R v Morgan
[2024] NZHC 414
•1 March 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-009-9074
[2024] NZHC 414
THE KING v
DAVID KEITH MORGAN
Hearing: 1 March 2024 Appearances:
P A Currie for Crown
A M McCormick for Defendant
Judgment:
1 March 2024
SENTENCING NOTES OF HARLAND J
[1] Mr Morgan, you appear before the Court today for sentence on a charge of sexual connection with a young person under the age of 16 and two charges of breaching an extended supervision order. You are appearing in the High Court because, on 12 September 2023, the District Court Judge declined to sentence you on the charge of sexual connection with a young person under the age of 16 because he was of the view that a finite sentence with a minimum period of imprisonment would not be sufficient to protect the community.
[2] Only this Court has the jurisdiction to impose preventive detention and the primary task for me today is to decide whether preventive detention should be imposed. I am going to start by summarising the offending that you are being sentenced for.
R v MORGAN [2024] NZHC 414 [1 March 2024]
The offending
[3] On 14 June 2017, a 10 year extended supervision order was imposed on you. The special conditions included a condition not to enter or loiter near any school, early childhood education centre, park, library, swimming pool, other recreational facility, church, or any other area specified in writing by a probation officer, unless you had the prior written approval of a probation officer.
[4] It was also a special condition that you submit to electronic monitoring as directed by a probation officer, in the form of global positioning system (GPS) technology in order to monitor your compliance with any condition relating to your whereabouts. The reasons and need for an extended supervision order will become obvious when I outline the extent of your previous convictions very shortly.
[5] When the Parole Board considered what I refer to as high impact conditions of the extended supervision order in March 2022, you sought a variation to address health issues you submit were associated with wearing the bracelet on your leg or wrist. Following a hearing, the Board said that it was very firmly of the view that electronic monitoring was still required because of your risk to the community.
[6] But, in August 2022, the Department of Corrections agreed to vary that special condition requiring electronic monitoring. This was dealt with on the papers by the Board on 10 August 2022 and, from that date, electronic monitoring ceased. However, you were still subject to a number of other special conditions, including what has been referred to as a whereabouts condition. That meant you had to advise your probation officer about where you were going. Almost exactly to the day, four months later, on 11 December 2022, the offending which is now before the Court for sentence occurred.
[7] I take the facts of the offending from the summary of facts to which you pleaded guilty.
[8] On 11 December 2022, you hid in the men’s toilet at Hansen Park in Opawa. You watched a group of three teenage girls and a teenage boy, aged 15 and 16 years of age, from the toilet window. As you did so, you are reported to have masturbated, made sexual noises and spoke quietly to the group in an attempt to lure them closer.
[9] A short time later, the victim in this matter, a 15 year old male, went into the men’s toilets while his three female friends waited outside. Once he was inside the toilet block, you opened the cubicle door and pulled him inside, closing the door after you. You pulled his pants down and rubbed his penis with your hand. You then proceeded to place your mouth on the victim’s penis and held him tightly by the waist, stopping occasionally to ask him to invite his female friends to join. The victim, wanting to protect his female friends, yelled at them not to come inside and to go away. He eventually managed to push you away and pulled his pants up. You asked the victim if he wanted to do this again, saying that he could come to your house and you would pay him money. The victim pretended to enter your phone number on his phone so that he could leave. He left the toilet block in a distressed state and met his friends who were waiting outside.
[10] Mr McCormick today has submitted that you did not know that the victim was 15 years of age at the time, but neither did you ask. He also referred to a statement of one of the females present which, he submitted, suggested that you might have thought that he was consenting. I have to sentence you on the basis of the summary of facts to which you pleaded guilty and that is the facts that I have outlined.
[11] What you did constituted a breach without reasonable excuse, somewhat obviously, of a condition of your extended supervision order. You were also sighted by a member of the New Zealand Police in the same park on 23 December 2022, being a further breach of your extended supervision order.
Victim Impact
[12] The victim is now 16. He has suffered suicidal thoughts because of the trauma and feelings of disgust he holds toward his own body as a result of what you did. The incident was his first experience of oral sex and it has understandably affected how he feels about intimacy. I have read his victim impact statement very carefully and it is overwhelmingly sad. The incident also left him with thoughts of suicide and he describes finding it difficult to put into words just how much he despised the entire experience, both during and after the assault. He has tried to distance himself from the painful reminders but they are there frequently. He cannot visit the park where the
assault occurred, he feels very uncomfortable whenever the topic of sexual assault is brought up and he avoided public toilets for some time because he was frightened something similar would happen. He has felt the need to pretend that he is alright because he didn’t want to tell people about the reason he was upset. He describes the matters I have referred to as raw and honest emotions that he wishes to convey, which is the reason I am conveying them publicly and to you.
