Ghulami v Police - [2013] NZHC 1055

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-000017 [2013] NZHC 1055

MOHAMMAD ALI GHULAMI
Appellant

v

POLICE
Respondent

Hearing: 9 May 2013

Counsel: P J Butler and K Paima for Appellant
S J Jamieson for Respondent

Judgment: 9 May 2013

JUDGMENT OF WHATA J

[1] Mr Ghulami pleaded guilty to 14 charges of receiving stolen vehicles and was sentenced to 18 months imprisonment. He was also ordered to pay reparation of
$51,073.97. He appeals against his sentence for the following reasons:

(a) The sentence was manifestly excessive and wrong in principle; (b) The Judge erred by not imposing home detention;
(c) The starting point of 18 months was too high;

(d) The Judge erred by ordering full reparation.

GHULAMI V POLICE HC CHCH CRI 2013-409-000017 [9 May 2013]

The sentencing notes

[2] Judge Crosbie detailed the background facts as follows:[1]
[1] Police v Ghulami DC Christchurch CRI 2012-009-004339, 21 February 2013.

[3] You were at all material times owner and director of a company at Addington called Golden Age Auto Dismantlers and the business sold parts and sections of motor vehicles on the international and domestic markets. Between 9.50 am and 5.00 pm on 20 January 2011 a Nissan Primera motor vehicle was stolen from Westfield Mall, Riccarton, Christchurch, the property of a person from whom I have received a victim impact statement, as I have with respect to some 13 victims, and valued at $3200.

[4] Later that day you purchased the vehicle from an individual for $300 and then what occurred on successive dates in January of the same year, and then in June, July, August and November 2011 a large number of vehicles were stolen each of which had a particular value that is recorded in the summary of facts and I will attach the summary and a copy will be provided to the Press, and the modus operandi in respect of you and those who stole was that almost on every occasion the same day the vehicle was stolen or a little later, you purchased the vehicles for a fraction of their value, and when I say fraction we have for example some vehicles worth $6000 that you purchased for around $550, and an $8000 vehicle you purchased for $600.

[5] On almost every occasion you purchased the vehicles from someone that you had purchased them from previously, although I accept that there do appear to be two occasions on which you purchased vehicles from a person who the summary indicates you had not purchased one from before. Certainly with respect to one of the people that you purchased from, he was coming to you almost every day for a week with a vehicle that you paid a fraction of the amount for and it is accepted that the total amount of loss and offending is in excess of $51,000.

[3] The Judge acknowledges that Mr Ghulami did not physically steal the vehicles but that he was a willing recipient. Mr Ghulami’s readiness…

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 Ghulami v Police

Details

AGLC: Ghulami v Police [2013] NZHC 1055
Case: [2013] NZHC 1055
Decision Date: 9 May 2013

CaseChat Overview and Summary

Mohammad Ali Ghulami appeals his sentence of 18 months imprisonment for 14 charges of receiving stolen vehicles, along with an order for full reparation of $51,073.97. Ghulami argues the sentence was manifestly excessive, the starting point was too high, the judge erred by not imposing home detention, and erred in ordering full reparation. The High Court of New Zealand considered these arguments. The Court found that while the offending was audacious and on a large scale, the judge erred by considering it premeditated. This error impacted the assessment of whether home detention was appropriate. The Court concluded that home detention was a suitable alternative to imprisonment for Ghulami, taking into account his first conviction and cultural background. The Court also found the reparation order excessive, given Ghulami's circumstances. The sentence of imprisonment was quashed and replaced with a sentence of home detention for a period of six months, and the reparation order was replaced with an order for the sum of $11,500.

The Court's decision highlights the importance of considering an offender's rehabilitation and imposing the least restrictive outcome appropriate to the circumstances. The Court also emphasises the need to accurately assess an offender's culpability to determine the appropriate sentence. In this case, the error in assessing the level of culpability impacted the suitability of home detention as an alternative to imprisonment. The Court's decision demonstrates the importance of accurately assessing an offender's culpability to determine the appropriate sentence and the need to consider an offender's rehabilitation and impose the least restrictive outcome appropriate to the circumstances.

Orders