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High Court of New Zealand Decisions |
Last Updated: 24 April 2019
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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
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CRI 2019-463-0002
[2019] NZHC 852 |
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BETWEEN
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JAHVARN MORGAN
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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16 April 2019
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Appearances:
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J M Owers and CMD Martell for the appellant E F Collis for the
respondent
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Judgment:
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16 April 2019
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ORAL JUDGMENT OF JAGOSE J
Public Defence Service, Tauranga Pollett Legal Limited, Tauranga
JAHVARN MORGAN v NEW ZEALAND POLICE [2019] NZHC 852 [16 April 2019]
[1] This is an appeal against both Jahvarn Morgan’s sentence of three years and nine months’ imprisonment, and four-year disqualification from driving, imposed by Judge Ingram in the District Court at Tauranga on 18 October 2018.1
[2] Mr Morgan was convicted of nine driving charges: driving while disqualified (three charges);2 driving with excess breath alcohol (two charges);3 carelessly operating a vehicle (two charges);4 reckless driving (one charge);5 and failing to stop when followed by red/blue flashing lights (one charge).6 He also was convicted on two charges of possession of cannabis.7
Application out of time
[3] Mr Morgan requires an extension of time to appeal,8 as his appeal was not filed within 20 working days of sentence.9 Mr Morgan’s appeal was filed on 20 December 2018, over two months after his 18 October 2018 sentencing.
[4] Extensions of time are granted in the interests of justice.10 Such applications “routinely reduce to two heads”.11 First, why late; second, what merit?12 Here Mr Morgan advised his counsel, Coby Martell, on 14 November 2018 he wished to appeal. Ms Martell was unable to obtain Judge Ingram’s notes until 10 December 2018. Due to work commitments, the notice of appeal was not filed until 20 December 2018.
[5] The delay is short and explained.13 As I will go on to say, the unorthodox circumstances of Mr Morgan’s sentencing suggest an appeal may have some merit. The respondent does not take issue with the appeal being filed out of time. On those bases, leave is granted.
1 Police v Morgan [2018] NZDC 25186.
2 Land Transport Act 1998, ss 32(1)(a) and 32(4) – third or subsequent.
3 Section 56(1) – third or subsequent.
4 Section 37.
5 Section 35(1)(a).
6 Sections 52A(1)(a)(ii) and s 52A(3).
7 Misuse of Drugs Act 1975, s 7.
8 Criminal Procedure Act 2011, s 248(4).
9 Section 248(2).
10 Mikus v R [2011] NZCA 298 at [26], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.
11 R v Slavich [2008] NZCA 116 at [14].
12 At [14], see also Mikus v R, above n 10, at [26].
13 R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [115].
Approach to appeals against sentence
[6] I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.14 In any other case, I must dismiss the appeal.15 The approach previously taken by courts on sentencing appeals continues to apply,16 so that the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentence appeals.17 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.18
Offending
[7] Mr Morgan’s offending for sentence took place on four occasions in January, May and August 2018.
[8] In January, with a breath alcohol level of 719 micrograms per litre of breath,19 he crashed through a fence into private property after failing to take a corner at speed, driving through closed metal gates to depart the property. He could not recall the incident, but said he must have been driving. He was charged with driving while disqualified, driving with excess breath alcohol, and careless use of a motor vehicle.
[9] In May, while speaking to Mr Morgan on unrelated matters, police discovered seven grams of cannabis in his possession. This gave rise to one charge of possession.
[10] At about 7:30 am on 1 August – fatigued after only an hour’s sleep and driving on a two-lane highway with no centre barrier – Mr Morgan fell asleep at the wheel and the car left the road, skidded into the gravel, and crashed into a bank. He admitted knowledge of his disqualification and that there was no excuse for driving – he “just
14 Criminal Procedure Act 2011, s 250(2).
15 Section 250(3).
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
17 At [33] and [35].
18 Ripia v R [2011] NZCA 101 at [15].
19 It is an offence if the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath; an infringement offence if the proportion of alcohol in the person’s breath exceeds 250 micrograms of alcohol per litre of breath: Land Transport Act 1998, s 56(1).
wanted to go home.” Mr Morgan was charged with driving while disqualified and careless driving.
[11] A week later, Mr Morgan was again driving, with a woman passenger at approximately 3:30 am. Police saw him and signalled for him to stop using their lights and siren. Mr Morgan instead fled at speeds of up to 140 kilometres per hour and ran a red light at an intersection. Police abandoned their pursuit as endangering other road users. Soon after, Mr Morgan was again seen by police. He travelled down an off ramp on to State Highway 2, travelling the wrong way up the single lane express way into oncoming traffic. Mr Morgan was later sighted by police driving in a residential area. Without headlights, he fled at high speed. All the latter driving was done without the police being in active pursuit. When located a short time later, Mr Morgan was in possession of two grams of cannabis. A subsequent evidential breath test gave a reading of 553 micrograms of alcohol per litre of breath. He claimed he was not the driver. This gave rise to charges of driving while disqualified, failure to stop when followed by red/blue flashing lights, reckless driving, driving with excess breath alcohol and possession of cannabis.
