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Mo'unga v R

Mo'unga v R

Case [2023] NZHC 1967 26 July 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-305

[2023] NZHC 1967

BETWEEN
GEORGE MO’UNGA

Appellant

AND

THE KING

Respondent

Hearing: 10 July 2023

Appearances:

E Priest for the Appellant

D Becker for the Respondent

Judgment:

26 July 2023

JUDGMENT OF BECROFT J

[As to appeal against sentence]

This judgment was delivered by me on 26 July 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Blackstone Chambers, Auckland Meredith Connell, Auckland

MO’UNGA v R [2023] NZHC 1967 [26 July 2023]

The appeal

[1] Mr George Mo’unga appeals his sentence of two years and six months’ imprisonment. The sentence was imposed on 9 June 2023 in the Auckland District Court by Judge Gibson in respect of two charges arising from an unprovoked, violent incident in central Auckland.1

[2]The charges are:

(a)with intent to injure, wounded a named person.2

(b)with intent to injure, assaulted an unknown person.3

[3]He has now served over one month of his prison sentence.

[4]The grounds for his appeal, strongly advanced by Ms Priest, are:

(a)a starting point of three years six months’ imprisonment was too high;

(b)no uplift ought to have been imposed for his previous convictions and even the two-month uplift imposed in this respect was unsupportable;

(c)the Court ought to have given a full 25 per cent discount for Mr Mo’unga’s early guilty plea and was in error in only allowing a 20 per cent reduction;

(d)the Court erred by not giving any reduction for Mr Mo’unga’s genuine remorse, having recognised that it existed; and

(e)the Court failed to make an adjustment to the starting point to reflect “totality”, given that Mr Mo’unga had been sentenced to imprisonment over a year earlier for unrelated offending — for which Mr Mo’unga was on bail at the time of this offence. That prison sentence, it is submitted, should have been taken into account in this sentencing resulting in a further downward adjustment.

1      R v Mo’unga [2023] NZDC 11676 [Sentencing Notes].
2      Crimes Act 1961, s 188(2); maximum penalty seven years’ imprisonment.
3      Section 193; maximum penalty three years’ imprisonment.

[5] Ms Priest submits the compounding effect of all these errors means that the end sentence was manifestly excessive. If the Court reduces this sentence to two years imprisonment or less, she seeks leave for Mr Mo’unga to apply for home detention.

The facts

[6] Mr Mo’unga was part of a group of four men, in Quay Street, central Auckland (the Viaduct Basin) at 11.15 pm on 5 August 2022. What ensued was all captured on CCTV.

[7] He and his friends engaged with the victim and his four friends outside Gourmet Burger & Brew Kitchen. This exchange appeared pleasant and friendly. Mr Mo’unga and his friends shook hands with the victim’s group and left. Some moments later they returned.

[8] Immediately Mr Mo’unga punched one of the victim’s friends, an unknown complainant. That is the basis of the assault…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mo'unga v R

Details

AGLC: Mo'unga v R [2023] NZHC 1967
Case: [2023] NZHC 1967
Decision Date: 26 July 2023

CaseChat Overview and Summary

Mr George Mo’unga appealed his two-year and six-month prison sentence imposed by the Auckland District Court. He argued that the starting point of three years and six months was too high, that the uplift for his previous convictions was unsupportable, that the court should have given a 25 per cent discount for his early guilty plea, that the court should have given a reduction for his genuine remorse, and that the court failed to adjust the starting point to reflect “totality”, given that he had been sentenced to imprisonment for unrelated offending while on bail at the time of the current offence. The High Court found that while there were some errors in the District Court’s sentencing methodology, the appeal was successful only to the extent that the original sentence was quashed and replaced by a sentence of two years and three months’ imprisonment. The High Court held that the original sentence must be considered to be manifestly excessive, but that home detention would not have been appropriate in the circumstances.

Orders