An Invercargill man will be sentenced as a third-strike offender after having his Court of Appeal application to delay sentencing until the controversial sentencing system is repealed was dismissed.
He was found not guilty of unlawful sexual connection and sexual violation.
He had previously received two strike warnings, one in 2013 and the other in 2016, both for indecent assaults.
As a third-strike offender, Morgan was now looking at a sentence of 14 years’ jail without parole unless the sentencing Justice deemed it manifestly unjust.
The decision of Justices Stephen Kos, Rachel Dunningham and Mark Woolford released yesterday says the current three-strike sentencing regime is likely to be repealed by Parliament with a Bill now before the House.
"If enacted in its present form it would come into force on 1 July 2022, but without retrospective effect.
"Unless revised, those sentenced prior to 1 July will remain subject to the three-strikes regime."
The justice.govt.nz website says the three-strikes system was introduced in New Zealand through the Sentencing and Parole Reform Act 2010 with the intention of deterring repeat offenders with the threat of progressively longer mandatory prison terms, and to penalise those who continued to reoffend.
The reason for the Act’s repeal has come from concerns there is little evidence serious offending has reduced, it is restrictive for allowing judiciary to consider individual circumstances when sentencing, overrepresentation of Maori in the strike system and that the Court of Appeal has found sentences imposed under the regime contravene the Bill of Rights Act, the website says.
The decision says Justice Cameron Mander originally turned down an application by Morgan, through his counsel Hugo Young, to have the sentencing delayed.
The three Justices agreed with Justice Mander’s decision saying courts should not act in anticipation of legislation which was not yet passed.
"Nor should they pre-empt Parliament’s decision by shunting sentencings into a sort of siding to relieve some defendants (but not others) from non-retrospectivity, if ultimately that is Parliament’s will.
"Parliament must make the decision whether to repeal the current sentencing framework and, if so, whether to do so retrospectively."
The decision to delay sentencings may only be exercised for good reason with the determinant being whether an adjournment is in the interests of justice, the decision says.
"For the reasons given above, postponement of a fixture purely because a qualitative preference for a potentially more benign legislative regime is not such a reason."
Morgan is set to be sentenced in the High Court at Invercargill on April 13.
