R v Muchirahondo
[2024] NZHC 3736
•9 December 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-001538
[2024] NZHC 3736
THE KING v
JOHN HOPE MUCHIRAHONDO
Hearing: 6 December 2024 Counsel:
C J Boshier for Crown
A M S Williams, H C Coutts and K N Stitely for Defendant
Judgment:
9 December 2024
RULING OF PRESTON J
(Application for adjournment of sentencing)
This judgment was delivered by me on 9 December 2024 pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
R v MUCHIRAHONDO [2024] NZHC 3736 [9 December 2024]
Background
[1] Mr Muchirahondo applies to adjourn his sentencing on 17 counts of sexual violation of nine women, and a charge of failing to provide access to his cell phone.
The background to the application is set out in my ruling of 6 December 2024.1
[2] Sentencing is scheduled for this Thursday, 12 December 2024. The Crown seeks a sentence of preventive detention be imposed or in the alternative a lengthy finite term and the maximum minimum period of imprisonment.
[3] Mr Williams for Mr Muchirahondo has filed a further memorandum and supporting information from the two health assessors instructed by the defendant. Those experts, Mr Metoui and Mr Prince have been instructed to assess Mr Muchirahondo and to review the court ordered reports.
[4]The Crown opposes adjournment.
Analysis
[5] Defence counsel advises he made contact with both the report writers promptly following verdicts, which were given on 30 September 2024. On 3 October, the registrar provided to counsel all material provided to the independent health assessors charged with preparing the court ordered s 88 reports. Counsel forwarded that material to both Messrs Metoui and Prince the same day.
[6] By letter Mr Prince confirms to Mr Williams he is in the process of completing a comprehensive report for the defence but requires more time to complete it. Although he has had some meetings with Mr Muchirahondo he wishes to have one further meeting before completing his report.
[7] Mr Metoui by letter to defence counsel confirms he has been unable to commence his report because of some delay in receiving funding, and that if he is to complete a comprehensive report he must wait until Mr Prince’s interviews are completed so as not to jeopardise the integrity of the process. As was shadowed in
1 R v Muchirahondo [2024] NZHC 3717 [6 December 2024]
Mr Williams’ oral submissions, counsel advises he alternatively sought to instruct Mr Metoui to provide his review of the two court ordered reports and notes Mr Metoui also requires more time to do so.
[8] It is only once the two independently instructed health assessors’ reports have been received and considered by Mr Muchirahondo that counsel will be in a position to advise whether:
(a)those reports will be filed with the court; and
(b)whether a s 24 hearing is sought.
[9] As Ms Boshier for the Crown observes, it is not apparent why Mr Muchirahondo elects to engage with the report writers he has instructed but not with the court ordered report writers, given his cited reason not to engage with the latter two experts was that he considers it may harm his defence at any re-trial. However, ultimately that is a matter for Mr Muchirahondo.
[10] The Court is having to determine application for adjournment at a late stage. I am conscious of the impact of an adjournment on the nine victims of Mr Muchirahondo’s sexual offending, many of whom intend to attend in person and read their victim impact statements. The interests of victims is one of the wider interests of justice I must weigh.
[11] However, regrettable as the position is it is clear on the basis of the further provided information it is necessary to adjourn, to as early a date as is appropriate in the circumstances. The court ordered reports and those the defence has commissioned address the primary issue the Court must determine on sentence: whether Mr Muchirahondo should be sentenced to preventive detention, an indeterminate sentence. It is necessary to ensure the Court receives all relevant information available which may reasonably assist the determination whether to impose that sentence, the most restrictive in the sentencing hierarchy. The question whether to impose it is of
great significance, not only for the offender but also for his victims and the wider community.2
[12] Whether an oral hearing is required to test or call evidence of experts or, indeed to resolve any disputed fact is also ultimately for the defendant to identify. My interim ruling of 6 December gave direction in this regard.
[13] I accept Mr Williams’ submission this cannot be determined in the circumstances until he has had opportunity to receive and consider the defence requested reports. However, to ensure there is no further disruption to this process which is very important for Mr Muchirahondo and for the persons affected by his offending I have directed the registrar reserve, should it be necessary, a half-day hearing for any such evidence or dispute to be resolved prior to the adjourned sentencing date.
Conclusion
[14]I therefore direct as follows:
(a)sentencing is adjourned to 14 March 2025 at 10.00 am;
(b)a half-day fixture is tentatively allocated for 14 February 2025 to take evidence, if necessary, and the registry is to advise the court ordered report writers of this tentative date in the interim;
(c)by no later than 5.00 pm, 31 January 2025 defence counsel is to notify whether defence reports are to be filed and whether any facts are in issue;
(d)If so:
(i)the experts are to ‘hot tub’ confer prior to the hearing on 14 February 2025; and
2 T(CA502/2018) v R [2022] NZCA 83, at [28].
(ii)the underlying information on which defence reports are based, including all notes of interview with Mr Muchirahondo, is to be provided to the court report writers Dr Dean and Mr McKendry no later than 31 January 2025;
(iii)the court report writers are to be provided further opportunity to interview Mr Muchirahondo.
[15] I note that the timeframe in [14](d)(ii) provides a two-week window, short of the requested minimum four-week window as requested by the Crown in submissions. Leave is granted to counsel to apply for further direction, should this prove an impediment to the tentatively allocated 14 February hearing date. Similarly, leave to counsel to apply if that date puts experts’ availability in issue. Remote appearance(s) will be permitted to facilitate expert evidence, if required.
...................................................
Preston J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
A M S Williams, Barrister, Christchurch
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