Morrison v Crown Law Office
[2016] NZHC 534
•24 March 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000133 [2016] NZHC 534
BETWEEN SAMUEL JAMES MORRISON
Appellant
AND
CROWN LAW OFFICE Respondent
Hearing: 15 March 2016 Appearances:
A McCormick for the Appellant
A C Trinder for the CrownJudgment:
24 March 2016
JUDGMENT OF NATION J
Introduction
[1] On 25 August 2015, Mr Morrison appeared at night in the bedroom of a former girlfriend. He had a sawn-off shotgun. When asked why he was there, he said he intended to kill her. The victim talked to him and calmed him down. She ended up driving him away from the house. Mr Morrison pleaded guilty to a charge of aggravated burglary. He appeals his sentence of five years and two months’ imprisonment.1
The offending
[2] On the evening of 25 August 2015, the victim was asleep at her home address. She had previously been involved in a brief relationship with Mr Morrison but had remained in contact with him. Mr Morrison drove his vehicle to her house
and parked about one kilometre away in the adjoining street. He was dressed in
1 R v Morrison [2015] NZDC 23431.
MORRISON v CROWN LAW OFFICE [2016] NZHC 534 [24 March 2016]
black track pants and a black hoodie and had a sawn-off single barrel pump action shotgun. Mr Morrison told the Police the shotgun was not loaded (there was no evidence to contradict this). He had a box of shotgun cartridges in the front pocket of his hoodie.
[3] He entered the victim’s house through an unlocked rear door. The victim’s dog was sleeping in the lounge and barked a couple of times. This woke the victim who was asleep in her bedroom. A short time after the dog barked, her bedroom light was switched on.
[4] Mr Morrison was standing in the doorway. When she asked what he was
doing there, he said, “I’ve come to kill you”.
[5] The victim was disbelieving and asked if he was serious. Mr Morrison lifted the gun up to his right hand from where he had been holding it down by his side by his leg and said, “I wouldn’t be standing here with a sawn-off shotgun in the middle of the night if I wasn’t serious.” The victim recognised the weapon he was holding as an actual shotgun.
[6] Over a period of time the victim spoke to Mr Morrison and calmed the situation down. Mr Morrison decided not to carry out the purpose for which he had gone to the house. Mr Morrison spoke about the difficult position he was now in as he did not want to hurt her but he was worried she would call the police. He also spoke about killing her dog and then shooting himself.
[7] After a period of conversation between them, Mr Morrison asked the victim if she could drive him to his car, which she agreed to and did.
[8] The victim went to the Police the following morning. Mr Morrison was spoken to by the Police on 27 August 2015. He admitted to the events as outlined and that he went to the victim’s house with the intention of killing her but told the Police that, once he got there, he found he could not do it.
The Sentencing
[9] Judge Farish adopted a starting point of seven years and six months for the offending. There were no personal aggravating factors for Mr Morrison. The starting point was then reduced by 25 per cent for an early guilty plea with a further discount for remorse. This led to a total reduction of two years and four months, resulting in an end sentence of five years and two months’ imprisonment.
Approach on appeal
[10] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in
any other case.3 To allow the appeal, I must be satisfied that the sentence imposed
was “manifestly excessive”.4 As has been stated:5
The High 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 is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.
Submissions
[11] For Mr Morrison, Mr McCormick submitted the starting point of seven and a half years’ imprisonment was too high, having regard to relevant judgments from the Court of Appeal. He submitted the Judge had made a material error in relying on the Court of Appeal’s judgment in R v Lafai as indicating a starting point of seven years’ imprisonment would be appropriate.6
[12] For the Crown, Ms Trinder accepted Judge Farish had relied heavily on the Court of Appeal judgment in Lafai in setting a starting point. She accepted the starting point seven and a half years was top of the range but, having regard to other cases and the particular aggravating features associated with this offending,
submitted the end sentence was within range.
