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R v Morgan

R v Morgan

Case [2008] NZCA 232 11 July 2008

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA276/2008
[2008] NZCA 232
THE QUEEN
v
MICHAEL KENNETH MORGAN
Hearing:30 June 2008

Court:Arnold, Panckhurst and Fogarty JJ
Counsel:S A Saunderson-Warner for Appellant

K Raftery for Crown

Judgment:11 July 2008 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of eight months imprisonment is quashed. The following sentences are imposed:
(a)On the charge of assault with a weapon, three months imprisonment;
(b)On the charge of breaching a community work order, two months imprisonment, to be served cumulatively with the sentence in (a) above;
(c)On the charge of trespass, one months imprisonment, to be served cumulatively with the previous two sentences.

REASONS OF THE COURT
(Given by Arnold J)

[1]       Following a sentence indication, the appellant entered a plea of guilty to a charge of assault with a weapon. Judge O’Driscoll sentenced him to 150 hours community work in accordance with the sentence indication. The appellant completed only four of those 150 hours before the expiration of the completion date.
[2]       On a probation officer’s application, Judge O’Driscoll cancelled the sentence of community work and imposed a sentence of eight months imprisonment in substitution. At the same time the Judge convicted and discharged the appellant on a charge of breaching his community work sentence and imposed a sentence of one months imprisonment in relation to a trespass charge, to be served concurrently with the sentence of eight months. The appellant appeals against sentence.
Background facts
[3]       The appellant and his long-term partner were drinking at a Dunedin hotel. The appellant became annoyed with his partner and threw a glass at her. It hit a wall behind her and shattered. A fragment of glass struck her face, causing a cut under her jaw. The appellant also threw a plastic beer jug at her. The two continued to argue until an ambulance arrived to treat the appellant’s partner.
[4]       The appellant was charged with injuring with intent to injure (s 189(2) of the Crimes Act 1961) and assault with a weapon (s 202C(1)(a)). At an early stage, his counsel filed a document seeking a non-custodial sentence. Judge O’Driscoll gave a sentence indication, to the effect that a sentence of 150 hours of community service would be imposed. The appellant accepted that indication and entered a plea of guilty to the charge of assault with a weapon. The Crown offered no evidence on the injuring with intent to injure charge and the Judge discharged the appellant on that count.
[5]       The appellant completed only four hours of community work before the completion date for his sentence. Accordingly a probation officer applied to the District Court to cancel the community work sentence and substitute a sentence of imprisonment (ss 68(3)(c) and 72 of the Sentencing Act 2002). In addition, the appellant was charged with breaching his sentence of community work (s 71 of the Sentencing Act). He was also charged with trespass arising out of another incident at the same hotel.
Sentencing

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 R v Morgan

Details

AGLC: R v Morgan [2008] NZCA 232
Case: [2008] NZCA 232
Decision Date: 11 July 2008

CaseChat Overview and Summary

The appellant, Michael Kenneth Morgan, was convicted of assault with a weapon, breaching a community work order, and trespass. Morgan appealed against his sentence of eight months imprisonment, arguing that it was disproportionate to the original sentence of 150 hours of community work. The Court of Appeal allowed the appeal and substituted the original sentences. The court held that while there must be some proportionality between the original and substituted sentences, there need not be a strict correlation between them. The substituted sentence must be one that could properly have been imposed initially and must be imposed against the background that a sentence of community work was initially seen as appropriate. The court found that the sentence of eight months imprisonment bore no relationship to the sentence of 150 hours community work originally imposed, or the factors which gave rise to it. The court substituted the following sentences: three months imprisonment for the assault with a weapon charge, two months imprisonment for the breach of community work charge, and one month imprisonment for the trespass charge. The sentences for the breach of community work and trespass are to be served cumulatively on the sentence for the assault with a weapon charge, producing an effective end sentence of six months imprisonment.

Orders