Gains v The Queen
[2021] NZHC 393
•5 March 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-000112
[2021] NZHC 393
BETWEEN KARIM MONIR ABO GANIS
Appellant
AND
THE QUEEN
Respondent
Hearing: 17 February 2021 Appearances:
C D Bean for Appellant
B B Harris for Respondent
Judgment:
5 March 2021
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 5 March 2021 at 4:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Hamilton
GANIS v R [2021] NZHC 393 [5 March 2021]
[1] On 26 November 2020, Judge Down, sitting in the District Court at Hamilton, sentenced Mr Karin Abo Ganis (the appellant) to two years’ five months’ imprisonment on thirteen charges related to violence, arms, and drugs.1 The appellant had previously entered pleas of guilty to the charges on 18 September 2020 following a sentence indication given by the Judge on 11 September 2020.2
[2] The appellant now appeals against his sentence, saying that a term of home detention ought to have instead been imposed. He says that if appropriate discounts had been afforded in respect of rehabilitative potential; addiction; personal; cultural, and family background; and remorse, that a sentence of home detention would have been available.
[3] The appellant does not take issue with the four-year starting point adopted by the Judge at sentencing, consistent with the starting point adopted in his sentence indication. The focus of the appeal is therefore on the existence of mitigating factors personal to the appellant and what discounts, if any, are necessary to recognise the role of these factors in reducing the appellant’s moral culpability in respect of his offending.
The offending
[4] On 19 March 2020, the appellant and a co-offender met two of the victims at a bar in Hamilton. The victims were a young man and a young woman (the male victim and the second victim) who had gone together to the bar. Another female teenager who was with them that night, was waiting for them, outside in the male victim’s car as she was underage for admission to the bar (the third victim). While in the bar the appellant took three plastic point-bags from his satchel and showed them to the male victim. 3 The plastic bags appeared to contain a white crystal substance that looked like methamphetamine. When the bar closed the appellant asked the male victim if he would give him and his (male) friend a ride home in his car, if they paid for petrol and some takeaway food on the way. The male victim agreed and the appellant and his
1 R v Abo Ganis (Sentencing Notes of Judge Down) [2020] NZDC 24752.
2 R v Abo Ganis (Sentencing Indication) DC Hamilton CRI-2020-019-2211, 11 September 2020.
3 Possesses Methamphetamine: Misuse of Drugs Act 1975, s 7(1)(a). Maximum penalty six months’ imprisonment.
associate got into the car together with the three victims. During their journey the appellant showed the male victim two point-bags and offered him a gram of methamphetamine in exchange for letting the two women in the car perform sex acts on him.4 The male victim declined, and continued driving to a takeaway restaurant where some food was purchased.
[5] After leaving the takeaway restaurant, the male victim was instructed by the appellant and his associate to stop the car and wait while the appellant’s associate went into a nearby address to collect a debt. While he was away the appellant repeated his proposition of offering methamphetamine in exchange for sex from the two young women. His proposal was again declined. The appellant then became angry and while still in the car backhanded one of the women (the second victim).5 She got out of the vehicle and began walking away. When the male victim confronted the appellant about his actions, the appellant responded saying, “do you want to get popped, I can kill you”. The appellant’s associate who by then had returned to the car, then reached over from the back seat and grabbed the male victim in a head-lock. While the male victim was being held, the appellant exited the car, opened the driver’s door and punched him,6 instructing him to take the keys out of the ignition and put them on the bonnet of the car. The male victim complied.
[6] The third victim then exited the car and fled. The appellant followed her and punched her on her cheek and jaw, causing her to fall to the ground. The appellant then kicked her once on her thigh.7 The third victim got up and ran away to join the second victim. The two young women then went to a house and telephoned the police.
[7] The appellant however, went across the road from where the car was parked and to a service station where he purchased and filled a five-litre petrol container. He then returned to the car and he and his associate told the male victim to get into it.8 The male victim refused as he feared for his safety. The appellant then poured petrol
4 Offers to Supply Methamphetamine: Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2). Maximum penalty life imprisonment.
5 Male Assaults Female: Crimes Act 1961, s 194(b). Maximum penalty two years’ imprisonment.
6 Common Assault: Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.
7 Male Assaults Female: Crimes Act 1961, s 194(b). Maximum penalty two years’ imprisonment.
8 Common Assault: Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.
over the car, set it ablaze,9 and fled before the police and fire service arrived at the scene. The fire caused significant damage to the vehicle. The interior of the car was completely gutted by the fire and beyond repair.
