Morunga v Police
[2022] NZHC 612
•29 March 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-485-05
[2022] NZHC 612
BETWEEN EDDIE MACK MORUNGA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 March 2022 Appearances:
C J Tennet for Appellant M Shaw for Respondent
Judgment:
29 March 2022
JUDGMENT OF GENDALL J
This judgment was delivered by me on 29 March 2022
Registrar/Deputy Registrar Date:
MORUNGA v NEW ZEALAND POLICE [2022] NZHC 612 [29 March 2022]
Introduction
[1] On 6 April 2020 the appellant, Mr Morunga, was charged with assault with a weapon for offending which took place at Rimutaka Prison on 4 May 2019.1
[2] At the time of the offending, Mr Morunga was serving a sentence of two years and nine months’ imprisonment following a conviction for family harm offending. On 7 October 2020 Judge Tompkins in the District Court at his request gave Mr Morunga a sentence indication on the assault with a weapon charge of nine months’ imprisonment to be served cumulatively with his then existing prison sentence. Mr Morunga accepted that sentence indication and pleaded guilty to the assault with a weapon charge. On 16 December 2020 Judge Tompkins sentenced Mr Morunga to six months’ imprisonment on this charge to be served cumulatively.2
[3] Mr Morunga has now filed an out of time notice of appeal against this sentence. The main issue on this appeal is whether the sentence imposed should have been a cumulative one or one concurrent with the sentence he is currently serving.
Factual background
[4] Mr Morunga, as I note, is a prisoner at Rimutaka Prison. As to the present assault with a weapon charge, on 4 May 2019 at the prison, he repeatedly punched a prison guard who was moving him from his cell to the outside yard area at the time. Mr Morunga then struck the prison guard’s head with a sock filled with hard soap bars. The victim suffered bruising and lumps to his head and needed to take three days of sick leave to recover from the attack.
District Court’s decision
[5] In the District Court, Judge Tompkins, in giving the sentence indication he did, considered a cumulative end sentence of nine months would be appropriate if Mr Morunga was to plead guilty. In coming to this view the Judge noted that Mr Morunga was already serving a two year and nine month sentence for serious
1 Crimes Act 1961, s 202C – carrying a maximum penalty of five years’ imprisonment.
2 Police v Morunga [2020] NZDC 26282.
violent offending, he had prior convictions for other violent offending and also that the present offending was serious and involved blows to the head in a prison context.
[6] The sentence indication was accepted. Mr Morunga accordingly pleaded guilty to the assault with a weapon charge he was facing.
[7] On 16 December 2020 after removing a double-counting factor included in the prior indication, Judge Tompkins sentenced Mr Morunga to a reduced end sentence of six months’ imprisonment to be served cumulatively.
Grounds of appeal
[8] The grounds of appeal advanced before me are that the sentence was manifestly excessive and also that some issues arise here for Mr Morunga regarding a possible diagnosis of psychosis. In particular, it is contended that Mr Morunga’s sentence should have been concurrent on his existing sentence as opposed to being cumulative.
Submissions for the appellant
[9] Mr Tennet for Mr Morunga at the outset accepted responsibility for the delay in appealing the sentence. The delay he says is not in any part attributable to Mr Morunga. Leave to bring this appeal out of time is therefore sought.
[10] As to the substantive appeal, Mr Tennet submits that Mr Morunga’s mental state here, which he says involves psychosis, should have been given more weight than the general need for deterrence. Accordingly, the sentence imposed should have been one to be served concurrently with his existing sentence. Before me, Mr Tennet to his credit did acknowledge that there was no significant information he was able to put before the Court regarding Mr Morunga’s mental state. But he submitted nevertheless that, in a case like this, the normal presumption of cumulative sentencing imposed for in-prison offending needed to be varied to a concurrent sentence for someone like Mr Morunga who was suffering mental illness by way of psychosis.
[11] Overall, Mr Tennet suggested that the Judge in the District Court erred by failing to give an appropriate discount for Mr Morunga’s mental health issues, but
Mr Tennet did note he was quite unable to put before this Court any verifying evidence regarding this aspect. He did add however that a report under s 35 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 should have been ordered in this case, but this did not happen.
[12] Finally, as an alternative to substituting Mr Morunga’s cumulative sentence with a concurrent one, Mr Tennet went on to maintain that in any event the sentence imposed was manifestly excessive. This, he said, was despite the fact that it had been accepted by Mr Morunga following a sentence indication. Therefore, Mr Tennet suggested the two months Mr Morunga would have served by the time of the hearing should have been considered as time served.
Submissions for the respondent
[13] Mr Shaw for the respondent contended before me that the sentence imposed by Judge Tompkins could not be faulted in any way. He maintained it is well within range, contains no error and is not manifestly excessive.
[14] Mr Shaw did accept the main issue here is whether the sentence should have been a cumulative one or one concurrent with Mr Morunga’s existing sentence. Like many cases similar to the present, Mr Shaw maintained the District Court was entirely correct to impose this sentence cumulatively, as Mr Morunga’s present offending against a prison guard was serious and entirely distinct from his previous family harm offending.
