The Queen v Morgan [2008] NZCA 232 (11 July 2008)

Last Updated: 21 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA276/2008

[2008] NZCA 232

THE QUEEN

v

MICHAEL KENNETH MORGAN

Hearing: 30 June 2008

Court: Arnold, Panckhurst and Fogarty JJ

Counsel: S A Saunderson-Warner for Appellant
K Raftery for Crown

Judgment: 11 July 2008 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The sentence of eight months imprisonment is quashed. The following sentences are imposed:
   • (a) On the charge of assault with a weapon, three months imprisonment;
   • (b) On the charge of breaching a community work order, two months imprisonment, to be served cumulatively with the sentence in (a) above;
   • (c) On the charge of trespass, one months imprisonment, to be served cumulatively with the previous two sentences.
     

REASONS OF THE COURT

(Given by Arnold J)

[1] Following a sentence indication, the appellant entered a plea of guilty to a charge of assault with a weapon. Judge O’Driscoll sentenced him to 150 hours community work in accordance with the sentence indication. The appellant completed only four of those 150 hours before the expiration of the completion date.
[2] On a probation officer’s application, Judge O’Driscoll cancelled the sentence of community work and imposed a sentence of eight months imprisonment in substitution. At the same time the Judge convicted and discharged the appellant on a charge of breaching his community work sentence and imposed a sentence of one months imprisonment in relation to a trespass charge, to be served concurrently with the sentence of eight months. The appellant appeals against sentence.

Background facts

[3] The appellant and his long-term partner were drinking at a Dunedin hotel. The appellant became annoyed with his partner and threw a glass at her. It hit a wall behind her and shattered. A fragment of glass struck her face, causing a cut under her jaw. The appellant also threw a plastic beer jug at her. The two continued to argue until an ambulance arrived to treat the appellant’s partner.
[4] The appellant was charged with injuring with intent to injure (s 189(2) of the Crimes Act 1961) and assault with a weapon (s 202C(1)(a)). At an early stage, his counsel filed a document seeking a non-custodial sentence. Judge O’Driscoll gave a sentence indication, to the effect that a sentence of 150 hours of community service would be imposed. The appellant accepted that indication and entered a plea of guilty to the charge of assault with a weapon. The Crown offered no evidence on the injuring with intent to injure charge and the Judge discharged the appellant on that count.
[5] The appellant completed only four hours of community work before the completion date for his sentence. Accordingly a probation officer applied to the District Court to cancel the community work sentence and substitute a sentence of imprisonment (ss 68(3)(c) and 72 of the Sentencing Act 2002). In addition, the appellant was charged with breaching his sentence of community work (s 71 of the Sentencing Act). He was also charged with trespass arising out of another incident at the same hotel.

Sentencing

[6] The appellant pleaded guilty to the trespass and breach of community work offences. Accordingly Judge O’Driscoll dealt with all matters together.
[7] The appellant’s partner prepared a victim impact statement, in which she said that she did not wish to make a complaint to the police. She also said that the appellant was inclined to jealousy, and that she was not affected by what he had done and had no ill feelings towards him.
[8] In sentencing the appellant, the Judge set out the background to the previous sentencing and said that he would not have imposed the sentence of community work had he known that the appellant would not complete it. The Judge then discussed the appellant’s pre-sentence report. He noted the appellant’s comment to the report writer that he was unwilling to complete community work and preferred imprisonment. (In addition, the appellant’s criminal history revealed that the appellant had been convicted of numerous breaches of community based sentences in the past.)
[9] Although supervision was recommended in the pre-sentence report, the Judge considered that it was highly unlikely that the appellant would comply with a community based sentence. The Judge said:

[9] On the injuring charge, ... taking into account the matters that I have raised, you will now be sentenced to 8 months’ imprisonment. On the charge of breaching community work you will be convicted and discharged. On the trespass charge, while I could I impose a cumulative sentence of imprisonment, I will impose a concurrent sentence of 1 month’s imprisonment. Taking into account the totality principle I impose no special conditions on your release as I believe that you would be unlikely to comply with them anyway.

