Abdille v The Queen
[2012] NZCA 119
•29 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA640/2010 [2012] NZCA 119 |
| BETWEEN ASHA ALI ABDILLE |
| AND THE QUEEN |
| Hearing: 12 March 2012 |
| Court: O'Regan P, MacKenzie and Asher JJ |
| Counsel: Appellant in person |
| 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 cut to his foot in the process. Ms Abdille was eventually subdued.
High Court sentencing
This was the first time that anyone had been sentenced in New Zealand for hijacking an aircraft. French J noted that the offence carried a maximum term of life imprisonment, emphasising how serious an offence it is. She said the impact of the offending on the victims, those on the plane at the time of the hijacking, had been significant. French J noted that overseas cases showed a range of sentences of between five and 25 years’ imprisonment. A starting point of 15 years’ imprisonment was imposed, taking into account the aggravating factors of pre-meditation, the use of a weapon, actual use of physical violence and the effect on the victims. There were no significant mitigating factors.
French J then applied a further uplift of 12 months’ imprisonment for Ms Abdille’s previous convictions, the fact that she was on bail at the time of the offending for other offending involving threatening to kill and possession of a weapon at the time of the hijacking. A reduction of two and a half years was afforded for Ms Abdille’s mental health problems, and a further reduction of a third was made for the guilty plea. Accordingly, a sentence of nine years’ imprisonment was imposed.
With regard to the minimum period of imprisonment, French J noted that a significant factor against imposing a minimum period was that it would delay the effective treatment of Ms Abdille’s mental illness. On the other hand, there was a need for deterrence and denunciation, and those factors supported the imposition of a minimum period of imprisonment. The Judge imposed a minimum period of imprisonment of two thirds, or six years’ imprisonment.
Conduct of the appeal
The notice of the appeal was filed by the lawyer who had acted for Ms Abdille in the High Court. Subsequently, Ms Kennedy was assigned by the Legal Aid division of the Ministry of Justice to act for Ms Abdille in relation to the appeal. However, legal aid was later withdrawn, which left Ms Abdille unrepresented. O’Regan P issued a minute asking for a reconsideration of the withdrawal of legal aid, given Ms Abdille’s mental health history and the fact that English was her second language, but this request was declined. Arrangements then had to be made for Ms Abdille to appear herself, and ultimately a video link with the prison was set up for this purpose. Ms Kennedy was appointed by the Court to assist the Court by advancing arguments in support of the appeal and we thank her for her assistance.
Ms Abdille’s concerns
Ms Abdille addressed the Court but did not address the point raised on appeal, namely the need for, and length of, the minimum period of imprisonment. Rather, she said that she was a victim of a conspiracy by state officials, and had been subject to abuse for 16 or 17 years prior to the date of the hijacking incident. She said that this incident did not amount to hijacking and the reason she had knives with her was because she had bought cutlery to take to her sister who lived in Christchurch. Ms Abdille said that she had pleaded guilty to the offending because she had been told that she had to accept responsibility for it, and that if she did not she would be sent to the United States and be executed. She said that she wanted a new trial so she could tell her side of the story. She said that the lawyer who acted for her at the time had tricked her and worked against her, and she had been in custody for an extensive time prior to the guilty plea being entered.
There was no evidence or information before us to support these allegations, and we are satisfied that they are not such that the conviction ought to be called into question. The hijacking was witnessed by the passengers on the plane and the explanation that Ms Abdille was carrying the knives because she had purchased cutlery for her sister is not credible. We do not, therefore, consider that it is necessary to say any more about Ms Abdille’s concerns.
Minimum period of imprisonment
Ms Kennedy argued that the sentencing Judge had not given consideration to mitigating factors which supported the proposition that no minimum period should have been imposed or, in the event that a minimum period was imposed, that it ought not to have been the maximum (two thirds of the sentence). She emphasised in particular the fact that Ms Abdille had pleaded guilty (a factor recognised by s 9(2)(b) of the Sentencing Act 2002), and Ms Abdille’s mental health problems (recognised by s 9(2)(e)).
