Morton v Police
[2025] NZHC 413
•6 March 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-000295
[2025] NZHC 413
BETWEEN JAMES MORTON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 March 2025 Appearances:
J E Seaton for Appellant
G J Barrett for Respondent
Judgment:
6 March 2025
JUDGMENT OF PRESTON J
This judgment was delivered by me on 6 March 2025 at 10.30 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
MORTON v NEW ZEALAND POLICE [2025] NZHC 413 [6 March 2025]
Introduction
[1] Mr James Morton appeals his sentence of two years and four months’ imprisonment imposed after he admitted 31 charges reflecting a spree of thefts of scooters and e-bikes.1
[2] The sole issue on the appeal is whether Mr Morton ought to have received full credit for his guilty pleas, entered at the earliest opportunity.
[3] The respondent accepts this was warranted, and that had the appropriate credit of 25 per cent been afforded this would result in an end sentence of two years’ imprisonment.
[4] If the appeal is allowed the respondent does not oppose leave being granted to apply for home detention.
Facts
[5] Between October 2023 and August 2024, Mr Morton stole 31 electric scooters, e-bikes and bicycles from around Christchurch. The items were either parked on public streets or outside locations such as a hospital, library, school or supermarkets. Mr Morton would typically use bolt-cutters to remove the lock from the scooter or bike, and ride away on it. He would then sell the scooters and bikes on Facebook Marketplace.
[6]The thefts affected 31 victims, whose bikes and scooters were valued between
$650–$5,000 each with total value of property stolen over $60,000.
[7] Mr Morton admitted the offending—most of which was captured on CCTV— immediately on his arrest on 20 August 2024.
1 25 charges of theft over $1,000: Crimes Act 1961, ss 219 and 223(b); maximum penalty seven years’ imprisonment and six charges of theft $500 - $1,000: ss 219 and s 223(a); maximum penalty one year imprisonment.
Relevant background and the entry of guilty pleas
[8] On first appearance on 21 August 2024 Mr Morton was remanded in custody without plea on 29 charges: 24 of theft (over $1,000), four of theft ($500-$1,000) and a charge of burglary.
[9] Prompt discussions between his counsel Mr Seaton and the police prosecutor resulted in police reducing the burglary charge to theft on 5 September. The same day by formal memorandum counsel notified the Court Mr Morton would plead guilty to all 29 charges. Four working days later, he did so. Mr Morton also pleaded guilty on second appearance to two further theft charges which were laid in the interim.2
District Court Decision
[10]Mr Morton was sentenced on 1 November 2024.3
[11] The starting point of three and a half years’ imprisonment was informed by the value of individual items stolen, number of offences and victims, and the length of time over which the offending occurred. This was uplifted by three months, or 10 per cent, to recognise that Mr Morton had committed the latter part of the spree of offending while subject to a sentence of community work, which had been imposed for two similar charges in May 2024.4 The adjusted starting point was therefore three years and nine months’ imprisonment. 5
[12] Notwithstanding Mr Morton’s early pleas, the Judge declined to apply a full credit of 25 per cent. He noted that Mr Morton had made prompt admissions to all the offending and that he had in fact identified himself on some of the CCTV footage which had captured offending and considered the evidence in the case particularly strong.
2 Pleas were entered on 3 October 2024.
3 Police v Morton [2024] NZDC 26578.
4 On 6 May 2024, in the middle of this spree of offending but while it remained undetected, Mr Morton had been arrested and charged with two similar thefts; he pleaded guilty and was sentenced the same day to community work. The Judge re-sentenced Mr Morton on these charges; cancelling the concurrent community work sentence imposed upon that charge and imposing no further no further penalty: Police v Morton above n 3 at [31].
5 Police v Morton, above n 3, at [19].
[13] The Judge contrasted Mr Morton’s case with those involving family violence or sexual offending where he considered the strength of the evidence is often far less. He considered the reduction of trauma and anxiety to victims on account of early plea in those cases, accordingly, significantly greater. On this basis the Judge considered affording a 25 per cent discount “based only on the timing of the plea” was “not doing justice” and allowed 15 per cent. A 10 per cent reduction was granted for Mr Morton’s remorse in consideration of the fact he participated in restorative justice conferences with two victims, and 15 per cent for Mr Morton’s methamphetamine addiction, which was recognised as contributing to his offending.
[14]This resulted in an end sentence of two years and four months’ imprisonment.
Submissions
[15] The appellant takes no issue with the starting point, uplift, or other discounts the Judge applied, which the Crown agrees were sound.
[16] However, Mr Seaton for Mr Morton argues the end sentence was manifestly excessive, because the 15 per cent credit for pleas was inadequate. A full 25 per cent credit was available and warranted in accordance with senior courts authority. Further, counsel submits this credit was wrongly limited based on the Judge’s view of the strength of the prosecution case, which penalised Mr Morton for being forthright with police on his arrest, and disincentivises others from assisting police in this way. Mr Seaton emphasises that Mr Morton’s admissions strengthened the evidence on a number of charges, where the identity of the offender was not apparent from CCTV footage.
