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…

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 The King

Details

AGLC: Morrison v The King [2024] NZHC 3769
Case: [2024] NZHC 3769
Decision Date: 11 December 2024

CaseChat Overview and Summary

The appeal in Morrison v The King was heard by Justice Andrew on 11 December 2024. Barbra Morrison appealed her sentence for burglary, which was seven-and-a-half months’ imprisonment with leave to apply for home detention. Morrison argued that the starting point was too high, a reduction should have been made to recognise the likely option of an electronically monitored sentence, and the Judge erred in his assessment of parity. Morrison contended that the appropriate sentence should have been five-and-a-half months’ imprisonment, meaning she had already served her sentence and should be released.

The legal issues before the court were whether the starting point was too high, whether a reduction should have been made for the likely option of an electronically monitored sentence, and whether the Judge erred in his assessment of parity. The court referred to Section 250 of the Criminal Procedure Act 2011, which outlines how a court is to determine a sentence appeal. The court also referred to the Court of Appeal's decision in Palmer v R, which outlined the position with respect to sentence appeals.

Justice Andrew found that the starting point was within range and broadly consistent with similar cases. The court found that the Judge was entitled to refuse an adjournment to explore a home detention address, as Morrison had had months to organise an address and had not done so despite encouragement from the Department of Corrections. The court found that the Judge had expressly considered the issue of parity and, on the information available to him, his approach was not unreasonable. The court found that there was no error in the Judge’s approach and dismissed the appeal.

The final orders were that the appeal was dismissed, and Morrison remained subject to her original sentence of seven-and-a-half months’ imprisonment with leave to apply for home detention.

Orders