Muhinda v Police - [2015] NZHC 2024

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000070 [2015] NZHC 2024

BETWEEN
MARTIN MUHINDA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 August 2015

Appearances:

P Johnson for Appellant
AMS Williams and A Trinder for Crown

Judgment:

26 August 2015

JUDGMENT OF DUNNINGHAM J

Background

[1] Mr Muhinda appeals his sentence on seven charges arising out of four separate incidents.

[2] The end sentence was imposed on Mr Muhinda on 5 June 2015, totalled

2 years and 2 weeks imprisonment.1

[3] The appellant now appeals the decision on the following grounds:

(a) the starting point of eight months adopted for the May 2014 offending was manifestly excessive;

(b)the starting point of 18 months adopted for the January 2015 offending was manifestly excessive;

1 Police v Muhinda [2015] NZDC 10385.

MUHINDA v NEW ZEALAND POLICE [2015] NZHC 2024 [26 August 2015]

(c) Judge Couch did not give sufficient recognition to the mitigating factors of the appellant; and

(d)Judge Couch failed to properly adjust the end sentence to account for the principle of totality.

Principles on appeal

[4] This is an appeal under s 244 of the Criminal Procedure Act 2011. Under s 250 of the Act, the appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.2 The Court must dismiss the appeal in any other case.3

[5] While s 250 makes no reference to the principle that a sentence is in error if it is “manifestly excessive”, it is accepted by the Courts that it is an error which could justify an appeal being allowed against sentence.4

The offending

First driving whilst disqualified (third and subsequent) and resisting police

[6] On 2 May 2014 Mr Muhinda was driving a car on Chester Street in Christchurch when he was pulled over by the police. Earlier that year, in February, Mr Muhinda had been disqualified from holding a driver licence for 13 months. When the police attempted to arrest the appellant, he tried to run away and then resisted arrest and struggled with the police when they tried to handcuff him.

[7] Mr Muhinda was found guilty of the following charges:

(a) driving whilst disqualified (third or subsequent);5 and

(b) resisting police.6

2      Section 250(2).
3      Section 250(3).
4      Tutakangahau v R [2014] NZCA 279 at 35.
5      Land Transport Act 1998, s 32(1) and (4).
6      Summary Offences Act 1981, s 23(a).

Wilful damage

[8] On 21 December 2014, Mr Muhinda was at the home of another person. He had been drinking heavily all night and was extremely intoxicated. Somehow, undoubtedly due to his extreme intoxication, he wrongly formed a view that someone had taken money belonging to him. He flew into a rage, smashing windows of the apartment and punching and kicking holes in the walls. Mr Muhinda
was charged with wilful damage.7

Common assault

[9] On 5 January 2015, Mr Muhinda was on Rolleston Avenue when a parking infringement…

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.

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Details

Case: [2015] NZHC 2024
Decision Date: 26 August 2015

CaseChat Overview and Summary

Martin Muhinda appeals against his sentence imposed on seven charges arising from four separate incidents, totalling two years and two weeks imprisonment. The appeal grounds include that the starting point of eight months for the May 2014 offending and the starting point of 18 months for the January 2015 offending were manifestly excessive, that the judge did not give sufficient recognition to mitigating factors, and that the judge failed to properly adjust the end sentence to account for the principle of totality. The court found that while the starting point for the May 2014 charge was within the range of what was available, the starting point for the January 2015 charge was too high, and a two-month uplift would have been appropriate. The court also found that the totality principle was not properly taken into account when imposing the final sentence. The appeal was allowed, and a sentence of 21 months’ imprisonment was imposed, with certain charges to be served concurrently rather than cumulatively. The court considered a prison sentence appropriate due to the need for a deterrence factor and to take the appellant out of the circumstances which led him to repeatedly offend.

Solicitors for the appellant were from the Public Defence Service, Christchurch, and for the respondent were from Raymond Donnelly & Co., Christchurch.

Orders