Abdille v The Queen - [2012] NZCA 119

IN THE COURT OF APPEAL OF NEW ZEALAND

CA640/2010
[2012] NZCA 119

BETWEEN ASHA ALI ABDILLE
Appellant

AND THE QUEEN
Respondent

Hearing: 12 March 2012

Court: O'Regan P, MacKenzie and Asher JJ

Counsel: Appellant in person
M J Lillico for Respondent
M A Kennedy as counsel assisting the Court

Judgment: 29 March 2012 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

Ms Abdille pleaded guilty to one charge of hijacking an aircraft under s 3 Aviation Crimes Act 1972. The sentencing Judge, French J, sentenced her to nine years’ imprisonment, with a minimum period of imprisonment of six years.[1]
[1] R v Abdille HC Christchurch CRI-2008-009-19673, 27 August 2010.
Ms Abdille’s notice of appeal is limited to challenging the minimum period of imprisonment. She does not appeal the lead sentence of nine years’ imprisonment. However, when addressing the Court on her own behalf, Ms Abdille also called into question her conviction. We will address Ms Abdille’s concerns about her conviction in this judgment too.

Background facts

On 8 February 2008, Ms Abdille boarded a commercial Air National flight in Blenheim bound for Christchurch. She had three knives concealed on her person or in her bag. The flight that day was carrying seven passengers and two flight crew.
About 10 minutes into the flight, Ms Abdille approached the cockpit brandishing one of the knives. She demanded that the captain take her where she wanted to go, and thrust the knife towards him. There was a short struggle during which the captain sustained minor cuts to his shoulder and right hand.
Ms Abdille informed the captain that she wanted to go to Australia, and became aggressive when she was told that the plane did not carry sufficient fuel to reach Australia. Ms Abdille then suggested that the captain could crash the plane into the sea.
During the flight Ms Abdille exhibited violent mood swings, suggested that she had a bomb in her bag and stated that everyone was going to die. About halfway through the flight, Ms Abdille began hitting the first officer on the side of his head with her knife hand, and repeatedly stated “You crash the plane, you crash the plane”.
As the aircraft began its descent, Ms Abdille reached up to the console and began interfering with the switches, saying “I’m going to crash the plan and kill everybody”. Fortunately, the fuel cut-off switches were mechanically guarded and Ms Abdille was unable to operate them.
Upon landing, Ms Abdille allowed the passengers and first officer to leave the plane. Ms Abdille then turned to the captain and said “It’s just you and me now”. The captain attempted to wrest the knife from Ms Abdille, and during the struggle sustained a serious injury to his left hand that later required the partial amputation of his thumb. The first officer came to the captain’s aid and managed to release Ms Abdille’s grip on the knife, sustaining a…

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 Abdille v The Queen

Details

AGLC: Abdille v The Queen [2012] NZCA 119
Case: [2012] NZCA 119
Decision Date: 29 March 2012

CaseChat Overview and Summary

Asha Ali Abdille appeals against the minimum period of imprisonment imposed on her by French J for hijacking an aircraft. The appeal was heard by O'Regan P, MacKenzie and Asher JJ of the Court of Appeal of New Zealand. The appeal is limited to the minimum period of imprisonment imposed by the sentencing Judge, with a sentence of nine years' imprisonment with a minimum non-parole period of six years. Ms Abdille also raised concerns about her conviction, however, the Court found no evidence to support her claims of conspiracy, abuse, or being forced to plead guilty. The appeal raises two issues: whether the Judge should have considered mitigating factors such as Ms Abdille's guilty plea and mental health problems when deciding on the minimum period of imprisonment, and whether the imposition of a minimum period of imprisonment would delay the effective treatment of Ms Abdille's mental health problems. The Court found that the sentencing Judge was entitled to give greater weight to the need for deterrence and denunciation, and that there was insufficient assurance that treatment would be effective or accepted by Ms Abdille. Therefore, the imposition of a six-year minimum non-parole period was appropriate.

The Court dismissed the appeal, finding that the sentence imposed was appropriate in all circumstances. The Court did not consider it necessary to seek a further report on Ms Abdille's mental health, as the evidence before it did not provide a basis for confidence that treatment would be effective or accepted by her. The Court found that the imposition of a minimum period of imprisonment was necessary to protect the community and uphold the values of deterrence and denunciation. The Court also noted that Ms Abdille had given varying accounts to the health assessors and had denied suffering from any mental illness during the appeal. The Court upheld the sentence imposed by the sentencing Judge, finding that it was appropriate in all circumstances.

Orders