[8] A search warrant was subsequently executed by Police at the appellant’s residential address in Hamilton. The Police there located a fully loaded single barrel pump action shotgun,10 a hunting crossbow with an arrow notched against the draw string ready to fire,11 and what the summary of facts describes as “an assortment of ammunition including shotgun shells and a large quantity of .22 calibre bullets”.12 Police also located 7.8 grams of methamphetamine,13 various quantities of precursor substances,14 items of laboratory equipment,15 and just under $26,000 in cash.
District Court Sentencing
[9] Consistent with his earlier sentence indication, Judge Down took the arson as the lead charge. Fixing a starting point of two years’ imprisonment in respect of that offence, he applied an uplift of 12 months for the drug offences on a totality basis, three months for the violent offences on a totality basis, and nine months for the arms offences on a totality basis, to arrive at a starting point of four years’ imprisonment.16
[10] The Judge then addressed the mitigating features personal to the appellant, saying:17
[…] From that overall start point of four years I apply further discounts for other matters that have been brought to my attention since the sentence indication. You have taken significant steps towards your rehabilitation and for that I apply a five per cent discount. There are a number of factors relating to your cultural background, your coming to this country and some of the
9 Arson: Crimes Act 1961, s 267(1)(b). Maximum penalty fourteen years’ imprisonment.
10 Possesses a Prohibited Firearm: Arms Act 1983, s 50A. Maximum penalty five years’ imprisonment.
11 Possesses an Offensive Weapon: Crimes Act 1961, s 202A(4)(b). Maximum penalty three years’ imprisonment.
12 Carrying firearms: Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment.
13 Possesses Methamphetamine for Supply: Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty life imprisonment.
14 Possesses Precursor Substances: Misuse of Drugs Act 1975, s 12A(2)(b). Maximum penalty five years’ imprisonment.
15 Possesses Equipment: Misuse of Drugs Act 1975, s 12A(2)(a). Maximum penalty five years’ imprisonment.
16 R v Abo Ganis (Sentencing Notes of Judge Down) [2020] NZDC 24752 at [9]-[13].
17 At [14]-[15] and [20].
difficulties that you faced in your education and development, recorded in the s 27 report, a discount of five per cent.
Turning to your addiction; if your addiction was at the root of all of this offending and if it was causative of this offending, then perhaps a generous discount of 10 per cent might be justified. But, here it only really relates to the drug offending. It has no causative link to the violence and arson which were entirely over the top. Overall, I am only going to apply a discount of five per cent for addiction, which relates primarily to the drugs offending. […]
I have not given you a discount for remorse. I do not consider that you have given any real consideration to the victims in this case. That is what remorse focuses upon, not on remorse for what you have done to yourself or your parents.
[11] As to guilty plea, the Judge, in conformity with his sentencing indication, allowed a discount of 25 percent,18 and together with the discounts allowed on account of the appellant’s steps taken towards rehabilitation, his drug addiction and the s 27 factors, arrived at an overall discount of 40 per-cent which equated to 19 months reduction from the four year starting point to result in a final sentence of 29 months’ imprisonment.”19
[12] The Judge said that he could not accept the submission made on the appellant’s behalf that he should impose a sentence other than imprisonment.20
Submissions
[13]Mr Bean for the appellant submits that:
(a)a discount of 15 per cent rather than five per cent should have been allowed in respect of the aspects of the appellant’s personal, family, and cultural background detailed in the s 27 report and the causative role of his background in respect of his offending;
(b)a further discount of five per cent should have been allowed on account of the appellant’s previous good character and remorse;
18 R v Abo Ganis (Sentencing Notes of Judge Down) [2020] NZDC 24752 at [14] and [15].
19 At [15].
20 At [14].
(c)a discount of ten percent, rather than five per cent, should have been allowed on account of the appellant’s drug addiction and its causative role in respect of the offending and for his recent rehabilitative efforts to address his addiction; and
(d)the guilty plea discount of 25 per cent awarded by the Judge ought to have been applied concurrently with the discounts afforded in respect of personal mitigating features, not subsequently to those discounts, which approach Mr Bean submits the Judge erroneously adopted.
[14] Mr Bean notes that the appellant has on his own initiative undertaken a drug and alcohol rehabilitation programme at Care NZ comprising 24 sessions, and has voluntarily undergone a series of drug tests conducted by the Drug Detection Agency between June 2020 and November 2020 each of which resulted in negative tests for the presence of drugs. Counsel further notes that the appellant has also attended the Men’s Non Violence Education Programme run by the Hamilton Abuse Intervention Project (HAIP) which comprises ten weekly sessions. Counsel submits that the rehabilitation initiatives shown by the appellant are unusual, and are a factor that should be recognised by way of a greater discount than the five per cent allowed by the Judge. He accordingly submits that a ten per cent discount would be appropriate.
