MORUNGA v NEW ZEALAND POLICE [2022] NZHC 612

MORUNGA v NEW ZEALAND POLICE [2022] NZHC 612 [29 March 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2022-485-05[2022] NZHC 612BETWEEN EDDIE MACK MORUNGAAppellantAND NEW ZEALAND POLICERespondentHearing: 29 March 2022Appearances: C J Tennet for AppellantM Shaw for RespondentJudgment: 29 March 2022JUDGMENT OF GENDALL JThis judgment was delivered by me on 29 March 2022Registrar/Deputy RegistrarDate:Introduction[1] On 6 April 2020 the appellant, Mr Morunga, was charged with assault with aweapon for offending which took place at Rimutaka Prison on 4 May 2019.1[2] At the time of the offending, Mr Morunga was serving a sentence of two yearsand nine months' imprisonment following a conviction for family harm offending. On7 October 2020 Judge Tompkins in the District Court at his request gave Mr Morungaa sentence indication on the assault with a weapon charge of nine months'imprisonment to be served cumulatively with his then existing prison sentence.Mr Morunga accepted that sentence indication and pleaded guilty to the assault witha weapon charge. On 16 December 2020 Judge Tompkins sentenced Mr Morunga tosix months' imprisonment on this charge to be served cumulatively.2[3] Mr Morunga has now filed an out of time notice of appeal against this sentence.The main issue on this appeal is whether the sentence imposed should have been acumulative one or one concurrent with the sentence he is currently serving.Factual background[4] Mr Morunga, as I note, is a prisoner at Rimutaka Prison. As to the presentassault with a weapon charge, on 4 May 2019 at the prison, he repeatedly punched aprison guard who was moving him from his cell to the outside yard area at the time.Mr Morunga then struck the prison guard's head with a sock filled with hard soap bars.The victim suffered bruising and lumps to his head and needed to take three days ofsick leave to recover from the attack.District Court's decision[5] In the District Court, Judge Tompkins, in giving the sentence indication he did,considered a cumulative end sentence of nine months would be appropriate ifMr Morunga was to plead guilty. In coming to this view the Judge noted thatMr Morunga was already serving a two year and nine month sentence for serious1 Crimes Act 1961, s 202C – carrying a maximum penalty of five years' imprisonment.2 Police v Morunga [2020] NZDC 26282.violent offending, he had prior convictions for other violent offending and also thatthe present offending was serious and involved blows to the head in a prison context.[6] The sentence indication was accepted. Mr Morunga accordingly pleadedguilty to the assault with a weapon charge he was facing.[7] On 16 December 2020 after removing a double-counting factor included in theprior indication, Judge Tompkins sentenced Mr Morunga to a reduced end sentence ofsix months' imprisonment to be served cumulatively.Grounds of appeal[8] The grounds of appeal advanced before me are that the sentence was manifestlyexcessive and also that some issues arise here for Mr Morunga regarding a possiblediagnosis of psychosis. In particular, it is contended that Mr Morunga's sentenceshould have been concurrent on his existing sentence as opposed to being cumulative.Submissions for the appellant[9] Mr Tennet for Mr Morunga at the outset accepted responsibility for the delayin appealing the sentence. The delay he says is not in any part attributable toMr Morunga. Leave to bring this appeal out of time is therefore sought.[10] As to the substantive appeal, Mr Tennet submits that Mr Morunga's mentalstate here, which he says involves psychosis, should have been given more weightthan the general need for deterrence. Accordingly, the sentence imposed should havebeen one to be served concurrently with his existing sentence. Before me, Mr Tennetto his credit did acknowledge that there was no significant information he was able toput before the Court regarding Mr Morunga's mental state. But he submittednevertheless that, in a case like this, the normal presumption of cumulative sentencingimposed for in-prison offending needed to be varied to a concurrent sentence forsomeone like Mr Morunga who was suffering mental illness by way of psychosis.[11] Overall, Mr Tennet suggested that the Judge in the District Court erred byfailing to give an appropriate discount for Mr Morunga's mental health issues, butMr Tennet did note he was quite unable to put before this Court any verifying evidenceregarding this aspect. He did add however that a report under s 35 of the CriminalProcedure (Mentally Impaired Persons) Act 2003 should have been ordered in thiscase, but this did not happen.[12] Finally, as an alternative to substituting Mr Morunga's cumulative sentencewith a concurrent one, Mr Tennet went on to maintain that in any event the sentenceimposed was manifestly excessive. This, he said, was despite the fact that it had beenaccepted by Mr Morunga following a sentence indication. Therefore, Mr Tennetsuggested the two months Mr Morunga would have served by the time of the hearingshould have been considered as time served.Submissions for the respondent[13] Mr Shaw for the respondent contended before me that the sentence imposedby Judge Tompkins could not be faulted in any way. He maintained it is well withinrange, contains no error and is not manifestly excessive.[14] Mr Shaw did accept the main issue here is whether the sentence should havebeen a cumulative one or one concurrent with Mr Morunga's existing sentence. Likemany cases similar to the present, Mr Shaw maintained the District Court was entirelycorrect to impose this sentence cumulatively, as Mr Morunga's present offendingagainst a prison guard was serious and entirely distinct from his previous family harmoffending.