Aramiz v The Queen
[2020] NZHC 78
•4 February 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-36
[2020] NZHC 78
ABDU ALI ARAMIZ v
THE QUEEN
Hearing: 4 February 2020 Appearances:
Mr Aramiz self-represented
F A M Manning for the Crown
Judgment:
4 February 2020
JUDGMENT OF COOKE J
[1] On 29 May 2019 Mr Aramiz was sentenced to two years three months’ imprisonment for the following charges:
(a)One charge of threatening to kill;1
(b)One charge of aggravated burglary;2
(c)Two charges of assault with intent to injure;3
1 Crimes Act 1961, s 306, maximum penalty seven years’ imprisonment.
2 Section 232(2), maximum penalty 14 years’ imprisonment.
3 Section 193, maximum penalty three years’ imprisonment. In March 2019 a charge of assault with a weapon was amended to assault with intent to injure.
ARAMIZ v R [2020] NZHC 78 [4 February 2020]
(d)Two charges of male assaults female;4
(e)Two charges of driving while disqualified;5 and
(f)Two charges of breach of release conditions.6
[2] The sentence was imposed by Judge Barry in the Wellington District Court.7 Mr Aramiz now appeals his sentence on the grounds the end sentence was significantly higher than the sentence indication. The notice of appeal indicates an appeal against both conviction and sentence, but Mr Aramiz in his written submissions explained that he did not wish to appeal against conviction.
The offending
Breach of release conditions
[3] Mr Aramiz was released from Rimutaka Prison on 20 March 2018. He was inducted into the requirements of his release conditions on 23 March 2018. He also signed a written instruction to report to Wellington Community Corrections on 4 April 2018 at 1 pm and every week thereafter at the same time until advised otherwise. After failing to comply with this condition in May he was issued with a final warning for failure to report. On 18 and 25 July 2018 Mr Aramiz again failed to report to Wellington Community Corrections in breach of his release conditions. He did not offer an explanation for this non-compliance. The charging document also records Mr Aramiz breached his release conditions again on 20 December 2018.
Driving while disqualified (third or subsequent)
[4] Mr Aramiz has six previous convictions for driving whilst disqualified. In August 2014 Mr Aramiz was disqualified from driving for an indefinite period. At about 6 pm on Sunday 22 July 2018 he drove a car on Jervois Quay, Wellington. In explanation he stated he had just bought the car and wanted to drive his family back
4 Section 194, maximum penalty two years’ imprisonment.
5 Land Transport Act 1998, s 23(1)(a) and (4), maximum penalty two years’ imprisonment or $6,000 fine.
6 Sentencing Act 2002, s 96, maximum penalty one year’s imprisonment or $2,000 fine.
7 New Zealand Police v Aramiz [2019] NZDC 10356.
home. At about 8.30 pm on 16 August 2018 Mr Aramiz drove a car on State Highway 1, Wellington. He was stopped by Police for a routine traffic stop. In explanation he stated he was test driving the vehicle as he planned on purchasing it for his partner.
Assault charges
[5] Mr Aramiz has been in an on and off relationship with the victim for 16 years. There have been eight recorded family harm incidents between them. They have no biological children but are the legal guardians for one child.
[6] At about 7 am on Saturday 1 September 2018 Mr Aramiz was at the victim’s address in Johnsonville. Mr Aramiz accused the victim of speaking with another male the night before. An argument ensued. Mr Aramiz was verbally aggressive. He then kicked holes in the walls of the house. The victim told him to leave.
[7] Mr Aramiz then punched the victim several times, knocking her to the ground. He began to punch and kick her about the body and face. Due to the length of the attack the victim was unable to confirm the amount of times she was struck by Mr Aramiz. That attack gave rise to the charge of male assaults female. Mr Aramiz then reached for a metal pole and used it to strike the victim several times about the arms, back and body. That gave rise to the charge of assault with intent to injure. Once the victim was no longer able to defend herself, Mr Aramiz left the address. The whole attack lasted for about an hour.
