Ali v Police

[2025] NZHC 1475

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-099

[2025] NZHC 1475

BETWEEN

ZOEB ALI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 June 2025
Counsel:	F G Qaisarani for appellant A L Chan for respondent
Judgment:	6 June 2025
Reissued:	10 June 2025

JUDGMENT OF JOHNSTONE J

(appeal against sentence)

This judgment was delivered by me on 6 June 2025 at 2.30 pm

Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker, Auckland

ALI v POLICE [2025] NZHC 1475 [6 June 2025]

[1]    Zoeb Ahsan Ali pleaded guilty to charges alleging that he communicated with a young person intending to facilitate sexual conduct1 and intentionally exposed a young person to indecent material.2 He was sentenced in the District Court at Pukekohe to a term of 16 months’ imprisonment.

[2]    Mr Ali appeals against that sentence. He says that its term was excessive, and that he should have been sentenced to home detention or community work.

[3]    I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.3

Mr Ali’s offending

[4]    At the age of 45, Mr Ali sent a series of electronic messages to a young woman. He asked how old she was and what she did. She wrote she was 14 and went to school.

[5]    Mr Ali observed he was too old to chat with the young woman. But then he asked what the craziest thing she or her sister could do for him, adding her sister was “hot” and promising some gift he would like to give her, were she not too young. The young woman responded, comparing him to a “sugar daddy” and advising that as long as she got drinks she was “all good”.

[6]    Mr Ali asked what the young woman would do for small amounts of cash. She indicated she had not performed oral sex before, but would be okay with that activity and full sexual intercourse on certain conditions. The messages continued, incorporating role play based on a theme Mr Ali suggested. The communications also included a video call, during which Mr Ali showed himself masturbating.

[7]    At around 8.15 pm on 29 December 2023, Mr Ali arrived at the young woman’s home. She had suggested that he might tell her parents that he was a friend’s father. Her brother saw Mr Ali hug the young woman, and hand over $10 in cash and a bottle

1      Crimes Act 1961, s 131AB, titled “Grooming for sexual conduct with young person”. Maximum penalty: three years’ imprisonment.

2      Crimes Act 1961, s 124A, titled “Indecent communication with young person under 16”. Maximum penalty: three years’ imprisonment.

3      Criminal Procedure Act 2011, s 250.

of perfume. The brother alerted their parents, who gained access to the above electronic messages and alerted the police. The police gained access to the young woman’s messaging accounts in March 2024, finding the above electronic messages, and filing the above charges in September 2024.

Mr Ali’s position on appeal

[8]For Mr Ali, Mr Qaisrani submits that:

(a)The sentencing Judge’s notional starting point, selected for the purpose of sentence calculation, was inconsistent with that in other cases of similar offending and manifestly excessive.

(b)The Judge’s end point was manifestly excessive because insufficient credit was given for Mr Ali’s personal mitigating factors and guilty pleas.

(c)The Judge erred by declining to commute the end point of 16 months’ imprisonment to an electronically monitored sentence.

Was the Judge’s starting point excessive?

The Judge’s approach

[9]    In sentencing Mr Ali, the Judge first observed, correctly, that he was required to proceed on the basis of the two charged offences to which he had pleaded guilty, each with their maximum penalty of three years’ imprisonment. He was also correct to observe, later, that there is no guideline judgment for this kind of offending.

[10]   Turning to the facts, the Judge said that messages annexed to the summary of facts were a “sample” of the messages between Mr Ali and the young woman. I cannot read the summary that way. The summary refers to the police locating messages between Mr Ali and the young woman, and  adds “these messages are outlined in  the (annexure)”. It should not have been assumed against Mr Ali that the annexed messages were but a sample.

[11]   The Judge inferred, contrary to Mr Qaisrani’s submission that to do so would involve speculation, that if the young woman’s brother had not seen their meeting, Mr Ali would have engaged with her in sexual activity. Since sexual activity did not occur, I interpret the Judge merely to have found only that Mr Ali intended there should be sexual activity at some future point. On the basis of the agreed summary of facts, that finding was clearly available.

