Ali v Police

[2017] NZHC 2869

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000335 [2017] NZHC 2869

BETWEEN

SHAFEEZ SHAZIL ALI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 November 2017
Counsel:	RN Roy for Appellant ZR Hamill for Respondent
Judgment:	22 November 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 22 November 2017 at 11 am.

Registrar/Deputy Registrar

Solicitors:

Public Defence Service, Manukau. Kayes Fletcher Walker, Manukau.

ALI v POLICE [2017] NZHC 2869 [22 November 2017]

The issue

[1]      This is a sentence appeal in relation to a term of 18 months’ imprisonment. The primary offence is receiving stolen property.   On behalf of Mr Ali, Mr Roy contends the sentence is manifestly excessive as Judge McNaughton adopted a starting point beyond the available range.  Mr Roy also contends the Judge erred by failing to grant leave for Mr Ali to apply for home detention, or by not imposing that sentence. For the respondent, Ms Hamill resists these contentions.

Background

[2]      At 4.43 am on 8 May 2017, Police found Mr Ali asleep in a car.  It had been stolen between 10 and 27 April 2017, and was worth $8,800.  Inside the car was a cannabis pipe and a methamphetamine pipe (the latter in the defendant’s bag). Mr Ali said he bought the car three days earlier for $450.  He said he believed it was “legit”. This offending occurred while Mr Ali was in breach of his release conditions: Mr Ali failed to report to his probation officer on 28 April 2017 after being released from prison two days earlier for offending contrary to the Misuse of Drugs Act 1975 and breach of release conditions.

[3]      On 16 May 2017, Mr Ali again failed to report to his probation officer.

[4]      On 23 June 2017, and while on bail for the May offending, Mr Ali was found by Police with 0.1 grams of methamphetamine in his possession.

[5]      Further offending followed.  On 13 August 2017, and hence while he was on bail for both the May and June offending, Mr Ali was found in possession of a small amount of cannabis and methamphetamine pipe.

[6]      Mr Ali also failed to appear in the District Court on 11 May, 29 May and

22 June 2017.

[7]      Judge McNaughton adopted a starting point of 15 months’ imprisonment for the receiving offence.  The Judge uplifted the starting point by five months for the

remaining nine offences. The Judge further uplifted the starting point by four months in recognition of the appellant’s extensive history of offending contrary to the Misuse of Drugs Act.

[8]      The Judge mitigated the sentence by 25 percent—the maximum available for the defendant’s pleas of guilty.

The first ground of appeal

[9]      Mr  Roy  relied  heavily  on  Drake  v  Police.1      There,  Gendall  J  helpfully considered starting points of imprisonment in relation to the offence of receiving stolen property.   Mr Drake received a stolen car worth $11,000.   The victim was deprived of it for six months.  Gendall J concluded the starting point of 15 months’ imprisonment was within range, albeit a little harsh.

[10]     As to the other cases considered in Drake:

(a)      In R v Collier the defendant received a stolen car worth $11,000 the day after it had been stolen.2   The Court of Appeal adopted a starting point of 18 months’ imprisonment.

(b)In Sinclair v Police the defendant received a car, two laptops and tools worth more than $10,000.3    Much of the property had come into the defendant’s possession on the day it was stolen. A starting point of two and a half years’ imprisonment was considered stern, but otherwise available.

(c)       In Ellis v R the defendant received stolen property worth $5,000.4

Mr Ellis  had  been  found  with  the  property  a  few  hours  after  the burglary.  The Court of Appeal considered that feature significant.  It declined   to   interfere   with   the   starting   point   of   18 months’

imprisonment.

1      Drake v Police [2015] NZHC 2252.

2      R v Collier CA170/03, 21 August 2003.

3      Sinclair v Police [2014] NZHC 1332.

4      Ellis v R [2012] NZCA 513.

(d)In Small v Police Hammond J appears to have accepted the defendant’s receipt  of a stolen  van  and  firearms  worth  a total  of $7,200  was opportunistic.5     The  Judge  adopted  a  starting  point  of  18 months’ imprisonment.

[11]     Of those above, Collier is the most similar.  The car there was worth a little more and received by Mr Collier only a day after it was stolen. But, there the starting point was 18 months’ imprisonment; not 15 months. Given this and the other decisions above, Judge McNaughton’s starting point was available.   Mr Roy very properly acknowledged this argument was the “lesser” of the two advanced on appeal.

The second ground of appeal

[12]     Mr Roy submitted Judge McNaughton was wrong to decline Mr Ali leave to apply for home detention as home detention is a real alternative to imprisonment, and this response was consistent with the least restrictive outcome principle.   Mr Roy emphasised Mr Ali’s recent instructions of his motivation to attend a residential drug programme.   Mr Roy also emphasised Mr Ali’s family support, both now and at sentencing.

[13]     It is not clear whether this appeal ground was directed at leave for home detention or alleged error in not imposing home detention.6   The notice of appeal and written submissions were directed at the former, but Mr Roy’s oral submissions appeared to extend to the latter.   This matters not as home detention, whether in consequence of leave or otherwise, was problematical for at least six reasons.

[14]     First, Mr Ali has an unfortunate criminal record.  Before sentencing on these matters, Mr Ali had 18 convictions contrary to the Misuse of Drugs Act and a host of other convictions for breach of release conditions, burglary, receiving stolen property, breach of bail, possession of an offensive weapon and driving while disqualified.  Mr

Ali has received many sentences of imprisonment.  He is only 25.

5      Small v Police HC Hamilton AP29/99, 30 March 1999.

6      Refusal to grant leave is appealable; see s 80J of the Sentencing Act 2002.

[15]     Second, Mr Ali has a history of poor compliance with Court and related orders. As observed, Mr Ali has convictions for breaching release conditions, driving while disqualified and breaching bail.  Mr Ali was released from prison on 26 April 2017. He failed within 48 hours to report to his probation officer, the first breach of release conditions charge before Judge McNaughton.  And, several of the offences for sentence were committed while Mr Ali was on bail.

[16]     Third, Mr Ali’s pre-sentence report is pessimistic.  It records:

(a)       Mr Ali’s offending shows “no signs of abating”.

(b)Mr Ali has no legitimate income.  He acknowledges selling drugs and associating with a gang.

(c)       Mr Ali “expressed no remorse for his offending”.

(d)It had been “nigh on impossible to motivate Mr Ali to engage with a probation officer in the management of his release conditions”.  This has led to his parents “becoming dismayed and at a loss to where he is or if he is safe”.

(e)      Mr Ali used his parents’ address as a “dummy address”; he had no intention of living there.

(f)      Mr Ali was “unmotivated” to engage in drug or alcohol rehabilitative programmes.

(g)      Mr Ali was at “high risk” of re-offending. And, at risk of absconding.

[17]     Fourth, there was and remains no obvious address for home detention.

[18]     Fifth,  Mr Ali  was  not  prepared  to  undertake  a  residential  rehabilitation programme notwithstanding an obvious drug problem.

[19]     Sixth, combination of circumstance required a deterrent response: the offences before Judge McNaughton began within two days of Mr Ali’s release from prison for drugs offending and breach of release conditions.

[20]   Mr Roy submitted Mr Ali’s family remains supportive and Mr Ali’s “instructions” are that he is motivated to attend a residential programme.  There is nothing tangible in the record, however, to support the latter contention. And family support, while commendable, could not carry the day against this backdrop.

[21]     For the reasons above, Judge McNaughton did not err in declining to grant Mr

Ali leave to apply for home detention, or in not imposing that sentence.

[22]     The appeal is dismissed.

……………………………..

Downs J