Morrison v The King

[2024] NZHC 3769

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-000123

[2024] NZHC 3769

BETWEEN

BARBRA MORRISON

Appellant

AND

THE KING

Respondent

Hearing:	9 December 2024
Appearances:	C J Bernhardt for Appellant G N Ellison for Respondent
Judgment:	11 December 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 11 December 2024 at 3.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………

MORRISON v R [2024] NZHC 3769 [11 December 2024]

Introduction

[1]This is an appeal against sentence.

[2]        In the District Court the appellant, Ms Morrison, pleaded guilty to one charge of burglary.1 She was sentenced to seven-and-a-half months’ imprisonment.2 She was also given leave to apply for home detention.

[3]The grounds of appeal are as follows:

(a)The starting point was too high, bearing in mind the appellant’s culpability. A starting point of no more than nine months’ imprisonment should have been imposed (not 12 months).

(b)A reduction should have been given to recognise the otherwise likely option of an electronically monitored sentence, had the appellant been able to offer a suitable address (particularly when the Judge had refused to adjourn the sentencing for this purpose).

(c)The Judge erred in his assessment of parity; the uncertainty should have been taken into account in considering totality.

[4]        It is contended that the Judge should have arrived at an end sentence of five- and-a-half months’ imprisonment. That would mean the appellant has now served her sentence and should be immediately released.3

[5]The Crown opposes the appeal.

The offending

[6]        The summary of facts records that on 26 February 2023, at about 11.00 pm, two accomplices of Ms Morrison entered the Super Liquor store in Te Puke. The store was closed. They smashed one of the windows with a rock and took liquor. The smashed window was then boarded up by the store owners, who had received notification from the Police. The two associates then returned shortly afterwards on

1      Crimes Act 1961, s 231(1)(a): maximum penalty ten years’ imprisonment.

2      New Zealand Police v Morrison [2024] NZDC 26123.

3      Her current statutory release date is in February 2025.

27 February 2023 at 1.06 am and punched through the boarded window to gain access to the store. Later that morning, at about 4.12 am, Ms Morrison “return[ed]” to the store alone and climbed through the smashed window to enter the store. She took multiple bottles of spirits and liquors and two gift baskets.

[7]        Ms Morrison told the Police she was drinking with friends when one of them said that he wanted to rob the liquor store. She said that she and her friend could hear the alarms and watched from the hub.

[8]Reparation was sought by the victim, with Ms Morrison owing $715.

Personal circumstances

[9]        Ms Morrison is 45 years old. She has a criminal history dating back to 2006. It predominantly involves shoplifting. She has 14 convictions for shoplifting under the value of $500. Two of the more historic shoplifting offences occurred while on bail. She also has convictions for several failures to answer Police bail, two wilful trespasses, disorderly behaviour, and several breaches of court-imposed conditions. Ms Morrison has received three formal Police warnings for shoplifting (under $500) and disorderly behaviour (x 2) in 2016 and 2019.

[10]      The Provision of Advice to Courts (PAC) report records Ms Morrison as having little support within the community and a significant alcohol use problem.

[11]      A departmental screening tool scored Ms Morrison at high risk of experiencing severe problems relating to alcohol use. On the night of the offending, she admitted to drinking a lot more than usual.

[12]      In regards to an electronically monitored sentence, Ms Morrison reported that her landlady does not know about her current circumstances, and she is worried that she will lose her place of residence if this is disclosed. She accordingly declined to give consent for an electronically monitored sentence.

Decision under appeal

[13]      The Judge began by outlining the facts for the sentencing.   He stated that   Ms Morrison had, with two friends, been drinking and went to the Super Liquor store

in Te Puke. The Judge said that one of Ms Morrison’s friends smashed the window, another kicked the bottom panel, and because of the damage all three of them were able to get into the store and take a quantity of liquor.

[14]The Judge then noted that Ms Morrison returned alone to the store after

4.00 am. She climbed in the broken window and took further spirits and liquors, as well as two gift baskets. His Honour noted that when arrested, Ms Morrison had said that she had been drinking with her mates and decided it would be a good idea to go and rob the liquor store.

[15]      The Judge then referred to Ms Morrison’s 14 previous convictions for dishonesty offences. He noted her clear remorse as set out in the PAC report. He observed that she was quite drunk at the time of her offending and the only conclusion from having read the PAC report was that she had a significant alcohol addiction.

[16]      The Judge noted that Ms Morrison had effectively not cooperated with the option of an electronically monitored sentence. She has not provided an address for it. His Honour accordingly held that neither home detention nor community detention were options available for him. The Judge further declined to adjourn the sentencing to enable Ms Morrison to come up with an address for an electronically monitored sentence. He noted that despite her having had months to organise any address, and receiving advice and strong encouragement to do so, she simply had taken no steps.