[8] Mr Aramiz returned to the victim’s address later that evening. She let him inside the house and he remained there for the night. The following morning the two began to argue once more. Mr Aramiz became verbally aggressive and the victim asked him to leave the address. He refused and punched her several times about the head and body while she tried to defend herself. That gave rise to a further charge of male assaults female.
[9] During the assault Mr Aramiz took a cricket wicket and used it to strike the victim about the arms and body several times. Mr Aramiz continued the attack on the victim for about an hour until her 11 year old son intervened. Mr Aramiz then left the address. That assault gave rise to a charge of assault with intent to injure.
[10] The victim received bruising and grazes on her arms, back and face. The full extent of her injuries is unknown as medical intervention was declined.
Aggravated burglary and threatening to kill
[11] At 5.40 am on 20 December 2018 Mr Aramiz went to the victim’s home address in Johnsonville. The victim was asleep at the time but woke to the sound of Mr Aramiz knocking on the front door. The victim looked through the security peephole and recognised Mr Aramiz and refused to open the door. Mr Aramiz smashed the outer pane of the glass door with a hammer. Fearing for his safety, the victim opened the door and attempted to leave the flat. As he tried to leave, Mr Aramiz pushed him to the floor, saying “Motherfucker I have come to kill you”. Mr Aramiz then attempted to drag the victim back inside. The victim managed to get to his feet and ran to a neighbouring address where he contacted Police and remained for the next hour.
[12]The victim suffered minor scratches to his arms.
Decision under appeal
[13] An indicative sentence of 15 months’ imprisonment was given in April 2019 in respect of the aggravated burglary, threatening to kill and some of the driving and release condition charges. At the sentencing indication the Judge recorded that from a reference point of 15 months’ imprisonment, a sentence of electronic monitoring was a possibility. The Judge then went on to note that indication was “possibly undermined completely if the pending sentencing on the unrelated assaults pulls the ground out from underneath that”.
[14] The sentencing in May 2019 included the further assault charges and charges of driving while disqualified and breach of release conditions. Mr Aramiz was sentenced to two years, three months’ imprisonment. After outlining the charges and facts the Judge considered the probation report. Mr Aramiz had a history of methamphetamine and cannabis use. The report recorded Mr Aramiz had been accepted into Odyssey House, a residential programme offering addiction treatment services. The report also recorded Mr Aramiz’s stated motivation to address the root
causes of his offending. The pre-sentence report, however, noted Mr Aramiz had a history of demonstrating pre-sentence motivation which lapsed after sentences. The pre-sentence report recommended imprisonment rather than home detention, noting Mr Aramiz’s history of non-compliance with community based sentences.
[15] The Judge identified a starting point of 15 months’ imprisonment for the charges outlined in the sentence indication. That starting point was based on aggravating factors related to the degree of premeditation indicated by bringing a hammer to the scene and the minor violence accompanying the burglary. The Judge then uplifted by four months to reflect the breach of release conditions and driving while disqualified charges. He then uplifted a further month to reflect the prior history of criminal offending. That resulted in an overall starting point for that set of offending of 20 months’ imprisonment. After a 25 per cent discount for guilty plea that brought the sentence back down to 15 months.
[16] Turning to the second set of offending involving the assault against Mr Aramiz’s partner, the Judge considered the offending warranted “a significant period of imprisonment”. The assaults were serious, of extended duration and with a weapon. The assaults were also in the presence of the victim’s 11 year old son. The Judge noted the victim was “totally overpowered” and sustained painful and disfiguring injuries. A starting point of one year, four months’ imprisonment was adopted. The Judge then uplifted by two months for the prior history of violence, including violence against the same victim. A discount of four months for totality was given, resulting in a sentence of 14 months’ imprisonment.
[17] The Judge then noted that left two discrete reference points of 15 and 14 months’ imprisonment. He discounted a further two months overall to recognise the expressed remorse and commitment to rehabilitation, leaving an overall sentence of 27 months, or two years and three months imprisonment. To that the Judge added a concurrent sentence of one month for the charge of threatening to kill, one month concurrently for the two charges of driving while disqualified and one month concurrently for the breach of release conditions.
