Aziz v Police
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000457
CRI-2023-404-000458 [2023] NZHC 3392
BETWEEN ABDUL-SAMAD ABDUL AZIZ
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 November 2023 Appearances:
Tony Beach for the Appellant
Dino Muratbegovic for the Respondent
Judgment:
28 November 2023
JUDGMENT OF MOORE J
[Appeal against sentence]
This judgment was delivered by me on 28 November 2023 at 10:00 am.
Registrar / Deputy Registrar Date:
AZIZ v NEW ZEALAND POLICE [2023] NZHC 3392 [28 November 2023]
Introduction
[1] Abdul-Samad Abdul Aziz pleaded guilty to one charge of assault on a person in a family relationship1 and one of operating a motor vehicle in an unnecessary exhibition of speed.2 He was sentenced by Judge K J Glubb on 9 August 2023 to four months’ home detention and 80 hours of community work.3 Mr Aziz appeals that sentence on the basis it is manifestly excessive.
Factual background
[2] The following is drawn from the Police summary of facts which I assume Mr Aziz accepted for the purposes of sentencing. This records that the victim, A, in respect of the assault charge was Mr Aziz’s partner of three months. At the time Mr Aziz was aged 34 and A was aged 17.
[3] On 8 August 2021, the couple were at Mr Aziz’s address. Over the course of the afternoon Mr Aziz became increasingly aggressive towards A. This culminated in him telling A to find her own way home.
[4] A walked to a nearby park to clear her head. Shortly afterwards Mr Aziz arrived at the park. A started to walk away from him but Mr Aziz caught up to her. He grabbed her by the elbow with force. A managed to escape his grip and run away. Mr Aziz chased her and put her in a headlock from behind. He applied pressure to her neck. A struggled to breathe. Mr Aziz maintained the pressure to A’s neck for between ten to 15 seconds. He then loosened his grip which allowed A to escape and run away. She sought help from a member of the public. She later reported a red mark on her neck and some associated tenderness.
[5] The remaining unrelated driving charge arises from events eight months later on 25 April 2022. Mr Aziz attempted to match the speed of and overtake another car; weaving between lanes, accelerating hard and blowing out smoke from his car’s exhaust in the process. Eventually he was stopped by Police and arrested. In
1 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
2 Land Transport Act s 36A(1)(a); maximum penalty three months’ imprisonment or a fine not exceeding $4,500, together with mandatory disqualification for a period of six months.
3 Police v Abdul-Aziz [2023] NZDC 17095.
explanation he said the other driver was “being cheeky and showing off”, and that he wanted to show off, too.
District Court decision
[6] Addressing the aggravating factors of the offending first, the Judge noted the offending was both planned and opportunistic; A left, Mr Aziz pursued and assaulted her. Additional aggravating factors included the domestic setting, the vulnerability of the victim (given the age differential) and the impact the offending had on her.
[7] As to aggravating circumstances personal to the defendant, the Judge outlined Mr Aziz’s previous convictions for drugs, violence, driving-related offences and breaches of court-imposed sentences and orders. Personal mitigating factors included the completion of two rehabilitative courses completed after the offending and before sentence.
[8] A starting point of 12 months’ imprisonment was adopted on the assault charge, uplifted by two months for the excess speed charge. The Judge stated that “appropriate credits” would be applied for the “work” Mr Aziz has done, and that the end sentence of imprisonment would in any event be a short-term one.4
[9] Having regard to the purposes and principles of sentencing, the Judge was satisfied it was appropriate to convert the sentence on the assault charge to one of four months’ home detention. He noted that the family harm report made for “chilling reading” and gave Mr Aziz a final warning, should he ever return to Court on further violent charges.5
[10] As for the charge of excess speed, the Judge was satisfied it was appropriate to grant the defence application pursuant to s 94 (not to impose a period of disqualification) and instead impose a sentence of 80 hours’ community work. This would enable Mr Aziz to retain employment and support his family.
4 At [14] and [16].
5 At [11].
Approach on appeal
[11] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.6 The focus is on the sentence imposed, rather than the process by which it is reached.7 The Court will not interfere where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end, the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to apply it.8
Grounds of appeal
[12] Mr Beach, for Mr Aziz, submits the end sentence was manifestly excessive sentence as a result of the following two errors:
(a)the Judge mischaracterised the culpability of the offending, leading to the adoption of a starting point that was too high; and
(b)insufficient credit was given for guilty pleas and the completion of rehabilitative programmes prior to sentencing.
Discussion
Starting point
[13] There is no tariff case for assault on a person in a family relationship.9 Mr Beach refers me to three cases by way of comparison which he says support the adoption of a lower starting point than 12 months’ imprisonment. On my reading, at least two of these involve offending that is substantially less serious than the present. They also did not involve any analysis of an appropriate standalone starting point for offending of this nature.
