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R v Morgan

R v Morgan

Case [2021] NZHC 3352 8 December 2021

Criminal Liability

Sentencing

Constitutional Validity

Natural Justice & Procedural Fairness

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-025-419

[2021] NZHC 3352

THE QUEEN

v

ANARU MORGAN

Hearing: 7 December 2021

Appearances:

R W Donnelly for Crown H T Young for Defendant

Judgment:

8 December 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 8 December 2021 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

R v MORGAN [2021] NZHC 3352 [8 December 2021]

[1] Mr Anaru Morgan was found guilty following a jury trial of a charge of unlawful detention for the purpose of sexual connection and remanded for sentence on 7 December 2021.1 He was acquitted on charges of unlawful sexual connection and rape arising out of the same incident. Mr Morgan received a stage-1 warning in July 2013 after being convicted of a charge of indecent assault, and a stage-2 warning in March 2016, again for a charge of indecent assault.

[2] For present purposes the circumstances of the offending can be shortly stated. Mr Morgan contacted the victim who was a sex worker and arranged to meet at her motel room. Shortly after his arrival there was a dispute over the need for payment to be in cash. Mr Morgan only had a bank card. The victim opened the door and told him to go and get cash but he pushed it closed, trapping her arm in the doorway, and a struggle took place before the victim was pushed by Mr Morgan onto the bed. A further attempt to physically push Mr Morgan out of the motel unit was abandoned by the victim after he referred to what she understood was a reference to his membership of a gang. She said to him, “Okay, I do for you, but you not hurt me”. The victim described how she decided with some reluctance that she had to give in because of fear of being harmed and his association with a gang. Mr Morgan is a physically large man while the victim is a small 63-year-old Asian woman who suffers from Bell’s Palsy.

[3] The offence for which Mr Morgan is for sentence is a “serious violent offence”,2 and therefore constitutes a stage three offence under the statutory three strikes regime. As a result, pursuant to s 86D(2) and (3) of the Sentencing Act 2002, the Court is obliged to sentence Mr Morgan to the maximum term of 14 years’ imprisonment prescribed for the offence, and must order him to serve the sentence without parole, unless satisfied such an order would be manifestly unjust.3

[4] Mr Young, on behalf of Mr Morgan, has formally applied to adjourn sentencing4 because the Government has announced its intention to repeal the three strikes regime and a bill has been introduced in Parliament. The Three Strikes

1      Crimes Act 1961, s 208(b) – maximum penalty of 14 years’ imprisonment.
2      Sentencing Act 2002, s 86A.
3      Sentencing Act, s 86D(2) and…

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 [2021] NZHC 3352
Case: [2021] NZHC 3352
Decision Date: 8 December 2021

CaseChat Overview and Summary

In R v Morgan, the High Court of New Zealand was tasked with determining whether to adjourn sentencing of Mr Anaru Morgan, who had been found guilty of unlawful detention for the purpose of sexual connection. The case arose against the backdrop of the Government's intention to repeal the three strikes regime, which mandates a maximum 14-year prison term without parole for third-strike offenders. Mr Morgan's defence argued that adjourning sentencing would allow him to benefit from the anticipated legislative changes, which would result in a materially lesser sentence. The Crown opposed the adjournment on the grounds that it would unduly delay the proceedings and that the Court must apply the law as it currently stands.

The Court considered the principles guiding the decision to adjourn proceedings, noting that while prospective legislation could, in rare instances, justify a deferral of judgment, the obligation of the Court to apply existing law is paramount. The Court highlighted several precedents where the judiciary had refused to grant adjournments based on prospective legislation, emphasising the separation of powers between the courts and the legislature. The Court also drew on the Supreme Court's decision in Fitzgerald v R, which established that a sentencing court has the discretion to assess whether a sentence under the three strikes regime would breach the New Zealand Bill of Rights Act 1990. This assessment could be made at the sentencing stage, thereby negating the need for an adjournment.

Ultimately, the Court declined the application to adjourn sentencing. While acknowledging the potential for the three strikes regime to produce unjust outcomes, the Court held that it was obliged to apply the law as it stood and that any change in the law was the sole preserve of Parliament. The Court observed that the proposed Bill was at an early stage and its eventual form and enactment were uncertain. The Court also noted that adjourning sentencing would effectively circumvent Parliament's will, as the Bill might include provisions addressing the sentencing of individuals like Mr Morgan who had already been convicted under the current regime. The Court therefore remanded Mr Morgan for sentencing on 8 February 2022, leaving open the possibility for him to argue at that stage that the sentence would be disproportionately severe.

Orders