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 received home detention. Ultimately each case depends upon its circumstances. Ms Millington points to the work that you have done and the need to continue that work, that home detention would assist you in doing that. Your rehabilitation is going to be important whatever the sentence that I impose.

[9]        Yours, though, was highly predatory offending including against children. That elevates principles such as denunciation and deterrence. Sexual predators should go to jail. I do not think anyone would sensibly argue with that.

(footnotes omitted)

[10]     The end sentence was 12 months’ imprisonment with special release conditions for six months to aid in rehabilitation.

Approach on appeal

[11]     The Court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and that a different sentence should be imposed. It must otherwise dismiss the appeal.

[12]     The sentence must be shown to be manifestly excessive or wrong in principle or that there are exceptional circumstances. The focus is on the end result rather than the process by which the sentence is reached.3

2      New Zealand Police v Morrison [2023] NZDC 425 at [8]-[9].

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

[13]     An appeal from a decision refusing to impose home detention is an appeal against the exercise of a “fettered discretion”. That is, a discretion constrained by the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.4

[14]     An appeal against a refusal to grant home detention is not an opportunity to revisit the merits. An appellant must demonstrate an error by the Judge in exercising their sentencing discretion.5

Did the Judge err?

[15]     Counsel for Mr Morrison submits that the sentencing Judge adopted imprisonment as the inevitable outcome. She says he failed to take into account cases of a similar vein, or personal characteristics relevant to Mr Morrison, which would have justified a less restrictive sentence.

[16]     Further, counsel submits that the Judge focused only on general deterrence and failed to take into account the offender’s remorse for his actions, engagement in counselling, and prospects of rehabilitation, when considering whether home detention was appropriate.

[17]     Finally, counsel submits that the Judge erred in finding that the purposes of denunciation and deterrence could not be met by a sentence of home detention.

[18]     By way of response to these submissions, it is clear from the sentencing notes that the Judge had regard to other cases where people facing the same charges had received home detention. Those same cases were referred to me on appeal.6 The Judge found that each case depends on its own facts.7 I agree. Ultimately, the personal circumstances of both the offender and the offending were different in these cases and the end result cannot be used to justify home detention in this case.

4      Fraser v R [2013] NZCA 250 at [20]; Parkin v R [2018] NZCA 404 at [42].

5      James v R [2010] NZCA 206, (2010) 24 NZTC 24, 271 at [17].

6      Spark v Police (HC Whanganui CRI-2010-483-27, 25 June 2010); SNP v Police (HC Rotorua CRI-2011-463-7, 8 March 2011).

7      Police v Morrison [2023] NZDC 425 at [8].

[19]     It is also clear from the Judge’s sentencing notes that he was aware of, and had regard to, Mr Morrison’s rehabilitative prospects in determining the end sentence. Those prospects, and Mr Morrison’s remorse, were reflected in the 30 per cent discount applied by the Judge. The Judge said that rehabilitation was going to be important whatever sentence he imposed.8

[20]     Nevertheless, I accept counsel’s submission that the Judge does not appear to have embarked on a separate analysis of how home detention could assist with      Mr Morrison’s rehabilitation and reintegration. Nor does there appear to be a separate assessment of how home detention might meet the principles of denunciation and deterrence, and whether home detention, as opposed to imprisonment, was the least restrictive sentence in the circumstances.

[21]     Indeed, the Judge appears to have correlated the nature of the offending with a presumption of imprisonment. After characterising Mr Morrison’s offending as “highly predatory” the Judge went on to say:

Sexual predators should go to jail. I do not think anyone would sensibly argue with that.

[22]     I accept that this statement suggests an element of predetermination and a glossing over of the assessment required under the Sentencing Act. On balance, this was an error by the Judge justifying a fresh look at the question on appeal.

Should home detention be ordered?

[23]     Section 15A of the Sentencing Act provides that a court may impose a sentence of home detention if satisfied that the purposes for which the sentence is imposed cannot be met by a less restrictive sentence, and the sentence would otherwise be imprisonment for two years or less.

[24]     There is no doubt that the offending in this case is perverse. The involvement of children and the sheer number of victims elevates its seriousness. I agree with the Judge that the gravity of the offending engages the purposes of deterrence and

8      Police v Morrison [2023] NZDC 425 at [8].

denunciation. However, that does not automatically lead to a sentence of imprisonment. As the Court of Appeal recognised in R v Iosefa, home detention carries a considerable measure of denunciation and deterrence and so can meet these twin purposes.9 Home detention is the second most restrictive sentence in the hierarchy of sentences. It is not an easy option and carries with it a punitive element.