[18] Finally the Judge ordered a final protection order in respect of the female victim and a two year disqualification from driving.
Relevant law
[19] This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.8
Conviction appeal
[20] At the hearing Mr Aramiz argued that he only pleaded guilty to the charges as a consequence of erroneous advice his then counsel provided him. The essence of that advice was that the most that the District Court would sentence him on all the charges was 21 months’ imprisonment, and that it might be less given time served on remand. That was a level under two years’ which would open up home detention and the rehabilitation programmes Mr Aramiz emphasised.
[21] This argument was not raised in Mr Aramiz’s written submissions for his appeal, and in his written submissions he advised he was not pursuing a conviction appeal. The circumstances in which an appeal may be allowed against a conviction when a guilty plea has been entered are very limited.9 In terms of suggested error by counsel in the advice they have given in relation to a prospective sentence there are tightly prescribed requirements. They were described by the Court of Appeal in Whichman v R in the following terms:10
[41] An appeal based on trial counsel error in advising as to sentence raises a number of distinct thresholds, all of which must be crossed before a guilty plea should be vacated and the consequent conviction quashed. Those thresholds are these:
8 Ripia v R [2011] NZCA 101 at [15].
9 R v LePage [2005] 2 NZLR 845 (CA) at [17]–[19].
10 Whichman v R [2018] NZCA 519 (footnote omitted).
(a)first, the advice given was erroneous;
(b)secondly, there is or was a genuine prospect of acquittal at trial had the plea not been entered; and
(c)thirdly, there is credible evidence that but for the erroneous advice, the guilty plea would not have been entered.
We think the second element is best described in this way. If the first threshold has been crossed, we do not think an appellate court should overanalyse the merits of available defences. To do so risks eroding the essential responsibility of a first appeal court under s 232(4) to concern itself with whether the error “created a real risk that the outcome of the trial was affected”. What matters is whether a genuine prospect of acquittal has been lost as the result of a process failure in the criminal justice system. As T (CA662/2012) v R demonstrates, it is very much a matter of impression as to whether justice has or has not been done in the particular case.
[22] In the present case Mr Aramiz’s arguments are well short of the requirements. He has given no forewarning of his criticism of counsel’s advice forming a basis of a conviction appeal, and no materials that would meet the other requirements. Any advice as to prospective sentences could never be absolutely certain, and here the suggested maximum penalty of 21 months remains reasonably close to the ultimate sentence of 27 months that was imposed.
[23] For that reason I reject this argument and turn to the matter that is more properly the focus on the appeal, which is whether Mr Aramiz’s sentence was manifestly excessive.
Sentence appeal
[24] Mr Aramiz argues a lesser sentence ought to have been imposed. He says he has acknowledged his behaviour was wrong and again expresses his desire to complete rehabilitation at Odyssey House with his family’s support. He notes the end sentence was higher than the 15 months’ sentence indication. Ms Manning for the Crown submits the end sentence is within range and not manifestly excessive.
[25] There can be no issue regarding the disparity between the sentence indication and the final end sentence given as further charges were added at sentencing. The Judge warned Mr Aramiz of this potential in the initial sentence indication.
[26] The process adopted by the Judge for determining the sentence was complex and can be subject to criticism. For example it might be said that the Judge did not discount for guilty plea on the second set of charges. He could also be said to have erred in discounting a further two months for rehabilitation potential after accounting for a 25 per cent discount for guilty plea on the first set of charges. But the ultimate question is whether there is a manifestly excessive end sentence.
[27] There is no tariff decision for aggravated burglary. Ms Manning provided cases with comparable facts. I consider the facts of the aggravated burglary to be more serious than both R v Henare and R v Gadiev so identified.11 There was a higher degree of premeditation as Mr Aramiz brought a hammer with him to the address. In my view an uplift of around two months for the accompanying threat to kill would have been appropriate also. In light of those considerations the 15 month starting point adopted by the Judge was within range.
