Solicitor-General v Morunga
[2015] NZHC 1954
•18 August 2015
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 RespondentJudgment:
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 are said to be full admissions as to his involvement in the offending.
[7] Since a major issue in this appeal is the proper assessment of Mr Morunga’s culpability, it is necessary to consider what Mr Morunga actually told the Police. Judge Hinton found it highly relevant.
[8] Mr Morunga told the Police, in the second interview, that he had gone to the shopping centre and had dropped Mr Leilua (Dom) off at Cockayne Crescent. The following passages are representative:
JS What did you think Dom was doing?
AM Um, to go rob Kiwi Bank, because he had told me earlier to drop him off at the ASB, I thought he was all lies and then he had changed his mind and said, “Drop me off in Sunnynook”, so I just dropped him in Sunnynook, thinking he’s not gonna do it, he’s not gonna do it. He come running out the bank, uh out the shopping mall and had been chased by a, the counter guy or whoever.
JS Yeah. When did you guys make this plan for him to do this?
AM Um he just told me, woke up, he just came around that day and just told me, just said, “Can you take me to, I’m gonna, thinking of doing the bank.” I was like woah, kind of like, can’t be, you’re lying, and didn’t think he had the, well to be honest I didn’t think he would do it, and he, he did it.
JS Why did you get involved?
AM Why did I get involved? I had the day off that day. I had the day off that day and he text me up, or he just came around and just told me, “Can you drive me there?” and so I did.
…
JS … why would you take part in this, when you’ve got a job?
AM Well to be honest, I thought he wouldn’t do it, I thought he’s not gonna do it, rob a bank, who robs banks these days, that was my honest thought, he’s not gonna do it. I mean he played for
Sunnynook Rugby Club, he lived in, around the area, I just thought,
nah, can’t be, and then he actually done it.
[9] Mr Morunga went on to talk about the preliminary events. Mr Leilua had initially asked Mr Morunga to take him to a bank, Westpac or ASB Bank, but as they were going towards the ASB Bank Mr Leilua changed his mind and wanted to go down to Sunnynook. Mr Morunga told the Police that Mr Leilua instructed him to wait for him at the rugby club:
AM He was, he was gonna run to the truck at the Rugby Club, but I thought he was all lies and fibs, and nah he’s not gonna bloody come running out, nah, he’s just gonna walk back to the truck, that’s what I thought.
JS Okay.
AM And then we were eating our meal and rolling a joint and then he come running out, and holy hell he must have done it and picked him up and he had done it.
[10] Mr Morunga told the Police that Mr Leilua gave him $60:
AM Yeah, well I didn’t know how much he got, I thought he had heaps, but he told me that he got a couple of grand, because I told him, “Sixty dollars, what’s up with that?”
[11] The Police interviewer put it to Mr Morunga that Mr Leilua had a nail gun as a weapon and asked Mr Morunga what he knew of that:
AM He just said that, he said he had a gun. I said, “How you gonna do it?
He said, “I’ve got a gun”. I said, “Uh”, didn’t have a look at the gun, didn’t, I thought he was lying from the get-go, you know whose robbing a bank, I just, I should of put it together …
[12] Judge Hinton accepted at face value Mr Morunga’s account that although he participated in the aggravated robbery, he was not at all sure that his friend was going to go through with it. Mr Morunga was not the ringleader.
Mr Leilua’s sentence
[13] Mr Leilua was sentenced by Judge AD Garland on 10 September 2014 having entered pleas of guilty to the charge of aggravated robbery and an unrelated
charge of breaching a sentence of community work.5 Obviously, the lead charge was the aggravated robbery.
[14] The Judge, having regard to the tariff case of R v Mako,6 and noting that Mr Leilua was not acting alone (he had Mr Morunga as the getaway car driver), adopted a starting point of six years’ imprisonment. The final sentence was four years 10 months’ imprisonment, which included a recognition of two months’ imprisonment for breaching the sentence of community work.
Mr Morunga’s sentence indication
[15] The case first came before Judge Hinton on 2 October 2014 for a sentence indication. The Judge considered that Mr Morunga’s culpability was “seriously less than his co-offender”. The Judge wrongly characterised Mr Morunga as “the lookout”. The Judge indicated he would adopt a starting point of four years and three months’ imprisonment and that the end sentence would be three years’ imprisonment once discounts were applied.
The actual sentencing
[16] By the time Judge Hinton came to sentence Mr Morunga on 17 June 2015, he had obtained a pre-sentence report with a home detention annex and a report prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act
2003.
[17] The Judge referred to the interview Mr Morunga had with the Police and also to the s 38 report. His Honour concluded:
[19] I am, at the end of the day, following consideration of all this material, Mr Morunga, prepared to accept that the entire seriousness of this event and the plans of your co-offender were not known to you, were in part believed and that there is force in the submissions Mr Mather has made on your behalf.
[20] I have also taken into account the decisions which Mr Mather provided in his supplementary submissions. These go to amplify the proposition that, as we all know, a culpability assessment is of the essence in
5 R v Leilua DC Christchurch CRI-2014-009-6099, 10 September 2014.
6 R v Mako [2000] 2 NZLR 170 (CA).
sentencing and a prison sentence must not ever be automatic in cases like this. It will be perhaps more usual but it is not an assured outcome.
[18] The Judge adopted a starting point of four years’ imprisonment and imposed
no uplift. The Judge said:
[21] From a revised starting point of four years, with no uplift, for none is justified in my view, Mr Morunga, you are entitled to substantial discounts which bring you into home detention range. Those discounts include a guilty plea and immediate acceptance of involvement, 25 percent, youth
15 percent, remorse five percent, previous good character, prospects of rehabilitation and personal circumstances five percent.
[19] The Judge then went straight to the imposition of 12 months’ home detention and 200 hours of community work.
Submissions
[20] Mr Downs, on behalf of the Solicitor-General, submits:
(a) The starting point of four years’ imprisonment was too low;
(b) The Judge should not have placed any reliance on the s 38 report;
(c) The Judge erred in considering that an end sentence of two years or less was available in the circumstances.
[21] Mr Downs’s submission is that the lowest available end sentence was three
years and four months’ imprisonment.
[22] Mr Mather, for Mr Morunga, supports the Judge’s decision. Broadly, Mr Mather submits that once the Judge accepted that Mr Morunga’s involvement had been less than fully culpable then, against the background of relationship break- up and depression identified by Dr Duff in the s 38 report, a sentence emphasising rehabilitation was a principled approach open to the Judge.
Discussion
[23] In my view, Judge Garland was right to adopt the starting point of six years’ imprisonment for Mr Leilua. The issue is how far it should be reduced in Mr Morunga’s case to account for his lesser culpability.
[24] The Crown refers me to four cases which indicate a range of starting points for parties to aggravated robbery.7 I will not discuss them in detail since, as is almost always the situation, they can be distinguished on the facts. They are useful, however, for showing the reductions which the Courts have been prepared to make where culpability in the party is recognisably less than the culpability of the principal offender. In such cases, reductions of six months to 12 months from the starting point of the principal offender have been found appropriate for getaway drivers.
[25] The summary of facts said nothing about Mr Morunga’s view of the likelihood of Mr Leilua actually carrying out the aggravated robbery. Judge Hinton was entitled to accept Mr Mather’s submission, based on the record of interview with the Police, that Mr Morunga had the necessary intention to assist Mr Leilua to carry out an aggravated robbery, but had significant doubts as to whether he would actually go through with it. He was entitled also to accept that Mr Morunga did not help plan the robbery, had been told that there was a gun but did not see it, and that Mr Morunga’s role was strictly that of getaway driver. His monetary reward was minor. In my view, against this background, the lowest starting point for Mr Morunga was four years six months’ imprisonment, although a starting point of five years’ imprisonment could not have been criticised.
[26] I agree with Mr Downs that the Judge placed inappropriate weight on the contents of the s 38 report in determining Mr Morunga’s knowledge of Mr Leilua’s intentions and his culpability in respect of the offending. But I do not need to look further at this issue because the Judge was entitled to consider the record of Mr Morunga’s interview with the Police and regard Dr Duff’s report as being consistent with it. A s 38 report is available to assist a Judge with determining the
type and length of sentence that might be imposed on a person, and so the Judge was
7 Kingston v R [2010] NZCA 460; Solicitor-General v Singh [2014] NZHC 3331; Mahia v R
[2014] NZHC 3284; R v Royal [2009] NZCA 65.
entitled to have regard to it. I note that the report concluded that Mr Morunga had no mental health issues and that the utility of the report in sentencing was limited.