Personal background
[13] I now turn to briefly discuss your circumstances. You are 59 years of age and you have an extensive, sadly extensive, history of offending that started in 1979. The details of that I am going to return to in a minute.
[14] Three psychological reports have been prepared to assist me, one by a psychologist engaged by you. And I have also benefited from a Provision of Advice to Courts (PAC) report. I will also deal with those aspects or aspects of those reports relevant to my assessment of whether preventive detention should be imposed but, for now, I am going to briefly outline what they say about your background and your previous offending.
[15] You were adopted at a young age by an older couple. You felt loved by your father, but not your mother. You did not do well academically and left school at 15. But you had a number of jobs, including driving trucks, seasonal work and running the takeaway business or several takeaway businesses. You describe being sexually abused as a young person but have given little detail to the report writers about this. I consider that understandable given the personal nature of those matters, although I note that discussion about it may help you with any further future therapeutic intervention. You were married for a period to an adult female from Thailand, but subsequently divorced. I read that you remain in contact with her and she is supportive of you. It does not appear however that this was a healthy reciprocal relationship and your first contact sexual offending was committed while you were married. You are reported as having a number of physical health issues but no specific mental health issues. Your intellectual functioning is assessed as being in the low average range. And you present with difficulties regulating your emotions. You were assessed in
2015 for being in the high range for trait anger. You are also assessed as presenting with features of narcissistic and anti-social personality traits. But there is no evidence of any substance abuse issues. I mention these matters not to make you feel any sense of shame but, rather, to outline your background which is also relevant to the matters I must consider in sentencing.
[16] Unfortunately, you have 42 convictions for prior sexual offences over a 34 year period, the most recent of which were committed in 2011 and 2012. Much of your earlier offending included exposing yourself and masturbating in public, but it also includes grooming victims. The targeted victims of your offending have been females as young as nine years of age through to adult females. On 4 September 2017, you were released from a sentence of four years and six months’ imprisonment for convictions relating to one charge of meeting a young person following sexual grooming, three charges of committing an indecent act, one charge of committing an indecent act with intent to insult and seven charges of committing an indecent act on a girl aged 12-16.
[17] As I have mentioned, on 14 June 2017, an extended supervision order was imposed on you for 10 years, commencing on your release from prison on 4 September 2017 for the offending I have just described.
Unlawful sexual connection and breaching extended supervision order
[18] Now I turn to what the appropriate sentence should be and I first deal with what the appropriate sentencing on these charges would be if I was not minded to agree with the Crown that preventive detention is the appropriate outcome for you.
[19] Clearly, the lead charge is the charge of sexual connection with a young person which carries a maximum penalty of 10 years’ imprisonment. Each of the breaches of extended supervision order carry a maximum penalty of a term of not exceeding two years’ imprisonment. I note, and your lawyer has submitted today, properly, that you were initially charged with sexual violation by unlawful sexual connection with a male aged 12-16. It is a much more serious charge, but the charge to which you have pleaded guilty was reduced as a result of representations made to the Crown by your counsel about the issue of consent.
[20] There are however aggravating features of your offending. They include the significant age discrepancy between you and your victim – you were 58 at the time, he was 15 years of age. I also characterise your offending as predatory with you masturbating prior to the offence and luring the victim into the toilet block. You also attempted to involve the three other young women who were present with your victim but outside the toilet block. Another aggravating feature, as you will by now be well aware, is that you were subject to the release condition not to loiter at places where children under 16 were likely to congregate, parks being one of those, and that is exactly what you did.
[21] I do not accept that your intention was to see if you could engage in a sexual act with an adult male. But I accept that that is at least an available inference. As to your view that the act was consensual, having read the victim impact statement and you having heard today what the victim says about it, it is very clear to me that the victim was not a willing participant, even if you thought he was. The sexual act involved the physical restraint of him and the act continued for a period of time.
[22] Having regard to the aggravating features of your offending and by reference to other comparable cases, the Crown suggests a starting point of four years’ imprisonment.1 An uplift of 12 months is suggested to reflect your 42 relevant prior convictions involving sexual offending, which would take the adjusted starting point to five years’ imprisonment. And I note at this point that that starting point includes, whichever way it is looked at, the breaches of supervision, your supervision order, as well. The Crown accepts that you would be entitled to a discount of 15 to 20 per cent to reflect your guilty pleas.
[23] Mr McCormick submitted that the starting point of three years for the sexual offending would be appropriate, uplifted by 12 months to reflect the breaches that I have referred to and your history for prior convictions. That would take the adjusted starting point, on his analysis, to four years’ imprisonment. So the difference between the lawyers is one of five or four years, and neither disagree about the discount for your guilty pleas.
