Morunga v Police - [2022] NZHC 612

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’…

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 Morunga v Police

Details

AGLC: Morunga v Police [2022] NZHC 612
Case: [2022] NZHC 612
Decision Date: 29 March 2022

CaseChat Overview and Summary

The case of Morunga v Police involved an appeal by Eddie Mack Morunga against the sentence imposed on him by the District Court for an assault with a weapon committed while he was serving a prison sentence. Morunga was originally charged with assault with a weapon for an incident that occurred at Rimutaka Prison on 4 May 2019. He had been serving a sentence for family harm offending at the time. Following a sentence indication by Judge Tompkins, Morunga pleaded guilty to the assault with a weapon charge and was sentenced to six months' imprisonment to be served cumulatively with his existing sentence. Morunga then filed an out-of-time notice of appeal, arguing that the sentence should have been concurrent rather than cumulative.

The legal issues the Court had to decide were whether the sentence imposed was manifestly excessive and whether the sentence should have been concurrent with Morunga's existing sentence, considering his alleged mental health issues. The Court considered the principles governing the imposition of cumulative and concurrent sentences, as well as the relevance of mental health issues in sentencing. The Court also examined the precedent for similar cases and the appropriateness of the sentence length.

The Court found that the sentence imposed by the District Court was appropriate and did not contain any error. The Court held that the two instances of offending were different in kind and that a cumulative sentence was the appropriate choice. The Court also found that the end sentence of six months' imprisonment, while not explicitly including any possible mental health discount, was nevertheless a lenient sentence for the type of offending that occurred. The Court therefore dismissed the appeal.

In conclusion, the Court granted leave for the late bringing of the appeal but dismissed the substantive appeal. The sentence imposed by the District Court, amounting to six months' imprisonment to be served cumulatively, was found to be appropriate and reflected the totality of the offending and Morunga's personal circumstances. The Court found that the District Court Judge did not err in imposing this sentence.

Orders