[12]   The Judge referred to cases of similar offending, including R v Stevens4 and Walsh v R5, and found Mr Ali’s offence of exposing a young person to indecent material to be more serious than the offending in Walsh. The Judge’s review of the other cases led him to identify the following features of the present case:

(a)the age difference between Mr Ali, at 45, and his victim, at 14;

(b)the explicit content of the messages;

(c)Mr Ali’s decision to continue the messaging despite being advised of his victim’s age;

(d)the meeting;

(e)her vulnerability; and

(f)the scale of the offending.

[13]   On this basis, the Judge selected a starting point for the electronic messaging (which founded the charge of communicating with a young person intending to facilitate sexual activity, known as “grooming”) of 16 months’ imprisonment. He uplifted that starting point, to account for the charge of exposing a young person to indecent material (founded upon the video call displaying Mr Ali masturbating), by six months (despite describing it as an eight-month uplift).

4      R v Stevens [2016] NZHC 1574.

5      Walsh v R [2016] NZHC 2747.

Assessment

[14]   The charges allege that Mr Ali’s offending occurred during the month of December 2023. The summary of facts does not greatly assist in identifying the duration of the offending during that month. The meeting took place toward the end of December 2023. The messages annexed to the summary of facts are not dated.

[15]   As Ms Chan, counsel for the Crown, submitted, they read as one fairly continuous exchange. While the messages themselves do not explain the basis on which arrangements were made for the meeting (for example, they do not record the young woman’s address), the arrangements may well have been made during the video call. The messages, and the meeting, may therefore all have occurred on the same day.

[16]   On this basis, I cannot accept that the material before the Judge justified his finding that the offending had scale.

[17]   Further, the young woman’s obvious vulnerability at the age of 14, is not a factor that might distinguish the offending in this case from other cases of offending involving the grooming of a young person, or their exposure to indecent material. The victim of all such offending requires to be a young person. It would have aggravated the offending if Mr Ali’s victim had been appreciably younger than 14.

[18]   On the other hand, the age difference between Mr Ali and his victim, his knowledge of her age, the explicit content of the messages, and the fact Mr Ali furthered his offending by meeting her with the clear intention of engaging in sexual activity are all aggravating factors.

[19]   Nevertheless, I agree that, in the absence of a guideline judgment, the judgments in Stevens and in Walsh provide assistance.

[20]   In Stevens, Mr Stevens communicated online with a nine-year-old boy over a number of weeks, intentionally exposing him to indecent material and committing the same offence as Mr Ali under s 124A of the Crimes Act 1961. Further, Mr Stevens encouraged the boy to masturbate to ejaculation, taking and sending photographs requested by Mr Stevens. In this way, Mr Stevens committed the offence under

s 132(3) of that Act, of doing an indecent act with a child under 12, which is punishable by a maximum penalty of 10 years’ imprisonment. The police later executed a search warrant at Mr Stevens’ home, finding substantial objectionable material. And the offending was in breach of the conditions of an Extended Supervision Order, imposed as a consequence of previous sexual offending.

[21]   Sentencing Mr Stevens, Toogood J selected a starting point of two years’ imprisonment for the indecent online communication and indecent act offences, finding that: the victim was particularly vulnerable; the offending occurred over a number of weeks, stopping only after the victim’s family intervened; and the offending caused confusion, shame and embarrassment, and unknown long-term consequences.6 This two-year starting point (said to be selected “for each of” these offences, but clearly informed by their combined culpability) was then added to a two-year starting point selected for the offences relating to the objectionable material, given the distinct nature of that offending.7

[22]   My view is that the offending in Stevens was considerably more serious than Mr Ali’s offending in the present case. Mr Stevens’ victim was much younger, and his offending took place over a longer period and it included the induced performance of an indecent act, comprising an offence with a 10-year, rather than three-year, maximum penalty.

