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:  [email protected]

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 benefits were granted to her as a result.

[5]      Between August 2007 and January 2010, the appellant on seven occasions applied for and was granted student loans and allowances.  On 17 March 2009, she also applied for and was granted a domestic purposes benefit using the Clarke name. In all, she was paid or overpaid money to which she was not entitled in the sum of

$51,518.66.

[6]      In sentencing the appellant, Judge Burns gave thorough consideration to the appellant’s personal circumstances and recorded that she had completed a number of programmes that had been referred to her.  These may have been seen to demonstrate that she was making something of her life and resolved to adopt a different course for the future.   There  was some concern about the prospect of home detention because of the appellant’s past behaviour and the possibility of further violence if her partner remained in the house, but that was dealt with by arrangements being made for the partner to move out.

[7]      The Judge noted that the appellant had a number of dependent children for whom she has significant responsibility, but he also observed that the appellant’s offending occurred at a time when she had responsibilities for those children.  The Judge also noted that the appellant had previously appeared before the Court for fraud or dishonesty related offences, and had obtained unauthorised benefits on at least six prior occasions.

[8]      In sentencing the appellant, the Judge looked at the circumstances of the offending and noted the number of charges and the seriousness of the dishonesty involved.  Taking account of the Court of Appeal’s judgment in Ransom v R,[1]  the Judge accepted that a starting point of 18 months’ imprisonment was appropriate,

bearing in mind that the dishonesty offences included the establishment of false

identities and deliberate fraud rather than merely receiving benefits by way of an overpayment, which is a feature of many benefit frauds of this kind.

[1] Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.

[9]      Bearing in mind the aggravating factors of the nature of the offending, and in

particular the appellant’s previous convictions, he uplifted the starting point to one of

27 months’ imprisonment.  He saw that as being appropriate to reflect the nature of the offending itself and the aggravating personal circumstances of prior convictions which indicated that the appellant had not learned from her past Court appearances that  such  offending  would  not  be  tolerated.    From  the  resulting  sentence  of

27 months’ imprisonment, the Judge deducted 25 percent for the guilty pleas entered by the appellant at an early stage.

[10]     Bearing in mind the result of a sentence of 20 months’ imprisonment, the

Judge then turned to consider the appropriateness of a sentence of home detention.

[11]     Before  undertaking  that  exercise  myself,  however,  I  note  that  the  Judge reached a conclusion as to the appropriate term of imprisonment by considering only the appellant’s dishonesty offending.  Having come to a view that home detention was not appropriate, he sentenced the appellant to 20 months’ imprisonment and simply added a concurrent sentence of the same term in respect of the injuring charge, noting that that charge alone would justify a term of imprisonment.

[12]     I do not consider that the Judge’s approach in this respect was appropriate. The violent offending was entirely independent of the fraud charges.   As the Judge indicated, the nature of that offending alone would have justified a term of imprisonment. Against a maximum available of five years, an additional sentence of nine to 12 months’ imprisonment would have been appropriate.  Even allowing for a discount for a guilty plea, a further period in excess of six months’ imprisonment should have been imposed.  In my view, the sentence the Judge reached on the fraud charges ought to have been the subject of either an uplift of six months or a cumulative penalty of six months’ imprisonment to reflect and mark the nature of the violent offending. As it happened, the Judge did not mark that offending in any way. I consider that to be an error of principle.

[13]     Taking the Judge’s starting point and adding the appropriate sentence for the violent  offending,  a  total  term  of  26 months’  imprisonment  should  have  been imposed and the appellant would not then have been eligible for consideration of home detention.

[14]     I have considered, in any event, the Judge’s reasons for not regarding home detention as an appropriate sentence in this case.  In my view, he was right to regard the offending as requiring a sentence of imprisonment so as to mark its seriousness. The Judge noted that the appellant had breached community-based sanctions in the past on a number of occasions.   There was one occasion in which the appellant argued that there had been some misunderstanding which resulted in her failing to complete a sentence of community work.  But putting that to one side, it is clear that the appellant’s compliance with community-based sanctions has been poor.  In those circumstances, the Judge was entitled to consider that, although home detention is not a soft option, it would not have been an appropriate sentence to impose in this case.

[15]     Ms Morunga has  endeavoured  to  impress  on me  that  during her time in custody she has come to realise that the degree of self-discipline and direction in her life which has been lacking in the past is important if she is to continue to value the things  in  life  which  she  has,  notably  the  relationship  with  her  family  and  her children.    She  says  that  she  has  made  positive  changes  while  undergoing  the sentence.   I accept her assertions in that regard and she is to be commended for having appreciated that things must change for the future if she is to avoid coming back before the Court.

[16]     Nevertheless, those are matters which I am not in the present circumstances either entitled or inclined to take into account.  One of the purposes of a sentence of imprisonment is to assist rehabilitation and, while it is pleasing to see that that may be the case here, nothing that has happened while the appellant has been in custody persuades me that the Judge acted in error in the sentence which he imposed.

[17]     I  accept  Ms Nizam’s  submission  for  the  respondent  that,  in  all  of  the circumstances, the sentence imposed may be regarded as a lenient one. The appeal is dismissed.

..............................................

Toogood J