Ghabachi v Police
[2014] NZHC 1379
•18 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-0030 [2014] NZHC 1379
BETWEEN MOJTABA GHABACHI
Applicant
AND
NEW ZEALAND POLICE Respondent
Hearing: 16 June 2014 Appearances:
P T Eastwood for Applicant
K R Muirhead for RespondentJudgment:
18 June 2014
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 18 June 2014 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland
Counsel: P T Eastwood, Auckland
GHABACHI v POLICE [2014] NZHC 1379 [18 June 2014]
[1] The Applicant seeks leave to appeal against conviction and sentence.1 Leave is required because the appeal is out of time.
[2] The Respondent opposes the application and, if an extension of time were to be granted, opposes the appeal.
Background
[3] On 6 April 2011, the Applicant was convicted and sentenced on a charge of careless use of a motor vehicle. The charge arose out of a minor collision on 2 July
2010 in Queen Street, Auckland, between two vehicles. One was driven by the
Applicant and the other by the complainant, a Mr Ling.
[4] The Applicant defended the charge and was represented by counsel, Mr Eastwood (who has appeared for the Applicant on all relevant matters since). The Applicant did not give evidence at the hearing.
[5] The Justices of the Peace who heard the matter convicted the Applicant and ordered him to pay a fine of $200, reparation of $600, and Court costs of $132.89.
[6] On 20 April 2011 (i.e. within time) the Applicant filed a notice of appeal, but against conviction only. The Court was to hear the appeal on 13 July 2011. On
8 July 2011, however, counsel for the Applicant advised the Court that the appeal was abandoned.2 At the hearing on 16 June 2014, counsel confirmed to me that he gave notice of abandonment on the Applicant’s instructions.
[7] On or about 14 January 2014 the Applicant, through his counsel, lodged an application for an extension of time to appeal conviction and sentence.
Discussion
[8] I decline to grant leave to appeal conviction or sentence for the following reasons.
1 Police v Ghabachi DC Auckland CRI-2010-004-17727, 6 April 2011.
2 Email from P Eastwood to the High Court, dated 8 July 2011.
[9] First, the application for leave was filed almost three years out of time. In an affidavit in support of the application sworn 22 January 2014, the Applicant says that his attention in 2011 was taken up by another, more serious, charge. Even if that were so, it could not explain the inordinate delay that has occurred.
[10] Secondly, I accept the Respondent’s submission that the only course open to an appellant who seeks to pursue an appeal that he or she has abandoned, is to seek leave from the Court to withdraw the abandonment. In R v Palmer the Court of Appeal said:3
[13] It is technically possible to withdraw a Notice of Abandonment with leave but the grant of leave will be a rare event because the only justification for the grant of leave by a Court which is essentially functus officio in the matter of an appeal is that the Notice of Abandonment is a nullity. The test for this is whether the Court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of an applicant did not go with the act of abandonment.
(footnotes omitted).
[11] It is apparent from that passage that the Court will not grant leave if the appeal was abandoned on instructions, as it was in this case.
[12] Thirdly, the Applicant has complied with the sentence imposed on him, i.e. paid the fine, reparation and Court costs. I accept the submission of counsel for the Respondent that, in those circumstances, there can be no appeal against sentence. The Applicant in this case sought a similar outcome in another case in 2009, in which the Court of Appeal said:4
[14] … In his oral submissions before us Mr Eastwood conceded that it was difficult to argue that the sentence was manifestly excessive, but asked us to consider that were Mr Ghabachi to be sentenced today, he might receive a community based sentence in light of recent amendments to the Sentencing Act 2002. The availability of alternative sentences after a sentence has been served cannot form the basis for a successful sentence appeal.
3 R v Palmer CA140/04, 16 August 2004 at [13].
4 R v Ghabachi [2009] NZCA 270 at [14].
[13] Counsel also submits that the Justices erred in failing to discharge the Applicant without conviction. The Justices’ notes do not record that the Applicant sought such a discharge.
[14] The explanation given in the Applicant’s affidavit is that the Justices moved straight to sentencing without seeking submissions. It is always open to counsel, however, to signal that he or she will wish to make submissions regarding sentence. Although counsel submitted to me that the Justices should have considered granting such a discharge of their own volition, it could not be said that they erred in failing to do so.
[15] There is a difference between counsel as to whether the conviction was against the run of evidence. I do not propose to address that submission. Even if that submission were correct the application for leave must fail on other grounds.
Result
[16] I decline leave to appeal.
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M Peters J
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