Muraahi v R [2024] NZCA 188 (29 May 2024)

Last Updated: 4 June 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA536/2022 [2024] NZCA 188

	BETWEEN	BENNY MILES MURAAHI Applicant
	AND	THE KING Respondent

Court:	French, Courtney and Katz JJ
Counsel:	Applicant in person C A Brook for Respondent
Judgment: (On the papers)	29 May 2024 at 10.00 am

JUDGMENT OF THE COURT

The application for recall is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

• [1] On 22 November 2023, the Court declined Mr Muraahi’s application for an extension of time to appeal his sentence of 13 years’ imprisonment for serious offending, including aggravated robbery.^[1] The decision to decline the application for an extension of time was based on Mr Muraahi’s failure to take any steps to file particularised grounds for the application.^[2] Declining the application to extend time meant the proposed substantive appeal against sentence fell away. As a result, the Court also declined Mr Muraahi’s application for bail pending appeal.^[3]
• [2] Mr Muraahi has applied for a recall of the judgment and seeks bail pending determination of the recall application.
• [3] Recalling a judgment of the Court is an exceptional step.^[4] It is apparent from Mr Muraahi’s application that the only relevant ground could be that for a “very special reason justice requires the judgment to be recalled”.^[5] For the reasons that follow, we are satisfied that no special reason exists that would justify recall.

Background

• [4] Mr Muraahi was sentenced in March 2020.^[6] At that stage the three strikes legislation was in place.^[7] Mr Muraahi was sentenced on the basis that the aggravated robbery offending was his first strike offence rather than his third.^[8] The Crown appealed, successfully; this Court held that Mr Muraahi should have been sentenced on the basis that the offence was his third strike offence and the maximum penalty of 14 years’ imprisonment should have been imposed.^[9] However, the Crown had brought the appeal to clarify the law and, recognising that the sentence imposed was very close to the maximum in any event, did not seek any increase in the sentence.^[10]
• [5] Mr Muraahi filed an appeal against sentence in October 2022 — well out of time. He sought bail pending the outcome of the appeal. As we noted in the judgment sought to be recalled, Mr Muraahi did not take steps to provide proper information to support the bail application and the only ground it identified in support of the application for an extension of time to appeal was the fact that the three strikes law had been repealed.^[11]
• [6] In June 2023, Mr Muraahi was directed to advise the Court within 10 working days whether he wanted to pursue the application for an extension of time to appeal but did not do so. In August 2023, he was directed to file a particularised application for an extension of time to appeal and a particularised notice of appeal but did not do so. He was warned then that if he failed to comply with these directions, he was at risk of the appeal being dismissed pursuant to s 338 of the Criminal Procedure Act 2011, which is what happened.

Recall application

• [7] In his application for recall, Mr Muraahi asserts that his personal circumstances as disclosed in a cultural report should have been taken into account and he was advised to bring his appeal after the three strikes legislation had been repealed.
• [8] These grounds do not constitute any special reason to recall the judgment. None of the points he raises are new — they are the same as the substantive grounds relied in the original appeal that was filed out of time. Moreover, as the Crown memorandum points out, there is no prospect of the sentence being reduced, even if Mr Muraahi were to be permitted to advance the appeal.
• [9] The application for recall is declined.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] Muraahi v R [2023] NZCA 586 [extension of time judgment]; and R v Muraahi [2020] NZHC 346 [sentencing notes].

^[2] Extension of time judgment, above n 1, at [8] and [9]. See Criminal Procedure Act 2011, s 338(1).

^[3] Extension of time judgment, above n 1, at [10].

^[4] Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].

^[5] At [29], citing: Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76; and Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).

^[6] Sentencing notes, above n 1.

^[7] See Sentencing Act 2002, ss 86A–86I.

^[8] Sentencing notes, above n 1, at [36].

^[9] R v Muraahi [2021] NZCA 214, [2021] NZAR 230 [Crown appeal judgment]. The Supreme Court refused Mr Muraahi leave to appeal: Muraahi v R [2021] NZSC 116.

^[10] Crown appeal judgment, above n 9, at [79].

^[11] Extension of time judgment, above n 1, at [4].