[15] As to the suggested mental health issues, Mr Shaw notes that Mr Morunga hadbeen assessed as stable the day before the offending in question. He also points to thesuggestion in the mental health report that the appellant is known for attempting tomanipulate this avenue to achieve a transfer from prison to hospital. Importantly,Mr Shaw maintains that Mr Morunga's mental state was not a factor in the offendingand therefore no discount for it was appropriate. This is especially the case, he said,considering the lack of any relevant evidence before the sentencing Judge regardingthis aspect.[16] Mr Shaw for the respondent noted also that Mr Morunga had accepted thesentencing indication when it was open to him to reject it.[17] And finally, Mr Shaw opposed any extension of time or grant of leave for thelate filing of the notice of appeal here on the basis that Mr Morunga's appeal simplylacks merit.Relevant law[18] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence isan appeal against a discretion and must only be allowed if the Court is satisfied that,for any reason, there was an error in the sentence imposed and a different sentenceshould have been imposed.3[19] Although s 250 does not refer to "manifestly excessive", it is a principle that iswell established in the Court's approach to sentence appeals.4 The Court cannot"tinker" with an end sentence if is within range.5 The focus is on the final sentenceand whether that was in the available range, rather than the exact process by which itwas reached.6 The Court of Appeal has accepted, however, that there may be caseswhere "what has gone wrong is such as to require correction albeit the sentenceimposed is within range".7[20] Section 84 of the Sentencing Act 2002 codifies the principles governing theimposition of cumulative and concurrent sentences. While it provides generalguidance, exceptions will occasionally be justified. The essential test set out by s 84for cumulative sentences is whether the offences are different in kind. Concurrentsentences will be appropriate where the offences are both similar in kind and form aconnected series.3 Tutakangahau v R [2014] NZCA 279.4 At [35].5 Ripia v R [2011] NZCA 101 at [15].6 At [15].7 Tutakangahau, above n 3, at [36].DiscussionCumulative or concurrent sentence[21] Cumulative sentences are the starting point where separate offences ofoffending are similar in kind, but not forming a connected series of offences. Forexample, in Watohi v R separate acts of violence to the same infant warrantedcumulative sentences.8 In R v Clarke serious assaults on the same victim warrantedcumulative sentences as they were unconnected as to time or location.9[22] In the present case Mr Morunga's two instances of offending are plainlydifferent in kind. While his prior offending was in a family harm context, the currentoffending was against a different victim, at a different location (specifically inRimutaka Prison) and in a wholly different context. Accordingly, a cumulativesentence was the appropriate choice.[23] Additionally, the fact that Mr Morunga was serving a sentence of imprisonmentfor violent offending while he committed the further violent offence in question, is anaggravating factor which points in favour of a cumulative sentence.10Sentence length[24] The Judge in the District Court considered a nine-month starting pointappropriate for the offending with an end sentence of six months' imprisonment. Nodiscount for mental health was given.[25] R v Wareta involved an attack against two victims in a prison environmentusing a makeshift shank.11 In that case the defendant's motivation for the attack wasfear for his safety.12 The end sentence for the assault with a weapon charge was10 months' imprisonment served cumulatively with the existing sentence.8 Watohi v R [2014] NZCA 614.9 R v Clarke CA 128/06, 6 June 2006.10 R v Johansen (1996) 15 CRNZ 111 (CA).11 R v Wareta [2017] NZHC 1762.12 At [6].[26] Here, the offending was against one victim and resulted in less serious injuries,but nonetheless involved blows to the head and premeditation. Accordingly, in an endsentence of six months' imprisonment after a guilty plea was not only appropriate inmy view but on the lenient side of the range.[27] So far as the alleged mental impairment by way of psychosis it is saidMr Morunga is suffering here is concerned, there was nothing significant placedbefore the Court regarding this aspect. In addition, there does not appear to be anyestablished nexus between any mental impairment Mr Morunga may suffer from andhis current offending. Notwithstanding this, I am satisfied that to some extent, ifMr Morunga was suffering from a significant mental impairment that might make aprison sentence more severe here.13 Accordingly, if this was the case, some discountat the lower end for mental health might be appropriate. However, in the present caseI consider the end sentence of six months' imprisonment, while it does not explicitlyinclude any possible mental health discount that might arise, does in any event reflectMr Morunga's present circumstances, by being a lenient sentence for the type ofoffending that occurred here.Result[28] Leave is granted for the late bringing of this appeal out of time. That grant ofleave however does not affect the outcome here. But, turning to the substantive appealitself, for all the reasons I have outlined above, the end sentence imposed in the DistrictCourt amounting to six months' imprisonment to be served cumulatively I find isappropriate and reflects the totality of the offending and Mr Morunga's personalcircumstances.[29] The District Court Judge did not err in imposing this sentence here. This appealis dismissed.Gendall JSolicitors:M Shaw, Crown Counsel, WellingtonBarrister:C J Tennet Barrister, Lower Hutt13 Nuku v R [2019] NZCA 319, at [14].