Morgan v The Queen

[2019] NZHC 2021

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2019-454-18

[2019] NZHC 2021

BETWEEN

DARRYL IAN MORGAN

Appellant

AND

THE QUEEN

Respondent

Hearing:

15 August 2019

Appearances:

P Murray for Appellant

K L Kensington for Respondent

Judgment:

15 August 2019

JUDGMENT OF GRICE J

Introduction1

[1]    On 11 June 2019, the appellant, Mr Morgan, was sentenced in the  Palmerston North District Court to 22 months’ imprisonment on two charges of receiving, two charges of unlawful possession of a firearm, possession of cannabis, careless use of a vehicle and driving with excess alcohol.2

[2]He appeals his sentence on the following grounds:

(a)The sentence imposed should have been in the region of 16 to 18 months’ imprisonment, on a time served basis, as that is what the Court had intended. This did not happen only as a consequence of

1      This decision was delivered orally on 15 August 2019. The written form has been edited and footnoted before distribution.

2      Police v Morgan [2019] NZDC 11128.

MORGAN v R [2019] NZHC 2021 [15 August 2019]

Mr Morgan’s error in calculating his time served and therefore his advice to the Judge.

(b)The Judge did not take into account other mitigating factors, including rehabilitative efforts.

[3]    The Crown opposes the appeal, arguing there was no error in the sentence imposed. It says sentences are not fixed according to statutory release dates and time- served principles. Rather, the sentence must reflect the criminality and culpability inherent in the offending. Ms Kensington submits for the Crown when assessed from that angle, there was no error and the sentence was not manifestly excessive.

The offending

[4]    On about 18 February 2017, an address in Martinborough was burgled and two motorbikes were taken, one of which was worth $8,000.

[5]    Some months later, about 7 May 2017, a trailer containing lawncare tools was parked in a Palmerston North street and was stolen. The trailer was worth $5,000.

[6]    On 16 May 2017, police executed a search warrant on Mr Morgan’s home address, locating the $8,000 motorbike in his garage and the trailer in his backyard.

[7]    The following week, on 23 May 2017, Mr Morgan crashed his vehicle into a fence causing significant damage. The police, when travelling to the scene, encountered Mr Morgan driving away and stopped him. They found weapons in the vehicle and, on conducting a search, found a cannabis bong. Further searches located a modified military flare gun, ammunition and cannabis.

[8]    At the police station, Mr Morgan failed a compulsory impairment test and a blood sample was taken which showed the presence of methamphetamine and cannabis.

District Court decision

[9]    The District Court decision commences with the Judge noting that the time Mr Morgan had spent in custody was the appropriate end sentence:3

[1] Mr Morgan, Mr Murray and I agree that the time you have spent in custody equates to the appropriate end sentence for the matters to which you have pleaded guilty. It is appropriate to deal with these now rather than wait the outcome of the matters you are defending.

[10]   Mr Morgan received concurrent sentences on the two receiving charges of nine months’ imprisonment, a cumulative sentence of nine months’ imprisonment on the ammunition charge and a further cumulative sentence of four months’ imprisonment on the driving under the influence charge. This resulted in a total final sentence of 22 months’ imprisonment.4

[11]   The Judge concluded by noting that Mr Morgan’s bail was to continue until his next appearance but that he would need to go back to prison to get discharged for the matters for which he had been sentenced.5

Approach to appeal

[12]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied, for any reason, that there was an error in the sentence imposed and a different sentence should have been imposed.6 The focus is on the final sentence and whether it was in the available range, rather than the exact process by which it was reached.7 The appellate court will look at whether the end sentence was manifestly excessive in assessing the significance of any error in deciding whether a different sentence should be imposed. This is the well-established approach as indicated by the Court of Appeal in Tutakangahau v R:8

3      Police v Morgan, above n 2.

4      He received a concurrent sentence of one month’s imprisonment on the possession of cannabis charge, a $750 fine for the careless use charge, and was disqualified from driving for 12 months and one day.

5      Police v Morgan, above n 2, at [2].

6      Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482.

7      Ripia v R [2011] NZCA 101 at [15].

8      Tutakangahau v R, above n 6.

[32]      We can deal here with Ms Epati’s submission that there is no place under s 250(2) for the concept of a manifestly excessive (or inadequate) sentence. We agree with Mr Lillico that the appellant’s submissions appear to misconstrue the relevance of the concept. It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

[33]      Plainly, s 250(2) makes no express reference to a “manifestly excessive” sentence. However, this concept has been part and parcel of the approach to sentencing appeals for a considerable time and we can discern no intention to change the approach in the way contended for by the appellant. To illustrate the longevity of the concept, this Court in The King v Brooks in 1950 endorsed the statement in Archbold’s Criminal Pleading, Evidence and Practice to this effect:9

In exercising its jurisdiction to review sentences the Court of Criminal Appeal does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence. The sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle before the Court will interfere.

