Morunga v Police - [2012] NZHC 2179

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-216 [2012] NZHC 2179

ELIZABETH CATHERINE MORUNGA
Appellant
v
NEW ZEALAND POLICE
Respondent

Hearing: 27 August 2012

Appearances: Appellant in person
F Nizam for Respondent

Judgment: 27 August 2012

ORAL JUDGMENT OF TOOGOOD J

EC Morunga, C/- Auckland Regional Women’s Correctional Facility, Private Bag 76908, Manukau
City, Auckland 2241
F Nizam, Meredith Connell, Auckland: farzana.nizam@meredithconnell.co.nz

MORUNGA V NEW ZEALAND POLICE HC AK CRI-2012-404-216 [27 August 2012]

[1] Elizabeth Catherine Morunga appeals against an effective sentence of imprisonment for 20 months imposed upon her on 2 May 2012 by Judge Burns in the District Court at Waitakere in respect of one charge of injuring with intent to injure and a total of 22 charges of dishonesty involving benefit fraud to which she had pleaded guilty.

[2] The charge of injuring with intent to injure carried a maximum penalty of five years’ imprisonment. That offending was domestic violence involving an argument between the appellant and her partner at a time when the appellant was said to be heavily intoxicated. In the course of the argument the appellant punched the victim about the stomach and face. Subsequently the argument continued when the victim tipped the appellant out of bed. The appellant became enraged, threatening to stab the victim. She went into the kitchen, selected a chef ’s knife of about 15 to 20 centimetres in length, raised the knife and stabbed the victim in the chest. When the appellant tried to stab the partner again, he grabbed her wrist and other family members took the knife from her. Fortunately the victim ended up with only a small puncture wound to his chest, but he could have been much more seriously injured.

[3] The appellant also faced sentence on five charges of obtaining money by deception, an offence which carries a maximum penalty of seven years; 15 charges of dishonestly using a document, again facing a maximum penalty of seven years; and two charges of using forged documents for which she was liable to a maximum penalty of ten years’ imprisonment.

[4] The dishonesty charges involved improperly obtaining money by way of benefits, student loans and allowances. On 1 June 2004, using the name of Kataraina Slade, to which she had changed her name by deed poll, the appellant applied for and was granted a sickness benefit and accommodation supplement. She transferred to a domestic purposes benefit in August 2004. When she applied for the benefit, she signed a document acknowledging that she was obliged to advise the Department of any in circumstance that might affect her rate of or entitlement to a benefit. Between August 2007 and 1 October 2010, the appellant applied for a range of student loans

and other benefits using the false name of Charmaine Ella Clarke, while continuing to receive the domestic purposes benefit and accommodation supplement in the name of Kataraina Slade. She supported those applications with a false birth certificate and a certificate for a fictitious son. The…

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 [2012] NZHC 2179
Case: [2012] NZHC 2179
Decision Date: 27 August 2012

CaseChat Overview and Summary

In the case of Morunga v Police, Elizabeth Catherine Morunga appealed against a 20-month imprisonment sentence imposed by Judge Burns in the District Court at Waitakere. Morunga had pleaded guilty to charges of injuring with intent to injure and multiple counts of dishonesty involving benefit fraud. The court had to decide whether the sentence was appropriate given the nature and circumstances of the offending, as well as the appellant's personal history and circumstances. The court found that the sentence imposed was lenient and dismissed the appeal.

The key legal issue before the court was whether the sentence imposed by the District Court was appropriate, considering the nature and seriousness of the offences, the appellant's history of offending, and her personal circumstances. The court had to determine whether the Judge's approach to sentencing, which considered the appellant's dishonesty offences in isolation, was correct. The court also had to assess whether home detention was an appropriate alternative to imprisonment.

The High Court found that the District Court Judge's approach in considering the appellant's dishonesty offences in isolation was inappropriate. The violent offending was entirely independent of the fraud charges and warranted a separate term of imprisonment. The court determined that the sentence should have been uplifted by six months or a cumulative penalty of six months’ imprisonment to reflect the nature of the violent offending. However, the court held that this error did not warrant altering the sentence, as the overall term of imprisonment imposed was still considered lenient. The court further found that home detention was not an appropriate sentence given the appellant's history of breaching community-based sanctions.

The court accepted the submission that the sentence imposed was lenient in all the circumstances and dismissed the appeal. The court commended the appellant for acknowledging the need for positive changes in her life to avoid returning before the court, but held that these matters were not relevant to the appeal.

Orders