Ali v Police
[2025] NZHC 1079
•6 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-209
[2025] NZHC 1079
BETWEEN ZOEB AHSAN ALI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 May 2025 Appearances:
G Qaisrani for the Appellant
A Al-Janabi for the Respondent
Judgment:
6 May 2025
ORAL JUDGMENT OF ANDREW J
ALI v NEW ZEALAND POLICE [2025] NZHC 1079 [6 May 2025]
Introduction
[1] This is an appeal against the decision of District Court Judge McDonald declining the appellant’s application for electronically monitored (EM) bail to an address in Papakura, and pending an appeal against sentence to this Court.1
[2] On 25 February 2025, Mr Ali, the appellant, was sentenced to 16 months’ imprisonment2 for charges of grooming for sexual conduct with a young person3 and indecent communication with a young person under 16.4 Both those charges carry a maximum penalty of three years’ imprisonment.
[3] Mr Ali’s sentence appeal is brought on the grounds that the sentence was manifestly excessive and should have been commuted to home detention. The substantive appeal hearing is scheduled for 3 June 2025 in this Court.
[4] The appellant submits that the District Court Judge was in error in failing to consider and give appropriate weight to relevant matters, in particular failing properly to assess the risk considerations under s 8 of the Bail Act 2000 (the Act), and assessing that a sentence of imprisonment was unlikely to be changed on appeal.
[5] The Police oppose the appeal on the basis that the District Court Judge was correct to decline bail pending an appeal because the appellant was and is unable to discharge the onus on him to show that bail would otherwise be in the interests of justice.
Background facts
[6] I turn to consider the facts of the offending. The appellant groomed the 14-year-old victim with a series of sexually explicit messages and communications. This included masturbating in front of her via a video call. He knew that she was 14 years old. In December 2023, he arrived at her address with gifts and perfume and
1 Police v Ali [2025] NZDC 6513 [decision under appeal].
2 Police v Ali [2025] NZDC 4059.
3 Crimes Act 1961, s 131AB. Maximum penalty 3 years’ imprisonment.
4 Section 124A. Maximum penalty 3 years’ imprisonment.
hugged her. The victim’s brother saw the interaction, informed their parents and the communications were subsequently discovered.
Procedural background
[7] The appellant first appeared on 18 September 2024. He was granted bail 12 days later on 30 October 2024. Following his entry of a guilty plea to amended charges on 4 December 2024, he proceeded to sentencing on 25 February this year.
[8] Following sentence, he reappeared before Judge McDonald to advance an application for bail pending appeal. The Judge was provided with two sets of documents in support of the application, which included a pre-sentence report to establish technical feasibility for electronic monitoring.
[9] Judge McDonald identified that the application for bail pending appeal was governed by ss 14 and 54 of the Bail Act. He focused on s 14 of the Act, rather than the standard risk considerations in s 8, noting the majority of cases to which he had been referred involved the Judge dealing with applications for bail pending appeal with reference to s 14(3), rather than s 8.5
[10] After addressing each of the s 14 factors, the Judge determined that they did not weigh in favour of granting bail and that Mr Ali had not discharged the onus on him to establish that it would be in the interests of justice to do so. Accordingly, the application was declined.
[11] Shortly after that application was declined, the present appeal was filed in this Court. It was scheduled to be heard on 8 April 2025, but when the address initially proposed for EM bail was no longer available, the appeal was abandoned and a fresh application for EM bail was made to the District Court.
[12] That application was heard by Judge Moses on 23 April 2025. His Honour determined that a new EM bail address was not a sufficiently material difference to
5 Decision under appeal at [5], citing R v Su’a [2023] NZHC 1138 at [18]; Hastie-Sonnenberg v R
[2023] NZHC 3369; and Waters v R [2019] NZCA 117.
the original application to warrant a fresh application being made.6 Rather, the Judge held that the appellant should appeal the original decision declining bail to this Court.
[13]A fresh appeal was subsequently filed.
Personal circumstances
[14] I refer now briefly to Mr Ali’s personal circumstances. I note he is 46 years old. Prior to the relevant offending, his only previous conviction was for careless driving causing death.
EM bail suitability report
[15] The proposed EM bail address is Mr Ali’s family home in Papakura. The occupants and the address are assessed as suitable.
District Court decision
[16] I come now to the District Court decision under appeal. In declining the application, the District Court Judge assessed the application against the s 14(3) considerations. He held that the prospects of success on appeal need to be very strong or compelling and that a case for bail will be weaker if the appellant has been sentenced to a substantial term of imprisonment. He considered that, in the circumstances, the sentence of 16 months imprisonment was “really a neutral factor”. He also observed that Mr Ali was sentenced on 25 February 2025 and his appeal is scheduled to be heard in this Court on 3 June 2025. That meant, and means, Mr Ali will have been in prison for 13 weeks. His Honour noted that the statutory release date for a 16-month sentence is eight months, of which Mr Ali will not have served even half by the time the appeal is heard on 3 June 2025. Finally, Judge McDonald considered the personal circumstances of Mr Ali and his immediate family, noting, among other things, that Mr Ali was the main earner of the household income (but that he would not be able to work while on EM bail) and that Mr Ali’s son has had to give up studies and take employment to support the family.
6 Ali v Police DC Pukekohe CRI-2024-057-001063, 23 April 2025.
[17] Overall, the Judge was not satisfied that the s 14(3) factors weighed in favour of bail being granted and accordingly the application was refused.
The law
Bail appeals
[18] Section 42 of the Act governs bail appeals. They proceed by way of rehearing.7 The appellant bears the onus of identifying an error in the lower Court’s judgment such that the appellate Court should reach a different conclusion.8
Bail pending appeal
[19] Section 54 of the Act provides that an appellant who is in custody and appealing against their sentence is bailable at the discretion of the Judge who presided over the court at sentence or, if that Judge is not available, an alternative judge of that jurisdiction.