[34]      The Court noted that the statement in Archbold’s was based on the judgments of the English Court of Appeal in Rex v Shershewsky and R v Gumbs which date back, respectively, to 1912 and 1926.10 Similarly, in R v Radich, this Court observed that before reducing a sentence, the court must be satisfied that the sentence was manifestly excessive, or wrong in principle (citing Brooks), or additionally, there must be exceptional circumstances.11

[35]      The concept of manifestly excessive is accordingly well-engrained and we see no reason not to utilise it when considering s 250(2). Indeed, the approach is consistent with the statutory language. Further, the concept is a helpful one and is consistent with the fact that sentencing is not a science.

Submissions for Mr Murray

[13]   Mr Murray submitted that it was Mr Morgan’s understanding from earlier appearances that the sentence would be on a time served basis. At the sentencing, when requested, Mr Morgan advised the Court that he had spent eleven months on remand. Accordingly, 22 months was the sentence imposed, the Judge said he was

9      The King v Brooks [1950] NZLR 658 (CA) at 659 citing “Archbold’s Criminal Pleading, Evidence and Practice, 32nd Ed. 328”.

10 Rex v Shershewsky (1912) 28 TLR 364 (Crim App); R v Gumbs (1926) 19 Cr App R 74 (Crim App); see also DA Thomas Principles  of  Sentencing  (2nd  ed,  Heinemann,  London,  1979) at 6–8 which includes a useful discussion of the development of the judicial role in sentencing.

11     The Queen v Radich [1954] NZLR 86 (CA) at 87; see also R v Jeffries [1992] 1 NZLR 134 (CA) at 137.

proceeding on a “time served” basis and expected that Mr Morgan would be transported back to prison and then released.

[14]   However, it transpired that Mr Morgan had only spent 265 days (just under 9 months) on remand and his release date is 19 August 2019.

[15]   Mr Murray properly acknowledges that the 22 month sentence cannot be criticised as manifestly excessive but submits it was tailored directly to Mr Morgan’s self-reporting of his remand time. Although it was his error, Mr Morgan has, arguably, received a greater sentence, he submitted, than the Court intended, as it is plain that the intention was to impose a sentence on the basis of the time he had already spent on remand.

[16]   In addition to the time served issue, Mr Murray argues there should have been some reduction from the starting point to account for the rehabilitation successfully undertaken by Mr Morgan. That rehabilitation is directly relevant to the offending and was verified by a probation officer. While rehabilitation was not the subject of the submissions, it was before the Court in terms of the verified information in the probation report and should have garnered some reduction from the starting point.

[17]   Mr Murray submitted that a discount for time spent on electronically monitored bail is no longer pursued as it appears there was a discount allowed in the sentence for that.

[18]   Mr Murray also submitted that Mr Morgan had instructed him that he had returned a firearm to the police. This is not mentioned in the sentencing notes nor in the summary of facts. Mr Murray could only advance that fact from bar. The Crown was unable to verify it as it was not taken into account nor was it referred to in the sentencing notes. I refer to that below.

Submissions for the respondent

[19]   Ms Kensington submits that setting a sentence is not done by reference to “time served” principles. In determining the length of any sentence of imprisonment to be imposed, the Court must not take into account any part of the period during which the

offender was on a pre-sentence detention.12 Rather, sentencing in an orthodox manner follows a three-stage methodology:13

(a)Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.

(b)Step two: making allowance for personal aggravating and mitigating factors.

(c)Step three: a discount for a guilty plea if the offender has pleaded guilty.

(d)…

[20]   While the process followed by the Judge is not clear from the decision itself, Ms Kensington submitted that a report from counsel who appeared for the Crown at the sentencing indicates that the Judge adopted a starting point of 15 months for the firearms charges which was uplifted by 12 months for the receiving charges and a further six months for the charge of driving while impaired. After discounts totalling 11 months, an end sentence of 22 months’ imprisonment was reached.

[21]   Mr Murray took no issue with these calculations or the breakdown. His notes taken at the time note the same conclusions although they are more detailed in relation to the breakdown of the discounts. According to his notes a discount for time on bail was allowed of three months on the firearms charge.

[22]   Therefore, there is no dispute about the breakdown of the sentencing by the Judge. It just does not appear to have been recorded in the sentencing notes. It is unclear as to why this occurred.