2 Criminal Procedure Act 2011, s 250(2).
3 Criminal Procedure Act 2011, s 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
5 Larkin v Ministry of Social Development [2015] NZHC 680 at [26] per Toogood J.
6 R v Lafai CA 272/04, 1 November 2004.
Discussion
[13] I am satisfied the Judge did make a mistake in the way she referred to the
Court of Appeal’s judgment in Lafai.
[14] Judge Farish adopted a starting point of seven and a half years’ imprisonment after referring to the Court of Appeal’s decision in R v Lafai as being “probably the most helpful” and taking into account the aggravating features which she had identified as being associated with the offending.7
[15] Mr Lafai had forced his entry into a home using a carving knife while disguised with a balaclava. He threatened the occupant and held the knife to his throat. Fortunately, the occupant’s dog intervened and this led to Mr Lafai departing in haste. Gendall J, on behalf of the Court of Appeal, noted the sentencing Judge had adopted a starting point of five years’ imprisonment having regard to Mr Lafai’s previous convictions, including convictions for aggravated robbery and aggravated burglary and aggravating features associated with the offending. The Court of Appeal endorsed the approach of the sentencing Judge as correct. In the course of that, the Court of Appeal noted that, as a stand-alone crime, the aggravated burglary would have warranted a starting point sentence of at least seven years’
imprisonment.8 As with the sentencing Judge, that statement was, however, made
taking into account both the aggravating features of the offending itself and aggravating features relating to Mr Lafai personally, including his previous convictions and the fact he was on parole.
[16] Mr Lafai had a total of 39 previous convictions including 13 for burglary, two for aggravated robbery, one for aggravated burglary and two for unlawful possession of a firearm. He was being sentenced on a charge of aggravated burglary committed within a very short time of being released from a substantial term of imprisonment for aggravated robbery after which he had proceeded to commit crimes of burglary, receiving, possession of a class B drug, possession of a class C drug, selling cannabis
and unlawful possession of firearms over the next 18 months.
7 R v Morrison, above n 1, at [20].
8 R v Lafai, above n 6, at [6].
[17] Judge Farish relied upon the Court of Appeal’s observation that, as “a stand- alone crime, the aggravated burglary would have warranted a starting point sentence of at least seven years’ imprisonment”.9 She did not recognise this took into account the significant aggravating features relating to Mr Lafai personally, including his previous convictions and the fact he was on parole.
[18] Mr McCormick, for Mr Morrison, suggested that the Court of Appeal’s approach in Lafai would have been consistent with them adopting a starting point for the offending of around five and a half to six years, given the personally aggravating factors could potentially have warranted an uplift of 12 to 18 months. Ms Trinder suggested the uplift would have been in the order of 12 months.
[19] In adopting a starting point of seven and a half years, Judge Farish referred to the Court of Appeal tariff decision in R v Mako.10 That is a judgment in relation to aggravated robberies but the Court of Appeal has stated it will also be relevant to charges of aggravated burglary.11 Referring to Mako, Judge Farish said “in relation to home invasions where firearms are concerned, starting points of up to ten years’ imprisonment can be imposed in relation to aggravated robberies”.12
[20] Judge Farish would have been referring to the Court of Appeal statement in
Mako:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.
[21] In R v Drewett, the appellant had gone to the complainant’s home, smashed a window pane in her front door, entered her home before leaving, having prior to this rung the complainant and threatened to kill her and himself.13 He was subsequently
arrested by the Police, charged with intentional damage and bailed conditional on
