Aziz v Police - [2018] NZHC 2133

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].

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.

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Details

Case: [2018] NZHC 2133
Decision Date: 17 August 2018

CaseChat Overview and Summary

In Aziz v Police, Mr Aziz appealed his sentence of three months' imprisonment for breaching a protection order, arguing it was manifestly excessive. The court identified two primary issues: whether the sentence was manifestly excessive and whether the sentencing process adhered to the principles outlined in the Sentencing Act 2002. The court found that the District Court judge imposed the sentence without a pre-sentence report and without considering the hierarchy of sentencing options, particularly the need to avoid imprisonment for first-time offenders unless necessary. The court also noted that the sentence may have been influenced by Mr Aziz's pending deportation, which should not have impacted the sentencing decision. The High Court concluded that the sentence was manifestly excessive given Mr Aziz's lack of criminal history and his immediate guilty plea. The court substituted the original sentence with one month's imprisonment, which Mr Aziz had already served, resulting in his immediate release.

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.

Orders