JAHVARN MORGAN v NEW ZEALAND POLICE [2019] NZHC 852

JAHVARN MORGAN v NEW ZEALAND POLICE [2019] NZHC 852 [16 April 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2019-463-0002[2019] NZHC 852BETWEEN JAHVARN MORGANAppellantAND NEW ZEALAND POLICERespondentHearing: 16 April 2019Appearances: J M Owers and CMD Martell for the appellantE F Collis for the respondentJudgment: 16 April 2019ORAL JUDGMENT OF JAGOSE JSolicitors:Public Defence Service, TaurangaPollett Legal Limited, Tauranga[1] This is an appeal against both Jahvarn Morgan's sentence of three years andnine months' imprisonment, and four-year disqualification from driving, imposed byJudge 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 carelesslyoperating a vehicle (two charges);4 reckless driving (one charge);5 and failing to stopwhen followed by red/blue flashing lights (one charge).6 He also was convicted on twocharges of possession of cannabis.7Application out of time[3] Mr Morgan requires an extension of time to appeal,8 as his appeal was not filedwithin 20 working days of sentence.9 Mr Morgan's appeal was filed on 20 December2018, 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 MrMorgan 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. Dueto 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 unorthodoxcircumstances 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 thosebases, 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] 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 thesentence, and a different sentence should be imposed.14 In any other case, I mustdismiss the appeal.15 The approach previously taken by courts on sentencing appealscontinues to apply,16 so that the measure of error is the sentence be "manifestlyexcessive" – the principle is "well-engrained" in this Court's approach to sentenceappeals.17 I will not intervene where the sentence is within a range properly justifiedby accepted sentencing principle. Whether 'manifestly excessive' is to be assessed interms of the sentence given, rather than the process by which it is reached.18Offending[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,19he 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 theincident, but said he must have been driving. He was charged with driving whiledisqualified, driving with excess breath alcohol, and careless use of a motor vehicle.[9] In May, while speaking to Mr Morgan on unrelated matters, police discoveredseven 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 drivingon a two-lane highway with no centre barrier – Mr Morgan fell asleep at the wheeland the car left the road, skidded into the gravel, and crashed into a bank. He admittedknowledge of his disqualification and that there was no excuse for driving – he "just14 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 ofalcohol per litre of breath; an infringement offence if the proportion of alcohol in the person'sbreath 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 andcareless driving.[11] A week later, Mr Morgan was again driving, with a woman passenger atapproximately 3:30 am. Police saw him and signalled for him to stop using their lightsand siren. Mr Morgan instead fled at speeds of up to 140 kilometres per hour and rana red light at an intersection. Police abandoned their pursuit as endangering other roadusers. Soon after, Mr Morgan was again seen by police. He travelled down an off rampon to State Highway 2, travelling the wrong way up the single lane express way intooncoming 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 thepolice being in active pursuit. When located a short time later, Mr Morgan was inpossession of two grams of cannabis. A subsequent evidential breath test gave areading of 553 micrograms of alcohol per litre of breath. He claimed he was not thedriver. This gave rise to charges of driving while disqualified, failure to stop whenfollowed by red/blue flashing lights, reckless driving, driving with excess breathalcohol and possession of cannabis.[12] Significantly – the previous year, on 27 February 2017 – Mr Morgan had beendisqualified 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 Ingramdid not follow the orthodox approach to sentencing.20 He did not adopt a global startingpoint or identify a lead offence. Instead, the Judge worked through the offendingchronologically, imposing both cumulative and concurrent sentences. He consideredthe following aggravating factors were present: all of the offences occurred while MrMorgan was subject to court sentences or on bail; there was a danger to thecommunity; and the driving was premeditated. The Judge acknowledged Mr Morganwas entitled to a discount for his guilty plea and made reference to Mr Morgan'sremorse. The discount to be applied for these factors was not expressly articulated.20 R v Taueki [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.21I 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 whichconsiders the aggravating and mitigating features of the offending (not of theoffender).22 Where multiple sentences are imposed, the usual approach is to determinea starting point for the lead offence, before applying an appropriate uplift for theadditional offences (taking the totality principle into account).23 Clearly the Judge didnot follow this approach.[16] Ms Martell says the Judge's failure to identify a starting point makes itimpossible to assess the sentences' objective foundation. The flow-on effect is said tobe a failure to consider the totality of the offending, and to give sufficient credit forMr Morgan's guilty plea.[17] The approach does make it harder to assess the reasoning behind each sentenceimposed. But the issue is "whether the final outcome is manifestly excessive".24 The21 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 itscontended 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 gravityof the overall offending.26 She says because the starting point, and the effect of anymitigating or aggravating factors, was not expressly identified, no totalityconsiderations could have taken place.[19] That is contested by counsel for the respondent, Ella Collis, who submits theJudge's "careful consideration" if sentences on the various charges should attractcumulative or concurrent sentences reflects a totality analysis. Similarly, the Judgeconvicted and discharged Mr Morgan on the possession of cannabis charges, "havingregard to the rest of the penalties imposed".27 And she says while the end sentenceimposed was stern, it was not manifestly excessive for the three sets of serious – andat times life-threatening – driving offences over an eight-month period.