The Queen v Morgan

[2009] NZCA 341

IN THE COURT OF APPEAL OF NEW ZEALAND

CA235/2009
[2009] NZCA 341

THE QUEEN

v

WAYDE STANLEY MORGAN

Hearing:29 July 2009

Court:Hammond, Ronald Young and Simon France JJ

Counsel:P S Coles for Appellant

M J Inwood for Crown

Judgment:5 August 2009 at 10.30 am

JUDGMENT OF THE COURT

The appeal  against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1]       Mr Morgan and his partner, Nadine Carter, broke into a house using a sledgehammer on the front door.  The purpose was to assault people who lived in the house.  It was a revenge attack sparked by a dispute that had occurred the previous day.

[2]       Mr Morgan first hit a woman who was lying on the couch.  His initial blow was with the sledgehammer to the side of her body.  A second blow was parried by the woman’s partner who had by then intervened.  During that struggle Mr Morgan lost control of the sledgehammer.  However, he instead took hold of a nearby television and hit the man over the head with that.  Consequently, he regained possession of the sledgehammer and again hit the man with it in the back and side of his torso.

[3]       Mr Morgan pleaded guilty during trial to charges of aggravated burglary, injuring with intent to cause grievous bodily harm (x 2) and assault with a weapon (the television set).  He was sentenced to six years three months’ imprisonment, having received nine months credit for the plea and other mitigating factors.

[4]       He appeals sentence, saying the starting point was too high and insufficient credit was given for the mitigating factors.

Starting point

[5]       The female victim suffered two broken ribs.  The male victim had a cut over his eye and bruising to his back.

[6]       Judge Garland took R v Mako [2000] 2 NZLR 170 (CA) as his guideline authority but also considered R v Taueki [2003] 3 NZLR 372 (CA) which is the guideline case for violence of this nature. The Crown had referred to R v Gore  CA414/05 2 March 2006 and the Judge considered the present case to be similar.

[7]       The sentencing remarks record that the Crown had sought a starting point of seven years, and that Mr Coles on his client’s behalf had accepted that was available.  That was the figure taken.

[8]       On appeal it is now submitted it is excessive.  It is responsibly accepted that the appellant’s position has changed since sentencing, but Mr Coles submits on reflection it is open to challenge.  An aggravating factor identified by the Judge was home invasion, but Mr Coles submits that is double counting since the burglary was already “aggravated”, and thereby attracted a higher starting point for that reason.  Other matters noted are that the pre‑meditation was overstated, and that the points of impact on the body were in less dangerous areas.  Finally, it is noted that the injuries were at the lower end of what one finds in these cases.

[9]       In R v Watson CA224/03 24 October 2003, this Court held that the principles outlined in the aggravated robbery guideline judgment of Mako could also be used as assistance in aggravated burglary sentencing.  In answer to the appellant’s complaint of double counting, it can be noted that the Court in Watson observed (at [27]):

Although an aggravated robbery may not necessarily involve intrusion into premises, an aggravated burglary inherently does.  Where that intrusion is into a private dwelling house, that is an aggravating factor.

[10]     The appellant’s point can be met another way.  Since the purpose of the intrusion was the violence, one can turn instead to Taueki.  The relevant factors here would be the use of a sledgehammer to attack two victims, hitting one victim in the head with a television, the home invasion, and the pre‑meditation.  We do not accept any minimisation of the latter.  The triggering incident, itself relatively trivial, had occurred a day earlier.  The appellant armed himself with a serious weapon, used it to smash down the front door of a private dwelling and then immediately attacked a woman lying on her couch.  The facts comfortably fit within Taueki band two, and a seven year starting point is wholly supportable.

[11]     A final point to mention is the parallel the Judge drew with Gore.  Mr Coles advises his client considers that his situation was not as serious as in that case where the outcome was five years nine months imprisonment.  The appropriate response to this concern is twofold.  First, in our view there are aspects of this case that are worse than the facts of Gore – for example, here there are multiple weapons and multiple victims.  Secondly, close comparisons are not helpful and the sentence imposed in Gore is part of a range rather than the only correct sentence.  More was possible.

Mitigation

[12]     The guilty plea was entered after the evidence‑in‑chief of the first Crown witness.  A further count of aggravated burglary in relation to the residence of friends of these victims was not pursued in response to the plea.

[13]     The figure of seven months is, as Ms Inwood submitted, misleading.  The Judge had noted that Mr Morgan’s previous criminal history warranted an uplift, but instead used it to temper the size of any credit.  In any event 11 per cent for a plea at this point could be seen as generous.  Certainly it will be rare that more could be expected.

[14]     A further factor said to support a greater discount is Mr Morgan’s mental health.  The Court had a report prepared by a Consultant Psychiatrist with the Regional Forensic Service.  It is plain Mr Morgan has been involved in or witnessed past events of violence that have affected him.  For privacy reasons we see no need to detail matters further, since in our view there is nothing in the material that supports mitigation.  Mr Morgan’s offending was pre‑meditated and we see nothing to suggest any causative link to the matters discussed in the report.  It may be that they provide some explanation for his propensity to violence, and inability to choose other methods of conflict resolution.  However, they are not matters that reduce the culpability of his actions.  Nor is there evidence to suggest his present health means the effects of imprisonment on him will be worse than the norm.

[15]     We see no basis for a greater discount.  Accordingly, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington