Te Muunu v The King
[2024] NZHC 2968
•11 October 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2024-412-22 CRI-2024-412-23
CRI-2024-412-24 [2024] NZHC 2968
BETWEEN JAH-NEE WERIHKO TERERANGI TE MUUNU
Appellant
AND
THE KING
Respondent
Hearing: 7 October 2024 Appearances:
S G Vidal for Appellant
R D Smith for Respondent
Judgment:
11 October 2024
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
TE MUUNU v R [2024] NZHC 2968 [11 October 2024]
Introduction
[1] On 8 March 2024, Mr Te Muunu was sentenced on a total of nine charges arising over an 18-month period, from July 2022 to 2 December 2023.1 The offending comprised charges of aggravated robbery,2 unlawfully getting into a motor vehicle,3 dangerous driving,4 burglary,5 robbery,6 theft (x2),7 intentional damage,8 and injuring by an unlawful act.9 Mr Te Muunu was 18-19 years of age at the time of the offending.
[2] Judge Turner sentenced Mr Te Muunu to three years and three months’ imprisonment. The Judge also made an order under s 34(1)(a)(ii) of the Criminal Procedure (Mentally Impaired Persons) Act (CPMIP) that Mr Te Muunu was to be cared for as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR).
[3]Mr Te Muunu appeals that sentence.
Factual background
[4]I summarise the facts of Mr Te Muunu’s offending in chronological order.
Robbery and injuring by an unlawful act
[5] On the afternoon of 21 July 2022, Mr Te Muunu demanded that the victim hand over his bag. When the victim refused, Mr Te Muunu punched him several times in the face with a closed fist. The victim was knocked to the ground, then kicked by Mr Te Muunu. Mr Te Muunu then took the victim’s bag. The offending was videoed by an associate of Mr Te Muunu’s. The victim suffered a broken nose, requiring corrective surgery.
1 R v Te Mu[u]nu [2024] NZDC 5206.
2 Crimes Act 1961, s 235(b); maximum penalty 14 years’ imprisonment.
3 Section 226(2); maximum penalty two years’ imprisonment.
4 Land Transport Act 1998, s 35(1)(b); maximum penalty three months’ imprisonment or $4,500 fine, plus disqualification for six months minimum.
5 Crimes Act, s 231(1)(a); maximum penalty 10 years’ imprisonment.
6 Section 234; maximum penalty 10 years’ imprisonment.
7 Sections 219 and 223(b); maximum penalty seven years’ imprisonment.
8 Section 269(2)(a); maximum penalty seven years’ imprisonment.
9 Section 190; maximum penalty three years’ imprisonment.
Burglary
[6] On the morning of 26 July, Mr Te Muunu and an associate entered a property and approached a parked car. They smashed a window of the car and removed it from the property. An hour later, they attempted to evade the police before crashing the car. Mr Te Muunu then moved into the driver’s seat and attempted to drive from the scene of the crash before eventually running away through several residential properties.
Theft charges
[7] On the afternoon of 21 February, Mr Te Muunu was at a public swimming pool with four associates. Two hours later he left the facility, having stolen a black sports bag containing personal items belonging to one victim and having also stolen a bag containing New Zealand and Thai currency, and other personal documentation. A total of $3,000 worth of property was stolen. At the time of that offending, Mr Te Muunu was on bail.
Unlawfully getting into a motor vehicle, aggravated robbery and dangerous driving
[8] In the early hours of 8 May, and again while on bail, Mr Te Muunu and five others broke into a parked car. The window of the vehicle was broken, and the ignition barrel removed in order to start the vehicle. The offenders then travelled to a convenience store in the stolen car, planning to rob that store. They scouted the premises in preparation.
[9] At around 10 am, Mr Te Muunu and two others entered the store wearing balaclavas and gloves. He was armed with vice grips. One of the offenders pushed a protective screen on top of one of the victims, who suffered a delayed concussion. Mr Te Muunu and others then ripped a nearly full tobacco cabinet off a wall and stole the tobacco from within. He and another offender stole a bucket with cigarette filters, two boxes of cigarette papers, a box with e-cigarette chargers and a New Zealand Post scanner. Another offender stole the till containing over $400 in cash. The till sum cash and some of the tobacco was later recovered.
[10] Mr Te Muunu drove the getaway vehicle at speed. He failed to stop for a police patrol vehicle that had activated its red and blue flashing lights and siren. The police set up spikes on State Highway 1. When approaching the spikes, Mr Te Muunu drove over the centre line onto the wrong side of the road. He then swerved back to the correct side in the direction of a police officer, who had to take evasive action. He came close to colliding with a constable.
Intentional damage
[11] On 2 December 2023, again while on bail, Mr Te Muunu cut off his EM bail bracelet, valued at $3,800, and absconded from his bail address. When later located by the police, he provided false details before being recognised.
District Court Decision
[12] The Judge adopted a five-year starting point for the aggravated robbery, with uplifts for the remaining offending leading to a global starting point of eight years and four months’ imprisonment. This was reduced for totality to six years and six months. After reductions of 25 per cent for guilty plea, 20 per cent for intellectual disability, and 10 per cent for youth, the Judge reached an end sentence of three years and three months’ imprisonment.
[13] At sentencing, the Judge had considered a single health assessor’s report provided under s 35 of the CPMIP. The health assessor recommended that a care order under s 34(1)(b)(ii) was appropriate.
[14] The Judge did not accept that recommendation and determined that a special care order under s 34(1)(a)(ii) of the CPMIP was justified and appropriate. The Judge observed that under a special care order, Mr Te Muunu would be detained in a secure facility and, once assessed as no longer requiring treatment, would return to prison to serve the balance of his sentence subject to normal parole rules and conditions upon release. In comparison, the Judge observed that under a care order, Mr Te Muunu would not be subject to any further restrictions once assessed as no longer requiring treatment. The Judge, in making the special care order, had regard to the combined seriousness of the offending, the ongoing pattern of criminal conduct, the importance
of community protection, denunciation and deterrence, and the lack of any indication Mr Te Muunu would be receptive to assistance.
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 As the Court of Appeal stated in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.11 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12
Procedural background
[16] The procedural background relevant to Mr Te Muunu’s mental health issues are relevant to the appeal.
[17] In August 2022, following the first set of charges filed in July 2022, Mr Te Muunu’s counsel, Ms Vidal, raised the question of his fitness to stand trial. Two reports obtained under s 38 of the CPMIP assessed Mr Te Muunu as fit to stand trial. Those assessments were not challenged.
[18] Mr Te Muunu was initially released on bail to a private residence. This shifted to electronically monitored bail as of 31 October 2023 following a breach of bail conditions and further offending. On 2 December 2023, Mr Te Muunu cut off his electronic bracelet and absconded his home address. A bail application on 19 December 2023 was declined. Mr Te Muunu pleaded guilty to all charges by 19 January 2024.
10 Criminal Procedure Act 2011, ss 250(2) and 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
12 Ripia v R [2011] NZCA 101 at [15].
[19] Mr Te Muunu was held in custody and was managed between the Invercargill prison in the protective prisoners’ wing and Otago Corrections Facility but in a segregated area due to his age and abilities until his sentencing on 8 March 2024.
[20] An additional s 38 report was directed by the Court in relation to the later charges. However, Hillmorton Hospital, considering Mr Te Muunu was already unfit, proposed that a s 35 report was more appropriate and the request for a s 38 report was amended to a s 35 report accordingly.
[21] At sentencing, it was common ground Mr Te Muunu qualified as having an intellectual disability pursuant to the CPMIP. The health assessor’s s 35 report assessed Mr Te Muunu as having a mild intellectual disability that was evident during his developmental years, as well as an Attention Deficit Hyperactivity Disorder (ADHD) diagnosis. The health assessor formed the view Mr Te Muunu was eligible to be cared for as a care recipient pursuant to s 34(1)(b)(ii) (care order), his offending behaviour and supervisory needs being, in the assessor’s view, below that level warranting a special care order detaining Mr Te Muunu pursuant to s 34(1)(a)(ii) (special care order).
[22] The s 26 care programme provided as part of the recommended care and rehabilitation plan recommended Mr Te Muunu be designated as a care recipient for a period of two years, initially at the level of secure care, moving towards supervised care as he progresses. The report provided for Mr Te Muunu to reside in a Regional Intellectual Disability Supported Accommodation Service facility, designed to take account of Mr Te Muunu’s intellectual disability and achieve some cognitive behavioural gains for him.
[23]The health assessor did not make any other recommendation in the s 35 report.
[24] At sentencing, the Judge having indicated he was not minded to follow the health assessor’s recommendation, imposed a special care order. Ms Vidal immediately sought a stay of the order to provide time to seek out whether the facilities would be available for Mr Te Muunu under a special care order that would provide the security the Judge considered was required.
[25] What transpired thereafter were practical difficulties to implement the special care order. The care provider, who is responsible for determining the level of security and type of care needed, had secured a house and staffed it for Mr Te Muunu to reside in anticipation of a care order being granted at sentencing, based on the s 35 report recommendation. However, the Judge determined hospital level care was necessary. Wakari Hospital, where those subject to a special care order would normally reside, did not provide the kind of care Mr Te Muunu required for his intellectual disability. Ms Vidal then sought a suspension of the special care order to prevent Mr Te Muunu going to Wakari Hospital where patients of vastly different needs are housed. The Judge agreed to a suspension for a three-week period during which an available residence appropriate for persons with intellectual disabilities could be sought.
[26] On 27 March 2024, the sentencing was recalled. The Court was advised there was no accommodation available under the special care order. The Judge, considering himself functus officio, did not consider the administration and implementation of the special care order was a basis to recall his sentencing decision. The Judge determined that the issues raised on behalf of Mr Te Muunu related to resourcing and available facilities as opposed to an error of law.
Personal circumstances
[27] This offending marked Mr Te Muunu’s first appearance in the District Court. He had made a number of prior appearances in the Youth Court for similar, albeit less serious, offending.
[28] In explanation to the author of the pre-sentence report, Mr Te Muunu said the unlawful injuring and robbery charges occurred whilst he was high on methamphetamine. He said the burglary and unlawful taking of a motor vehicle charges arose when he was on holiday with his mother in Hamilton and that he and a friend wanted to drive around town.
[29] The report describes a fractured relationship between Mr Te Muunu and his family. It noted that his mother was not prepared to offer her address for an electronically monitored sentence. Mr Te Muunu was assessed as being a high likelihood of re-offending, having regard to his lifestyle; associates; attitudes; drug
use; and a propensity for violence. In light of that risk assessment, and the fact Mr Te Muunu had twice cut off his EM bracelet, the author of the pre-sentence report concluded that Mr Te Muunu does not have the ability to comply with any community-based sentence. A sentence of imprisonment with release conditions was recommended.
Submissions
[30] Ms Vidal submits the Judge erred in making the special care order. She submits the decision is arguably ultra vires because there was no s 26 care programme formulated by a health assessor in relation to a special care order as is required by s 34(4)(c) of the CPMIP.
[31] Ms Vidal advised the Court that Mr Te Muunu has been in prison since sentencing. He was transferred approximately six weeks before this appeal hearing from Invercargill Men’s Prison to the Otago Corrections Facility due to behavioural issues. She tells me Mr Te Muunu’s behavioural issues in prison have led to his classification as a higher risk prisoner requiring housing in a high staff to prisoner ratio jail and this puts him in contact with the highest risk prisoners. Ms Vidal argues Mr Te Muunu is in need of bespoke one-on-one care to address his intellectual disability and the special care order should be cancelled.
[32] Mr Te Muunu’s instructions to Ms Vidal are that he wishes to remain in prison and serve his entire sentence there. Ms Vidal feels constrained by those instructions given Mr Te Muunu has been found fit to plead.
[33] Mr Smith, for the Crown, submits the Judge did have jurisdiction to make the special care order. He says it is unclear why the proposed residence could be not used as a secure facility, as was the Crown’s understanding at sentencing, nor why the s 26 care programme provided to the Court was limited to a care order under CPMIP. Mr Smith responsibly acknowledges that, having regard to Mr Te Muunu’s age and mental health issues, considered alongside the practical issues that have arisen in terms of implementing the sentence imposed, the Court may consider it appropriate to remit the sentencing to the District Court for full reconsideration.
Appeal out of time
[34] Mr Te Muunu’s appeal is out of time. The delay has been explained by Ms Vidal as being complicated by the issues that have been ventilated on appeal. Mr Smith takes no issue with the late filing of the appeal. There is no prejudice to the Crown. Leave to appeal out of time is granted.
Discussion
[35] This case is troubling. Mr Te Muunu is a young man; he turned 20 years of age in July this year. He was 19 years when sentenced and 18 at the date of some of his offending. He is a first offender in the District Court, albeit he has appeared in the Youth Court. Mr Te Muunu suffers from an intellectual disability. The reports confirm that his is not a condition from which he will recover with treatment, but rather he can only learn to manage the condition. Notably, he has not received support or had the benefit of intensive therapy to address his disability, his family not being accepting of the diagnosis when he was a teenager.
[36] Ms Vidal submits that the staff at the Otago Corrections Facility are ill-equipped and untrained to manage someone with Mr Te Muunu’s high needs profile. As explained by Ms Vidal, he currently resides in the general population wing of the Otago Corrections Facility. There, he is surrounded by high-risk offenders. Ms Vidal, post-hearing, provided a Parole Board decision wherein the Board describes Mr Te Muunu as being “very easily influenced by others”. Ms Vidal describes Mr Te Muunu, in his current predicament, as “fodder” for gang members. I tend to agree. Mr Te Muunu is a young man who is inherently vulnerable and susceptible to external influences. The challenge is that he poses a very high risk of offending and does present a danger to the community.
[37] The prison experience as informally detailed by Ms Vidal and as confirmed, at least in part, by the Parole Board report, is demonstrative in and of itself of Mr Te Muunu’s need for treatment to address and manage his intellectual disability. It is both in Mr Te Muunu’s interests and that of the public that he receives that treatment.