Basis of appeal

[10] The essence of the appellant’s case is that the sentencing process miscarried because the eight month period of imprisonment was disproportionate to the 150 hours of community work initially imposed. While accepting that no exact conversion was possible or appropriate, Ms Saunderson-Warner said that some proportionality between the original and the substituted sentences was required under s 68(3)(c). She relied on the decision of Heath J in White v Police HC HAM CRI 2006-419-44 6 April 2006. There the Judge said:

[13] It is clear from s 68(3)(c) that a Judge re-sentencing on a s 68 application must focus on the sentence that could have been imposed at the time the offender was convicted [of] the offence on which sentence was passed.

[11] Ms Saunderson-Warner submitted that the Judge had effectively punished the appellant for his non-compliance with the community work sentence and because he had accepted the sentencing indication even though he had no intention of complying with a community-based sentence, as reflected in his pre-sentence report and criminal history.
[12] For the Crown Mr Raftery accepted that White set out the correct principle. He submitted that the eight month sentence was appropriate in all the circumstances of this offending, or at least within the range available to the Judge. He referred in particular to R v McMillan CA317/01 31 October 2001, where this Court discussed sentencing ranges for offending involving assault with a weapon.

Discussion

[13] As Heath J said in White, in re-sentencing under s 68(3)(c) the Judge is concerned to impose a sentence that could have been imposed on the offender originally. The substituted sentence should not include any element of sanction for the failure to comply with the community work sentence (see R v Phillips CA 379/90 22 May 1991 at 3, dealing with failure to complete a sentence of periodic detention). Section 71 of the Sentencing Act creates a specific offence of breach of a community work sentence, and this is the appropriate mechanism to deal with that issue.
[14] Where imprisonment is imposed in substitution for a community-based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to take advantage of it. The re-sentencing Judge is likely to weigh the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, where the community based sentence was imposed because the sentencing Judge placed particular weight on the offender’s rehabilitation, that factor may assume less weight on re-sentencing given the offender’s failure to comply with the community-based sentence.
[15] Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the appellant’s failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.
[16] We are satisfied that the Judge erred in his approach. The sentence of eight months imprisonment bore no relationship to the sentence of 150 hours community work originally imposed, or the factors which gave rise to it. The substituted sentence reflects the Judge’s understandable frustration at being misled by the appellant when he accepted the sentence indication. We acknowledge that the Judge also sentenced the appellant on other matters, in a way that did not add to the overall length of the term of imprisonment. The Judge was, then, conscious of the totality principle. Despite that, we consider that the basis on which the sentence was formulated was wrong in principle.
[17] In our view, the appropriate sentence to be substituted on the assault with a weapon charge is three months imprisonment. This sentence adequately serves the purposes and principles of sentencing and reflects the Judge’s original assessment that the assault was at the low end of the spectrum. On the breach of community work, given the appellant’s previous unsatisfactory history in relation to community-based sentences, the appropriate sentence is the maximum, namely three months imprisonment, less a discount for the appellant’s immediate guilty plea. We assess that discount at one third. This produces a sentence of two months for that offence, which is to be served cumulatively on the three month sentence. On the trespass charge, we agree with the Judge that the appropriate sentence is one months imprisonment, but as it is separate offending, it also should be served cumulatively on the other two sentences. In total, then, the appellant’s end sentence is six months imprisonment.

Decision

[18] We allow the appeal. We quash the sentence of eight months imprisonment and substitute the following sentences:

(a) On the charge of assault with a weapon, three months imprisonment;

(b) On the charge of breach of community work, two months imprisonment to be served cumulatively on the sentence in (a) above;
(c) On the trespass charge, one months imprisonment, to be served cumulatively on the other two sentences.

This produces an effective end sentence of six months imprisonment.

Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Law Office, Wellington