R v Muchirahondo

[2024] NZHC 3717

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 3717

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:

6 December 2024

INTERIM RULING OF PRESTON J

(Application for adjournment of sentencing)

This judgment was delivered by me on 6 December 2024 at 3.35 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

R v MUCHIRAHONDO [2024] NZHC 3717 [6 December 2024]

Application for adjournment

[1]    Mr Muchirahondo applies through counsel for the adjournment of his sentencing next Thursday, 12 December 2024.

[2]    As is to be expected, arrangements are in place for travel requirements for those nine complainants who have a direct interest in his sentencing to be present, if they wish, for his sentencing and in order to give victim impact statements in person, if they wish or observe sentencing, in any event.

Section 88 reports – Crown seeks preventive detention

[3]    The Crown confirmed promptly to defence counsel upon receipt of the two court-ordered s 88 reports that it does pursue an application for preventive detention as the appropriate sentence outcome. That application was signalled at a much earlier time and no later than immediately following Mr Muchirahondo’s convictions when Ms Boshier sought that the Court direct the two health assessor reports be prepared under s 88 of the Sentencing Act 2002.

[4]    The two health assessor reports were provided to all counsel on 2 December and 4 December respectively and the Crown’s  submissions filed on the evening of   4 December in accordance with the sentencing practice note.

Grounds for application

[5]    Mr Muchirahondo’s application for adjournment is based on the submission that the late receipt of the health assessor reports has, essentially, embarrassed the independent experts who Mr Williams has instructed on Mr Muchirahondo’s behalf in anticipation of the Crown pursuing the application for preventive detention.

Argument

[6]    The situation, for obvious reasons, is regrettable. It remains unclear, having heard counsel’s submissions this afternoon at short notice, whether it is intended by Mr Muchirahondo to produce his own s 88 parallel report. If that is so, then there is

no reason, in my view, why preparation, or at very least, near final preparation of any such report — for the purposes of which, I understand, Mr Muchirahondo may be willing to engage with the independent health assessor or assessors — could not have been completed by now, irrespective of the receipt of the court-ordered reports.

[7]    There is real force in Ms Boshier’s submission for the Crown that there cannot have been other than a reasonable expectation that the court-ordered reports would not be available earlier than quite close to the scheduled sentencing date. Equally, experienced experts who have been engaged would also be familiar with the reality that Mr Williams noted that such reports are invariably not available any sooner than within about two months or so of their being ordered.

Discussion

[8]There are two essential issues.

[9]    First, the defence’s ability for their instructed experts to review the court- ordered reports in order to inform defence submissions on sentence. As Ms Boshier notes,  the two  reports  in  this  case are very brief of their kind,  due to  the fact    Mr Muchirahondo has elected not to engage at all with the report writers for their risk assessments.

[10]   I discussed this with Mr Williams. It remains unclear to me that I have sufficient information to find that exercise cannot be done by, say, 5.00 pm, Monday, 9 December 2024. If it was able to be completed by that time I would have no difficulty in the present circumstances, although it will put the Court under some additional pressure of time in preparation of sentencing, in granting an extension of time for defence submissions to be filed by 5.00 pm, Tuesday, 10 December 2024.

[11]   The second issue is related, that is whether Mr Muchirahondo wishes to give or call evidence to challenge the s 88 reports ordered by the Court. That is a topic which I have also discussed with Mr Williams in submission this afternoon.

[12]   If there is a substantive basis for any application for a s 24 hearing — a prospect which Mr Williams signalled as possible but noted is not necessarily to be made — then the Court needs to understand on what basis any application is to be made. And, if granted, will need to allocate a hearing time for any such hearing.

[13]   For present purposes I indicate to counsel that I would require some persuasion why any such hearing might be necessary in this case if, for example, the application was made on the basis of a challenge to information conveyed in the report of registered clinical psychologist, Mr McKendry. This, because I accept that information, to the extent it is relevant to the Court’s risk assessment considering the preventive detention issues, lies within Mr Muchirahondo’s own knowledge. At least to that extent it would appear to be something which the Court could deal with on the basis of submissions from counsel, particularly bearing in mind senior counsel are instructed by Mr Muchirahondo and appear for the Crown on this matter.

[14]   I note that indication is not to suggest that the information noted in the report even of that character is wholly irrelevant whether for the Crown or from the defence perspective. I accept, as Mr Williams identifies, all of the information within the s 88 reports is information upon which, by extension, the Crown bases its application seeking preventive detention. To that extent, it is, of course, contestable.

[15]   However, as I note, I would expect senior counsel to make application in relation to a s 24 hearing only if there is a proper basis for such hearing and material which is under challenge in that forum is substantial and goes to the heart of the risk assessment. Ultimately that will be a question for counsel’s judgment.

Reserved date

[16]   I have taken the step of seeking a possible date for sentencing if it is necessary to be adjourned. That date is 14 March 2025 at 10.00 am. Alternatively, that date could be used for a s 24 hearing if necessary. However, I am reluctant, for obvious reasons, to adjourn sentencing unless absolutely necessary in the interests of justice.

As matters presently sit this afternoon, I am not in receipt of sufficient information to make that decision.

Directions

[17]   Therefore I am directing that by midday, Monday, 9 December Mr Williams on behalf of the defendant is to file confirmation from or on behalf of the two independently engaged report writers that their review of the nine-page  report of   Mr McKendry dated 29 November 20241 and the 12-page report of Dr Peter Dean, consultant psychiatrist dated 14 November 2024 cannot be prepared in time for counsel to file submissions on sentence by an indicated extended date of 5.00 pm, Tuesday, 10 December 2024.

[18]   Further, if that is so, counsel is directed to file submissions addressing on what basis a s 24 hearing is sought or is realistically anticipated. At the very least I would expect that in discussion with the health assessors for present purposes, that is, in support of Mr Muchirahondo’s application for adjournment counsel should be in a position to provide the Court with greater information in that regard than Mr Williams was able to do this afternoon.

[19]I further direct the registrar to hold as necessary the date of 14 March 2025 at

10.00 am in Courtroom 12, should that prove necessary. Counsel are to advise their availability for that date by no later than 12.00 pm on Monday, 9 December 2024.

[20]   Leave is given to Ms Boshier for the Crown to file a further brief memorandum if she wishes by 3.00 pm on Monday, 9 December 2024. I would be grateful if the Crown signals it does not intend to file any such memorandum sooner than that, if known.

1      Plus orthodox appendices in relation to the screening tools.

[21]   Following that, I will make a decision on the papers in relation to the adjournment application.

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

Preston J

Solicitors:

Crown Solicitors, Christchurch

Counsel:

A M S Williams, Barrister, Christchurch