IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2018-483-8
[2018] NZHC 2133
SHAH MOHAMMED AZIZ v
NEW ZEALAND POLICE
Hearing: 6 August 2018 Appearances:
D M Goodlet for the Appellant
M M Wilkinson-Smith for the Respondent
Judgment:
17 August 2018
JUDGMENT OF CULL J
[1] Mr Aziz appeals his sentence of three months’ imprisonment as being manifestly excessive,1 after he pleaded guilty to one charge of breaching a protection order.2 The grounds of his appeal are that he has no criminal history; his guilty plea was entered on the first available opportunity; and the Court had insufficient information before it to impose the sentence of imprisonment.
[2] At the commencement of the appeal hearing, I indicated to counsel that I was concerned about the way in which the sentence in this case was imposed, without regard to the Sentencing Act 2002 principles. As Mr Aziz had already served three weeks’ imprisonment, there were two options available to the Court: to allow the
1 R v Aziz [2018] NZDC 14712.
2 Domestic Violence Act 1993, ss 19(2)(e), 49(1)(b) and 49(3). Maximum penalty three years’ imprisonment.
AZIZ v NEW ZEALAND POLICE [2018] NZHC 2133 [17 August 2018]
appeal and release Mr Aziz or direct the matter back to the District Court for resentencing. The matter was stood down for counsel to take instructions.
[3] Both counsel confirmed that the first option was the most appropriate. I delivered a results decision, quashing the three months’ imprisonment, and substituting one months’ imprisonment, with the immediate release of Mr Aziz. This decision contains my reasons.
Factual background
[4] On 20 June 2018, a temporary protection order was issued by the Whanganui District Court on behalf of the complainant and against Mr Aziz.
[5] On 15 July 2018 Mr Aziz contravened that protection order by sending 20 text messages and several voice messages to the complainant. He was at the Hikarangi Lodge in Whanganui at the time and convinced two managers of the Lodge to contact the victim. The managers told the complainant that Mr Aziz wanted her to give him money. The complainant subsequently found fake Instagram accounts about her, with statements about her being a prostitute and a nude photo of her, posted without her consent. Mr Aziz also contacted the complainant several times on WhatsApp, stating “ur getting done lol”; “ur life isdone”; and “I told u and warned u”.
[6] Mr Aziz is also currently liable for deportation under s 157 of the Immigration Act 2009. On 23 June 2018 he was served with a deportation liability notice.
[7]Mr Aziz has no previous convictions.
District Court decision
[8] The Judge observed that the complainant had advanced sufficient grounds to the Family Court about Mr Aziz’s conduct such that a protection order on “a without notice” basis was required.3 Mr Aziz was served with the order and within a couple of weeks, he committed this offending.
3 Aziz, above n 1, at [2].
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- Case
- [2018] NZHC 2133
- Decision Date
CaseChat Overview and Summary
The High Court quashed the original sentence and substituted a one-month imprisonment sentence, to be immediately released as Mr Aziz had already served more than this period. The court emphasized that this decision should not set a precedent for lenient treatment of first-time offenders breaching protection orders but was appropriate given Mr Aziz's unique circumstances.
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