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 to take the vehicles is described by the Judge (adopting the observation of the Probation Report writer) as “audacious”.    The Judge also makes the observation that the offending was premeditated.

[4]      In  reaching  a  sentencing  figure  the  Judge  refers  to  the  need  to  hold

Mr Ghulami  accountable  and  promoting  some  responsibility  in  him.    He  also

describes Mr Ghulami’s statement of remorse as “too little too late”.

[5]      Mr  Ghulami’s  background  is  noted,  including  his  life  as  a  doctor  in Afghanistan and as a joiner in Pakistan.  His time in Malaysia as a refugee is also noted.

[6]      The Judge also notes that a relevant factor is deterrence particularly when dealing with offending on the scale undertaken by Mr Ghulami.

[7]      The Judge steps through the relevant steps specified in Taueki.[2]   He notes that there are 14 separate charges with a profound effect on victims who rely on their vehicles for their everyday life.  He does not identify any mitigating factors in terms of the offending.   He identifies, however, that Mr Ghulami had no previous convictions, allowed a discount of 20% for the guilty plea, but regards issues of remorse neutrally.

[2] R v Taueki [2005] 3 NZLR 372 (CA).

[8]      Given the scale of what he calls audacious and premeditated offending the Judge identifies an appropriate starting point in the order of 18 months.   He then applies an uplift of that starting point, in light of the aggravating features of the offending, to two years.  After a deduction of 25% for the guilty plea,[3]  the Judge identifies  a sentence of  18 months.    In  relation  to  offending under s  247(d) he identifies a sentence of six months.

[3] On reflection I now note that this discount also included the fact that Mr Ghulami had no previous convictions.

[9]      As that sentence was within a two year period, he gave consideration to home detention, and dealt with this briefly in the following terms:

[22]      So in my view there are no particular rehabilitative needs. As I have said this was large scale offending, I see  it as separate and much more serious than the type of benefit fraud cases before me that I have dealt with. I believe in all the circumstances, notwithstanding that you are effectively a first offender, that the nature, circumstances and the effects of this offending are such that a strong message needs to be sent and a sentence of community or home detention would be an inadequate deterrent.

[10]     Having rejected home detention, the Judge imposes an order for reparation less the $7,000 offered by Mr Ghulami.  On the 13 charges of receiving Mr Ghulami

is  sentenced  to  18  months  imprisonment  with  special  conditions  and  on  the

remaining charge he is sentenced to four months imprisonment both to be served concurrently.

Appellant’s submissions

[11]     The appellant submits that the starting point of 18 months imprisonment was too high and that:

(a)      The only offending that could realistically be described as sustained and  audacious  occurred  over  a  period  in  January  2011  involving seven cars recklessly received from the same seller in seven days; and

(b)The remaining offending between June and November 2011, although audacious and of high  value, cannot be described as sustained or indeed as premeditated;

(c)      The learned Judge at [6]-[8] of his sentencing notes has given undue weight to the effects of the offending on victims having regard to the fact that the appellant was not charged as the thief.

[12]     Counsel further submits that an uplift of a further six months in effect double counted the scale of the offending.

[13]     Finally counsel submits that the District Court Judge gave insufficient credit for mitigating factors including:

(a)      The appellant’s good character – he had no previous convictions and the appellant says it is proper that the Court pays more than mere “lip service” – citing R v Gadiev;[4]

[4] R v Gadiev CA 194/06, 14 August 2006.

(b)       The appellant’s offer of a bank cheque of $7,000 was deserving of

greater credit and demonstrated genuine remorse.

Assessment

[14]     Save in one important respect, I do not accept the criticisms of the Judge’s assessment of the offending by the appellant’s counsel.  The offending was, as the Judge described it “audacious” and the scale of it, involving 14 separate charges, commanded a starting point of 18 months and perhaps more, as suggested by counsel for the Crown.  One does not have to look far to find case law where lesser offending

has attracted a more severe sentence than that imposed on Mr Ghulami in this case.[5]

[5] Refer R v Aldersley CA158/05, 17 October 2005.

[15]     The  weight  afforded  by  the  District  Court  Judge  to  the  victim  impact assessment was also reasonably available to him given the number of victims.  A stern approach to sentencing is further justified by the express requirement of the Sentencing Act 2002 to denounce such conduct and to discourage it.

