Morrison v Police - [2023] NZHC 1060

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-16

[2023] NZHC 1060

BETWEEN
MICHAEL GARY MORRISON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 May 2023

Appearances:

F Chalmers for the Appellant MCM Nash for the Respondent

Judgment:

5 May 2023

ORAL JUDGMENT OF EDWARDS J

Solicitors:
Ms F Chalmers, Public Defence Service, Manukau
Ms MCM Nash, Meredith Connell, Office of the Crown Solicitor, Auckland

MORRISON v POLICE [2023] NZHC 1060 [5 May 2023]

[1] Mr Morrison was sentenced to 12 months’ imprisonment for 22 charges of intentionally making an intimate visual recording.1 He appeals against sentence on the basis that the Judge erred in not sentencing him to home detention.

Offending

[2] The charges arise out of events in March 2021. Mr Morrison built a device that allowed him to record covert footage. This device was contained in an altered toy helicopter box. Mr Morrison had added a long carry handle to the box and hollowed out a compartment to conceal a cellphone capable of capturing video. He had also cut a hole in the box for the camera to point through.

[3] Mr Morrison took this device to a busy shopping mall. He identified women and girls wearing skirts, dresses or loose fitting shorts. He turned the phone on to video record, concealed it in the compartment, and positioned himself so that he could film underneath their clothing. This occurred on escalators, in queues at shops, and at traffic crossings. The victims were unaware of what Mr Morrison was doing.

[4] Mr Morrison captured footage six days in a row. He was eventually stopped by mall security and subsequently arrested by police.

[5] Mr Morrison made recordings of 22 victims, giving rise to the 22 charges. Five of the victims were identified. They were aged between 10 and 18 years old. A further six of the unidentified victims were in school uniform at the time of the offending.

District Court sentencing

[6] The Judge began the sentencing by referring to the offending and the consequences of that offending on the victims. He referred to the gross breach of trust and the profound effect on the victims of being used as a sexual object.

[7] A starting point of 18 months’ imprisonment was adopted. That starting point was agreed by both police and defence counsel.

1 New Zealand Police v Morrison [2023] NZDC 425.

[8] A 20 per cent reduction for the guilty plea was applied. A further 10 per cent was applied for rehabilitation, background factors and remorse. This made a total discount of 30 per cent that resulted in a notional end sentence of 12 months’ imprisonment.

[9]On the issue of home detention, the Judge said:2

[8] The real question is whether I should reduce that sentence to home detention. Ms Millington has pointed to cases where people facing these sorts of charges have received home detention. There are cases where people facing these charges have not…

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 Morrison v Police

Details

AGLC: Morrison v Police [2023] NZHC 1060
Case: [2023] NZHC 1060
Decision Date: 5 May 2023

CaseChat Overview and Summary

Michael Gary Morrison appeals against his sentence of 12 months’ imprisonment for 22 charges of intentionally making an intimate visual recording. The High Court of New Zealand, Auckland Registry, allowed the appeal and substituted the sentence of imprisonment with a sentence of home detention. The court held that the Judge had erred in not considering home detention as a viable alternative to imprisonment, despite the seriousness of the offending. The court found that home detention would adequately meet the purposes of denunciation, deterrence, and rehabilitation, while also protecting the community. The court considered the offender’s remorse, insight into the causes of his offending, and engagement in rehabilitation programs. The court also took into account the offender’s compliance with electronic monitoring and restrictions on possessing or using devices capable of photography. The court imposed a sentence of two months’ home detention with post-detention conditions for 12 months.

The court ordered that Mr Morrison be released on home detention under specific conditions, including electronic monitoring, restrictions on alcohol and drug use, and participation in rehabilitation programs. The court also imposed post-detention conditions for 12 months, including restrictions on possessing or using devices capable of photography and participation in rehabilitation programs. The court balanced the need for rehabilitation and community protection with the need to provide sufficient time for Mr Morrison to properly engage with rehabilitative programs. The court considered the offender’s already served time in prison and his mandatory statutory release date in calculating the term of the home detention sentence. The court also took into account the duration of the SAFE programme and the need to balance it with the need to provide sufficient time for Mr Morrison to properly engage with rehabilitative programs.

Orders