MORGAN v R [2022] NZCA 112

MORGAN v R [2022] NZCA 112 [6 April 2022]NOTE: PUBLICATION OF NAME, ADDRESS OR IDENTIFYINGPARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA755/2021[2022] NZCA 112BETWEEN ANARU MORGANApplicantAND THE QUEENRespondentCourt: Kós P, Woolford and Dunningham JJCounsel: H T Young for ApplicantC A Brook for RespondentJudgment:(On the papers)6 April 2022 at 9 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] The three-strikes sentencing regime1 is likely to be repealed by Parliament.A Bill to that effect is before the House.2 If enacted in its present form it would comeinto force on 1 July 2022, but without retrospective effect. Unless revised, thosesentenced prior to 1 July will remain subject to the three-strikes regime.1 Sentencing Act 2002, ss 86A–86I.2 Three Strikes Legislation Repeal Bill 2021 (79–1).[2] Consider, now, Mr Morgan. In December 2021 he was convicted of one chargeof unlawful detention for the purposes of sexual connection following a High Courtjury trial.3 The maximum sentence for that offence is 14 years' imprisonment.Mr Morgan faces: (1) the mandatory imposition of that sentence, unless that sentenceis so disproportionately severe as to breach s 9 of the New Zealand Bill of Rights Act1990;4 and (2) mandatory denial of parole, unless that order would be manifestlyunjust.5 That is because he has two prior convictions for indecent assault and was ona third-strike warning at the time he last offended.[3] Should Mr Morgan's sentencing be adjourned, so that — if the Bill passes —he may be sentenced under a more tolerant statutory regime? There is no otherjustification put forward for delaying imposition of sentence.[4] Mander J held Mr Morgan must be sentenced in the ordinary way, accordingto the law as it now stands. He declined Mr Morgan's application for adjournment ofsentencing.6 Mr Morgan seeks leave to appeal to this Court.The offending[5] By arrangement Mr Morgan met a prostitute at her motel room. She wantedpayment in cash; Mr Morgan had only a credit card. She tried to get him to leave, toobtain cash, but he refused and there was a struggle. She then submitted toMr Morgan's demands, saying "Okay, I do for you, but you not hurt me". A jury foundMr Morgan guilty of unlawful detention for the purpose of sexual connection, but notguilty of unlawful sexual connection and sexual violation.[6] Mr Morgan had received a stage-one warning in July 2013, and a stage-twowarning in March 2016, in each case on charges upon conviction for indecent assault.The present offence is a "serious violent offence" and therefore constitutes astage-three offence under the statutory three-strikes regime.7 By virtue of s 86D of the3 Crimes Act 1961, s 208(b).4 Sentencing Act, s 86D(2); and Fitzgerald v R [2021] NZSC 131, (2021) 12 HRNZ 739 at [135]and [138]–[140] per Winkelmann CJ, [231] per O'Regan and Arnold JJ and [250]–[251] perGlazebrook J.5 Sentencing Act, s 86D(3).6 R v Morgan [2021] NZHC 3352 [High Court judgment].7 Sentencing Act, s 86A(34).Sentencing Act 2002, the Court will have to sentence Mr Morgan for the maximumterm of 14 years' imprisonment, and order him to serve the sentence without parole,unless such an order would be manifestly unjust. In Fitzgerald v R the Supreme Courtexplained that s 86D does not compel imposition of a sentence so disproportionatelysevere as to breach s 9 of the New Zealand Bill of Rights Act 1990.8 Relief on thebasis of Fitzgerald is not inevitable; indeed, it is likely to be exceptional. Whether itmay avail Mr Morgan is presently unknown.Legislation and legislative reform[7] The three-strikes regime has been intensely controversial in this country.In October 2021 the present Government announced its intention to repeal that regime.The Three Strikes Legislation Repeal Bill 2021 was introduced into Parliament on11 November 2021. The Explanatory Note relevantly states:9The Government's objectives in repealing the law are to remove themandatory sentencing requirements that result in excessive anddisproportionate sentence outcomes by preventing Judges from taking theindividual circumstances of the offender and the offending into account.Repealing the three strikes law will revert the sentencing process for strikeoffences to standard sentencing practices by allowing the Judge to reach anappropriate outcome on a case-by-case basis. This Bill expressly excludesany entitlement to compensation relating to the impacts of the three strikeslaw, and no transitional arrangements for those currently serving sentences ofimprisonment for a strike offence are included.The Bill is now before a Select Committee. Its report is due on 17 May 2022.