sentencing “in respect of similar offenders committing similar offences in similar circumstances”. The Judge sentenced Mr Morgan after, in his words, “putting aside what happened to your co-offender”.[2]
[2] At [10].
Disparity in sentences imposed on co-offenders may lead to the reduction of an otherwise appropriate penalty on appeal. The Court of Appeal in R v Lawson discussed the circumstances where such a reduction would be appropriate:[3]
[3] R v Lawson [1982] 2 NZLR 219 at 223.
[D]ifferences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute … But the test is objective, not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[6] Therefore, Mr Morgan’s sentence of home detention can be only substituted on the basis of disparity with Mr Barrett’s sentence if any disparity identified would lead a reasonably minded observer to think that something had gone wrong in the administration of justice in this case. That test will generally not be met if any
disparity can be explained by reference to different levels of culpability or mitigating
factors. It is also an established principle that an offender cannot seek parity with an unduly lenient sentence imposed on his or her co-offender.[4]
[4] R v Rameka [1973] 2 NZLR 592, at 593; Mau’u v R [2011] NZCA 385; McKernan v R HC Auckland CRI-404-000435, 3 February 2012; R v Te CA49/05, 5 July 2005 and R v Feterika [2008] NZCA 127 at [47].
[7] In considering Mr Morgan’s appeal, therefore, I will first determine whether a disparity exists between the two sentences, whether that disparity can be explained by reference to different levels of culpability or differing mitigating factors and finally, if it cannot, whether – given Judge Johnston’s observation – Mr Barrett’s sentence is nevertheless so lenient as to make it one that Mr Morgan is not entitled to parity with.
[8] On the face of it, there is in my view a clear disparity. Mr Barrett faced a greater number of charges overall, which can only be understood as reflecting a greater instance of the relevant offending. In terms of the sentence imposed, I think it is clear that home detention is a considerably more restrictive sentence than community detention. Home detention may only be imposed as a substitute to a short term prison sentence, where as community detention is “a community based
sentence” in terms of s 44 of the Sentencing Act. In R v Conway,[5] the Court of
[5] R v Conway CA234/04, 8 November 2004 at [65].
Appeal remarked that there is “a world of difference” in the minds of most members of the community between a sentence of imprisonment and a sentence of community work. I acknowledge, however, the Court noted in R v Norman that since the introduction of home detention, that world of difference has been reduced.[6]
[6] R v Norman CA 301/07, 15 august 2007 at [34.
[9] I accept that the disparity between Mr Morgan’s home detention sentence and Mr Barrett’s community detention sentence is mitigated by the additional component of nine months’ supervision imposed on Mr Barrett. That in my view, however, does not remove a clear disparity: I think that clear disparity arises because by reference to the simple fact that Mr Morgan has been sentenced to home detention, and Mr Barrett to community detention, when Mr Barrett’s offending involves – as
reflected in the number and type of charges – greater culpability.
[10] The question therefore becomes whether that difference in sentence is justified by other, mitigating, factors.
[11] In sentencing Mr Morgan, the Judge noted that – by contrast to Mr Barrett – Mr Morgan had not taken steps to address his offending. I also acknowledge that Mr Morgan was on restrictive bail out of Wellington that may have made it more difficult for him to take steps to address his offending. That does not, however, in my view, completely remove the distinction the Judge identified between Mr Morgan and Mr Barrett. In my view that would at most – given the different incidence of offending – lead to a similar sentence being imposed, and thus does not justify the disparity I have identified.
[12] For the Police, reference was also made to the difference between Mr Morgan’s and Mr Barrett’s criminal record. Counsel for the Police described Mr Morgan’s previous offending as running to four pages, which is correct, and involving “three tranches of similar convictions (2008, January 2011 and February
2011)”. By contrast, Mr Barrett was described as having limited, though relevant, criminal history. In terms of this particular type of offending, in fact the criminal histories of Mr Morgan and Mr Barrett are similar, Mr Barrett has committed “graffiti offences” on three previous occasions (9 March 2011, 10 February 2011 and
7 December 2010), involving possession of graffiti implements on each of those three occasions, and two graffiti vandalism charges on 9 March 2011.
[13] For his part, Mr Morgan had three previous convictions for graffiti related offending, one charge of wilful damage by graffiti (Summary Offences Act, s 11) on
26 February 2011, one charge of possession of graffiti implements and one charge of graffiti (Summary Offences Act, s 11A) on 26 January 2011. I am not persuaded, therefore, that a difference in criminal history between Mr Barrett and Mr Morgan justifies the different sentences imposed.
[14] Finally, I accept that being older, Mr Morgan would not have been entitled to any discount for youth that Mr Barrett might have received. It is not clear, however, that the sentencing Judge allowed any such discount. Given Mr Barrett’s previous relevant offending, I think it is unlikely that she did.
[15] I therefore consider finally whether or not Mr Barrett’s sentence is so lenient as to make it one with respect to which Mr Morgan is not entitled to parity. Following the hearing, I raised this issue with counsel. The Crown’s position is that whilst Mr Barrett’s sentence was lenient, in the sense that it was at the lower end rather than at the upper end of what was a permissible sentence, it was not so unacceptably lenient as to bring the principles set out R v Rameka into play. Although I am a little surprised by that concession, given the nature of Mr Barrett’s offending in this instance, and his previous convictions, I nevertheless do not take that point any further.
[16] Therefore, in my view there is a disparity between Mr Morgan’s sentence and that of Mr Barrett which, in all the circumstances, a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would regard as reflecting something having gone wrong with the administration of justice.
[17] I therefore allow this appeal. The question becomes what is the effect of that.
[18] Counsel for Mr Morgan asked that a sentence of three months’ community detention be substituted for the sentence of four months’ home detention imposed. On the assumption, however, that Mr Morgan has served part of his sentence of home detention, some adjustment would need to be made to take account of that. In my view the appropriate outcome for this appeal is that Mr Morgan’s sentence of four months’ home detention is quashed, and that in its place a sentence of four months’ community detention and supervision for nine months (that is the same sentence as that imposed on Mr Barrett) in principle be substituted. On the assumption that Mr Morgan has, in fact, been serving his sentence of home detention since the time of his conviction, then as from the date of the allowing of this appeal he is to serve a further sentence of six weeks’ community detention. The curfew address is to be 27A Roband Crescent, Brown Owl, Upper Hutt and the curfew hours are to be 7.00pm to 7.00am, Monday to Sunday inclusive.
[19] Mr Morgan is to be subject to the same release conditions as imposed by the sentencing Judge at [11].
[20] If I am wrong in assuming Mr Morgan has been serving his sentence of home detention already, and in fact he has not been, then the substitute sentence would be the four months’ community detention unadjusted. Leave is reserved if issues arise in giving effect to this judgment.
“Clifford J”
Solicitors:
Miriam Menzies & Co, Upper Hutt for the appellant ([email protected])
Crown Solicitor, Wellington for the respondent ([email protected])