Morgan v The King

[2024] NZHC 244

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2024-463-0004

[2024] NZHC 244

BETWEEN

JOHN ANDREW MORGAN

Appellant

AND

THE CROWN

Respondent

Hearing:	19 February 2024
Appearances:	N Hartigan for the appellant P Patanasiri for the Crown
Judgment:	20 February 2024

JUDGMENT OF CAMPBELL J

[Appeal against Sentence]

This judgment was delivered by me on 20 February 2024 at 4.00 pm

Registrar/Deputy Registrar

MORGAN v THE CROWN [2024] NZHC 244 [20 February 2024]

Introduction

[1]    Mr Morgan pleaded guilty to charges of wounding with intent to injure, possession of an offensive weapon, intimidation (x2), unlawfully carrying an imitation firearm, offering to supply methamphetamine (representative), and supplying methamphetamine (representative). On 1 December 2023, Judge T R Ingram sentenced Mr Morgan to three years and seven months’ imprisonment.1 Mr Morgan appeals his sentence.

The offending

[2]    The lead offence was that of wounding with intent to injure. I will describe that in a little detail and then briefly summarise the other offending.

Wounding with intent to injure

[3]    The primary victim of the offending, Alex Mowbray, had been close friends with Cody Ringrose. Mr Mowbray then formed a close friendship with Mr Ringrose’s ex-girlfriend. This led to animosity between Mr Mowbray and Mr Ringrose.

[4]    In the weeks  leading  up  to  the offending,  Mr Morgan  sent  Mr Mowbray  a photograph by mobile phone. It showed Mr Morgan pointing a rifle at the camera along with a threatening message.

[5]    At about 8.30 pm on 18 March 2023, Mr Mowbray and two other complainants were at Mr Ringrose’s home. Mr Mowbray had gone there to speak to Mr Ringrose. While  they  were  speaking,  Mr  Morgan  arrived.  He  immediately   approached Mr Mowbray in an aggressive manner and asked him if he wanted a fight. He then punched Mr Mowbray eight to nine times to his  abdomen, ribs,  head, and  neck.  Mr Mowbray tried to back away. Mr Morgan then picked up a wooden stool and struck Mr Mowbray multiple times to the head. Mr Mowbray raised his arms above his head in an attempt to protect himself.

1      R v Morgan [2023] NZDC 26822.

[6]    Mr Morgan then ran into the kitchen, grabbed a small knife off the bench and ran back to Mr Mowbray. Mr Morgan attempted to stab Mr Mowbray in his abdomen, but Mr Mowbray was able to defend himself with his hand. Mr Morgan then successfully stabbed Mr Mowbray with the knife just above his navel. Mr Morgan then shook Mr Ringrose’s hand and left.

[7]    Mr Mowbray managed to walk home and was then taken to hospital. He needed surgery for a laceration to his abdominal wall. He also had a black eye.

Other offending

[8]    On 8 March 2023, Mr Morgan sent a video message to an associate. The video depicted Mr Morgan driving a car and showing a sum of money, claiming it was

$20,000. It then depicted him grabbing a black handgun from his lap, pointing it at the camera and pulling the trigger. Police subsequently searched Mr Morgan’s car. They located the firearm shown in the video. It was a blank firing pistol.

[9]    Early on the afternoon of 3 April 2023, Mr Morgan drove to Mr Mowbray’s home, parking outside his driveway. Mr Morgan remained in his car, where he was visible to the other two complainants. They saw him remove from the front of the car, and then place in the rear, a black crossbow, something that appeared to be a sawn-off firearm, and a knife.

[10]   Mr Morgan saw the two complainants watching him. He raised his hands as  if he were holding an invisible firearm. He pointed the invisible firearm at the two complainants and made motions as though he were shooting them three to four times.

[11]   A production order was executed on Mr Morgan’s cell phone number. Police obtained text data for the period between 17 March 2023 and 4 April 2023. The data revealed that Mr Morgan was involved in supplying methamphetamine. He supplied about 1.55 grams to different customers on six separate occasions over the two-week period. He also offered to supply an unknown amount of methamphetamine.

District Court Judgment

[12]Judge Ingram said that for the wounding charge the leading case was Nuku v

R.2 The Judge said he came to the straightforward conclusion that this offending would justify a starting point of four years’ imprisonment. He imposed an uplift of six months for the methamphetamine offending and an uplift of six months for the other offences. This meant the overall starting point was five years’ imprisonment. The Judge then imposed an uplift of three months for Mr Morgan’s many prior convictions and a further three months for the fact that Mr Morgan was on sentence at the time of the offending. This took the Judge to a running total of five years and six months’ imprisonment.3

[13]   The Judge then referred to the comprehensive report that had been prepared on Mr Morgan’s background. He accepted that Mr Morgan had background difficulties and addiction issues. However, he said Mr Morgan had been before the courts repeatedly over a long period of time, with the courts bending over backwards to try to help Mr Morgan deal with his issues. He said that Mr Morgan had not taken the opportunities that had been given to him.4 The Judge allowed 15 per cent for the matters in the report and for Mr Morgan’s “claim of remorse”.5

[14]   Judge Ingram also allowed 20 per cent credit for Mr Morgan’s guilty plea. This meant the total credit was 35 per cent. The Judge applied this against his running total of five years and six months’ imprisonment. (This was in error. The credit should have been applied to the overall starting point of five years’ imprisonment.6 This error was to Mr Morgan’s advantage by about two months.) The end sentence was therefore three years and seven months’ imprisonment.