R v H (CA94/08) [2008] NZCA 237; R v Johnson [2010] NZCA 168; R v Herbert CA70/98, 21
May 1998; Hawken v R [2019] NZCA 450; Anand v R [2015] NZHC 397; R v Burdett [2009]
NZCA 366.
[24] Bearing in mind the aggravating features of your offending and other similar cases, which I have set out in my sentencing notes but won’t go through today, it cannot be said however that the Crown’s adjusted starting point is out of range. I am persuaded it would be more appropriate than the end starting point of four years submitted by your counsel. But I also agree that your guilty pleas should attract a discount of 20 per cent.
[25] Bearing these matters in mind, an end sentence of four years’ imprisonment would be the result should I decide that a determinate sentence is warranted in your case.
[26] But I now need to consider whether such a sentence would be inadequate in all the circumstances. So I now turn to consider preventive detention.
Preventive detention
[27] The Crown seeks a sentence of preventive detention. The purpose of it is to protect the community from those who pose a significant and ongoing risk to the safety of members of the public. Its purpose is not to punish, but to protect.2
[28] Mr Morgan, you qualify for a sentence of preventive detention because you have been convicted of a qualifying sexual offence, and you were over the age of 18 at the time you committed the lead offence in this case. But I must also be satisfied that you are likely to commit another qualifying sexual offence if you are released at the sentence expiry date. In determining this, the law says I must take into account five specific factors and I am now going to address each of those.
Pattern of serious offending
[29] The first is whether there is a pattern of serious offending disclosed by your history.3 As I have outlined, you have a decades-long history of sexual offending that, in my view, has worsened over time. You were sentenced for several instances of contact and grooming offending in 2013 and you proceeded to offend again four months after your electronic monitoring bracelet was removed in 2022. Unfortunately, your history demonstrates a pattern of serious sexual offending against children and I
2 R v Johnson [2004] 3 NZLR 29 (CA) at [24].
3 Sentencing Act 2002, s 87(4)(a).
note the report writers unanimous view that it is escalating or getting worse. In short, I am satisfied that your history discloses a pattern of serious sexual offending.
Seriousness of harm to the community
[30] The second factor I must take into account is the seriousness of the harm to the community caused by your offending.4 Again, the harm caused by your offending is, in my view, self-evident or obvious. Your offending happened in a public place and the victim was an unknown child in the park with their friends. The harm goes further than the impact on your victim, as the impact will also be felt by his family and the young women who were with him at the time. This harm can properly be characterised as harm to the community. So, the second factor has clearly been met.
Tendency to commit serious offences in the future
[31] The third factor requires me to assess what information there is which may indicate a tendency by you to commit serious sexual offences in the future. This was addressed by all of the report writers, including the report writer briefed by you to assist me. And I note there that his report was completely independent although it was prepared by your lawyer for you, but reached very similar, and in some cases more, for some factors more serious outcomes than the other report writers.
[32] One of the report writers, Ms Roulston, noted that there is no evidence to suggest you will not offend again and referred to the fact you had offended while being on the supervision order, thereby she asked me to infer that was done with the knowledge of consequences should you be caught. In her view, that increases your risk factor. Dr Gordon considered your risk factor to be high, pointing to the escalating nature of your offending and finding it likely that you will engage in a qualifying sexual offence within ten years of release.
[33] All assessors place you at a high risk of reoffending, with Mr Metoui and Dr Gordon placing you in the “well above average” risk category which, as Mr Metoui explained, is the highest risk category. The escalation in the seriousness of your offending was also broadly recognised.
4 Sentencing Act, s 87(4)(b).
[34] It is particularly concerning that, rather than your offending reducing with age, it appears to be getting worse or escalating and it has moved from exclusively non- contact offending (which was your record up to 1999) to grooming behaviours and contact offending, and has now broadened to include offending against a male who was not known to you. As Mr Metoui noted, this victim profile is important to the appraisal of risk as the scientific research has long shown that male sexual offenders who target male victims have greater risks of sexual reoffending than their offending counterparts who do not offend against males. He advised that this risk escalates when the male victim is a “stranger” to the perpetrator.
[35] Despite this however, I acknowledge that, when subject to the extended supervision order and the special conditions of electronic monitoring, you did not sexually reoffend for about five and a half years. And that is an important factor that has caused me to pause in considering what I should do. But Mr Metoui quite properly addressed whether such electronic monitoring would nullify or sufficiently reduce the risk of you committing serious sexual offences in the future. He concluded that electronic monitoring could not be relied on to contain this risk. In reaching that opinion, he noted you have tampered with your electronic monitoring equipment in the past (he referred to an instance in April 2020) and he considered there was some evidence to suggest this may have occurred on a more frequent basis than your history reveals. Although accepting that that matter might be open to some debate, Mr Metoui concluded that electronic monitoring could not be relied on to contain the risk of you committing serious sexual offences in the future. I cannot ignore that opinion.