[15] Mr Bean submits that applying the two-stage approach set out in Moses v R,21 would produce a total discount, of 26.5 months and result in an end sentence of 21.5 months. He submits that the resultant short term sentence of imprisonment,22 is such that the substitution of a sentence of home detention would be possible.23
[16] Although the appellant’s counsel does not expressly seek such an order, I infer that for the same reasons he contends that greater sentencing discounts should have been afforded than were in fact allowed, he would also contend that leave should be granted to the appellant to apply to the District Court for cancellation of any reduced
21 Moses v R [2020] NZCA 296.
22 Sentencing Act 2002, s 4(1); Parole Act 2002, s 4(1).
23 Sentencing Act 20002, s 15A.
sentence of imprisonment and substitution of a sentence of home detention once a suitable residence can be identified.24
[17] Mr Harris for the Crown submits that the discounts afforded by the Judge were appropriate and the end sentence was not manifestly excessive. He submits that as the matter had already had a criminal call-over and with witness statements filed before the sentence indication was given and guilty pleas were entered, the 25 per cent discount allowed by the Judge was generous. He submits that the five per cent discount for the s 27 factors was appropriate recognition of those background factors having regard to the lack of any clearer and direct nexus between the appellant’s personal, family, and cultural background and addiction, and his arson and violent offending. He accepts that there is an apparent connection between the appellant’s addiction and his drug related offending, but says the discount allowed was appropriate in relation to that factor. He submits a good character discount is not available given the appellant’s moderately extensive criminal history; and says that the Judge was correct in his assessment that the appellant was not remorseful as regards the victims, but rather for the effects of his offending on himself and his family.
[18] Mr Harris says that as the discounts were applied across all the charges notwithstanding the different kinds of offending they were generous, and the final sentence imposed was not manifestly excessive and clearly within the available range.
Applicable Principles
[19] This first appeal against sentence is brought as of right pursuant to s 244 of the Criminal Procedure Act 2011. Pursuant to s 250 of the Act, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.25 Otherwise, the appeal must be dismissed.26
24 This Court, as the first appeal court, would have jurisdiction to make such an order: Sentencing Act 2002, s 80I; Criminal Procedure Act 2011, ss 251(2)(b)-(c).
25 Criminal Procedure Act 2011, s 250(2).
26 Section 250(3).
[20] The Court on appeal does not simply substitute its own evaluation of the appropriate sentence. Rather, it must be satisfied there was an error “whether intrinsically, or as a result of additional material submitted”27 on appeal, in the sense that the end sentence was manifestly excessive having regard to ordinary sentencing principles,28 and only then determining whether a different sentence should be imposed.29
Discussion
Personal circumstances of the offender
[21] All of the personal mitigating factors relied on by the appellant are factually and logically interrelated. Accordingly, I shall address the mitigating factors together, starting with the material contained in the s 27 report.
[22] It is not in dispute that a discount is available in respect of evidence of social, cultural, and economic deprivation in an offender’s background where a “demonstrative nexus with the offending” is shown,30 and the Court is satisfied that the offender is less morally culpable than would be an offender who has not suffered such deprivations, having had their choices bounded by these adverse circumstances.31 This renders less appropriate emphasis being placed on accountability, denunciation, and specific and general deterrence, and greater emphasis on rehabilitation.32 The Court of Appeal has noted the appropriate extent of any such discount is “very much fact-specific in each case”,33 and has declined to offer guidelines as to the appropriate range of discounts.
[23] Nonetheless, given the requirement to treat like offenders and offences alike,34 and the underlying rationale for the s 27 discount, it follows, at a high level of
27 R v Shipton [2007] 2 NZLR 218 (CA) at [138], approved after the commencement of the Criminal Procedure Act 2011 in Tutakangahau v R [2014] NZCA 279 at [29].
28 Tutakangahau v R [2014] NZCA 279 at [35]-[36].
29 Tutakangahau v R [2014] NZCA 279 at [30]-[35].
30 Zhang v R [2019] NZCA 507 at [162].
31 See also Poi v R [2020] NZCA 312 at [32]-[39] and [40]-[51]; Solicitor-General v Heta [2018] NZHC 2453 at [40]-[41]. This can be seen to give expression to ss 8(a) and 8(i) of the Sentencing Act 2002.
