Ahmed v Police - [2014] NZHC 2370

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000324 [2014] NZHC 2370

BETWEEN
FAISAL AHMED

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 September 2014

Appearances:

Appellant in Person
N M H Whittington and S R Jacobs for Respondent
G R Kayes (counsel appointed to assist the Court)

Judgment:

26 September 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 26 September 2014 at 5.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

AHMED v NZ POLICE [2014] NZHC 2370 [26 September 2014]

Introduction

[1] Faisal Ahmed was born in Somalia in 1979 and came to New Zealand in

2000 as a refugee. His experience in New Zealand has been mixed and he has struggled with mental illness. He wishes to travel overseas to see his family, which would assist his mental health but he does not have appropriate travel documents. This is because he has not yet obtained New Zealand citizenship. That, in turn, is because in 2008 he was sentenced to a term of imprisonment and the Citizenship Act
1977 precludes an application for citizenship by a person who has been subject to a term of imprisonment within the seven years. Mr Ahmed is therefore unable to apply for citizenship until December 2016.

[2] Mr Ahmed has now applied for leave to appeal his conviction and sentence. The charges on which Mr Ahmed was convicted were one count of male assaults female1 and one of resisting police.2 The charge of male assaults female was serious; it involved an assault on a female police officer. Mr Ahmed pleaded guilty to the charges. Judge McNaughton imposed a term of 12 months’ imprisonment and made a hybrid order under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP).3 Mr Ahmed served his sentence and was released in
2010.

[3] The proposed grounds of appeal were stated in his notice of appeal to be that he pleaded guilty without adequate legal advice and that the sentence was manifestly excessive. As they were argued before me, the proposed grounds of appeal can be summarised as:

(a) Mr Ahmed was not fit to plead.

(b)When he entered the guilty plea he had not received full police disclosure;

1      Crimes Act 1961, s 194(b).
2      Summary Offences Act 1981, s 23(a).
3      Police v Ahmed DC Auckland CRI-2008-004-027207, 18 December 2008.

(c) He pleaded guilty in the hope or expectation, based on advice from his then counsel, that he would receive a discharge without conviction;

(d)Before sentencing he instructed his lawyer that he wanted to vacate the plea but his lawyer did not follow those instructions;

(e) The police had beaten him;

(f) the Judge did not properly consider the consequences of the conviction in determining his application for an order discharging him without conviction;

(g) The sentence was disproportionate to the offending.

Leave to extend time for appealing

[4] Under s 115 of the Summary Proceedings Act 19574 Mr…

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.

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Details

Case: [2014] NZHC 2370
Decision Date: 26 September 2014

CaseChat Overview and Summary

Faisal Ahmed sought leave to appeal his conviction and sentence. He argued that he was not fit to plead, that he had not received full police disclosure, that he pleaded guilty based on the expectation of a discharge without conviction, and that his lawyer had not followed his instructions to vacate the plea. He also alleged that the police had beaten him and that the sentence was disproportionate to the offending. The court considered each argument and found that there was no basis for a successful appeal against the conviction. However, the court found that the sentence was manifestly excessive and did not adequately consider Mr Ahmed's mental health and circumstances. The court granted leave to appeal the sentence but discharged Mr Ahmed from serving any further sentence.

The appeal against conviction was dismissed, but the appeal against sentence was allowed. Mr Ahmed was convicted but discharged from serving any further sentence. The court found that the sentence was manifestly excessive and did not adequately consider Mr Ahmed's mental health and circumstances. The court considered that a sentence that recognised the offence, provided for the protection of the community, ensured medical care for Mr Ahmed and preserved his right to apply for citizenship could all have been accommodated in the form of a Compulsory Treatment Order under the Mental Health Act.

Orders