[15] As to the suggested mental health issues, Mr Shaw notes that Mr Morunga had been assessed as stable the day before the offending in question. He also points to the suggestion in the mental health report that the appellant is known for attempting to manipulate this avenue to achieve a transfer from prison to hospital. Importantly, Mr Shaw maintains that Mr Morunga’s mental state was not a factor in the offending and therefore no discount for it was appropriate. This is especially the case, he said, considering the lack of any relevant evidence before the sentencing Judge regarding this aspect.
[16] Mr Shaw for the respondent noted also that Mr Morunga had accepted the sentencing indication when it was open to him to reject it.
[17] And finally, Mr Shaw opposed any extension of time or grant of leave for the late filing of the notice of appeal here on the basis that Mr Morunga’s appeal simply lacks merit.
Relevant law
[18] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.3
[19] Although s 250 does not refer to “manifestly excessive”, it is a principle that is well established in the Court’s approach to sentence appeals.4 The Court cannot “tinker” with an end sentence if is within range.5 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6 The Court of Appeal has accepted, however, that there may be cases where “what has gone wrong is such as to require correction albeit the sentence imposed is within range”.7
[20] Section 84 of the Sentencing Act 2002 codifies the principles governing the imposition of cumulative and concurrent sentences. While it provides general guidance, exceptions will occasionally be justified. The essential test set out by s 84 for cumulative sentences is whether the offences are different in kind. Concurrent sentences will be appropriate where the offences are both similar in kind and form a connected series.
3 Tutakangahau v R [2014] NZCA 279.
4 At [35].
5 Ripia v R [2011] NZCA 101 at [15].
6 At [15].
7 Tutakangahau, above n 3, at [36].
Discussion
Cumulative or concurrent sentence
[21] Cumulative sentences are the starting point where separate offences of offending are similar in kind, but not forming a connected series of offences. For example, in Watohi v R separate acts of violence to the same infant warranted cumulative sentences.8 In R v Clarke serious assaults on the same victim warranted cumulative sentences as they were unconnected as to time or location.9
[22] In the present case Mr Morunga’s two instances of offending are plainly different in kind. While his prior offending was in a family harm context, the current offending was against a different victim, at a different location (specifically in Rimutaka Prison) and in a wholly different context. Accordingly, a cumulative sentence was the appropriate choice.
[23] Additionally, the fact that Mr Morunga was serving a sentence of imprisonment for violent offending while he committed the further violent offence in question, is an aggravating factor which points in favour of a cumulative sentence.10
Sentence length
[24] The Judge in the District Court considered a nine-month starting point appropriate for the offending with an end sentence of six months’ imprisonment. No discount for mental health was given.
[25] R v Wareta involved an attack against two victims in a prison environment using a makeshift shank.11 In that case the defendant’s motivation for the attack was fear for his safety.12 The end sentence for the assault with a weapon charge was 10 months’ imprisonment served cumulatively with the existing sentence.
8 Watohi v R [2014] NZCA 614.
9 R v Clarke CA 128/06, 6 June 2006.
10 R v Johansen (1996) 15 CRNZ 111 (CA).
11 R v Wareta [2017] NZHC 1762.
12 At [6].
[26] Here, the offending was against one victim and resulted in less serious injuries, but nonetheless involved blows to the head and premeditation. Accordingly, in an end sentence of six months’ imprisonment after a guilty plea was not only appropriate in my view but on the lenient side of the range.
[27] So far as the alleged mental impairment by way of psychosis it is said Mr Morunga is suffering here is concerned, there was nothing significant placed before the Court regarding this aspect. In addition, there does not appear to be any established nexus between any mental impairment Mr Morunga may suffer from and his current offending. Notwithstanding this, I am satisfied that to some extent, if Mr Morunga was suffering from a significant mental impairment that might make a prison sentence more severe here.13 Accordingly, if this was the case, some discount at the lower end for mental health might be appropriate. However, in the present case I consider the end sentence of six months’ imprisonment, while it does not explicitly include any possible mental health discount that might arise, does in any event reflect Mr Morunga’s present circumstances, by being a lenient sentence for the type of offending that occurred here.
Result
[28] Leave is granted for the late bringing of this appeal out of time. That grant of leave however does not affect the outcome here. But, turning to the substantive appeal itself, for all the reasons I have outlined above, the end sentence imposed in the District Court amounting to six months’ imprisonment to be served cumulatively I find is appropriate and reflects the totality of the offending and Mr Morunga’s personal circumstances.
[29] The District Court Judge did not err in imposing this sentence here. This appeal is dismissed.
Gendall J
Solicitors:
M Shaw, Crown Counsel, Wellington Barrister:
C J Tennet Barrister, Lower Hutt
13 Nuku v R [2019] NZCA 319, at [14].
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