[38]Section 34 of CPMIP provides as follows:
34 Power of court to commit offender to hospital or facility on conviction
(1)If the court is satisfied of the matters specified in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence—
(a)by sentencing the offender to a term of imprisonment and also ordering that the offender—
(i)be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(ii)be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
(b)instead of passing sentence, by ordering that the offender—
(i)be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(ii)be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
(2)For the purposes of subsection (1), the court must be satisfied, on the evidence of 1 or more health assessors, that the offender’s mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender’s interest, or for the safety of the public or for the safety of a person or class of person.
(3)Before the court makes an order under subsection (1)(a)(i) or (b(i), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
(4)Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—
(a)has an intellectual disability; and
(b)has been assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and
(c)is to receive care under a care programme completed under section 26 of that Act.
(5)No order may be made under this section in respect of an offender who is, at the time of the conviction, subject to a sentence of imprisonment.
[39]Section 35 provides:
35 Inquiries about persons for whom orders under section 34 proposed
(1)When a court proposes to make an order under section 34 in respect of a person, the court must order that inquiries be made to determine the most suitable method of dealing with the person.
(2)For the purposes of the inquiries under subsection (1), the court must either—
(a)make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the inquiries; or
(b)remand the person to a hospital or a secure facility.
(3)The inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.
(4)A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (1), be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[40] It is clear that if the Court is to make an order under s 34 of the CPMIP that the prescribed procedure must be followed. That mandates that the Court order inquiries to be made, the purpose of which is to “determine the most suitable method of dealing with the person”. An order cannot be made under s 34(1) unless the Court is satisfied of particularised criteria in reliance “on the evidence of one or more health assessors”.
[41] I agree with Ms Vidal that it is implicit in ss 34 and 35 that the evidence of a health assessor will carry significant weight in determining whether an order under s 34 is appropriate. However, I agree with Mr Smith that does not equate to the Court being bound to adopt the recommendations made by a health assessor. I am satisfied the Judge did have jurisdiction to make an order other than that recommended by the health assessor in the s 35 report. The Court, retaining the ultimate discretion at sentencing, is not bound by the health assessor’s opinion and the wording of s 34 of
the CPMIP contemplates such discretion.13 I do not accept Ms Vidal’s submission that the special care order made by the Judge was ultra vires in light of the health assessor’s report.
[42] It is nevertheless significant, in my view, that in reaching that view the Judge wrongly understood that there was an appropriate facility available to implement a special care order. It is understandable that when later learning that such a facility was not available, the Judge considered his hands to be tied, and that he was in effect, functus officio.
[43] I agree with Ms Vidal that this predicament could have been avoided had the Judge either required the single health assessor to give evidence in order to inquire further as to the proposed security that would be in place if a care order was made or, even more appropriately, directed a second health assessor to provide a s 35 report and to address the practical issues that might arise if a special care order was made.
[44] The current scenario, in my view, is untenable. A young offender, with special treatment needs that cannot be met within the prison, with no prior experience of appearing in the District Court let alone being subjected to a sentence of imprisonment is now, perhaps predictably, behaving in a manner within the prison that is giving rise to security issues. As a consequence, Mr Te Muunu is at risk of being moved into a high security environment.
[45] It may ultimately be that is an inevitable consequence of his personal circumstances, however, I do not think it appropriate that situation be allowed to continue absent a full inquiry as to whether the risks he poses can be managed in the community, notwithstanding the resourcing issues.
13 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34. See, ss (1), “the court may deal with an offender who is convicted of an imprisonable offence” if, under ss (2), the court is satisfied on the evidence of 1 or more health assessors that compulsory treatment or care is required for the offender’s interests and/or the safety of the public. See also, Police v R HC Christchurch CRI- 2007-409-188, 2 November 2007 at [35], where this Court held the provisions in s 34 do not detract from the need for a sentencing judge to have consideration for principes under the Sentencing Act 2002, that being a mater outside of the health assessor’s scope.
[46] Having regard to the post-sentencing information critical to the implementation of the care order, I consider the Judge erred in not calling for a second health assessor report or, in the first instance, testing the recommendation of the single health assessor. I am satisfied the sentence as constructed must be reconsidered.
Result
[47] The appeal is allowed. The sentence of three years and three months’ imprisonment and the order under s 34(1)(a)(ii) of the CPMIP that Mr Te Muunu be cared for as a special care recipient under the IDCCR are quashed.
[48] The sentence is remitted back to the District Court for re-sentencing pursuant to s 251(2)(c) of the Criminal Procedure Act. I direct a second report pursuant to s 35 of the CPMIP be obtained.
[49] Mr Te Muunu is remanded in custody to appear in the Dunedin District Court on 18 October 2024 when a date for his re-sentencing should be confirmed. The District Court should prioritise the re-sentencing hearing.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Dunedin Southern Law, Invercargill
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