Ashqar v Police
[2019] NZHC 1184
•28 May 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-176
[2019] NZHC 1184
BETWEEN ABADI ALQRANI ASHQAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 May 2019 Appearances:
D Becker for the Appellant
M J Mortimer for the Respondent
Judgment:
28 May 2019
ORAL JUDGMENT OF PALMER J
Solicitors: Crown Solicitor, Auckland
Public Defence Service, Auckland
ASHQAR v POLICE [2019] NZHC 1184 [28 May 2019]
What happened?
[1] Around 7.30 pm on 23 December 2017, Mr Abadi Alqrani Ashqar stood outside a house in Harbour View Road in Pt Chevalier, Auckland, with his penis exposed. When two women approached him, he began to masturbate “profusely”, according to the agreed summary of facts. He followed them to the end of the road, continuing to masturbate, as they walked away from him. In her victim impact statement one of the women said she had never felt so unpleasant and had to run to get away from him. The other, her sister, said she still feels unsafe walking to the beach and felt violated and sickened by his actions.
[2] Mr Ashqar was granted, but failed to answer, District Court bail in March 2018 and was remanded. He also failed to appear in the District Court in June and August 2018 and breached bail again in February 2019. He eventually pleaded guilty to these charges. The Department of Corrections assesses his risk of re-offending as moderate to high and his risk of harm to others as moderate. Mr Ashqar has previous convictions for breaches of bail and two for wilful trespass. One of those involved escalating obsessive behaviour regarding a young woman employee of a travel agent. He also faces a charge of threatening to kill.
[3] The maximum sentence for doing an indecent act in a public place, under s 125(1) of the Crimes Act 1961, is two years’ imprisonment. In May 2019, in the Auckland District Court, Judge R G Ronayne set a starting point of six months’ imprisonment for the indecency charge and uplifted it by two months for the previous convictions. He discounted the sentence by 15 per cent, rounded up to two months, to reflect the guilty plea. On top of that he imposed a sentence of one month’s imprisonment for one of the breaches of bail. The total sentence was seven months’ imprisonment. Mr Ashqar did not have an address suitable for home detention and did not seek that. But he appeals the length of the sentence.
Law
[4] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied there is a material error in the sentence and a different sentence should be
imposed. Otherwise it must be dismissed. My focus is on whether the end sentence is within the range available.
[5] In R v Tavo, the offender drove a 13-year-old girl, his partner’s sister, to a secluded location and masturbated near her face.1 He was sentenced to six months’ imprisonment. In R v Taipari, a caregiver in a home for the intellectually disabled masturbated next to a resident on two occasions.2 He was also sentenced to six months’ imprisonment. In Marszolek v Police, the offender shook his genitals at passers-by in a public park and a $450 fine was upheld on appeal.3 In Hosking v R, the offender exposed himself to school children, and an adult, on a number of occasions, and masturbated on school grounds. A starting point of 12 months’ imprisonment was adopted there.4
Submissions
[6] Mr Becker, for Mr Ashqar, submits the starting point was manifestly excessive having regard to Marszolek, Tavo and Taipari. He submits the Judge erred in making an excessive uplift for previous convictions for wilful trespass because they were not sufficiently similar to this offending and the amount of uplift was too great. He also submits the Judge should have considered the totality of the sentence. He submits an appropriate sentence would have been a shorter term of imprisonment or a community- based sentence.
[7] Mr Mortimer, for the Crown, acknowledges six months’ imprisonment is near the top of, but within, the appropriate range, pointing to Hosking. He accepts the two- month uplift for previous convictions was too high and risks disproportionality. He submits the end sentence should be six months’ imprisonment, reflecting a six-month starting point, a one-month uplift for the bail offending and a 15 per cent discount rounded up to one month.
1 R v Tavo CA500/05, 11 May 2006.
2 R v Taipari HC Auckland T991795, 28 January 2000.
3 Marszolek v New Zealand Police [2015] NZHC 2858.
4 Hosking v R [2012] NZCA 470.
Should the sentence be overturned?
[8] There is no prescribed range for these lower order sexual offences. There is something in Mr Becker’s point that the offending in Taipari and Tavo was more serious that Mr Ashqar’s. But in both cases six months’ imprisonment was the end point, not the starting point of the sentences. Despite Mr Becker’s valiant efforts, I do not consider Mr Ashqar’s offending is significantly less serious than those, but it is more serious than the offending in Marszolek. I agree with Judge Ronayne’s assessment that a term of imprisonment, rather than a community-based sentence, was appropriate. Mr Ashqar pursued two women, masturbating, in a residential neighbourhood on an early summer evening. The effect of that has, understandably, stayed with them. Hosking is more serious but involved a starting point of twice that here. I do not consider there is an error in the starting point.
[9] The one-month effective uplift for the two bail offences (or one-month cumulative sentence for one of them) was on the high side. Some uplift was available. Mr Ashqar repeatedly failed to follow Court orders and this was separate offending from the indecency offence. And I do agree with both counsel that the two-month uplift for prior trespass charges, at 33 per cent of the starting point, was disproportionate. Again, some uplift is available. The facts of one of those offences indicate Mr Ashqar’s behaviour can negatively affect women which is also at issue here. But the penalty for those offences in themselves was only one month’s imprisonment. Even another month’s uplift would be disproportionate. I consider a total uplift of only one month was warranted for the bail offences and the prior offences. With a 15 per cent discount, rounded down to one month, I consider the resulting total sentence of six months’ imprisonment is consistent with the totality of the offending.
[10] Accordingly, I consider there was an error in the sentencing, in relation to the uplifts for prior offending and for the bail offences. I consider a different sentence, of
six months’ imprisonment, should be imposed. I uphold the appeal and substitute that sentence.
Palmer J