6 Criminal Procedure Act 2011, s 250(2).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 At [35].
9 Sweeney v R [2023] NZHC 1067 at [28].
[14] The first, which is of limited assistance in the present case, is Stuart v Police.10 There the defendant was sentenced for threatening to kill, assault and assault in a family relationship. The last of these charges involved the defendant, on a separate occasion to the other charges, pinching the complainant’s skin and punching her hand five times. This was accounted for in a three-month uplift to the lead charge of threatening to kill. The sentence was upheld on appeal.
[15] In the second, Chang v Police, the defendant grabbed his wife by the hair and slapped her face twice.11 The decision to decline a discharge without conviction and impose a sentence of supervision was upheld on appeal.
[16] The third, Whichman v Police, involved the defendant grabbing the complainant and throwing her to the ground, before pulling her through the lounge onto the veranda.12 This caused her to hit her head and ankle on the door on the way out. A starting point of six months’ imprisonment was described as within the available range on appeal, although the Court said it would have adopted five months. While undoubtedly more serious than the two cases I have just referred to, I do not consider it reaches the level of seriousness evident in the present offending. This is reflected in the fact that Mr Whichman was sentenced on a lesser charge of common assault, carrying a maximum penalty of just one years’ imprisonment. It is also reflected in the incidental rather than deliberate nature of the complainant’s injuries.
[17] The present case, by way of contrast, involved more sustained and serious offending. Mr Aziz pursued A after she had left, grabbed her with force, deliberately placed her head and neck in a headlock, and applied pressure to her neck for an extended period. Unsurprisingly, Mr Aziz was originally charged with impeding the complainant’s breathing, a more serious offence carrying a maximum penalty of seven years’ imprisonment.13 The charge was later amended to assault on a person in a family relationship, with a maximum penalty of two years’ imprisonment. It is that charge to which Mr Aziz pleaded guilty. Despite the reduced maximum penalty, I am still required to sentence on the facts either proved or admitted.
10 Stuart v Police [2023] NZHC 2867.
11 Chang v Police [2019] NZHC 2051.
12 Whichman v Police [2019] NZHC 3245.
13 Crimes Act, s 189A.
[18] Mr Muratbegovic, for the Crown, refers to four cases which he says may be of assistance.14 These involve broadly comparable offending in the context of the same two-year maximum penalty. Starting points range from six to 18 months’ imprisonment, though more frequently they tend to fall around the six-to-eight-month range. With reference to these authorities Mr Muratbegovic responsibly accepts that the Judge’s starting point of 12 months’ imprisonment might be seen as stern and that a figure in the region of eight months may have been more typical.
[19] Having reviewed these cases, I agree it would have been open to the Judge to have set a lower starting point, say one of nine- or ten-months’ imprisonment. However, I consider 12 months to be nonetheless within the available range, albeit at the upper limit. It is exactly half of the maximum penalty. It reflects not only the serious nature of the assault but the context in which the offending occurred. Mr Aziz was twice the victim’s age. Therein lies an inherent power imbalance which was not necessarily present to such a degree in the cases to which Mr Muratbegovic has referred. There was also an element of premeditation in that Mr Aziz pursued the victim after he told her to go, and she retreated to the nearby park.
[20] The importance of a strict approach to impeding breathing in the context of domestic violence is illustrated by the insightful comments of Katz J in Waitai v R, which I adopt with respect:15
“I note that in risk assessment tools used by domestic violence workers and police, strangulation, short of causing death, is considered a “red flag” for further serious abuse and fatality. Both legal and medical studies in recent years have begun to emphasise the importance of strangulation in the context of responding to domestic violence.16 Strangulation is a relatively common cause of domestic violence related homicide and is a very high risk activity in a domestic violence context. Although it may leave no visible signs of injury, and is therefore sometimes treated less seriously than other forms of domestic violence such as punching or hitting, the risks associated with strangulation are very high.”
14 Moffat v Police [2021] NZHC 2761; Topia v Police [2019] NZHC 3235; Ryder v Police [2018] NZHC 2014; and Grace v Police ]2016] NZHC 3021.
15 Waitai v R [2014] NZHC 2116 at [25].
16 Heather Douglas and Robin Fitzgerald “Strangulation, domestic violence and the legal response” [2014] 36 Syd LR 231 at 232.
[21] In these circumstances, I do not consider there is any error relating to the assessment of culpability or the starting point of 12 months’ imprisonment.
Discounts
[22] Mr Beach identifies three rehabilitative courses Mr Aziz undertook prior to sentencing for which he says greater credit should have been afforded. These comprise a Stopping Violence Programme, a residential programme at the Bridge Salvation Army, and an advanced defensive driving course.
[23]The Judge expressly recognised two of these at sentencing:
“[9] … It is noted that you have completed the Salvation Army Bridge Programme and that is to your credit and I factor that into the way I deal with the matters. You have indicated you want to lead an offence and drug-free life. It is also noted that you have done a Stopping Violence.”