[23]   In Walsh, Mr Walsh had communicated with a young person he understood to be 13 years old (but who in fact was a police officer). He too intentionally exposed his target to indecent material, committing the offence under s 124A. And having communicated with his target previously, Mr Walsh intentionally sought to meet her at a restaurant (where in the event he was arrested) having arranged to take her home for sex, committing an offence under s 131B. That offence is more serious than the “grooming” offence with which Mr Ali was charged, under s 131AB. It carries a seven-year maximum  penalty,  rather than the three-year maximum  applicable in  Mr Ali’s case. And further, once Mr Walsh was arrested, the police found a range of

6 At [29].

7      In the event, Toogood J proceeded to impose a sentence of preventive detention, given Mr Stevens’ risk profile.

objectionable publications on his phone, depicting himself and various naked children. He was charged with further offending under the Films, Videos and Publications Classification Act 1993.

[24]   Justice Dobson approved the District Court’s starting point for the objectionable publications offending of two years’ imprisonment.8 Turning to the grooming and meeting charges, Dobson J rejected a submission based on the fictitious identity of the young person, describing it as tantamount to a plea that Mr Walsh should be treated more leniently because of his good fortune in eventually discovering he was not conducting the criminal communications he thought he was.9 Justice Dobson agreed with the Crown submission that the absence of harm to an intended victim could not constitute a mitigating factor, only the absence of an aggravating factor,10 and found the District Court’s 12-month starting point for these charges to be “clearly within range”.11

[25]   I accept Ms Chan’s submission that the offending in Mr Walsh’s case was less serious than Mr Ali’s offending in the present case. Mr Walsh’s intended victim was comparably aged, he did not expose the victim to the spectacle of himself masturbating, and (while he arrived at a location intending to meet and later to engage with his victim in sexual activity) his victim’s fictitious nature meant that he did not cause particular harm. In the present case, it is clear that Mr Ali’s victim and family suffered, and continue to suffer, real anguish now that the abusive nature of Mr Ali’s conduct is known and properly understood.

[26]   Overall, since in my view an appropriate point for the combination of offending in this case might have ranged between 14 and 20 months’ imprisonment, I consider the Judge’s 22-month starting point to be excessive.

8 At [28].

9 At [31].

10 At [33].

11 At [35].

Did the Judge give insufficient credit for Mr Ali’s guilty pleas and other personal mitigating circumstances?

The Judge’s approach

[27]   The Judge applied a 20 per cent reduction for Mr Ali’s guilty pleas, observing he had no real defence, and a five per cent reduction for remorse (inclusive of a degree of good character evidenced by a lack of previous convictions for similar offending).

[28]   Other reductions, sought in respect of Mr Ali’s background, and his response to this offending, were declined.

Assessment

[29]   Sentencing courts are required to take into account whether and when the defendant pleaded guilty.12 The Supreme Court has found the Sentencing Act 2002 to require sentencing judges to assess the extent to which the variable circumstances of individual cases require recognition of any guilty plea.13 And that a heavily structured approach, applying a sliding scale reduction fixed principally by reference to when the plea was entered, would depart inappropriately from this statutory requirement.14 The credit to be given must reflect all the circumstances, including whether the plea is truly to be regarded as an early or late plea and the strength of the prosecution case.15 In any event, the reduction should not exceed 25 per cent.16

[30]   In the present case, while Mr Ali’s guilty pleas were entered very early, I agree with the Judge that the nature of his electronic messaging with the victim, including his self-identification by way of username and age, left no real room for a defence to the charge of communicating with a young person intending to facilitate sexual conduct. There was no error in applying a 20 per cent reduction.

[31]Further, the remorse reduction of five per cent cannot be faulted.

12 Sentencing Act 2002, s 9(2)(b).

13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].

14 At [72]. Note: the authority of this statement may require reconsideration when the Sentencing (Reform) Act 2025, and its sliding scale of guilty plea reductions, is introduced into the Sentencing Act, effective 29 June 2025.