[8] Introducing the Bill, the Minister of Justice, the Hon Kris Faafoi, said:10 there have been some perverse outcomes, but we acknowledge that thereare victims in this and there will be no revictimisation of those people duringthis process, because there is no retrospective aspect of this bill.8 Fitzgerald v R, above n 4, at [135] and [138]–[140] per Winkelmann CJ, [231] per O'Regan andArnold JJ and [250]–[251] per Glazebrook J.9 Three Strikes Legislation Repeal Bill 2021 (79–1) (explanatory note) at 1.10 (16 November 2021) 756 NZPD 6219.Later in his speech he reaffirmed, "there is no retrospectivity within this piece oflegislation", and:11The principle of people being prosecuted and sentenced under the law as itstood at the time still holds true. That will not change, and under thislegislation no one will have their sentences reconsidered.[9] The government has however invited the Select Committee to considerwhether some restrospectivity should be added to the Bill. Whether that occursremains a matter for Parliament. If passed, the Bill presently would come into effecton 1 July 2022. Whether that, too, occurs is also a matter for Parliament.The law[10] Any change in the law, whether common law or by legislation, has the potentialto produce arbitrary effect. People whose rights have already been adjudicated mayfeel aggrieved that — if their appeal rights are spent or the legislation isnon-retrospective — they do not gain the benefit of the change. Correspondingly, ina civil context at least, their opponent does not suffer the disadvantage of change.Finality applies.[11] It is helpful to start with common law change in a criminal context. Althoughjudicial decisions speak retrospectively, as well as prospectively, a person whoseconviction or sentence might be mitigated if a later judgment in another case is applied,cannot rely upon it if their appeal rights are spent.12 For them, their prior judgment orsentencing is final. If their appeal rights are not spent, however, then they may be ableto rely on it. When this Court issues a guideline judgment, the effect of which may beto alter sentencing scales generally for particular offences, the norm is to provide thatit is to be applied to: (1) all sentencings that take place after its issue regardless ofwhen the offending took place; and (2) sentences that have already been imposed, ifan appeal against the sentence had been filed before the date the judgment was11 (16 November 2021) 756 NZPD 6219–6220.12 Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [31]–[33]. See also Taylor v R [2019]NZCA 498, [2019] 2 NZLR 38 at [9]–[15]; and R v Knight [1998] 1 NZLR 583 (CA).delivered and the application of the judgment would result in a more favourableoutcome to the appellant.13[12] In the case of legislative change that is still impending and not yet enacted,the courts proceed with great care because Parliament has not yet spokenauthoritatively. In Ngāti Whātua Ōrākei Trust v Attorney-General certain propertieswere to be transferred to iwi by future Treaty-settlement legislation.14 In theSupreme Court, Elias CJ observed:15Parliament speaks to the courts only through enacted legislation. Whether theenactment proposed will proceed and, if so, the form it will take is uncertainbecause it is a matter for Parliament. Just as the executive cannot bind itselfby contract to introduce and pass legislation, it cannot properly give anyassurance to the court that the legislation it proposes will be passed.The constitutional functions of the courts are not enlarged by this approach.Rights in issue in the courts may always be changed by legislation.The prospect does not deflect the courts from carrying out their presentresponsibilities. Nor are they deflected by statements of government policythat legislative change will be sought. Such statements cannot mark outno-go areas for the courts.[13] That statement of constitutional principle applies whether the context is civil(as there) or criminal (as here). We turn now to criminal legislation that has beenenacted, but not yet entered into force. We emphasise that is not the context weconfront here.[14] There are many cases to the effect that a prosecutor may not of courseprosecute on the basis of legislation not yet in force at the time of the allegedoffending.16 Relatedly, a defendant may not rely on a defence made available by13 See, for example, Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(p)] and [187]–[188];and R v Fatu [2006] 2 NZLR 72 (CA) at [44]. A similar approach was taken to the structuralchange to sentencing methodology made in Moses v R [2020] NZCA 296; [2020] 3 NZLR 583:see Cheung v R, above n 12, at [38]–[49].14 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.15 At [114] and [116] (footnotes omitted).16 See, for example, Beazer v Wellington City Council [2009] NZAR 689 (HC); aff'd [2010] NZCA14, [2010] NZAR 188. However, the infringement and reminder notices in Beazer, which referredto the provisions of legislation not yet in force at the time of the alleged offending, were found tohave stated sufficiently the particulars of the offending conduct such that failure to specify thecorrect statutory provisions did not render them a nullity. The defects in the notices could be curedby s 204 of the Summary Proceedings Act 1957: at [34]–[36]. See also White v R [2014] EWCACrim 714, [2014] 2 Cr App R 194.legislation not yet in force. In R v Director of Public Prosecutions, ex parte Kebilenean applicant for judicial review could not base a plea of legitimate expectation on aconvention provision because the legislation giving that convention status inEnglish law was not yet in force.17 Lord Steyn said:18There is a clear statutory intent to postpone the coming into effect of centralprovisions of the Act. A legitimate expectation, which treats inoperativestatutory provisions as having immediate effect, is contradicted by thelanguage of the statute.