[12] Significantly – the previous year, on 27 February 2017 – Mr Morgan had been disqualified indefinitely from driving any motor vehicle, from that date.
District Court decision
[13] In arriving at an end sentence of three years and nine months, Judge Ingram did not follow the orthodox approach to sentencing.20 He did not adopt a global starting point or identify a lead offence. Instead, the Judge worked through the offending chronologically, imposing both cumulative and concurrent sentences. He considered the following aggravating factors were present: all of the offences occurred while Mr Morgan was subject to court sentences or on bail; there was a danger to the community; and the driving was premeditated. The Judge acknowledged Mr Morgan was entitled to a discount for his guilty plea and made reference to Mr Morgan’s remorse. The discount to be applied for these factors was not expressly articulated.
20 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA), Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Mr Morgan’s appeal against sentence
[14] Mr Morgan says his sentence was manifestly excessive as Judge Ingram:
(a) failed to identify a global starting point;
(b) failed to consider the totality of the offending; and
(c) gave insufficient credit for early guilty pleas.
The total four years’ disqualification from driving also is said manifestly excessive.21 I deal with each of those now.
Discussion
—failing to identify a global starting point
[15] The orthodox approach to sentencing involves adopting a starting point which considers the aggravating and mitigating features of the offending (not of the offender).22 Where multiple sentences are imposed, the usual approach is to determine a starting point for the lead offence, before applying an appropriate uplift for the additional offences (taking the totality principle into account).23 Clearly the Judge did not follow this approach.
[16] Ms Martell says the Judge’s failure to identify a starting point makes it impossible to assess the sentences’ objective foundation. The flow-on effect is said to be a failure to consider the totality of the offending, and to give sufficient credit for Mr Morgan’s guilty plea.
[17] The approach does make it harder to assess the reasoning behind each sentence imposed. But the issue is “whether the final outcome is manifestly excessive”.24 The
21 A further ground of appeal was the Judge erred by failing to impose an alcohol interlock sentence, and in confiscating a vehicle which would otherwise have had an alcohol interlock device fitted. This has been abandoned, as Mr Morgan has no vehicle fit for such a device to be fitted.
22 R v Taueki, above n 20, at [8].
23 Adams on Criminal Law – Sentencing (online ed, Thomas Reuter) at [SAC2].
24 Ripia v R, above n 18, at [15].
path that results in that outcome rarely is pivotal.25 The Judge’s approach, and its contended flow-on effects, alone cannot justify interference with the sentence.
—failing to consider the totality of the offending
[18] Ms Martell also says the Judge failed to apply the totality principle – that is, whether the total period of imprisonment was wholly out of proportion to the gravity of the overall offending.26 She says because the starting point, and the effect of any mitigating or aggravating factors, was not expressly identified, no totality considerations could have taken place.
[19] That is contested by counsel for the respondent, Ella Collis, who submits the Judge’s “careful consideration” if sentences on the various charges should attract cumulative or concurrent sentences reflects a totality analysis. Similarly, the Judge convicted and discharged Mr Morgan on the possession of cannabis charges, “having regard to the rest of the penalties imposed”.27 And she says while the end sentence imposed was stern, it was not manifestly excessive for the three sets of serious – and at times life-threatening – driving offences over an eight-month period.
[20] Reference to the totality principle is part of the established judicial approach to sentencing for multiple offences.28 The principle is now enshrined in the Sentencing Act 2002.29 While s 84 provides general guidance in relation to cumulative and concurrent sentences, the following key principles of sentencing continue to apply in relation to multiple offending:30
With multiple offences, the sentence must reflect the totality of the offending.
In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.
The total sentence must represent the overall criminality of the offending and the offender.
25 At [15].
26 Sentencing Act 2002, s 85(2).
27 Police v Morgan, above n 1, at [30].
28 R v Strickland [1989] 3 NZLR 47 (CA) at 50.
29 R v Xie [2006] NZCA 201; [2007] 2 NZLR 240 at [15].
[21] Mr Morgan is a recidivist offender. The Judge was not precluded from imposing cumulative offences in relation to the offences of driving while disqualified and driving with excess breath alcohol, even where the offences arose from the same driving incident.31 The offence of driving with excess breath alcohol is primarily concerned with road safety, while the offence of driving while disqualified is primarily concerned with the enforcement of court orders.32
[22] Both counsel refer to the decision of Clotworthy v Police, which sets out a number of aggravating and mitigating factors to consider when sentencing on charges of driving with excess breath alcohol.33 All the aggravating factors in that list are engaged here. That the May and August offending occurred while Mr Morgan was on bail is additionally aggravating.
