Gains v The Queen - [2021] NZHC 393

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…

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 Gains v The Queen

Details

AGLC: Gains v The Queen [2021] NZHC 393
Case: [2021] NZHC 393
Decision Date: 5 March 2021

CaseChat Overview and Summary

The appellant, Mr Karim Monir Abo Ganis, appealed against his sentence of two years and five months' imprisonment on thirteen charges related to violence, arms, and drugs. The appellant argued that a term of home detention should have been imposed instead, suggesting that if appropriate discounts had been afforded in respect of rehabilitative potential, addiction, personal, cultural, and family background, and remorse, a sentence of home detention would have been available. The appeal centred on whether the judge had erred in the existence of mitigating factors and the discounts that should have been applied. The court found that the appellant's background and the matters set out in the s 27 report were 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. The court also found that the appellant's methamphetamine addiction clearly motivated and contributed to his drug-related offending, but the discounts allowed by the judge were appropriate and within the range available. The end sentence of 29 months' imprisonment was 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. Therefore, the appeal was dismissed.

Orders