Munu v Police

[2021] NZHC 3274

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-133

[2021] NZHC 3274

BETWEEN

THOMAS WIREMU MUNU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 November and 1 December 2021
Appearances:	J Holmes for Appellant P F Lee for Respondent
Judgment:	1 December 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 1 December 2021 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Tauranga

MUNU v NEW ZEALAND POLICE [2021] NZHC 3274 [1 December 2021]

[1]                 Mr Munu pleaded guilty to charges of driving with excess breath alcohol and driving whilst disqualified. On 12 August 2021 Judge T R Ingram sentenced him to 16 months imprisonment.1 The Judge directed that Mr Munu was to serve the sentence concurrently with an existing sentence of ten months imprisonment he was already serving on unrelated charges.

[2]                 Mr Munu seeks leave to appeal against the sentence on the basis that the Judge erred in imposing a concurrent sentence given the fact that he was already serving a sentence of ten months imprisonment. Mr Munu contends that he and his counsel understood the Judge would be sentencing him to an effective sentence of 16 months imprisonment on both sets of charges.

[3]                 Mr Munu requires leave to file the appeal out of time. His counsel has explained the reasons for the delay in filing the appeal and the respondent does not oppose leave being granted. I grant leave accordingly.

[4]                 During the hearing before me it quickly became evident that it would not be possible to determine the sole issue raised on appeal without a transcript of the discussion that took place between the Judge and Mr Holmes, Mr Munu’s counsel, before the Judge began his sentencing remarks. I therefore adjourned the hearing and directed that a transcript be prepared of that discussion. This reveals the following exchange between the Judge and Mr Munu’s counsel:

Q.That’s what I was thinking. I think we should discuss it, Mr Holmes, and you tell me if you have got a different view, but I think having regard to the fact that he’s already a serving prisoner and looking at his prior history, the appropriate course would be to impose either a concurrent sentence, which is topped up for (inaudible 14:29:52) or a cumulative sentence. If it was going to be a cumulative sentence, I would have in mind six months, so it would be a total of 16 months. Alternative –

A.         I would –

Q.Alternatively, it would be 16 months concurrent with his existing sentence. Neither of those are out of the woods, given his history and circumstances, and I would grant leave to residential rehab only. Is that what you were hoping to persuade me of?

A.         That is almost precisely what I had in mind, Sir, and I would have –

1      New Zealand Police v Munu [2021] NZDC 16572.

Q.         I am getting too predictable.

A.         - hoped that I was heading in that direction without being as specific.

Q.         Okay, well –

A.         I don’t propose to address you further, Sir.

[5]                 This exchange certainly suggests the Judge had in mind a cumulative sentence of six months imprisonment. However, he also clearly stated that, in the alternative, he would impose a concurrent sentence of ten months imprisonment.

[6]                 There is a difference in practical terms between the two sentences the Judge was considering. Mr Munu received the earlier sentence of ten months imprisonment on 23 June 2021 after pleading guilty to two charges of assaulting a person with whom he was in a family relationship.2 Assuming he went into custody on that date he would have been eligible for automatic release on 23 November 2021.

[7]                 By the time Mr Munu was sentenced on the present charges he had served just over six weeks of the earlier sentence. The concurrent sentence that the Judge imposed on the present charges meant he began serving that sentence on 12 August 2021. He will therefore be eligible for automatic release on 12 April 2022.

[8]                 Had the Judge imposed a cumulative sentence of six months imprisonment on the present charges Mr Munu would have been required to serve five months of the earlier sentence before beginning to serve the cumulative sentence. He would therefore have begun serving the cumulative sentence on 23 November 2021. He would have been required to serve a further three months of the cumulative sentence before being eligible for automatic release on 23 February 2022.

[9]                 This approach taken by the Judge chose to impose a concurrent sentence of 16 months imprisonment on the present charges means Mr Munu is required to spend two more months in prison than would have been the case if the Judge had imposed a cumulative sentence of six months imprisonment.

2      New Zealand Police v Munu [20212] NZDC 12612.

[10]              It is quite possible the Judge intended to achieve this outcome. Furthermore,  a concurrent sentence of ten months imprisonment on the present charges cannot realistically be regarded as manifestly excessive. However, it is also possible that the Judge intended to impose a concurrent sentence that produced the same practical outcome as a cumulative sentence of six months imprisonment. This is plainly what Mr Munu and Mr Holmes took from the discussion that took place before the Judge began his sentencing remarks.

[11]              I propose to err on the side of caution and to adjust the sentence that achieves the outcome that Mr Holmes and Mr Munu believed the Judge intended to achieve.

[12]              The appeal against sentence is accordingly allowed. The concurrent sentence of 16 months imprisonment on the charge of driving with excess breath alcohol is quashed. In its place I impose a sentence of six months imprisonment. Mr Munu is  to serve that sentence cumulatively on the sentence of ten months imprisonment that he received on 23 June 2021.

Lang J