9 R v Lafai, above n 6, at [6].
10 R v Mako [2000] 2 NZLR 170 (CA).
11 R v Watson CA 224/03, 24 October 2003.
12 R v Morrison, above n 1, at [18].
13 R v Drewett [2007] NZCA 48.
him staying away from the complainant and her home. Two hours later he went back to her home with a large wooden stick wrapped in green insulation tape. He unlawfully entered into the house where the complainant was with her children. He trapped the complainant at the back door of the house and punched her in the head and face repeatedly about 10-12 times. In considering Mr Drewett’s appeal against sentence, the Court of Appeal noted “the differences between this case and the
example given in Mako make Mako only of limited value”.14
[22] The Court of Appeal referred to judgments in R v Gore and R v Panine.15
Both involved attacks on former partners. In Gore the offender had unlawfully entered the home. When the complainant returned he took her cell phone from the complainant, stomping on it. He then kicked and punched the complainant 30 times over a period of three hours, obtained a knife and threatened to kill her. In Panine, the offender went to the home of his estranged wife taking with him a knife. He entered the house uninvited, grabbed her and told her he intended to kill her. He caught her when she tried to escape, held her down and stabbed her in the chest with the knife a number of times.
[23] After referring to those cases, the Court of Appeal in R v Drewett stated:16
[27] In light of the differences between the present case and the situation outlined at [58] of Mako and the sentences upheld by this Court in both Gore and Panine, we conclude that the appropriate starting point in this case is four years six months imprisonment. In our view that reflects the seriousness of the break into the complainant’s property, and also the totality of the offending which includes not only the aggravated burglary, but also the assault on the complainant for which a concurrent sentence was imposed in the District Court. That starting point reflects the aggravating factors of the offending (but not those which are personal to the appellant), in particular the fact that the burglary involved domestic premises. It also recognises the comparatively brief period of offending and the fact that the weapon which the appellant had with him was not used.
[24] I consider the Judge erred in referring to the Court of Appeal’s statements in
Mako as indicating a starting point of up to 10 years could be imposed for this sort of offending.
14 At [19].
15 R v Gore CA 414/05, 2 March 2006; R v Panine [2003] 2 NZLR 63 (CA).
16 R v Drewett, above n 13, at [27].
[25] In arriving at the starting point of seven and a half years, the Judge also referred to the Court of Appeal decisions in R v Hay and Watene v R.17 She stated “[in] both of those occasions, the offending was more serious in that there were multiple offenders and actual physical violence”. But the Judge then went on to say, “[however], in both of those, high starting points in excess of seven years’ imprisonment were imposed because of the fact of firearms being used”.18
[26] In Watene, the appellant and three associates, one armed with a shotgun, entered the front door of an Auckland address in the early hours of the morning. All four offenders were disguised and wearing gloves. The one with the shotgun demanded to know where the occupants kept money. At the same time, Mr Watene threatened to hit one of the occupants over the head with a stone pestle. One of the occupants managed to call the Police. Mr Watene then threatened to kill this person and aimed a kick at her head. It had been argued that the sentencing Judge had made an error in adopting a starting point of nine years’ imprisonment for the offending. The Court of Appeal, after considering its judgments in Tiori v R and Currie v R,
considered a starting point of nine years was well within the Judge’s discretion.19
The Court of Appeal stated:20
The offending in this case was clearly more serious than that in Currie v R. The number of offenders and the significantly aggravating factor of the attempt by the appellant to kick a heavily pregnant woman in labour would justify a higher starting point than was adopted in that case.
[27] In R v Hay, a starting point of seven years and nine months was approved by the Court of Appeal but that was for offending where Mr Hay and another had gone to a home in the early hours of the morning apparently to collect a debt.21 They had broken in through the back door of the house, one of the intruders armed with a loaded firearm, Mr Hay armed with a crowbar. Inside they demanded drugs and money from the occupants. Mr Hay held the firearm for a time, keeping one of the occupants in the bedroom. That starting point was, however, further discounted in
recognition of Mr Hay’s secondary role in the offending. With no guilty pleas, the
17 R v Hay [2015] NZCA 329, [2015] NZAR 1426; Watene v R [2014] NZCA 357.
18 R v Morrison, above n 1, at [19].
19 Watene v R, above n 17, at [33]-[35], citing Tiori v R [2011] NZCA 355; Currie v R [2010] NZCA 449.
20 At [35].
21 R v Hay, above n 17.
Court of Appeal considered an end sentence of seven years and six months’ imprisonment was available, taking into consideration the aggravating features of unlawful entry into the property at night, premeditation, multiple offenders, weapons and the effect on the victims.
