Solicitor-General v Morunga - [2015] NZHC 1954

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-204 [2015] NZHC 1954

BETWEEN
THE SOLICITOR-GENERAL

Appellant

AND

AKUHATA MORUNGA Respondent

Hearing: 17 August 2015

Counsel:

M D Downs for Appellant
J F Mather for Respondent

Judgment:

18 August 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 August 2015 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Crown Law (Wellington) for Appellant
John Mather (Auckland) for Respondent

THE SOLICITOR-GENERAL v MORUNGA [2015] NZHC 1954 [18 August 2015]

Introduction

[1] The Solicitor-General appeals against a sentence of 12 months’ home detention and 200 hours’ community work imposed on Mr Morunga by Judge LI Hinton in the District Court at North Shore on 17 June 2015.1 The Solicitor-General’s submission is that this sentence is manifestly inadequate.

[2] The Crown’s right of appeal in this case is found in s 246 of the Criminal Procedure Act 2011. The appeal must be allowed if the Court is satisfied that there has been an error in the sentence imposed, for any reason, and that a different sentence should be imposed.2 The principles behind Crown appeals against sentence are well known, and were not changed by the Criminal Procedure Act 2011.3

[3] It is for the Crown to satisfy the Court that a different sentence should be imposed. The Court will not interfere with the sentence if it is within a range that can be properly justified by accepted principles. The Court’s focus is principally on the effective end sentence rather than the process by which the sentence was
reached.4

Background

[4] The charge to which Mr Morunga pleaded guilty was one of aggravated robbery. The maximum penalty is 14 years’ imprisonment. The summary of facts records that on 14 May 2014, Mr Morunga drove an associate, Mr Leilua, to a shopping centre. Mr Morunga parked his car nearby. Mr Leilua got out of Mr Morunga’s car and walked over to the shopping centre. Mr Morunga waited for Mr Leilua to return “in order to facilitate an escape from the area”.

[5] Mr Leilua went into a Paper Plus stationery shop which operated a Kiwibank facility. He was wearing dark clothing, dark sunglasses and a hooded jacket with the hood over his face. He went to the Kiwibank section of the store and demanded
money from two tellers, using a nail gun he had taken from inside his jacket to

1      R v Morunga [2015] NZDC 11237.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
4      Ripia v R [2011] NZCA 101 at [15].

threaten them. The tellers handed over $3,040 in cash which Mr Leilua put into a bag he had brought with him. He ran from the store, was picked up by Mr Morunga and driven off.

[6] Mr Morunga was spoken to by Police on 14 July 2014. He initially denied his involvement, but in a second interview made what…

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.

Continue reading Solicitor-General v Morunga

Details

AGLC: Solicitor-General v Morunga [2015] NZHC 1954
Case: [2015] NZHC 1954
Decision Date: 18 August 2015

CaseChat Overview and Summary

In the case of Solicitor-General v Morunga, the court was presented with an appeal by the Solicitor-General against a sentence of 12 months’ home detention and 200 hours of community work imposed on Mr Morunga by Judge LI Hinton in the District Court at North Shore. The appeal was grounded on the submission that the sentence was manifestly inadequate. The Crown's right to appeal was established under section 246 of the Criminal Procedure Act 2011, which mandates that an appeal must be allowed if the Court is satisfied that there has been an error in the sentence and that a different sentence should be imposed. The court's focus is on the effective end sentence rather than the process by which it was reached.

The legal issues central to this case included whether the starting point for Mr Morunga's sentence was appropriately set, whether the Judge erred in considering a sentence of two years or less, and whether the Judge appropriately weighed the s 38 report in determining Mr Morunga's culpability. The court also examined the propriety of various discounts applied by the Judge.

The court found that the starting point of four years' imprisonment was too low, as it did not adequately account for Mr Morunga’s lesser culpability compared to the principal offender, Mr Leilua. The Judge also erred in considering that an end sentence of two years or less was available. Additionally, the Judge should not have given Mr Morunga a discount for youth as he was 26 at the time of the offence and had previous convictions. However, the court found that the overall 10 per cent reduction for personal circumstances was appropriate. The court concluded that the appropriate end sentence should have been two years and three months' imprisonment, leading to a final sentence of three years five months' imprisonment after applying discounts.

Considering all circumstances, including Mr Morunga's acceptance of a sentence indication of three years' imprisonment and his reliance on this indication in pleading guilty, the court decided to revert to the original sentence indication. After accounting for the time Mr Morunga had already served under home detention, the court substituted the original sentence with two years eight months’ imprisonment. The appeal was allowed, and the sentences of home detention and community work were quashed, with a new sentence of two years eight months’ imprisonment imposed. Mr Morunga was directed to surrender himself to the Kaitaia Police Station for transport to the custody of the Department of Corrections.

Orders