R v Morgan - [2024] NZHC 414

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…

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 [2024] NZHC 414
Case: [2024] NZHC 414
Decision Date: 1 March 2024

CaseChat Overview and Summary

The High Court of New Zealand heard the case of the King v David Keith Morgan, where the defendant faced charges of sexual connection with a young person under 16 and two breaches of an extended supervision order. The District Court had previously declined to sentence the defendant due to concerns that a finite sentence would not sufficiently protect the community. The High Court was tasked with determining whether preventive detention was appropriate. The defendant, aged 59, had a history of 42 prior sexual offences spanning 34 years. He had been under an extended supervision order since 2017, which included conditions such as not loitering near places where children were likely to congregate and submitting to electronic monitoring. Despite these conditions, the defendant committed the current offences in December 2022 by hiding in a park restroom and assaulting a 15-year-old boy. The court considered the victim impact, the defendant’s extensive criminal history, and the factors relevant to preventive detention. The court found that the defendant’s pattern of serious sexual offending, the seriousness of harm caused, and his high risk of reoffending supported a sentence of preventive detention. The court also concluded that the defendant had not sufficiently addressed the causes of his offending. Therefore, the court sentenced the defendant to preventive detention with a minimum term of five years, in addition to 12 months for the breaches of the supervision order, to be served concurrently.

The court's reasoning was grounded in the defendant's long history of escalating sexual offending and the significant risk he posed to the community. The court emphasized the importance of community protection over punishment, highlighting the need for robust external controls and supervision. The defendant's failure to meaningfully engage in rehabilitation efforts further supported the decision for preventive detention. The court’s decision ensured that the defendant would be reassessed by the Parole Board after five years, with the possibility of release contingent on significant therapeutic progress.

Orders