Guilty plea
Ms Kennedy accepted that the guilty plea had been entered only a month or so before the trial date and two and half years after the incident. However, she said that this was explicable because of the issues about Ms Abdille’s fitness to plead and her difficulties in communicating with her previous defence counsel. Ms Kennedy accepted that the Judge had taken a generous approach in allowing a discount of one third for the guilty plea, but argued that this ought to have also influenced the decision in relation to the minimum period of imprisonment.
We do not see this factor as having a significant bearing on the decision relating to the minimum period of imprisonment. The Judge was entitled to give greater weight to the need to protect the community and the sentencing values of deterrence (not only of Ms Abdille, but also of other potential perpetrators of similar offences) and denunciation.
Mental health issues
Ms Kennedy argued that the imposition of a minimum period of imprisonment will delay the provision of effective treatment to Ms Abdille for her mental health problems. She said that, if there was some assurance that Ms Abdille could be effectively treated for her mental health problems, this would reduce the potential risk to the public of her being allowed into the community, and thus would obviate the need for a minimum period of imprisonment.
Ms Kennedy relied in particular on this Court’s decision in R v Lucas-Edmonds.[2] In that case, this Court reduced the sentence imposed on a prisoner who required psychiatric treatment and quashed the minimum period of imprisonment. The Court considered that there was little prospect of Mr Lucas-Edmonds being released when he had served one third of his sentence given the need for a concerted effort to treat him before his release into the community. It considered that the imposition of a minimum term in such circumstances was unnecessary, and would delay the arrival of effective treatment to him.
[2] R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493.
Ms Kennedy referred us to the three reports that were before the sentencing Court about Ms Abdille’s mental health. Each assessor had slightly differing diagnoses, but there was some commonality of view that Ms Abdille suffered from post-traumatic stress disorder. Two of the three report writers, Dr Earthrowl and Dr Monasterio, considered that Ms Abdille did not suffer from a psychotic illness at the time of the offending. On the other hand, Associate Professor Brinded, who interviewed Ms Abdille some time after Dr Earthrowl and Dr Monasterio, considered that, if Ms Abdille’s narration of the events and her mental state was correct, then she would have been in a psychotic state at the time of her offending. However, Ms Abdille gave varying accounts to the health assessors.
French J was alive to the potential for a minimum period of imprisonment to delay effective treatment, but considered that the need for deterrence and denunciation was so strong that a minimum period should be imposed notwithstanding that delay. On appeal, Ms Kennedy argued that the possibility of effective treatment is such that the need for a minimum period is called into question.
It is notable that after Ms Kennedy made these submissions to us, Ms Abdille addressed the Court and denied that she suffered from any mental illness.
Ms Kennedy’s submission was based on Associate Professor Brinded’s view that Ms Abdille had responded positively to anti-psychotic medication. Ms Kennedy accepted that Ms Abdille would not be likely to take such medication voluntarily, but suggested that, if she were released into the community, she could be subject to a compulsory treatment order that would require her to take medication.
For the Crown, Mr Lillico accepted that, if there was a real prospect of effective treatment leading to a reduction in the need for community protection, then a case could be made for either no minimum period of imprisonment or a minimum period lower than the maximum two thirds of the end sentence. He accepted that Associate Professor Brinded had suggested that anti-psychotic medication may be effective in Ms Abdille’s case. However, Mr Lillico argued that there was insufficient assurance that such treatment would be effective or, if it was, that such treatment would be accepted by Ms Abdille. He noted that there were examples of Ms Abdille refusing to accept medication in the past, and that she had cancelled an appointment for mental health treatment only days before the offending occurred.
Ms Kennedy suggested that we should seek a further report on Ms Abdille’s mental health. We have carefully considered that submission and decided that it is not necessary for us to do so in order to resolve the appeal. The evidence before us gives no basis for confidence that, even if anti-psychotic medication were effective in the case of Ms Abdille, she would accept such treatment and continue to take medication for sufficient period and with sufficient regularity to have any impact on the risk she poses to the community. In those circumstances, we consider that French J was right to see the requirements of deterrence, denunciation and community protection as demanding a protective response. We see the imposition of a six year minimum non-parole period as appropriate in those circumstances.
Result
We dismiss the appeal.
Solicitors:
Crown Law Office, Wellington for Respondent