Morgan v Police

Case [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…

Continue reading Morgan v Police

Sign in free to access the full text

Details
AGLC
Morgan v Police [2012] NZHC 938
Case
[2012] NZHC 938
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.