[20] Reference to the totality principle is part of the established judicial approachto sentencing for multiple offences.28 The principle is now enshrined in the SentencingAct 2002.29 While s 84 provides general guidance in relation to cumulative andconcurrent sentences, the following key principles of sentencing continue to apply inrelation to multiple offending:30With multiple offences, the sentence must reflect the totality of the offending.In respect of multiple offences, this Court will not insist that the total sentencebe arrived at in any particular way.The total sentence must represent the overall criminality of the offending andthe 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 [2007] 2 NZLR 240 at [15].30 See R v Xie, above n 29, at [17]-[18]; Hughes v R [2012] NZCA 388 at [27]; R v Williams CA79/00,31 May 2000; and R v Barker CA57/01, 30 July 2001.[21] Mr Morgan is a recidivist offender. The Judge was not precluded fromimposing cumulative offences in relation to the offences of driving while disqualifiedand driving with excess breath alcohol, even where the offences arose from the samedriving incident.31 The offence of driving with excess breath alcohol is primarilyconcerned with road safety, while the offence of driving while disqualified is primarilyconcerned with the enforcement of court orders.32[22] Both counsel refer to the decision of Clotworthy v Police, which sets out anumber of aggravating and mitigating factors to consider when sentencing on chargesof driving with excess breath alcohol.33 All the aggravating factors in that list areengaged here. That the May and August offending occurred while Mr Morgan was onbail is additionally aggravating.[23] Mr Morgan had been sentenced to four months' imprisonment for driving withexcess breath alcohol only four months prior to the 30 January offending. He has fourprevious convictions for driving with excess breath alcohol and two previousconvictions for driving while disqualified, as well as other driving convictions. Heevidently has not yet been deterred.[24] His manner of driving was extremely dangerous, going beyond the inherentdangers of drink-driving.34 It involved driving into oncoming traffic, crashing intosomebody's front yard, speeding through residential areas, and falling asleep whiledriving 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 tospecific disqualification during the January offending.[25] I recognise Mr Morgan has made some attempts at rehabilitation. Hisenrolment in Te Whare Oranga Ngakau – a residential rehabilitation facility – providessome evidence of a willingness to change. But he was exited from the programme forbreaking its rules. Mr Morgan says he is motivated to change for his son. That may bethe case, but he currently lacks the self-control needed to alter his behaviour. As the31 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 analcohol 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 approachedsentencing. Such is not determinative.[27] In Hughes v R, the offender was convicted of one charge of driving with excessbreath alcohol and one charge of driving while disqualified on the same occasion. Hewas a recidivist offender, with 18 convictions for driving with excess breath/bloodalcohol and 24 for driving while disqualified.35 The Court of Appeal held thesentencing 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 whiledisqualified and driving with excess breath or blood alcohol levels.37 The Court ofAppeal commented that an end sentence of 12 months' imprisonment for each set ofoffending, to be imposed cumulatively, would not have been manifestly excessive.38The offender had pleaded guilty to all charges.[29] From those perspectives, Mr Morgan's end sentence of three years and ninemonths is not manifestly excessive. I accept the offender in Hughes v R had manymore previous convictions than Mr Morgan. But that sentence arose out of oneoccasion. Here, Mr Morgan faced nine driving-related charges arising out of threeseparate occasions. On two of those occasions, he crashed the vehicle. Seven daysafter crashing his vehicle on the highway, Mr Morgan again got behind the wheel withexcess breath alcohol and drove in a manner which posed a significant risk of dangerto the public. He clearly has not heeded earlier warnings, and a lengthy sentence ofimprisonment was inevitable. To my mind, in those circumstances, at least escalating35 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 yearsand nine months ordered here – would entirely have been justified.[30] The Judge's use of both cumulative and concurrent sentences indicates regardwas had for the totality principle. Mr Morgan was convicted and discharged on thetwo charges of possession of cannabis.[31] The sentence of three years and nine months' imprisonment is not manifestlyexcessive 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 MrMorgan's guilty plea. But he acknowledged a discount was warranted, and he did "notwant to gloss over that".39 Regardless, the focus remains on the end sentence. As Ihave 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 wasmanifestly excessive. Long periods of disqualification typically leave little hope foroffenders, but it is incumbent on courts to keep dangerous drivers off the road for aslong as reasonably possible.40 Disqualification is primarily to protect the public andthe period imposed should reflect that purpose, as well as the seriousness of theoffending itself.41[34] In Mr Morgan's circumstances, I do not consider a four-year disqualificationperiod to be manifestly excessive.42 Mr Morgan is a dangerous driver, has not abidedby any of his earlier disqualifications, and continues to present a significant risk topublic safety. There should be an extended period during which Mr Morgan cannot39 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 disqualificationperiod would have been appropriate to bring home to the appellant that the only way in which hecould resume driving lawfully was by changing his attitude as well as addressing his problemswith liquor consumption. See also Tohu v Police [2015] NZHC 2009.even seek regulatory relief from the indefinite suspension of his driver's licence, toshow at least his sustained control of alcohol as a material risk-factor in his drivingoffences.Result[35] Mr Morgan's appeal against sentence is dismissed.—Jagose J