[17]      The Judge adopted a starting point of 12 months’ imprisonment. He identified no aggravating features in relation to the offending. A 25 per cent reduction was given for the guilty plea and a further five per cent was taken off to recognise addiction issues (i.e. a total reduction of 30 per cent).

[18]      The end sentence imposed was seven-and-a-half months’ imprisonment. The Judge granted leave to apply for home detention. He was of the view that had a suitable address been offered, it would have been an option.

Legal principles on appeal

[19]      Section 250 of the Criminal Procedure Act 2011 sets out how a court is to determine a sentence appeal. An appeal must be allowed if the Court is satisfied that

there is an error in the sentence imposed, for any reason, and that a different sentence should be imposed.4

[20]      The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:5

… the standard of appellate review in sentence appeals ... requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.

[21]      In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.6 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.7 A judge on appeal should not intervene where the sentence imposed was within the range that could be properly justified by accepted sentencing principles.8

Analysis and decision

[22]      I find that the starting point adopted, while on the high side, was within range. The Judge was not in error in concluding that a starting point of 12 months’ imprisonment was appropriate.

[23]      I find that the following authorities are of assistance and support my conclusion that there was no error in the Judge’s determination on the issue of the starting point.

[24]      In Wharerau v Police, the appellant and his friends were drinking and decided to get more alcohol by burgling a Countdown supermarket.9 The appellant threw a rock through the supermarket’s window at 12.20 am. He and his friends then entered the store and collected casks of wine. The loss to Countdown was $500. The starting

4      Criminal Procedure Act 2011, s 250(2).

5      Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

7 At [36].

8      At [36], citing Tutakangahau v R [2014] NZHC 556 at [10].

9      Wharerau v Police [2017] NZHC 72.

point for the first burglary was reduced to 15 months’ imprisonment on appeal. I agree with the submission of the Crown that that case is broadly similar to the present one.

[25]In Waara v Police, Cull J held:10

[29] I consider this offending was more akin to R v Columbus, where the Court of Appeal considered a range of 10 months to one year was an appropriate starting point for burglaries of low to moderate seriousness. In Columbus, the defendant forced open a garage of a residential property and stole a mountain bike, gardening tools and a tool box. The Court of Appeal considered the burglary was at the lower end of the scale because it was spontaneous, the mountain bike was later recovered and there was otherwise limited financial loss. The Court held that a starting point of no more than one year’s imprisonment was appropriate.

[26]      In Waara, the appellant drove himself and others to a food market, breaking a lock to gain access. There were multiple offenders, and a variety of items were taken including cash, cigarettes and vapes. The starting point of 18 months was reduced to 12 months on appeal.

[27]      Again, the starting point adopted here is broadly consistent with the approach taken by Cull J in Waara.

[28]      I acknowledge that there is some merit in Mr Bernhardt’s submission that the Judge was in error in sentencing the appellant on the basis she was involved in both the first entry (though not personally smashing the window or kicking the bottom panel) and the third entry. It is not clear from the summary of facts whether she was actually present at the time of the first break-in. However, despite Mr Bernhardt’s well-presented submissions, I find that in focusing on the end sentence imposed, there is no basis for disturbing the decision under appeal. I also note that she must have returned, for what was the third entry, knowing that she would have unrestricted access (i.e. because the window had already been smashed on the first entry).

[29]      As to the second ground of appeal, namely the option of an electronically monitored sentence, I again find that there was no error in the approach adopted by the District Court Judge. Mr Bernhardt responsibly accepts that there was and is no realistic electronically monitored sentence option. In my view, the Judge was entitled to refuse an adjournment to explore a home detention address. He noted that the

10     Waara v Police [2024] NZHC 1726.

appellant had had months to organise an address and despite encouragement from the Department of Corrections, had not done so. The Judge did give leave to apply for home detention and, in the circumstances, there is no basis for finding that he was in error.

[30]      As to the point of parity, the Judge expressly had regard to that issue. He noted that one of the co-offenders was at that time on the run and there was an outstanding warrant for his or her arrest. In relation to the other co-accused, he referred to their end sentence of four months’ home detention and concluded that this “must equate to an end sentence of eight months’ imprisonment”.

[31]      I accept that there was and is some uncertainty about the position of the co- offenders. The Judge’s doubling of the four months’ home detention to arrive at an equivalent sentence of eight months’ imprisonment may have been somewhat crude, but on the information available to him it was not unreasonable in the circumstances. There was no error in the approach adopted and it would seem that no further information has become available which might suggest that he was in error in any way.

[32]For all these reasons, I find that the appeal should be dismissed.

Result

[33]The appeal is dismissed.

Andrew J