[25]     The sentence of home detention also goes some way to meeting the purpose of public protection in  this case.  An electronically monitored sentence will  curtail   Mr Morrison’s movements and so provide protection for the community from further offending. Mr Morrison has not previously been subject to a sentence of electronic monitoring, and there is nothing to suggest that he will not comply. The standard conditions of home detention prevent Mr Morrison leaving his home except for specified purposes. In addition, special conditions may be imposed prohibiting the use of devices capable of taking photographs, and prohibiting Mr Morrison from possessing or consuming alcohol and drugs. Post-detention conditions will also ensure that the public is protected after the sentence of home detention expires. These conditions of a home detention sentence will mitigate the risk of further offending and help protect the public from harm.

[26]     The principles and purposes of rehabilitation and reintegration are also relevant here. Mr Morrison demonstrated remorse for his offending which was captured in a letter to the Court. The sentencing Judge accepted that this remorse was genuine, as do I. Expressions of remorse go some way to meeting one of the purposes of sentencing, namely the need to promote a sense of responsibility for the harm caused. Remorse can also be a positive indicator for rehabilitative prospects.

[27]     In addition, Mr Morrison showed insight into the causes of his offending, which he attributed to  drug  and  alcohol  problems.  At  the  time  of  sentencing, Mr Morrison had taken steps to address those issues by engaging with CADS, regularly attending AA meetings, and  engaging  in  private  counselling  sessions. Mr Morrison had also made attempts to engage with SAFE but was prevented from

9      R v Iosefa [2008] NZCA 453 at [41].

doing so as he did not have a referral from a medical professional. Engagement with the SAFE programme will be arranged if home detention is ordered.

[28]     A sentence of home detention would allow for Mr Morrison’s rehabilitation to continue. Post detention conditions will ensure full engagement with those programmes. This will provide better protection for the community, particularly long- term, as it will mitigate the risk of re-offending. Mr Morrison’s positive rehabilitative prospects, and the long-term protection this offers to the community, weigh in favour of a sentence of home detention.

[29]     Considering the factors in totality, I consider home detention to be the least restrictive sentence in the circumstances. The imposition of such a sentence is consistent with s 16 of the Sentencing Act which requires a court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

[30]     An updated report received from the Department of Corrections into the proposed home detention address was received yesterday, 4 May 2023. It confirms the home detention address and the occupants are suitable. An affidavit has also been provided to the Court providing assurance as to the transportation of Mr Morrison from prison to the home detention address. Other arrangements will be made to assist with his attendance at rehabilitation programmes. Given the nature of the offending, Mr Morrison should not be left unsupervised in public.

[31]     The appeal does not challenge the term of the sentence imposed. Twelve months’  imprisonment  is  roughly  equivalent  to  six  months’  home  detention.  Mr Morrison has already served nearly four months of his sentence of imprisonment. His mandatory statutory release date is 14 July 2023. These factors need to be considered in calculating the term of the home detention sentence to be substituted for the imprisonment sentence, and the duration of any post-detention conditions. The need to provide sufficient time for Mr Morrison to properly engage with rehabilitative programmes, such as the SAFE programme, also needs to be balanced in the mix.  Ms Chalmers informs me that the SAFE programme is 12 months in duration and there would be no objection to 12 months of post-detention conditions.

[32]     Taking all these factors into account, I intend to impose a sentence of two months’ home detention with post-detention conditions for 12 months.

Result

[33]The appeal is allowed.

[34]The sentence of imprisonment is quashed.

[35]     I sentence Mr Morrison to two months’ home detention on the following conditions:

(a)The sentence of home detention shall be served at the address specified in the Provision of Advice to the Courts report dated 28 April 2023.

(b)Upon his release from prison, Mr Morrison shall travel directly to the home detention address without any stops.

(c)The standard conditions set out in s 80C of the Sentencing Act and the special conditions set out in (d) to (f) below shall also apply.

(d)Mr Morrison shall not possess, consume or use any alcohol or drugs not prescribed to him.

(e)Mr Morrison shall attend an assessment for the SAFE programme, and any other counselling, programme or treatment (including Departmental programme) as directed by a probation officer and shall attend that programme. He shall attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of the probation officer.

(f)Mr Morrison shall not possess or use any device capable of photography without the prior approval of a probation officer. Upon request, he shall make any device in his possession available for inspection to see if it has a camera.

(g)Standard post-detention conditions and the conditions set out in (d) to

(f) above shall apply as special post-detention conditions for a period of 12 months.

Edwards J