R v Morton - [2021] NZHC 1096

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-019-5810

[2021] NZHC 1096

THE QUEEN

v

ROY ERNEST MORTON

Hearing: 14 May 2021

Appearances:

K R L Guthrie for Crown

R J Laybourn & R M Laybourn for Defendant

Sentence:

14 May 2021

SENTENCE OF PAUL DAVISON J

Solicitors:
Crown Solicitor, Hamilton
Rhianna Laybourn Law, Hamilton

R v MORTON [2021] NZHC 1096 [14 May 2021]

Introduction

[1] Roy Ernest Morton, having previously entered a plea of guilty1 to a charge alleging that on 12 October 2020 you attempted to murder your wife Mrs Marion Morton, you appear before the Court today to be sentenced for your offending.2

Purposes and principles of sentencing

[2] The purposes of sentencing you Mr Morton are to hold you accountable for the harm done to your wife as the victim of your offending and to provide for her interests as the victim of your offending, as well as holding you accountable for the harm your offending has caused to the community. Another purpose of the sentence I shall impose is to promote in you a sense of responsibility for and an acknowledgment of the harm your offending has caused and to denounce your conduct, and to deter you and any other persons from committing the same or a similar offence. The sentence is also intended to protect the community and particularly your wife from the risk of further offending while also being a sentence that will assist you in your rehabilitation during and following your sentence.3

[3] In determining the appropriate sentence to be imposed on you I must also apply the principles of sentencing set out in s 8 of the Sentencing Act 2002. These include taking the gravity of your offending and your degree of culpability as regards your offending into account, as well as the effect of your offending on the victim of your offending. I must also have regard to the seriousness of the type of offence you committed compared to other types of offences as indicated by their prescribed maximum penalties. The law also requires that unless circumstances relating to the offender make it inappropriate to do so, the Court must impose a sentence near to the maximum prescribed for the offence where the offending is near to the most serious of cases for which that penalty is prescribed. I must take into account the general desirability of imposing a sentence that reflects appropriate sentencing levels consistent with other means of dealing with offenders committing similar offences in similar circumstances. I must also take into account any particular circumstances

1      Plea entered on 18 March 2021, conviction entered and first strike warning given.
2      Crimes Act 1961, s 173; maximum penalty 14 years’ imprisonment.
3      Sentencing Act 2002, s 7.

regarding you that would mean that a sentence imposed on you would be disproportionately severe in your case. I must also take into account your personal circumstances and impose a sentence that…

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 Morton

Details

AGLC: R v Morton [2021] NZHC 1096
Case: [2021] NZHC 1096
Decision Date: 14 May 2021

CaseChat Overview and Summary

Roy Ernest Morton pleaded guilty to attempted murder, specifically the attempted murder of his wife, Mrs Marion Morton, on 12 October 2020. The court heard that Mr Morton, aged 82, and his wife, aged 81, had been married for 57 years. Mrs Morton had suffered a severe stroke in August 2020, which left her with significant physical, mental, and cognitive disabilities, and she was unable to move unassisted. On 12 October 2020, Mr Morton took his wife from an aged care facility to his retirement village unit, where he had placed several coils of ventilation tubing, rolls of duct tape, and a knife. He drove to a secluded location, attached the ventilation tubing to his car exhaust pipe, and pumped the exhaust gases into the car while the engine was left running. The purpose was to kill both Mr Morton and his wife. However, a passing motorist saw what was happening, stopped nearby, and contacted the police. Mr Morton removed the tubing from the exhaust, put it back inside the car, and drove away. He was later located by police, arrested, and both he and Mrs Morton received medical attention. Mrs Morton was not physically harmed as a result of her husband's actions.

The court considered the purposes and principles of sentencing, including holding Mr Morton accountable for the harm caused to his wife and the community, promoting a sense of responsibility and acknowledging the harm caused by his offending, denouncing his conduct, and deterring him and others from committing the same or a similar offence. The court also considered the gravity of the offending, Mr Morton's degree of culpability, and the effect of his offending on the victim. In determining the appropriate sentence, the court took into account Mr Morton's age, good character, his remorse, and his medical health and mental state.

The court determined an adjusted starting point of 18 months' imprisonment, taking into account the aggravating factors of premeditation and Mrs Morton's vulnerability, and the mitigating factors of Mr Morton's guilty plea, age, good character, and genuine remorse. After applying a 50% discount to the starting point, the court arrived at a sentence of nine months' imprisonment. However, the court considered a non-custodial sentence as an alternative to imprisonment, and ultimately sentenced Mr Morton to four and a half months' home detention, subject to five special conditions, including restrictions on visiting his wife in the care facility unless given prior permission by the Department of Corrections officer responsible for the oversight of his home detention sentence and accompanied by an approved supervisor throughout the entire period of any visit.

Orders