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…

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.

Continue reading Ali v Police

Details

AGLC: Ali v Police [2017] NZHC 2869
Case: [2017] NZHC 2869
Decision Date: 22 November 2017

CaseChat Overview and Summary

In Ali v Police, the High Court of New Zealand was asked to consider the appeal of Mr. Shafeez Shazil Ali, who was sentenced to 18 months' imprisonment for receiving stolen property. The appeal contested the excessiveness of the sentence and the refusal to grant leave for Mr. Ali to apply for home detention. The appeal was heard on 20 November 2017, with Mr. RN Roy representing the appellant and Ms. ZR Hamill for the respondent. The judgment was delivered by Downs J on 22 November 2017.

The court had to decide whether the sentence was manifestly excessive and if the Judge erred by not granting leave for Mr. Ali to apply for home detention or imposing that sentence. Mr. Roy argued that Judge McNaughton adopted a starting point beyond the available range and failed to consider home detention as a real alternative to imprisonment. Ms. Hamill opposed these contentions, arguing that the sentence was within the appropriate range and that home detention was not suitable given Mr. Ali's history of non-compliance with court orders and his lack of motivation to rehabilitate.

The court reasoned that the starting point of 15 months' imprisonment for the receiving offence was within the available range, based on similar cases where the courts had adopted starting points of 15 or 18 months' imprisonment. The court further noted that the Judge had uplifted the starting point for the remaining nine offences and Mr. Ali's extensive history of drug-related offending. The court also found that home detention was not an appropriate sentence for Mr. Ali due to his criminal history, poor compliance with court orders, pessimistic pre-sentence report, lack of a suitable address, unwillingness to engage in rehabilitation programs, and the need for a deterrent response.

The appeal was dismissed, and the sentence of 18 months' imprisonment was upheld. The court found that Judge McNaughton did not err in declining to grant Mr. Ali leave to apply for home detention or in not imposing that sentence.

Orders