[15] Nor may a prosecutor seek to adjourn trial to take advantage of a legislativechange that alters proof. In R v Walsall Justices, ex parte W, Justices of the Peace hadadjourned a case for a day to take advantage of new legislation that abolished therequirement of corroboration of the evidence of a child witness, but which came intoeffect the day after trial was to begin.19 The prosecution sought the adjournment,indicating that otherwise it would not be able to offer any evidence against thedefendant. Granting judicial review, the Divisional Court held the justices had ineffect passed an adverse qualitative judgment on the existing law as at the date of trial.Saville J said:20The fact that [the justices] did so because they preferred the law as it wouldbe on the following day seems to us to be neither here nor there — for the factremains that the trial did not proceed because the justices felt that the law inforce on the day fixed for it would not do justice. That in our view is not alegitimate basis for ordering an adjournment.The Court noted the adjournment might have been legitimate if the legislative changemerely created a different mode of trial or similar neutral procedural advantage:21In the present case, however, the change is with regard to what was afundamental and mandatory rule of law — until 12 October 1988 a defendantcould not be convicted on the uncorroborated and unsworn evidence of achild.[16] To summarise in broad terms, and absent statutory provision otherwise, the ruleof law requires that courts apply: (1) the substantive criminal law governing the17 R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 (HL).18 At 368.19 R v Walsall Justices, ex parte W [1990] 1 QB 253.20 At 260.21 At 260–261 (original emphasis).offence as at the date of the offending;22 and (2) the procedural criminal law as it existsat the date of hearing. What then of (3) sentencing? Three points might usefully bemade about that.[17] First, although an offender is sentenced according to the law as at the date ofsentence,23 the Sentencing Act and New Zealand Bill of Rights Act together providethat if the penalty prescribed has increased since the date the offence was committed,the lesser penalty will apply unless the legislation has clear retrospective effect.24In other words, sentencing occupies a hybrid state between the rules applicable to theoffending (date of offence) and the rules of procedure (date of hearing).[18] Secondly, this Court has however held that a sentencing court may take intoaccount enacted legislation not yet in force, in mitigation of sentence.25 In R v O'Brienthe appellant had pleaded guilty to possession of cannabis for supply.26 He wassentenced to 10 years' imprisonment at a time when the maximum sentence wouldhave been 14 years. The Court (Wild CJ, McCarthy P and Richmond J) had regard tothe reduced maximum sentence for the same offence under the newly enactedMisuse of Drugs Act 1975, even though it was not yet in force.27 The Courtobserved:28Even though the new statute, in the form in which it was passed, had not beenintroduced into Parliament at the date of the offences in question and evennow is not to come into force until a date to be appointed by Order in Council,the court is of opinion that it cannot ignore its terms in dealing with this appeal.The fact must be recognised that Parliament has decided that the maximumpunishment for offences in relation to cannabis plant, which is the narcoticinvolved here, shall be imprisonment for a term not exceeding eight years.That being the case the point made by Crown counsel does not arise.22 See also Legislation Act 2019, ss 32–36; R v Fisher [1969] 1 WLR 8 (CA); and Ross CarterBurrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at789-791.23 Robinson v R [2016] NZCA 188 at [21]. See also Sentencing Act, s 5(3).24 Sentencing Act, s 6(1); and New Zealand Bill of Rights Act 1990, s 25(g). See also R v Pora[2001] 2 NZLR 37 (CA) at [23]–[25]. But compare Legislation Act, s 12.25 See Burrows and Carter Statute Law in New Zealand, above n 22, at 791.26 R v O'Brien [1976] 1 NZLR 513 (CA). In a comparable civil context, see Kain v Wynn Williams& Co [2012] NZCA 563, [2013] 1 NZLR 498, at [54]–[55].27 So that the then-equivalent of s 6(1) of the Sentencing Act was not engaged, giving the benefit ofthe reduced penalty at the time of sentencing: Criminal Justice Act 1954, s 43B.28 R v O'Brien, above n 26, at 517.