[20] Bail is rarely granted pending appeal and, in seeking bail, the onus is on the appellant to show cause as to why bail should be granted.9 The application itself proceeds under s 14 of the Act. The Court must not grant bail to the appellant unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.10 Instead of the considerations in s 8(2), the Court may take into account the apparent strength of the grounds of appeal; the length of sentence that has been imposed on the appellant; the likely length of time that will pass before the appeal is heard; the personal circumstances of the appellant and the appellant’s immediate family; and any other consideration that the court considers relevant.11 These factors are to be weighed against each other, rather than considered in isolation.12
7 Bail Act 2000, s 42(6) and Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [62].
8 Taipeti v R at [63].
9 Section 14(2); also see Waters v R, above n 5, at [24]–[25]; and Lock v R [2019] NZCA 163 at [10].
10 Section 14(1A).
11 Section 14(3).
12 R v Su’a, above n 5, at [18].
Submissions
[21] Mr Qaisrani, for Mr Ali, submits that the Judge failed to consider and give appropriate weight to relevant matters — namely evidence contained in the affidavit of Mr Ali’s wife — that weigh in favour of the grant of bail. He also submits that the Judge was wrong in failing properly to assess the ordinary risk considerations under s 8 and again, he says those favour the granting of bail. He has noted in submissions today that the appellant has a good compliance record with bail and the Police do not suggest otherwise. Finally, Mr Qaisrani submits that Judge McDonald erred in assessing the likelihood of imprisonment being the end sentence following the appeal. He contends that the grounds of the sentence appeal are strong.
[22] The Police have a different view and oppose the appeal. They say that the District Court Judge did not act in error. They also note, correctly, that the time to the hearing of the appeal is not particularly prolonged, and that weighs against a grant of bail. Much of the submissions that Mr Qaisrani makes are focused on the Judge’s consideration of the appellant’s personal circumstances. In response to that, the Police says that Judge McDonald addressed these at length. The Police’s submission is that the personal factors of Mr Ali are, at best, “neutral”.
[23]I come now to my analysis and decision.
Analysis and decision
[24] I find that there was no error in either the approach or the decision of Judge McDonald. In my view, his Honour was entitled under s 14(3) of the Act to focus on the listed interests of justice factors — and not directly engage with the standard s 8 risk factors.
[25] The Judge correctly acknowledged that in applying s 14, the Court is not required to engage in an extensive analysis of the merits of the appeal.13 I note that in Hosking v R,14 the Court of Appeal held that the prospects of success of an appeal need
13 Vijn v R [2017] NZCA 402 at [6].
14 Hosking v R [2012] NZCA 263 at [5].
to be “very strong” before that factor can favour the grant of bail, otherwise this is a neutral factor.
[26] In my view, the Judge correctly acknowledged the particular aggravating features specific to this appellant. They included the fact that he had targeted a vulnerable young victim with a significant age disparity (32 years). He also correctly acknowledged the extent and degree of grooming involved. As I have noted, the victim was only 14 years old at the time and a schoolgirl. The appellant knew how old the victim was before going to her house with cash and perfume and it is not disputed that the offending only came to light as a result of an observation by the victim’s brother.
[27] The Judge, correctly in my view, engaged with the PAC report. As Ms Al-Janabi submitted, he was entitled to reject the Police submission and the observation of the PAC report that the offending was on a lower scale. The Judge was entitled to conclude that this was offending of a more serious kind. In making his findings and reaching the end sentence, I note that the Judge also took into account the wider context of the risks faced by young women on internet communications — particularly social media communications of the kind at issue here. In my view, the observations he made were justified and he was entitled to make them. I further note that the Judge gave careful consideration to the submission not to impose a sentence of home detention and, in my view, the prospects of success on appeal, of challenging the sentence, are not strong.
[28] I acknowledge that the appellant challenges the starting point in what he says is effectively “double counting”, with the addition of eight months’ imprisonment for the second charge in circumstances where it is submitted that both charges were part and parcel of the same set of offending. Even if there is some merit in that submission, the ultimate decision on appeal will of course be whether the end sentence was manifestly excessive. Furthermore, I find that the submission by the appellant that there was a lack of premeditation or intention to inflict harm is not persuasive. The appellant, knowing the age of the victim, elected to go and meet with her and, in my view, it is highly unlikely that his intentions were innocent ones.
[29] As discussed by counsel, the appeal against sentence is to be heard in this Court on 3 June 2025. That is now less than a month away. Judge McDonald was of course aware of this and correctly noted that if the appellant is not granted bail, he will have been in prison for 13 weeks. The statutory release date for a 16-month sentence is eight months. There is no risk if the appellant is declined bail of the appeal against sentence becoming nugatory.
[30] Judge McDonald also had careful and close regard to the appellant’s personal circumstances, including those of his immediate family. Those circumstances have, of course, again been the focus of argument in this Court. I acknowledge the significant and difficult circumstances being experienced by the family. I also acknowledge the appellant’s precarious employment status. However, I am not persuaded that these circumstances should change the outcome of this bail application.
[31] I accept Mr Qaisrani’s submission that there is no real issue with the s 8 risk factors and the appellant’s previous bail history suggests that if he were granted bail there would be no risk of non-compliance. However, as Judge McDonald correctly acknowledged, this is a post-sentence appeal to this Court and the Judge was entitled to refer to and rely principally on the s 14(3) interests of justice factors.
[32] For all those reasons, I conclude that the appeal against the District Court Judge’s decision declining EM bail is to be dismissed.
Result
[33]The appeal is dismissed.
Andrew J
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