15 At [74].

16 At [75].

[32]   Mr Ali wrote extensively, following his offending, about the circumstances in which he had come to offend. In recent years, his sister-in-law and niece had died. He had been convicted of careless driving causing the death of another motorist. His family’s cleaning business had been sold, and he had commenced to work long hours in other employment. He had made, and was struggling to meet, financial commitments to adult family members. He wrote that his offending occurred while he struggled with stress, asserting that he started to chat online because he had no one who he thought would understand his situation. It was in that context that Mr Ali pledged to “make up for all the struggle and mess I have created for myself, the victim and my family”, and referred to his efforts since his offending to work harder and to raise funds for charity. He referred, further, to “the pain that everyone went through”. Those writings relate primarily to the impact upon himself and his own family of his offending. They express self-pity, and regret, rather than the level of understanding of the nature of harm done to the victim and her family which would reflect genuine remorse.

[33]    That said, Mr Ali also wrote, in contemplation of his sentencing, to apologise for his wrongdoing and the hurt caused to the victim and her family. On balance, I consider the reduction granted for remorse to have been available to the Judge.

[34]   The other reductions, which the sentencing Judge declined to make, were sought on the basis that the circumstances outlined at [32] justified separate recognition. The proposition, in essence, was that given Mr Ali’s difficult circumstances his offending could be seen as less culpable than if it had been committed by another adult. And that his response to the offending confirms rehabilitative prospects such that a specific deterrent is not so clearly necessary as it might be in the case of another adult.

[35]   I disagree with the suggestion that Mr Ali’s difficult circumstances moderate the culpability of his offending. The reason Mr Ali’s conduct involved criminal offending derives from its perniciousness. Adults carry clear societal obligations not to abuse the undeveloped emotional maturity, or the sexual immaturity, of young people. Adults experiencing difficulty need to know that their own circumstances do not justify preying upon young people for their own gratification.

[36]   On the other hand, Mr Ali’s response to his offending indicates that the risk of him offending in the same way in future is less than the risk of reoffending posed by another adult with the same convictions.

[37]   Overall, however, while another judge would likely have reasonably reduced Mr Ali’s sentence further, to account for his rehabilitative prospects, I do not consider that the need to do so is so clear, nor the extent of such reasonable reduction so great, as to lead to the conclusion that the Judge’s 25 per cent reduction was manifestly inadequate.

Did the Judge err by declining to commute the sentence to an electronically monitored sentence?

The Judge’s approach

[38]   Here, the Judge noted that Mr Qaisrani sought community detention, perhaps with supervision and community work, and that the police sought home detention. And the Judge referred to s 16 of the Sentencing Act, which requires that a court considering a prison sentence “must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”.

[39]But, the Judge rejoined:

… I must look at these facts and what occurred on this occasion.

In my view, the need to hold you accountable, to denounce your conduct, deterring others, requires a full-time custodial sentence. I will not sentence you to home detention or community detention.

Assessment

[40]   In Manikpersadh v R, the Court of Appeal endorsed William Young J’s observations in another case that “in exercising the discretion whether to commute a sentence of imprisonment to home detention, those ss 7 and 8 purposes and principles of sentencing, relevant to the particular case, must be considered by the sentencing

judge”. 17 And the Court observed that the s 7 purposes include purposes such as deterrence, denunciation, and accountability, but also the purpose of assisting offenders’ rehabilitation and reintegration.18 Further, the Court observed that s 8 requires sentencing courts to have regard to the least restrictive appropriate outcome, and to offenders’ personal circumstances, including personal and family background and relevant rehabilitation.

[41]   In Manikpersadh, the Court  of  Appeal  noted  that  the  first  instance District Court Judge had focused solely on deterrence, making no mention of other relevant purposes and principles. And that the High Court Judge who presided in the first appeal did not analyse whether the District Court Judge had taken into account such matters. The Court of Appeal was satisfied that the High Court Judge had erred by such failure.