[19] Thirdly, a court ought not adjourn if the sole reason for doing so is to apply adifferent statutory regime applying to sentencing at a later time. In Arthur v Stringerthe defendant, aged 20 years, had been sentenced to four months' detention forassaulting police officers who had been attempting to arrest him.29 He appealed thatsentence. By the time his appeal came before the Crown Court, he was 21 years ofage and eligible for imprisonment. The Crown Court accepted that its powers werelimited to those of the magistrates at the time of sentence, but considered theprohibition against imposing a sentence of imprisonment on a 20-year-old could beavoided by purporting to adjourn sentence until he had attained the age of 21 years.It did so and substituted a term of four months' imprisonment suspended for18 months. In this instance, the notional adjournment worked to the defendant'sadvantage. But now the prosecution appealed, on the basis the new sentence imposedwas unlawful — a position supported by counsel for the defendant. Allowing theprosecutor's appeal, Watkins LJ observed:30It is implicit, in my judgment, that the discretion which is vested in justices to adjourn sentence be exercised judicially. It cannot be said to have beenexercised judicially if it was done for no other purpose than to ensure that bythe time sentence be passed a defendant has increased in age to that of 21 yearsso that the court be clothed with the power of passing a sentence ofimprisonment. It would, in my view, be an abuse of the power to order anadjournment for that purpose; for, as I have said already, when first comingbefore the court for sentence after conviction, the defendant, in this instance,was below the age when he could have been imprisoned. Therefore it was,in all the circumstances, unlawful of the Crown Court to purport to exercise apower of adjournment so as to clothe them with the right, as they thought theyhad, to pass terms of imprisonment upon this defendant.[20] To adjourn in order to apply a more tolerant statutory sentencing regimeapplicable at a later date is to pre-empt a choice Parliament has made by not givingthe later enactment retrospective effect. In doing so it offends the principles statedpithily by Lord Steyn in Kebilene in the passage quoted at [14] above.The application of the law to this case[21] Our view for the purposes of the present application is that the Judge was rightto refuse adjournment on this basis. For that reason, we consider the proposed appeal29 Arthur v Stringer (1986) 84 Cr App R 361 (QB).30 At 367. The Court ended up imposing a conditional discharge by way of sentence.lacks merit, so that leave to appeal should be declined. Formally, however, theargument remains one Mr Morgan may revisit on a sentence appeal.[22] Mr Morgan confronts two insuperable difficulties here.[23] The first is that the more tolerant sentencing regime he seeks to rely upon isneither enacted nor in force. For the reasons set out at [12] and [13] above, courtsshould not act in anticipation of legislation as yet unpassed. Nor should they pre-emptParliament's decision by shunting sentencings into a sort of siding to relieve somedefendants (but not others) from non-retrospectivity, if ultimately that is Parliament'swill. Parliament must make the decision whether to repeal the current sentencingframework and, if so, whether to do so retrospectively. The choices before Parliamentare stark ones, but they are Parliament's stark choices.[24] The second difficulty is that the power to adjourn, under s 167 of theCriminal Procedure Act 2011, is discretionary in nature. The power, while apparentlyuntrammelled, may only be exercised for good reason, with the determinant beingwhether an adjournment is in the interests of justice.31 For the reasons given above,postponement of a fixture purely because a qualitative preference for a potentiallymore benign legislative regime is not such a reason. But quite apart from that, theconsequence of the power being discretionary is that a higher threshold for appellatereversal applies. As this Court observed in Parker v R:32A degree of appellate deference applies. The discretionary decision must bewrong, fundamentally, in one or more of these four respects: the Judge madean error of law or principle, failed to take into account some relevant matter,took into account an irrelevant matter, or was plainly wrong. If not, the firstinstance decision should stand and appellate courts ought not interfere with it.No such error is demonstrated here.[25] There is no other legitimate basis for adjournment of sentencing. Without sucha reason, sentencing must proceed on the basis of the law as it now stands, albeit thethree-strikes regime may end in three months' time.31 Mizsey v Police [2017] NZHC 3130 at [5], citing Gray v Thom (1997) 10 PRNZ 373 (HC) at 377.32 Parker v R [2020] NZCA 502, (2020) 29 CRNZ 536 at [30] (footnote omitted).[26] The deeply unfortunate consequence, for Mr Morgan and for others, is forParliament to weigh.Result[27] The application for leave to appeal is declined.Solicitors:Hugo Young Law, Invercargill for ApplicantCrown Law Office, Wellington for Respondent