Grounds of appeal

[15]   Ms Hartigan, counsel for Mr Morgan, submitted that Judge Ingram erred in his sentencing in the following respects:

2      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

3      R v Morgan [2023] NZDC 26822 at [6].

4 At [10].

5 At [11].

6      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

(a)The starting point of four years’ imprisonment for the wounding with intent to injure charge was excessive. Ms Hartigan said the starting point should have been three years’ imprisonment.

(b)The credit for Mr Morgan’s background and addiction issues was insufficient. It should have been 20 per cent, with a separate credit of five per cent for remorse.

(c)A credit of five per cent for Mr Morgan’s rehabilitative prospects ought to have been given.

(d)Mr Morgan should have been allowed a full 25 per cent guilty plea credit, rather than 20 per cent.

[16]   Ms Hartigan submitted that, as a consequence of these errors, the end sentence was manifestly excessive. She said that once further credit was given for pre-sentence detention, an end point of eleven months’ imprisonment would be reached, which should be converted to home detention to enable Mr Morgan to receive the rehabilitation he requires.

Principles governing sentence appeals

[17]   For a sentencing appeal to succeed, the sentence generally must be shown to be manifestly excessive or wrong in principle.7 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.8

Was the starting point for the wounding charge excessive?

[18]   In Nuku,9 the Court of Appeal gave guidance on how R v Taueki10 (the guideline judgment on sentencing for causing grievous bodily harm (GBH) with intent to cause

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

8 At [36].

9      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

10     R v Taueki [2005] 3 NZLR 372 (CA).

GBH) should be adapted to charges such as injuring with intent to injure. The Court emphasised two points. First, a sentencing judge needs to not only identify aggravating features but also evaluate the seriousness of a particular feature. One very serious aggravating feature could lift the offending into a higher band.   The level    of seriousness also affects where offending lies within a band.11 Secondly, the guidance is not to be applied in a formulaic manner.   The sentencing judge needs    to stand back and undertake an overall assessment of the seriousness of the offending.12

[19]   Ms Hartigan submitted that there were only three aggravating features to the offending: serious injury (but only to a moderate degree), use of weapons, and attacking the head. She said the attack was not one of extreme violence. Although there was an element of premeditation, she said this did not include the use of the knife, as Mr Morgan had grabbed that impulsively from the kitchen rather than bringing it with him to the scene. Overall, Ms Hartigan submitted this offending fell on the cusp of bands two and three of Nuku, and that the starting point should have been three years’ imprisonment.

[20]   I consider that this submission understates the seriousness of the offending. There was a high level of violence, as the attack was prolonged and unprovoked.13 There was a high degree of premeditation, as Mr Morgan sent a threatening message to Mr Mowbray in advance of the attack. Even the use of the knife involved some premeditation. Mr Morgan did not simply pick up a knife that happened to be within reach during his assault. He ran into the kitchen, picked up the knife, and then ran back to Mr Mowbray and continued the assault. There was serious injury. Finally, Mr Morgan used a weapon and attacked the head.

[21]   This was a serious combination of aggravating factors. I therefore agree with Judge Ingram that this offending fell squarely within band three of Nuku. I nonetheless respectfully disagree with the starting point that the Judge adopted. Band three calls for a starting point of two years up to the statutory maximum of seven years.

11     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [42].

12 At [43].

13     R v Taueki [2005] 3 NZLR 372 (CA) at [31](a).

Positioning an offence within the band depends on the seriousness of each aggravating factor. Judge Ingram did not explicitly address that. This was far from the most extreme violence imaginable in offending of this sort. Mr Mowbray’s injuries, while serious, are well short of the worst seen in this type of offending. I was referred, by both counsel, to several cases of roughly comparable seriousness.14 The starting points adopted in those cases ranged from three years to three years and nine months’ imprisonment. In this case, I consider that a starting point no higher than three and a half years’ imprisonment was warranted.

[22]   There was no challenge to Judge Ingram’s uplifts for the methamphetamine and other offending (one year in total). Accordingly, I consider the overall starting point should have been four and a half years’ imprisonment.

Should more credit have been allowed for Mr Morgan’s background and for remorse?