32 Poi v R [2020] NZCA 312 at [24]-[27].
33 Whittaker v R [2020] NZCA 241 at [51]; Carr v R [2020] NZCA 357 at [63].34 Sentencing Act 2002, s 8(e).
generality, that the more adverse an offender’s circumstances, and the greater the nexus between those circumstances and the offending, the greater the scope for allowing a larger discount.35 It is clear that, while an evidential foundation linking an offender’s background to their offending is required for a discount under this heading to be available, a sentencing Court is nevertheless entitled to draw a reasonable inference when deciding whether the necessary nexus exists.36 In Purua-King, Justice Woolford described a connection of this type as an “inferential nexus”.37
[24] Here what is in dispute is the existence and strength of a nexus, and if so, whether a discount of more than five per cent was appropriate, having regard to notions of consistency and the underlying rationale for these discounts.
[25] The Judge noted the s 27 report prepared by Ms Raecheal Riddell (Kingi) dated 23 November 2020. The report explains that the appellant experienced what is termed “horrible confusion” as a child as a result of his mixed European/Māori and Israeli- Palestinian heritage, with his father being deported when he was five. Following his father’s deportation, the appellant and his mother “blended” into another family, the father figure in that family becoming his father figure. However that father figure died during the appellant’s first year of secondary school, which contributed to him following a “wayward path” involving poor peer influences, truancy, and alcohol consumption. The appellant was subsequently placed by Child Youth and Family in a series of boys’ homes and into a high school in another city where he says he was subjected to violent discipline at the hands of security guards. That high school was later closed by authorities in 2011 in response to serious management and governance issues.
[26] After returning home, following the closure of that school, the appellant then aged around 14, became increasingly self-indulgent and had poorly controlled emotions. His substance consumption progressed from smoking cannabis and abusing alcohol, to consuming steroids and testosterone as an aid to physical activity, before
35 See Carr v R [2020] NZCA 357 at [69]-[71]; Poi v R [2020] NZCA 312 at [32]-[39] and [40]-[51].
36 Arona v R [2018] NZCA 427 at [59], approving Solicitor-General v Heta [2018] NZHC 2453; [2019] 2 NZLR 241 at [50].
37 Purua-King v R [2019] NZHC 1698 at [45].
moving to MDMA (ecstasy) and on to methamphetamine and developing an addiction to that substance.
[27] As noted above, the personal circumstances of different offenders are difficult to compare, being an intensely factually specific combination of personal, family, cultural, and socioeconomic factors. A comparison to the circumstances of the appellant in Carr v R,38 to which counsel referred, is nevertheless informative. Mr Carr was described by the Court of Appeal as having a “disadvantaged life commencing when he was young”. Mr Carr’s family experienced poverty, family violence, and an incident of sexual abuse by a family member, causing him to run away from home at a young age, and leading in turn to his early exit from the education system without any formal qualifications and thereafter to drug abuse, violence and gang affiliations. These events all took place in the context of his disconnection from Te Ao Māori. In respect of these factors, the Court allowed Mr Carr a discount of 15 per cent; noting this would have been higher but for the extremely violent nature of his offending.
[28] Compared to the defendant in Carr, the appellant had the advantage of a fundamentally supportive home environment notwithstanding the disruptive effects of the deportation and consequent loss of his father. He explained to the report writer that following his father’s deportation his mother focused her life on the appellant and his future. He reports that when he was young his mother ensured that he had positive male role models around him. He also had a close relationship with his grandmother. He described himself as being well-loved and raised with good morals, and that his core values and beliefs were driven by mindfulness and thoughtfulness and he always had “very healthy” role models. The appellant developed a close relationship with the father of a family which was close to his family and he came to see that man as being a father-figure. However his father-figure died during the appellant’s first year at secondary school. It was around that time that the appellant says he started “acting out” and getting into trouble. His behaviour deteriorated and he became involved with anti-social associates leading to truancy, consuming alcohol and smoking cannabis. After being caught smoking cannabis at school he was expelled. When his mother could not cope with him she contacted Child Youth and Family Services (CYFS) for
38 Carr v R [2020] NZCA 357 at [71].
assistance. CYFS arranged for the appellant to attend Felix Donnelly College where he says he was subjected to violence at the hands of security guards who were employed at the College to control the students if they acted up in class. The College was closed in 2011 and the appellant then went to Fairfield College, however he was expelled for repeatedly getting into trouble. He then commenced courses towards a mechanic’s trade qualification before changing to commence a building apprenticeship and thence to become a qualified builder. At age 17 he travelled to Israel to meet his father and says that he learned about his father’s culture and developed a better understanding of his father. At around 20 years of age he met a Cambodian woman and they had daughter who is now 13 years old. Around 2015 he commenced another relationship and he and that partner together have a son who is three years old. He and that partner are now separated but nevertheless maintain a friendship and share the responsibilities of caring for their son.