[42]   Similarly, I find that the Judge in the present case erred. There was no analysis undertaken as to whether the full combination of purposes and principles deriving not only from Mr Ali’s offending, but also his personal circumstances, required a sentence of imprisonment. There was no view expressed as to the nature of Mr Ali’s personal circumstances and rehabilitative and reintegrative needs, and accordingly no weighing of those needs against the purposes of accountability, denunciation and deterrence.

[43]   Exercising my own judgement, I find that the one-off nature of Mr Ali’s offending, and his generally responsible reaction to its detection, indicate a fair prospect of his rehabilitation. Further, Mr Ali’s family circumstances are such that a sentence of home detention will ease the burden of his current lack of earning capacity, which inevitably falls upon his family. One or more other members should be better able, if Mr Ali is at home, to ensure the family’s financial position does not suffer unnecessarily.

[44]   While the sentencing purposes cited by the Judge remain squarely in play, those of rehabilitation and reintegration are current also. Taking the s 8 principles into

17     Manikpersadh v R [2011] NZCA 452 at [14], citing R v Vhavha [2009] NZCA 588 at [29] per William Young P.

18 At [15].

account, I consider a sentence of home detention, rather than a sentence of imprisonment to be appropriate. In my view, the Judge was wrong not to impose home detention. On the basis of an adjusted starting point of 18 months’ imprisonment, and applying an overall 30 per cent reduction, the end sentence I arrive at is in the order of 12.5 months’ imprisonment. I consider that a notional end sentence of that order should have been commuted to one of around seven months’ home detention.

Result

[45]   In light of the above, Mr Ali’s appeal is allowed. The 16-month sentence of imprisonment the subject of the appeal is set aside. In substitution for that sentence, I consider  it  appropriate  to  impose  a  sentence  of  three  and  a  half  months’  home detention. This is because:

(a)A sentence of around seven months’ home detention would have appropriately been imposed when Mr Ali was sentenced on 25 February 2025.

(b)Since 25 February 2025, Mr Ali has served 101 days, or in other words just under three and a half months, in custody.

(c)Under s 80X of the Sentencing Act, except in circumstances that do not apply, a sentence of home detention commences on the day it is imposed. The day on which the substituted sentence of home detention will commence in this case is today.

(d)A three and a half-month home detention sentence starting today will result in an outcome broadly equivalent to that which should have been reached on 25 February 2025.

[46]    A sentence of three and a half-months’ home detention is imposed accordingly. Mr Ali is to serve that sentence at the residential address stated in the Provision of Advice to Courts report dated 22 April 2025.

[47]   Standard post-detention conditions would likely have applied automatically, in the event of a seven-month home detention sentence.19 For that reason, I impose the standard post-detention conditions, for the period of six months from the detention end date of the substituted sentence of three and a half-months’ home detention.

[48]   Further, I impose as a condition of the substituted home detention sentence, and as a post-detention condition lasting six months, that Mr Ali must not operate any internet-capable device for the purpose of sending or receiving any electronic message other than one he can prove involves only members of his family or fellow employees, or possess any such device that has been operated for that purpose.

[49]   These conditions reflect that I consider Mr Ali for the time being to remain a genuine risk to the sexual safety of children whom he might seek to meet online or in the community. Bearing in mind the matters outlined at s 9(3) of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, and in particular the seriousness of Mr Ali’s qualifying offending,20 the disparity between his age and that of the victim, and the severity of the harm as set out in the victim’s victim impact statement, I find this risk to be of sufficient gravity to justify the making of a registration order with its consequent impacts on his rights.21 Accordingly, I make an order that Mr Ali be placed on  the Child Sex Offender Register established under     s 10(1), and must comply with the reporting obligations, of that Act.

Johnstone J

19     Sentencing Act, 80N(2)(a).

20     The offence under s 124A of the Crimes Act 1961.

21     D (SC31/2019) v Police [2021] NZSC 2.