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…

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 The Queen

Details

AGLC: Morgan v The Queen [2019] NZHC 2021
Case: [2019] NZHC 2021
Decision Date: 15 August 2019

CaseChat Overview and Summary

Darryl Ian Morgan appeals his sentence on several grounds, including that the sentence imposed should have been around 16 to 18 months' imprisonment, on a time served basis, as that is what the Court had intended. The Crown opposes the appeal, arguing there was no error in the sentence imposed. The sentencing principles under the Sentencing Act 2002 were followed, and the sentence must reflect the criminality and culpability inherent in the offending. The High Court found that the appeal did not reach the required threshold, and the appeal was dismissed. The reasoning behind the decision was that the sentence of 22 months' imprisonment imposed could not be said to be manifestly excessive, as it was well within the range available to the Judge. The starting point adopted for the charges was appropriate, and the discounts allowed were reasonable and appropriate in the circumstances. The appeal failed to demonstrate that a different sentence should have been imposed.

The court dismissed the appeal and affirmed the original sentence imposed by the Palmerston North District Court. The final orders of the court were that the appeal was dismissed, and the appellant was to remain subject to the original sentence imposed.

Orders