[28] In neither Hay nor Watene did the Court of Appeal say the use of a firearm, as opposed to some other weapon, required a significant increase in the starting point.
[29] Having regard to what was said by the Court of Appeal in Hay and Watene, and the particular circumstances with which the Court of Appeal was concerned in those cases, I consider it was too simplistic to say that high starting points in excess of seven years had been adopted “because of the fact of firearms being used”.22
[30] I thus consider the Judge did make errors in the way she referred to particular judgments of the Court of Appeal in arriving at a starting point sentence of seven and a half years for this offending. I must thus consider whether a different sentence should be imposed.
[31] When Mr Morrison first appeared for sentence, the Crown initially submitted a starting point of three and a half years to four years’ imprisonment would be appropriate, having regard to the Court of Appeal’s guidelines in R v Mako for aggravated robbery and the Court of Appeal’s judgments in R v Patrick and R v Shirley, the circumstances of which the Crown considered were similar to those
involving Mr Morrison.23
[32] In 2006, Mr Patrick was living apart from his wife. He went to her home carrying a metal pipe with a chain on the end of it. He was intoxicated. He smashed his way into the house, breaking a glass ranch-slider door using the metal pipe. Mrs Patrick and her teenage children were in the house asleep as were her sister and that sister’s baby. All the inhabitants were woken and terrified. Mr Patrick picked up a knife and wielded it. The inhabitants managed to barricade themselves in a room.
Mr Patrick tried to bash his way through the door. The family ran out of the
22 R v Morrison, above n 1, at [19].
23 R v Mako, above n 10; R v Patrick [2008] NZCA 115; R v Shirley [2009] NZCA 216.
bedroom through another door and escaped to a neighbour’s house. The Court of Appeal considered a starting point for the offending should have been in the range of three and a half to four years – three years and nine months. In assessing the seriousness of the offending, they noted that, while the break-in was serious and would have been frightening for the inhabitants, the incident was of reasonably short duration and Mr Patrick made no attempt to harm any of the inhabitants physically. He had not pursued them after their escape.
[33] In Shirley, the Court of Appeal had to consider a sentence of three years’ imprisonment on a charge of aggravated burglary. Just after midnight, Mr Shirley had gone to a home where the occupants were various people he knew. He was looking in particular for his older brother. He was carrying a baseball bat. He was acting aggressively. One of the occupants told him to leave and not to come back again. He threatened this person and swung the bat at him. The occupant managed to grab the bat off Mr Shirley who then left the address. Some two hours later, Mr Shirley returned to the address with another brother. He was armed with a large kitchen knife with a blade approximately 25 cm long. The younger brother also had a wooden chair leg with a large metal screw protruding from it. The door was opened to the younger brother. At that point, Mr Shirley entered the house with the knife, the younger brother struck some furniture with the wooden chair leg, causing it to break. Mr Shirley brandished his knife at one of the occupants and said he was going to kill him. The occupants ran into the bedroom and hid there. Mr Shirley and his younger brother left the premises when they understood the Police were being called. The Court of Appeal approved of the starting point adopted by the Judge of three and a half years.
[34] On the hearing of this appeal, the Crown referred to judgments from the Court of Appeal in Namana v R, Currie v R, R v Schuster and R v Stade.24 They submitted these cases revealed a starting point of eight years’ imprisonment was routinely adopted for a group home invasion where there was a firearm and some
associated low-level violence. They submitted the starting point of seven years and
24 Namana v R [2013] NZCA 640; Currie v R [2010] NZCA 449; R v Schuster [2015] NZHC 2833;
R v Stade [2015] NZHC 2611.
six months’ imprisonment was consistent with these, given Mr Morrison was acting
alone but there were other significant aggravating features present.