[24] The credit given for this factor, however, is not immediately clear on the face of the judgment. The relevant passage simply states:
“[14] On the charge of assault on a family relationship the starting point I would have adopted was one of 12 months’ imprisonment. I give you appropriate credits for the work that you have done. I would uplift by two months for the excess speed. In any event where I get to in the end is it is a short-term imprisonment after discounts are applied.”
(Emphasis added)
[25] I have viewed certificates confirming Mr Aziz’s participation in these courses and accept that some recognition of this factor was warranted. In my view, an appropriate discount would have been in the vicinity of five per cent. This strikes an appropriate balance between recognising Mr Aziz’s rehabilitative efforts to date and noting that there is still more work to be done — as for example shown by the family harm call outs which the Judge described as “still ongoing”.17
[26] That brings me to guilty plea. The Judge did not expressly state the credit to be given for this factor, even if the end sentence of four months’ home detention tends to suggest it was taken into account.
17 Police v Abdul-Aziz, above n 3, at [6].
[27] Mr Aziz was arrested on 8 October 2021 but did not plead guilty until 22 September 2022, after the impeding breathing charge was amended to the lesser assault charge. In such circumstances, even if the plea was entered on the first reasonable opportunity after the charge was amended, the Supreme Court has held that the full 25 per cent discount is not necessarily available.18 This is because of the risk of double benefit: the defendant first receives a benefit in the form of a lesser charge (in this case a two-year maximum penalty as opposed to seven years) and secondly the benefit of full credit for guilty plea.19 Bearing in mind that the sentence must properly reflect the offending, while recognising the savings associated with not having to proceed to trial, I consider a 20 per cent discount to be appropriate in Mr Aziz’s case. Mr Muratbegovic suggested the same in oral submission.
[28] This, when added to the five per cent discount for rehabilitation, would produce a total discount of 25 per cent. From an uplifted starting point of 14 months, this would lead to an end sentence of 10 months’ imprisonment (rounded down), commuted, as I accept was appropriate, to a sentence of five months’ home detention.
[29] It follows that I do not consider an end sentence of four months’ home detention can be described as manifestly excessive. Even if a lower starting point of nine or 10 months’ imprisonment was adopted on the assault charge, the discounts available to Mr Aziz would not bring the sentence below four months. I add that it would have been open to the Judge to further uplift the starting point by a small margin to reflect Mr Aziz’s relevant previous convictions.20 Mr Muratbegovic submitted that such an uplift could have been in the vicinity of three months’ imprisonment. That the Judge did not do so operated to Mr Aziz’s benefit.
[30] The reality is that, for a period of four months, Mr Aziz is confined to the home for a maximum of four full days per week. The other three days of the week he is effectively subject to a night-time curfew only, in light of a condition of his sentence that allows him to attend his job at a panelbeaters between 7:30 am and 4:00 pm. To
18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
19 Knight v R [2021] NZHC 2372 at [17]; and Stevens-Fraser v R [2022] NZHC 3470 at [13].
20 These include two convictions in 2018 for male assaults female (family violence) for which Mr Aziz received a sentence of seven months’ home detention. Mr Aziz also has a history of driving- related offences spanning 2007 to 2014, including a conviction in 2013 for operating a vehicle in an unnecessary exhibition of speed.
compare this with eight months’ imprisonment as Mr Beach did in oral submission is, with respect, to compare apples with oranges.
[31] In addition, Mr Muratbegovic advises me that pursuant to s 343 of the Criminal Procedure Act 2011, Mr Aziz’s sentence has not been suspended by virtue of the filing of the current appeal. As he was sentenced to four months’ home detention on 9 August 2023, Mr Aziz’s sentence is due to expire on 8 December 2023 at which point he will have relative freedom, subject to any post-detention conditions as may be imposed.
[32] In any event, I agree with Mr Muratbegovic’s submission that home detention could be seen as a relatively generous outcome in the circumstances. Given Mr Aziz’s previous convictions for assault in a family violence context, and his breaches of the resulting sentence of home detention in 2020, another Judge may well have imposed a sentence of imprisonment instead.
[33] Mr Aziz does not appear to challenge the two-month uplift for the excess speed charge, nor the end sentence of 80 hours community work on that charge and I see no reason to interfere with these aspects of the sentencing in any event. Community work was the more lenient option in the circumstances, enabling Mr Aziz to maintain employment and support his family.
[34] There being no discernible error of principle in the sentencing but in any event the sentence being within the available range, the appeal against sentence must fail.
Result
[35]The appeal is dismissed.
Moore J
Solicitors:
Mr Beach, Auckland Crown Solicitor, Auckland
Aziz v Police [2023] NZHC 3392
0
0
0