[23] Mr Morgan had been sentenced to four months’ imprisonment for driving with excess breath alcohol only four months prior to the 30 January offending. He has four previous convictions for driving with excess breath alcohol and two previous convictions for driving while disqualified, as well as other driving convictions. He evidently has not yet been deterred.
[24] His manner of driving was extremely dangerous, going beyond the inherent dangers of drink-driving.34 It involved driving into oncoming traffic, crashing into somebody’s front yard, speeding through residential areas, and falling asleep while driving on a highway. The level of risk to the public was high. At all material times, Mr Morgan was indefinitely disqualified from driving, as well as being subject to specific disqualification during the January offending.
[25] I recognise Mr Morgan has made some attempts at rehabilitation. His enrolment in Te Whare Oranga Ngakau – a residential rehabilitation facility – provides some evidence of a willingness to change. But he was exited from the programme for breaking its rules. Mr Morgan says he is motivated to change for his son. That may be the case, but he currently lacks the self-control needed to alter his behaviour. As the
31 Hughes v R, above n 30, at [23].
32 At [22].
33 Clotworthy v Police (2003) 20 CRNZ 439.
34 See Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
pre-sentence report notes, he “is somewhat out of control”. He admits he has an alcohol addiction and abuses drugs.
[26] The Judge accepted Mr Morgan was entitled to a discount for his guilty pleas, but did not articulate what that discount should be given the way he approached sentencing. Such is not determinative.
[27] In Hughes v R, the offender was convicted of one charge of driving with excess breath alcohol and one charge of driving while disqualified on the same occasion. He was a recidivist offender, with 18 convictions for driving with excess breath/blood alcohol and 24 for driving while disqualified.35 The Court of Appeal held the sentencing Judge did not err in imposing cumulative sentences of 18 months’ imprisonment on each charge, resulting in an end sentence of three years’ imprisonment.36
[28] In R v McQuillan, the offender pleaded guilty to two sets of driving while disqualified and driving with excess breath or blood alcohol levels.37 The Court of Appeal commented that an end sentence of 12 months’ imprisonment for each set of offending, to be imposed cumulatively, would not have been manifestly excessive.38 The offender had pleaded guilty to all charges.
[29] From those perspectives, Mr Morgan’s end sentence of three years and nine months is not manifestly excessive. I accept the offender in Hughes v R had many more previous convictions than Mr Morgan. But that sentence arose out of one occasion. Here, Mr Morgan faced nine driving-related charges arising out of three separate occasions. On two of those occasions, he crashed the vehicle. Seven days after crashing his vehicle on the highway, Mr Morgan again got behind the wheel with excess breath alcohol and drove in a manner which posed a significant risk of danger to the public. He clearly has not heeded earlier warnings, and a lengthy sentence of imprisonment was inevitable. To my mind, in those circumstances, at least escalating
35 Hughes v R, above n 30, at [3].
36 At [36].
37 R v McQuillan CA129/04, 12 August 2004 at [1].
38 At [26].
cumulative end terms – of 12, 15, and 18 months respectively, equalling the three years and nine months ordered here – would entirely have been justified.
[30] The Judge’s use of both cumulative and concurrent sentences indicates regard was had for the totality principle. Mr Morgan was convicted and discharged on the two charges of possession of cannabis.
[31] The sentence of three years and nine months’ imprisonment is not manifestly excessive in the circumstances. It does not offend the totality principle.
—failure to give sufficient credit for a guilty plea
[32] The Judge did not expressly articulate any discount to be given for Mr Morgan’s guilty plea. But he acknowledged a discount was warranted, and he did “not want to gloss over that”.39 Regardless, the focus remains on the end sentence. As I have said, I do not consider that to be manifestly excessive.
—period of disqualification manifestly excessive
[33] That leaves the question of whether the four-year period of disqualification was manifestly excessive. Long periods of disqualification typically leave little hope for offenders, but it is incumbent on courts to keep dangerous drivers off the road for as long as reasonably possible.40 Disqualification is primarily to protect the public and the period imposed should reflect that purpose, as well as the seriousness of the offending itself.41
[34] In Mr Morgan’s circumstances, I do not consider a four-year disqualification period to be manifestly excessive.42 Mr Morgan is a dangerous driver, has not abided by any of his earlier disqualifications, and continues to present a significant risk to public safety. There should be an extended period during which Mr Morgan cannot
39 Police v Morgan, above n 1, at [26].
40 Hitchens v R CA380/03, 25 March 2004 at [10].
41 Tai v R [2010] NZCA 552 at [6] and [7].
42 See R v McQuillan, above n 37, at [25] where the Court of Appeal held a three-year disqualification period would have been appropriate to bring home to the appellant that the only way in which he could resume driving lawfully was by changing his attitude as well as addressing his problems with liquor consumption. See also Tohu v Police [2015] NZHC 2009.
even seek regulatory relief from the indefinite suspension of his driver’s licence, to show at least his sustained control of alcohol as a material risk-factor in his driving offences.
Result
[35] Mr Morgan’s appeal against sentence is dismissed.
—Jagose J
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