[23]   Ms Kensington contends that, while the ultimate apportionment of sentence was done in a cumulative way, it is clear that the Judge approached the appropriate end sentence on a concurrent basis. Orthodox sentencing methodology was followed in arriving at an end sentence of 22 months’ imprisonment, a sentence she says that was entirely appropriate to capture the culpability inherent in Mr Morgan’s offending.

12     Sentencing Act 2002, s 82.

13     R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].

[24]   As to the starting point  in  relation  to  the  firearms/ammunition  charges,  Ms Kensington points out that starting points of two and two and a half years’ imprisonment have been adopted in analogous cases, and the aggravating factors present on the facts of this case justify the starting point adopted of 15 months.14

[25]   The 12-month uplift for the receiving charges, is said to have been appropriate given the value of the goods received. Ms Kensington notes that starting points of up to 18 months’ imprisonment tend to be appropriate where the value of goods is $5,000 or more. Therefore, 12 months to reflect charges of receiving goods worth $13,000 was unremarkable.15

[26]   As for the driving while impaired charge, Ms Kensington argues that a six- month uplift was justified as it was Mr Morgan’s fourth such conviction. His manner of driving was careless and resulted in a crash. He was affected by illegal substances which is also an aggravating factor.

[27]   Mr Murray urged on me today Mr Morgan’s contention that a discount ought to have been given for the fact that he had engaged in drug counselling voluntarily. Therefore, he submitted Mr Morgan’s rehabilitative efforts as well as the fact he had some personal medical issues and other personal issues had not been properly taken into account. Ms Kensington on the other hand submits that once the 25 per cent discount for a guilty plea is taken into account, a discount of approximately three months for personal mitigating factors would have been appropriate. That discount she says must have been given based on the figures that she has put before the Court with which Mr Murray agrees.

[28]   It appears that the discount may have been for time spent on EM bail. Discounts for time spent on EM bail, depend of course on the compliance by the offender with the bail conditions.16 Mr Morgan had been arrested twice for breaching his conditions and had six other instances of non-compliance. Mr Murray says that some of these were due to his having to attend medical appointments and having no

14     Byles v R [2013] NZCA 18; Herewini v Police [2014] NZHC 2396; R v Richardson CA450/02, 25 March 2003.

15     Andrews v Police [2015] NZHC 2496 at [32]; Ellis v R [2012] NZCA 513 at [9].

16     Tuikolovatu v R [2012] NZCA 203 at [5].

cellphone which was a condition of his bail. Nevertheless, it seems clear that there were issues with compliance.

Discussion

[29]   It is my view that it is probably unlikely that it was chance alone that the Judge having followed orthodox sentencing methodology, happened to arrive at an end sentence that coincided with twice that of the time Mr Morgan mistakenly believed he had spent on remand.

[30]   It appears clear that the sentencing exercise was conducted with a view to an end sentence being arrived at that would allow Mr Morgan to be discharged from prison that day. Mr Murray says that on that view of the case it is unfair to Mr Morgan who thought that was going to be likely outcome of the sentencing process and therefore that is a factor that should be taken into account here.

[31]   However, this was done on the basis of Mr Morgan had already served eleven months rather than just the nine months that he had told the Judge. This equates to a difference of four months on end sentence which is not an insignificant difference for what is a relatively short sentence. Had the Judge been correctly apprised as to the time that Mr Morgan had served, he may well have determined an end sentence of  18 months was not appropriate in the circumstances.

[32]   The submission in relation to the return of the firearm is a matter upon which I cannot put a great deal of weight. It was not before the District Court. Mr Murray readily acknowledges he can put it no higher than a submission from the bar which the Crown is unable to verify. In those circumstances I consider that point would not make any difference to the sentencing exercise and I put it to one side.

[33]   Mr Murray has acknowledged the sentence of 22 months’ imprisonment imposed cannot be said to be manifestly excessive as it is well within the range available to the Judge. The starting point adopted for the charges is appropriate in relation to the firearms charge and certainly within range when compared with similar cases. Similarly, for the uplifts for the receiving and driving while impaired charges. In addition to the discount for Mr Morgan’s guilty plea, the three-month discount is in

my view reasonable to attribute to personal factors including rehabilitation, his voluntary engagement in drug counselling and time on EM bail. It appears to me a sufficient and appropriate recognition in the circumstances.

[34]Therefore, this appeal has failed to reach the required threshold.

Result

[35]For the reasons given, the appeal is dismissed.

Grice J

Solicitors:

Crown Law Office, Wellington for Respondent