[35] In Namana v R, as the Crown pointed out, the Court of Appeal endorsed a starting point of eight years’ imprisonment as “stern, but not manifestly too high”.25
That was for aggravated burglary of a tinny house, with some violence and three offenders. Mr Namana was one of three men associated with the Masterton Nomads. During the evening they decided to rob a tinny house in Masterton to obtain cannabis and cash. They went into the house with one person brandishing a firearm. Mr Namana had his face covered. The robbers demanded drugs and money. One of them pointed a rifle at a female occupant and made her bend over and kiss his boots. They took another occupant into a children’s room, where Mr Namana punched him and demanded drugs. One of the other robbers came in and supported Mr Namana with the rifle. The Court of Appeal referred to Mr Namana’s situation as one to which the guideline in R v Mako related. They accepted the aggravating features of this robbery were:
· some planning, although not the most sophisticated;
· unlawful entry into a private dwelling;
· the wearing of disguises by two of the robbers including Mr Namana;
· use of a firearm, in particular to intimidate or threaten both victims; and
· threats of violence and actual violence towards one of the occupants and threatening and insulting behaviour towards another.
[36] With the case of Currie, Mr Currie had gone to the complainant’s home with his partner. Mr Currie began asking the complainant about his will and what would happen to his possessions if he died. He then left the house and returned with a shotgun. After abusing the victim, Mr Currie hit him several times in the face with the barrel and butt of the gun causing injuries. He then produced a blank piece of paper and directed his partner to record that the victim would gift his car. He told the victim that, if the victim went to the Police, he would have him and members of
his family killed or say that this man had raped his girlfriend and a friend of hers.
25 Namana v R, above n 24, at [36].
Mr Currie and his partner left the address driving the complainant’s car. The Court
of Appeal considered a starting point of eight years was justified for this offending.
[37] I do not accept the aggravating circumstances present in this case justified a starting point only six months less than what the Crown considered was the starting point routinely adopted for a group home invasion where there was a firearm and some associated low-level violence. In most, if not all, of the cases in which a starting of eight years has been considered appropriate, there have also been significant aggravating features in the sense of premeditation, entry to a private dwelling house at night, possession of a firearm and ammunition, vulnerability of victims and victim impact.
[38] An aggravating feature of the offending was that it was premeditated and planned. The Court had obtained a detailed psychiatric report that referred to Mr Morrison being forthcoming with information, polite and cooperative throughout a four hour assessment. The report detailed aspects of his family history which had been traumatic for him. Mr Morrison told the psychologist that he had “uncontrollable” homicidal thoughts in the days leading up to the offending, that on the night of the offence he had consumed alcohol and smoked cannabis and, in a rage, had gathered up the sawn-off shotgun and driven to the victim’s house. He said his plan had been to shoot himself after killing the victim but denied otherwise feeling suicidal. He parked the car about one kilometre from the victim’s house and walked to it with the shotgun and cartridges in his pocket.
[39] All of that is consistent with premeditation but it was irrational, consistent with disturbed thinking rather than being cold, callous and calculating. Consistent with that, it would seem from the summary of facts and the detailed victim impact statement, the victim was able to defuse the situation through talking to him, something which, as the Judge noted, required considerable courage and composure on her part. Her account in the victim impact statement suggests that, once inside the house and with her, Mr Morrison was agitated and was having difficulty, as she said, “processing the situation in his head”. Consistent with the confused way in which he was acting, Mr Morrison took cartridges out of his pocket and left them on a kitchen bench. He also asked the victim to drive him to his car, which she did.
[40] Mr Morrison’s disturbed thought processes which resulted in this offending have some parallels with the irrational conduct of Mr Patrick and that of Mr Schuster in a case dealt with in the High Court in October 2015.26 At midday, Mr Schuster had gone to a house where he knew the occupants. He had a loaded single-barrel pump-action shotgun. He fired a single round into a television and went into a bedroom where one of the occupants was in bed with her partner. He pointed the gun at her and fired a round into the wall behind her. He stood over her and the second victim, who escaped. He then made demands of the other victim, effectively
threatening to kill her and obtained the keys to her vehicle. She ran from the address. He then left with the vehicle. After considering relevant cases, Thomas J adopted a starting point of six years’ imprisonment for the aggravated burglary.