[23]   Until Mr Morgan was almost six years old, he had a relatively settled upbringing, mostly with his paternal grandparents. When his grandmother became ill, he returned to live with his father. There, his home environment was chaotic. He was exposed to heavy substance abuse, drug dealing, and gang members. He suffered extensive physical violence at the hands of his father. He also witnessed his father regularly being violent to a succession of partners. From the time he left his grandparents, he was not nurtured at all.

[24]   Mr Morgan left school at a young age with few qualifications. Unsurprisingly, given his upbringing, he has spent much of his adult life with substance abuse and addiction problems (particularly with alcohol), having difficulty controlling his emotions, and associating with gang members.

[25]   Despite all these difficulties, Mr Morgan has also managed to gain specialist qualifications (being a qualified fitter and turner) and has maintained extended periods of employment and education. During those periods, Mr Morgan’s drinking and substance abuse has declined.

14     Frelih v Police [2014] NZHC 2217; Williams v R [2021] NZHC 1960; R v Taipari [2014] NZHC 1014.

[26]   I am satisfied that Mr Morgan’s impoverished and abusive upbringing, and his resultant addictions (together with the health issues described in the report), go some way to explaining Mr Morgan’s offending. They are significant contributing factors. But I do not accept Ms Hartigan’s submission that a 20 per cent allowance should have been made for them. Mr Morgan was 34 at the time of his offending. It is apparent from the qualifications he has gained and the employment he has undertaken that, for significant periods of his adult life, he has been able to overcome the difficulties inflicted upon him as a child. That he has an extensive criminal record as an adult does not detract from this observation.

[27]   Ms Hartigan also submitted that Mr Morgan should have a separate five per cent credit for remorse.  I do not  accept  this.  The evidence of remorse is  slight.  Mr Morgan wrote a letter of remorse at sentencing. However, the pre-sentence report records that Mr Morgan expressed  remorse but “seemed  able to rationalise this     as responding to the actions of others”. The report also says that expressions of remorse have been a feature of pre-sentence reports on Mr Morgan since 2010 yet have not resulted in any positive change in behaviour.

[28]   I therefore agree with Judge Ingram’s allowance of 15 per cent for the combination of Mr Morgan’s background and remorse.

Should a credit of five per cent have been given for Mr Morgan’s rehabilitative prospects?

[29]   Ms Hartigan submitted that Judge Ingram erred in not giving Mr Morgan credit for his rehabilitative prospects. She referred to him having completed eight one-hour workshops while in custody awaiting sentencing.

[30]   Judge Ingram said that Mr Morgan needed rehabilitation. But he said that the courts had given plenty of opportunities to help Mr Morgan deal with his background difficulties and addiction issues. He said that Mr Morgan simply had not taken the opportunities that had been given to him.

[31]   Judge Ingram’s observations were justified. Both the report on Mr Morgan’s background and the pre-sentence report record that Mr Morgan has had rehabilitation

opportunities. Mr Morgan has accepted some but resisted others. I therefore consider that the Judge did not err.

Should a full 25 per cent credit have been allowed for the guilty plea?

[32]   The extent of the credit for a guilty plea is to be assessed by reference to all the circumstances of the case. The timing of the plea is one factor, but not the only one.

[33]   Ms Hartigan noted that at sentencing both Crown and defence agreed that the full 25 per cent credit should be available. She acknowledged that this could not bind the court, but said that full credit was appropriate given that Mr Morgan had pleaded guilty as soon as there had been resolution around several charges.

[34]   Mr Morgan pleaded not guilty at his first appearance. There was then a case review hearing. The matter was adjourned to a further call. By that further call there had been resolution discussions, which included the Crown reducing the lead charge from one of  wounding  with intent to cause GBH to one of  wounding  with intent  to injure. Mr Morgan pleaded guilty at that further call to the reduced charges.

[35]   So, not only was the guilty plea not at the first available opportunity, it was made in circumstances in which Mr Morgan received a benefit from the reduced charges. Giving Mr Morgan full credit for his plea would have amounted to a double benefit. I therefore consider Judge Ingram was correct in allowing 20 per cent.

Was the end sentence manifestly excessive?

[36]   I would have adopted an overall starting point of four and a half years’ imprisonment. I would have made the same uplifts for previous convictions (three months) and offending while on sentence (three months) as Judge Ingram, neither of which were questioned by either counsel on this appeal. I would have made the same allowances as Judge Ingram for Mr Morgan’s background and remorse (15 per cent) and guilty plea (20 per cent). This would have produced a sentence of three years and five months’ imprisonment.

[37]   This is only two months less than the  sentence imposed by Judge  Ingram.15   I consider therefore, that the Judge’s sentence was not manifestly excessive.

Result

[38]I dismiss the appeal.

Campbell J

15 Although my overall starting point is six months lower than Judge Ingram’s, this is partly counterbalanced by applying the credits to that overall starting point (rather than, as the Judge did, also to the uplifts for personal factors).