[27] I am satisfied that having set a starting point, the Judge erred in reaching a provisional end sentence of two years’ imprisonment. The Judge did not adopt the three-step sentencing process set out in Hessell v R8 and R v Clifford.9 Had he done so, even on the discounts the Judge was prepared to find, the sentence would have been two years and three months’ imprisonment.
[28] I need now to consider whether the minimum starting point I have assessed of
four years and six months’ imprisonment should be adjusted up or down.
[29] So far as uplift is concerned, I have to have regard to Mr Morunga’s record of criminal offending. There is a record, but it is minor. Nevertheless, it shows a disregard for orders of the Court. In June 2005, Mr Morunga was convicted and sentenced on a charge of driving with excess breath alcohol. Three months later, he drove while his licence was suspended or revoked. On two occasions after this offending he failed to answer bail and was convicted of that. But, none of that justifies an uplift.
[30] I accept the Crown’s submission that the Judge should not have given Mr Morunga a discount of 15 per cent for youth. The Crown cites R v Mahoni10 where the purpose of the youth discount was said to be for the benefit of reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he or she went in. Further, a youth discount recognised offending that would be described as youthful indiscretion.
[31] The principal point here is that Mr Morunga was aged 26 at the time of the offending and had previous convictions, albeit minor. None of the youth discount
principles applied. No discount for youth should have been given.
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
9 R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.
10 R v Mahoni (1998) 15 CRNZ 428 (CA) at 436-437.
[32] The Judge also gave a 10 per cent reduction for other personal factors including good character (which Mr Morunga did not have), prospects of rehabilitation and personal circumstances. Looking at the discretions available to the Judge in sentencing in the context of Mr Morunga’s fraught personal difficulties as identified by Dr Duff, I will not interfere with the overall 10 per cent reduction.
[33] There remains only one further discount and that is the 25 per cent discount allowed for the early entry of pleas of guilty. I accept that Mr Morunga is entitled to that discount given his ready admissions to the Police. From a starting point of four years six months’ imprisonment, and allowing a 10 per cent discount for personal circumstances, that yields an end sentence of three years five months’ imprisonment. Independently, and by a slightly different route, I come to much the same conclusion as Mr Downs.
Decision
[34] Having concluded that the sentence imposed by the Judge was not open to him, I am required to set aside the sentence and impose another sentence (a more severe one) as I consider appropriate.11 In other circumstances that would be three years five months’ imprisonment, a sentence I consider close to the bottom of the range open to the Judge. But there is a further circumstance to take into account. Mr Morunga pleaded guilty having accepted a sentence indication of three years’ imprisonment.
[35] Section 252 of the Criminal Procedure Act provides that a defendant who has received a sentence indication is not entitled to withdraw a guilty plea if a more severe sentence than that indicated is imposed on appeal. There is an exception; the appeal Court can grant leave if it considers it is in the interests of justice to do so.
[36] In this case, the Judge was conscious of Mr Morunga’s background and his explanation to the Police, and his indication was three years’ imprisonment. I have regard to Mr Mather’s submission that a plea of guilty was entered to that indication
in the knowledge that Mr Morunga might have been able to run a defence of
11 Criminal Procedure Act 2011, s 251(2)(a).
accessory after the fact. In my view, that would have been a roll of the forensic dice against long odds, but the chance was there and was factored into the decision to plead guilty in reliance on the sentence indication.
[37] In all the circumstances, I consider it just to revert to Judge Hinton’s sentence
indication of three years’ imprisonment.
[38] I have to take account of the fact that Mr Morunga has served two months home detention. I will regard this as the equivalent of four months’ imprisonment (although I am not sure how logical this is, it is the commonly applied formula and counsel agreed upon it). That brings the sentence to two years eight months’ imprisonment. I am not prepared to make a further reduction for time spent observing strict bail conditions. Mr Morunga has had his fair share of reductions, and then some.
[39] The appeal is allowed. The sentences of home detention and community work are quashed. A sentence of two years eight months’ imprisonment is substituted.
[40] Mr Morunga has been serving his sentence of home detention in Kaitaia. I direct that he surrender himself to the Kaitaia Police Station at 17 Redan Road, Kaitaia no later than 12 Noon on 19 August 2015. I ask Mr Downs to liaise with Police so that they are prepared to receive Mr Morunga and transport him to the
custody of the Department of Corrections. I will issue a Warrant of Commitment.
Brewer J
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