For the first time in New Zealand a High Court judge has imposed less than the three-strike maximum sentence, saying the 14-year jail term would have been manifestly unjust and in breach of the New Zealand Bill of Rights for the sex offender.
Anaru Morgan (27) appeared for sentence before Justice Cameron Mander in the High Court at Invercargill yesterday for unlawfully detaining a woman for the purpose of sexual violation, for which he was found guilty by jury, and resisting police and refusing to give police information, both of which he had previously pleaded guilty to. His offending took place between March 3 and March 10, 2020.
Morgan received his first two strikes in 2013 and 2016 and was on his third strike, meaning he would have yesterday been sentenced to a 14-year prison term with no parole.
Justice Mander said on the first occasion Morgan followed a hospital worker at Waikato Hospital, grabbed her from behind then fondled her genital area.
The second victim was pushing her 6-month-old baby in a pram in a public walkway when he reached between her legs as she walked past. He received home detention for the first indecent assault and two years’ jail for the second.
The third strike was given after a jury found Morgan guilty of detaining a 63-year-old sex worker in Invercargill.
Justice Mander said when Morgan turned up with no cash to pay for services, the woman tried to send him away to get it. Morgan pushed the woman, locked the door and threatened her, referring to his gang membership.
She then submitted to Morgan’s demands, saying "OK, I do for you, but you not hurt me".
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.
Among the reasons for the Act’s likely impending repeal is that the Court of Appeal has found sentences imposed under the regime contravene the Bill of Rights Act.
Defence counsel Hugo Young sought firstly through the Court of Appeal and secondly the Supreme Court this week to have Morgan’s sentencing put off until it was likely the three-strike regime was repealed in July.
Both appeals were declined.
Yesterday, Mr Young asked Justice Mander to consider a lesser sentence.
"An end sentence of five or six years versus 14 years — that’s an extra eight years’ imprisonment, which in my submission can only be a gross disparity and can only be in contravention or exception of Section 9 of the Bill of Rights Act," Mr Young said.
Crown counsel Mike Brownlie also agreed that the sentence would be manifestly unjust, and sought an eight-year jail term with a further reduction for matters disclosed within the cultural report.
Justice Mander cited the report saying Morgan had been physically and sexually abused and neglected as a child. His parents had both served prison sentences and he had faced hardship and depravation in his life. He began smoking cannabis at 12 and drinking alcohol at 14 years of age.
Justice Mander said yesterday he had carefully reviewed previous three-strike sentencings which had later been reduced at appeal.
If Morgan was sentenced to 14 years’ jail without parole, it would have resulted in him spending a further 10 years in jail than if sentenced under the notional method.
"Such a disparity cannot be justified," Justice Mander said.
He sentenced Morgan to six years’ jail with a non-parole period of four years for the detaining charge and convicted and discharged him on the two other matters.
