Aziz v Police - [2023] NZHC 3392

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…

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 Aziz v Police

Details

AGLC: Aziz v Police [2023] NZHC 3392
Case: [2023] NZHC 3392
Decision Date: 28 November 2023

CaseChat Overview and Summary

Abdul-Samad Abdul Aziz appeals the sentence imposed on him by Judge K J Glubb, arguing it is manifestly excessive. Aziz had pleaded guilty to charges of assault on a person in a family relationship and operating a motor vehicle in an unnecessary exhibition of speed. He was sentenced to four months' home detention and 80 hours of community work. Aziz argues that the starting point for the assault charge was too high and that insufficient credit was given for his guilty plea and rehabilitation efforts. The court examined whether the starting point was appropriate and whether sufficient credit was given for the guilty plea and rehabilitative efforts. The court found that while a lower starting point may have been open to the sentencing judge, the 12-month starting point was within the available range. The court also found that an appropriate discount for the guilty plea and rehabilitation would not reduce the sentence below four months of home detention. The appeal was dismissed, as the sentence was within the available range and there was no discernible error of principle in the sentencing.

No orders were made as a result of the appeal.

Orders