[41] Another seriously aggravating feature was that the offence was committed with Mr Morrison in possession of a sawn-off shotgun and ammunition which he had illegally. It made the whole situation much more frightening and dangerous for the victim.
[42] It was an aggravating feature of the offending that it happened at night and involved unlawful entry into a home when the victim was vulnerable, being asleep and in bed.
[43] It was also an aggravating feature that Mr Morrison made a threat to kill the victim. In that regard, it was different from those cases where a threat is made in an attempt obtain money, drugs or something else that the offender wants. Rather than said as a threat, it was said as his explanation for being there, an explanation which must have caused the victim to be most afraid. He also said he was going to kill her dog and himself.
[44] The effects which this offending had on the victim, detailed by Judge Farish, are also an aggravating feature of this offending. As well as causing her extreme anxiety, she now finds it difficult to trust people. She had to leave her home. There have been financial costs resulting from the offending. This offending will remain
traumatic for her for a very long time.
26 R v Schuster, above n 24.
[45] In assessing the seriousness of what happened, it is necessary to acknowledge that the firearm was not used. It was possible for the victim to calm down Mr Morrison to a point where she was able to drive him away from the home without being subjected to further harm or threats apart from the trauma associated with the whole situation.
[46] In the circumstances of this offending, the sentencing purposes of denunciation, deterrence and holding Mr Morrison accountable for the harm done to the victim are important. So too is the purpose of assisting in his rehabilitation, particularly so where there is real potential to reduce the risk of offending through involving him in an appropriate programme in prison.
[47] Having considered the authorities and the aggravating features of this offending, I consider an appropriate starting point for the offending should have been five years and nine months’ imprisonment.
[48] Judge Farish found no uplift was necessary by reason of aggravating features relating to Mr Morrison personally. He had driving-related convictions from 2008 but no other convictions.
[49] The psychological report indicated he was at moderate/low risk of general and/or violent reoffending. The report, however, noted that any further offending could occur in the context of acute substance intoxication, relationship difficulties and/or poor management of life stressors. The report said risk management could therefore best be addressed through Mr Morrison involving himself in treatment in order to address these issues and reported that he was willing and motivated to engage in such treatment. The report noted that Mr Morrison would be eligible for participation in a medium intensity rehabilitation programme while serving a prison sentence and this would provide him with the opportunity to address the identified dynamic risk factors.
[50] The pre-sentence report said Mr Morrison was assessed at being at medium risk of further offending and posing a medium risk of harm but noted these risks would be lowered considerably if he could maintain sobriety.
[51] The pre-sentence report said Mr Morrison was “clearly remorseful” but, as Judge Farish accepted was the case, appeared to be lacking a full understanding of the consequences his offending would have had on the victim and of being somewhat lacking in empathy for her. The information before the Judge did indicate that he accepted responsibility for his actions, consistent with his frank admissions to the Police when first arrested and later his early guilty pleas. He was also sufficiently awareness of the seriousness of what he had done to be willing to address his underlying personality and psychological issues which had led to this offending.
[52] In addition to remorse, I note that Mr Morrison has generally been in gainful employment and nothing in his history suggested he would be involved in this sort of offending.
[53] Mr Morrison pleaded guilty at a very early stage and was entitled to a 25 per cent discount for that and a total 30 per cent discount with some allowance for remorse. That discount remains appropriate.
Conclusion
[54] I consider an error was made in the sentencing. I consider the sentence of five years and two months’ imprisonment was manifestly excessive so that a different sentence should have been imposed. The appeal is thus allowed. The original sentence of five years and two months is quashed. In substitution, I sentence Mr Morrison to imprisonment for a term of four years. The orders for the destruction of the weapons and ammunition seized by the Police remain.
Solicitors:
Brandts-Giesen McCormick Lawyers, Rangiora
Raymond Donnelly & Co., Christchurch.
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