[28] There is also no tariff decision for assault with intent to injure but R v Nuku can provide guidance as to the application of R v Taueki to lesser charges involving an intent to injure.12 The circumstances of this offending involved a high level of culpability ordinarily reflected in a more serious charge. It is possible the lack of knowledge as to the extent of the victim’s injury resulted in lesser charges as medical intervention was declined. The offending in this case involved a number of aggravating factors as identified by the District Court Judge. The assaults were on two separate occasions and each was prolonged, involving the use of opportunistic weapons. An 11-year-old child witnessed the second assault and Mr Aramiz only stopped his attack when the child intervened. The attack took place in the family home and the victim was especially vulnerable given the history of family violence between the two. I consider the offending is near to the most serious of cases for which that penalty is prescribed and a starting point close to the maximum penalty could have been appropriate.
11 R v Henare HC Tauranga CRI-2007-270-125, 20/5/2008; and R v Gadiev CA194/06, 14 October 2006.
12 Nuku v R [2012] NZCA 584, [2013] NZFLR 39 at [37]; and R v Taueki [2005] NZCA 174, [2005]
3 NZLR 372.
[29] Again Ms Manning has also provided comparable cases.13 I consider the offending is most similar to Paikea v New Zealand Police although slightly more serious as it was prolonged and over two separate occasions. Overall I consider the starting point of one year, four months imprisonment appropriate in the circumstances.
[30] I see no issue with the uplifts for previous offending given Mr Aramiz’s lengthy criminal history and in particular the history of family violence between Mr Aramiz and the victim. The uplift of four months for the breach of release conditions and disqualified driving was appropriate, as was the four month discount for totality. The discount of two months for remorse and commitment to rehabilitation was generous given the factors outlined in the pre-sentence report.
[31] As I noted earlier the only cause for concern is the calculation errors, particularly in failing to discount 25 per cent for guilty plea on the second set of offending. Despite the existence of that error preventing the possibility of home detention, in my view the end sentence of two years, three months’ imprisonment is within range. A sentence of home detention was plainly inappropriate. This was serious violent offending and Mr Aramiz has a history of non-compliance with electronically-monitored sentences.
[32] As has been emphasised, the focus is on end sentence, rather than the particular steps taken in calculating it. Here the end sentence was clearly within range. The sentencing exercise here has become complicated by reason of the Judge treating the offending as two separate sets of offending for sentencing purposes, which were then added together for the purposes of determining the ultimate sentence. But the offending involved interrelated domestic violence against the same victim. The more straightforward approach would have been to identify the most serious charges as the lead charge, with the other offending then resulting in uplifts on the starting point. I appreciate that this process became complicated because a sentencing indication was given on only one set of charges, but the overall sentencing exercise has become complex for this reason.
13 Nortje v New Zealand Police [2019] NZHC 334; Hunter v R [2019] NZCA 363; and Paikea v New Zealand Police HC Whangarei CRI-2010-488-53, 29 October 2010.
[33] I nevertheless agree with Ms Manning’s reliance on R v Xie in this respect where the Court of Appeal held:14
[16] The fundamental tenet of the totality principle is that the final sentence must reflect “the totality of the offending”. How the total sentence is made up has never been important. We cite what this court said in R v Williams CA91/00 31 May 2000:
“[11] We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment. Sometimes there is advantage in imposing cumulative sentences on some or all of the charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters, with concurrent sentences imposed.”
[17] That passage from Williams was cited with approval in R v Barker CA57 /0130 July 2001. In that case, this court, at [10] reiterated the key principles when sentencing for multiple offending:
(a) With multiple offences the sentence must reflect the totality of the offending;
(b) In respect of multiple offences, this court will not insist that the total sentence be arrived at in any particular way; and
(c) The total sentence must represent the overall criminality of the offending and the offender.
[34]The end sentence was appropriate. For these reasons the appeal is dismissed.
Cooke J
14 R v Xie (2006) 22 CRNZ 949 at [16] and [17].
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