[29] Despite experiencing what were clearly some adverse and traumatic circumstances during his youth, the appellant enjoyed a generally loving and supportive upbringing and although during his teenage years he became involved in alcohol and drug abuse and was expelled from school he nevertheless demonstrated his ability to sufficiently overcome those destructive behaviours to go on to obtain a tradesman qualification as a builder, and successfully complete a building apprenticeship. The letters of support tendered to the District Court confirm that over the past ten years or so prior to his offending the appellant has worked competently and diligently for construction companies. He is described as a great asset and very hard worker, patient with his apprentices, and has a good reputation in the industry. The authors of the letters all express their surprise on learning that the appellant had a methamphetamine addiction which they considered was out of character for him, and say that that they would be willing to employ him again.
[30] Notwithstanding the appellant’s difficult childhood and youth as described in detail in the s 27 report, I do not consider that the Judge erred in allowing a five per cent discount to recognise the extent to which that background related to the commission of the offending for which he was sentenced. The appellant’s background and the matters set out in the s 27 report are well removed from the circumstances in
Poi and Carr where the Court of Appeal found the offender’s culpability to have been significantly diminished by reason of the matters detailed in their s 27 reports.
[31] Here the lead offending of arson was not committed by the appellant while he was effected by methamphetamine or for the purpose of obtaining money to satisfy his drug addiction. The arson was committed in circumstances where the appellant’s proposal for the young women in the car to perform sexual acts upon him, had been declined. The appellant’s request to be driven home appears to have been motivated by an intention to engage in sexual activities with the young woman who he had met with the male victim in the bar in exchange for some methamphetamine. The violence he directed at all three victims in the course of the events that unfolded has no apparent causal connection with his cultural, personal and family background, and appears to have arisen as a violent reaction by the appellant following the rejection of his proposal to exchange drugs for sex.
[32] The appellant’s methamphetamine addiction clearly motivated and contributed to his drug related offending. The steps he has taken by undertaking the drug and alcohol rehabilitation and anti-violence programmes are to his credit, however, I do not consider that the initiative he has taken and the rehabilitation progress he has made, warrant a larger discount than the ten per cent allowed by the Judge; accounting for his addiction (five per cent) and his rehabilitative initiatives and progress (five per cent). In my view the combination of those discounts appropriately and sufficiently recognises mitigation of the appellant’s culpability on account of those factors.
[33] Finally, I find that the Judge did not err by deciding not to give the appellant separate and further discounts on account of remorse and good character. The appellant has previous convictions for wilful damage and unlawfully interfering with a motor vehicle as well as a number of breath/alcohol and driving convictions. I agree with Mr Harris that, in these circumstances, the presumption of good character arising from an absence of previous convictions must be displaced.39
39 See R v Howe [1982] 1 NZLR 618 at 629 (CA).
[34] I am reluctant to depart from Judge Down’s assessment of fact and exercise of judgment as to whether the appellant has shown genuine remorse,40 given the view arrived at by the Judge was plainly available. I agree with the Judge that the appellant’s expressions of remorse are related to the consequences of his offending on his family members and himself, rather than being focussed on the harm he caused the victims. Concern for his victims, as Mr Harris notes, is not clearly evident from the appellant’s letter of remorse, or his pre-sentence interview, even though shame at his actions, motivation to reform, and a degree of insight do clearly emerge. Accordingly, I do not consider that the Judge erred in not applying a separate discount for remorse. Stepping back, I find that the discounts allowed by the Judge were discretely, and in combination appropriate, and within the range available to the Judge.
[35] The appellant’s offending against the three victims was aptly described by the Judge as being “extremely nasty and very dangerous”. The appellant and his associate acted in a violent and intimidating manner towards the three victims and effectively stood over the male victim while the appellant went and obtained some petrol with which to set his car alight, and proceeded to do so, having earlier instructed him to get into it – which the male victim refused to do.
[36] The end sentence of 29 months’ imprisonment is not manifestly excessive having regard to the gravity of the arson and related violent offending coupled with the moderately serious drug dealing offending and the appellant’s possession of loaded firearms, notwithstanding that none of the victims of the violence were injured as a result.
[37] In accordance with the methodology described in Moses, the Judge correctly calculated the discounts which totalled 40 per cent and which represented a reduction of 19 months from the starting point of four years, and resulted in an end sentence of 29 months.
[38] For these reasons the appellant has failed to show that the Judge erred in the sentence he imposed and that a different sentence ought to have been imposed, and the appeal will be dismissed.
40 See Hessell v R [2010] NZSC 135 at [28].
Result
[39]The appeal is dismissed.
Paul Davison J
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