Ashqar v Police - [2019] NZHC 1184

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…

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 Ashqar v Police

Details

AGLC: Ashqar v Police [2019] NZHC 1184
Case: [2019] NZHC 1184
Decision Date: 28 May 2019

CaseChat Overview and Summary

In Ashqar v Police, the High Court of New Zealand considered an appeal against sentence brought by Abadi Alqrani Ashqar. Ashqar had been convicted of committing an indecent act in a public place and breaching bail. The case centred on whether the sentence imposed by the Auckland District Court was appropriate. The legal issue for the court to determine was whether there was a material error in the sentence that warranted the appeal being allowed under s 250 of the Criminal Procedure Act 2011.

The court examined whether the starting point and uplifts applied in the sentence were justified. The Crown accepted the starting point was high but within the appropriate range. The defence argued the uplifts for previous convictions and bail breaches were excessive. The court found that while some uplift was appropriate, the two-month uplift for prior offences and one-month uplift for bail breaches were disproportionate. The court determined the total uplift should have been one month, not two months. With a 15 per cent discount, the resulting sentence of six months' imprisonment was consistent with the totality of the offending. The court concluded there was an error in the sentencing relating to the uplifts, and a different sentence of six months' imprisonment should be imposed.

The High Court upheld the appeal and substituted the sentence of six months' imprisonment for the indecency charge and one month's imprisonment for the bail breach, for a total of seven months' imprisonment. The court found the original sentence of seven months was excessive due to the disproportionate uplifts applied. By reducing the uplifts to one month in total, the resulting sentence of six months was deemed appropriate by the court.

Orders