[17] Mr Seaton further submits no double benefit accrued to Mr Morton by the amendment of the burglary charge together with the plea discount on the amended charge. The offending on that charge involved entry by a few footsteps onto school grounds to take an item. The wording of the summary of facts was not altered and counsel submits the amendment would not have resulted in a material difference to the starting point, accordingly. Additionally, Mr Morton’s guilty plea benefitted all those involved in the judicial process, particularly by reducing the work required of police
and prosecution to obtain information from all 31 victims and avoiding the court process for his victims.
[18] Ms Barrett accepts that the respondent is unable to defend the guilty plea discount afforded, or the end sentence ultimately imposed by the Judge. Should the Court allow the appeal the respondent does not oppose leave being granted to apply for home detention.
Principles on appeal
[19] An appeal against sentence may be allowed only if there has been an error in the imposition of the sentence and a different sentence should be imposed.6 If, however, a sentence imposed is manifestly excessive and not justified by relevant sentencing principle, the Court should intervene to correct this.7
[20] As will be evident, it is common ground between the parties that there has been a material error affecting the sentence as Mr Morton was entitled to a full guilty plea credit of 25 per cent in accordance with the Supreme Court’s decision in Hessell,8 which would have reduced the end sentence to two years’ imprisonment. In that case, the Court must consider whether to give leave to apply for home detention.
Discussion
[21] There is no contest Mr Morton’s pleas were entered at the earliest opportunity: on second appearance after provision of disclosure and consultation with counsel. Yet the Judge declined to afford full credit of 25 per cent due to what he described as the particularly strong case against Mr Morton.
[22] As Mr Seaton submits, this issue was engaged in similar vein in the Court of Appeal’s decision in Millar v R, where the Court considered whether inadequate credit for guilty pleas had been applied at sentencing in context of an “overwhelming” case against the appellant.
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[23] The Court of Appeal noted that while the Supreme Court in Hessell v R9 did consider that the strength of the prosecution case will be relevant to the discount for guilty pleas, this did not stand for the proposition that the stronger the prosecution case, the lower the discount for plea.10 The Court observed:11
The focus of the Court in this aspect of Hessell was on the genuineness of the offender’s acceptance of responsibility. That is the inquiry the sentencing court must make before deciding, all other factors being equal, not to apply a maximum discount for early guilty plea where the prosecution case is overwhelming.
[24] Although the evidence against Mr Morton included CCTV footage of the offending I accept, for the reasons Mr Seaton identifies, that Mr Morton’s admissions on arrest contributed significantly to the prosecution case. Disclosure showed some offending where the offender was wearing a hood and sunglasses, with limited identifying features. Others were limited to still shots. I accept, also, to reduce the available discount for guilty plea on this basis both penalises Mr Morton for his frankness assisting police and, on a wider view, may disincentivise others from co- operating with police in similar circumstances.
[25] I am also satisfied that there is no double benefit to Mr Morton as a result of the plea arrangements if full credit for his pleas is afforded, as was the case in Wu v R.12
[26] Ms Wu pleaded guilty to an amended charge of wounding with intent to cause grievous bodily harm, reduced from a charge of attempted murder.13 The Court of Appeal considered that she benefitted from the amended charge and therefore upheld a reduced discount for guilty plea.14 Here, the facts noted at [17]above indicate what could fairly be described as a low-level burglary. I agree for this reason there was likely no material difference in starting point, notwithstanding the reduced maximum sentence applicable as a result of the amended charge.
9 Hessell v R, above n 8, at [74].
10 Millar v R [2019] NZCA 570 at [36].
11 At [36].
12 Wu v R [2022] NZCA 604.
13 At [6].
14 At [17].
[27] The final issue is the benefit flowing to all in the judicial process from Mr Morton’s pleas. Credit given for an early guilty plea should reflect the benefits provided to the justice system and participants in it.15
[28] By entering early guilty pleas, Mr Morton avoided a prolonged court process and wastage to judicial resources. This gave his victims prompt resolution without further participation in the justice system. There was no proper basis in this case to offset these benefits having regard to the strength of the prosecution case.
[29] It follows that Mr Morton should have received a full 25 per cent credit for his guilty pleas, alongside the adjustments recognising the other mitigating factors of his remorse and the contribution of his methamphetamine addiction.
[30] Adopting the Judge’s methodology,16 the overall adjustments for personal factors aggravating and mitigating this offending gives an end sentence just short of 24 months’ imprisonment. I agree the appropriate sentence, accordingly, is two years’ imprisonment.
Conclusion
[31] I accept a material error has occurred resulting in a manifestly excessive sentence.
[32] As a short-term sentence results it is necessary to decide whether to give leave to apply for home detention, which the Crown does not oppose. Mr Seaton is instructed that whereas at sentencing no suitable address was available, there now is a different address for electronic monitoring to be canvassed.
[33] Given the addiction issues underlying this offending, it is appropriate that leave be granted.
15 Hessell v R, above n 8, at [65].
16 Applying the uplift of three months indicated for the personal aggravating factor of offending while subject to sentence as a percentage: seven per cent.
Result
[34]The appeal is allowed.
[35] The sentence of two years four months’ imprisonment imposed on the theft charge, CRN 24009011369, is quashed.
[36] A sentence of two years’ imprisonment is substituted, with special release conditions as set out in the Provision of Advice to Courts report dated 25 October 2024 for a period of six months.
[37]All other sentences as imposed by the District Court judge remain.
[38]Leave is granted to apply for home detention.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Christchurch
Counsel:
J E Seaton, Barrister, Christchurch
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