[36] When viewed in the round, I am satisfied that the information provided to me indicates that you are a person who has a tendency to commit serious sexual offences and that you are likely to do so in the future.
Failure to address the cause of the offending
[37] The fourth factor I must assess is whether there is an absence or failure by you to address the causes of your offending.
[38] You have completed the Kia Marama programme once but you were evicted from it. You have also attended the STOP programme. You told Ms Roulston that you were unwilling to attend Kia Marama again but you have now said you are willing to
do so. And that is a very important and responsible acknowledgement and, if you are serious about that, it will assist you, particularly if you can open up and be honest about your past.
[39] Dr Gordon considered that you were evasive when discussing your offending behaviour and that you revealed a tendency to blame your current imprisonment on the Department of Corrections. While Dr Gordon acknowledged that you managed for the five and a half years without conviction, she also noted that you were challenging to engage with and appeared to involve yourself in risky behaviours that she considered likely to maintain your sexual deviances. She did not consider your involvement in treatment had been successful in addressing the factors relating to your risk of sexual offending. And she did not consider that, currently, you would be able to meaningfully and successfully engage in further treatment. I note that that opinion was presented to the Court before your current stated desire to re-engage, if you were given that opportunity, with the Kia Marama programme. But, it has to be said that you haven’t taken the advantage that you ought to have of the opportunities for rehabilitation on those programmes that have been presented to you in the past.
[40] Mr Metoui said you had received multiple opportunities to address your offending through what he described as highly sophisticated and first-rate offence- specific treatments in custody and in the community, both group and one-on-one interventions. But he too considered you had not ever meaningfully engaged in offence-specific treatments and that you have not so far demonstrated any level of insight into your offending. He concluded that you were not remorseful or genuinely wanting to take steps to prevent offending in a sexual way.
[41] I acknowledge the courses that you have undertaken online recently and I read the certificates that were provided. I also recognise that you were offence-free during the five and half years you were on the extended supervision order. But nonetheless, I must conclude, based on the experts’ opinions, that you have failed to take sufficient steps to date to address the causes of your offending. Given your past and this offending, my conclusion on this factor strongly favours a sentence of preventive detention.
Is a lengthy determinate sentence preferable?
[42] The final factor I need to consider is whether a lengthy determinate sentence is preferable if it can provide adequate protection for society. I have reached a very clear view that the otherwise appropriate determinate sentence that I could impose would not provide adequate protection for society. As Mr Metoui observed, you will need to radically change your present attitudes and motivations if you want to make meaningful gains during treatment and you will ultimately require, in the long term, robust external controls and supervision. Unfortunately, I am not satisfied that a determinate sentence, even with an extended supervision order, will provide the level of protection required.
[43] So, it follows that I consider a sentence of preventive detention for you is necessary to protect the community because you pose a significant ongoing risk to members of it. In reaching that conclusion, I have also taken into account your lawyer’s submission that this charge is not the most serious sexual offending charge. But I have taken into account the pattern of your offending and the continuing nature of it in determining my conclusion.
Minimum term of imprisonment
[44] Because I have sentenced you to preventive detention, I must also order that you serve a minimum period of imprisonment which is not permitted to be less than five years. I must follow a two-step process.
[45] First, I must assess what minimum period properly reflects the gravity of your offending. Second, I must consider whether that period is adequate for the purposes of community protection in light of your age and the risk you pose to community safety at this time.5
[46] Given your age and risk of further offending, although a five-year period outweighs the gravity of the offending, I am satisfied it is necessary for community protection. It is the minimum period that I can impose, and I impose it today.
5 Ellmers v R [2013] NZCA 676.
Firearms prohibition order
[47] The firearms prohibition order is sought but not strongly submitted for by the Crown. I do not accept that it is necessary, reasonable or appropriate in your case and therefore I decline to make it.
Result
[48]Mr Morgan, if you could stand please.
[49] On the charge of sexual connection with a young person under 16, you are sentenced to preventive detention, that means you will be imprisoned indefinitely. On that sentence, I impose a minimum period of imprisonment of five years. This means that, after five years, the Parole Board will reassess your risk to the community before considering whether you can be released on conditions. If, as you say, you are serious about engaging in therapeutic interventions, you can work towards that goal. But, you will need to make significant gains in treatment for any release to be seriously considered.
[50] On the two charges of breaching an extended supervision order, you are sentenced to 12 months’ imprisonment.
[51]All sentences are to be served concurrently, which means at the same time.
[52]Thank you. Stand down please.
Harland J
Solicitors:
Crown Solicitor, Christchurch
Copy to:
A M McCormick, Barrister, Christchurch
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