[16]     Nor do I accept the criticism that an uplift of six months from 18 months was inappropriate.  Mr Ghulami’s criminal conduct appears to reflect an ongoing reckless pattern.   It was also  appropriate to approach the offending having regard to its totality.  When that is done, it is easy to see why the Judge uplifted from a starting point of 18 months.   A preferable approach may have been to commence with a starting point of two years reflecting the aggravating features as a whole including the totality of the offending.  But whatever way the sentence is divided, a starting point of two years is not manifestly excessive in my view.

[17]     I accept that there could have been some small discount relating to personal characteristics of the appellant and none was given.  I also consider that this is also relevant to the nature of the sentence, a topic I will come to.   I also agree that recognition of the personal characteristics of the appellant, including a previously unblemished  record  deserves  more  than  lip  service.    It  might  have  reasonably attracted a discount of 5-10%, that is in the order of one to two months.  By itself, however, I do not think that this demands a materially different result in terms of

term of imprisonment or otherwise qualifies as manifestly excessive.[6]

[6] On further review, it appears in fact that the Judge did discount the sentence by 5% for personal circumstances.

[18]     All that said, the Judge erred in a material respect.   The Judge formed the view that the offending was “premeditated”.   That was incorrect.   Mr Ghulami pleaded guilty to reckless receipt.  There is nothing in the summary of facts pointing to premeditation and this was responsibly accepted by counsel for the Crown.   I accept that Mr Ghulami was grossly reckless and it may be that the Judge used the term premeditated in the sense of wilful recklessness.  Nevertheless the Judge erred by elevating the culpability of the offending to one involving premeditated acts.

[19]     I  have  therefore  come  to  the  view  that  while  this  does  not  affect  the assessment of whether the sentence of imprisonment was manifestly excessive, because it was not, it is relevant to the assessment of whether home detention was appropriate.  That assessment must have due regard to the level of culpability and what flows from that.  I therefore now turn to consider that aspect.

Home detention

[20]     Save for the assumption of premeditation, I can readily see why the District Court Judge approached the sentence in the way that he did.  It was not inherently unreasonable and was a decision available to him, as I say, but for the error relating to premeditation.   I have no doubt that the Judge placed some weight on the contradicting statements made by Mr Ghulami in terms of his own appreciation of his offending and the need for accountability.  I acknowledge, however, that this was Mr Ghulami’s first conviction for such offending.   I consider that this brings into focus the expectation of the Sentencing Act that due regard be had to an offender’s rehabilitation and the requirement to impose the least restrictive outcome that is appropriate to the circumstances.   I also note and accept in part his counsel’s explanation for Mr Ghulami’s reaction and lack of apparent remorse.   It may be readily explained by reference to his cultural background.  It is also important to note that home detention is not the easy option and, as counsel notes, there is no presumption for or against commutation of short terms of imprisonment to home detention either generally or for a particular type of offence.  It needs to be borne in mind also that home detention is a form of incarceration.

[21]    When I then remove premeditation in terms of assessing Mr Ghulami’s culpability I find myself unable to agree with the Judge’s rejection of home detention in this case.   I consider that I am supported in this conclusion, I think, by the recommendation in the final probation report, namely one of home detention.

Reparation

[22]     Turning then to the issue of reparation.   I do not agree with the Judge that there was no reason not to impose full reparation.  Mr Ghulami’s circumstances are unusual.  While he is well qualified, it is unclear to me that those qualifications will aid him much in this country for the purposes of income generation.  He also has a family to support.  The Judge also noted that Mr Ghulami had lost his business, has a lot  of  debt  and  that  his  family has  been  shattered.    Bearing  that  in  mind,  full reparation now, while justified in terms of the impact on the victims, does not appear to be appropriate in the circumstances and is excessive.  I therefore quash that order.

[23]     I note that, again responsibly, Crown counsel did not oppose this outcome. She also sensibly recommended that I remit the timetable for repayment, should there be one, back to the Registrar of the District Court.

Result

[24]     The sentence of imprisonment is quashed and replaced with a sentence of home detention for a period of nine months.  I also quash the reparation order and replace it with an order for the sum of $11,500 and I remit to the Registrar of the District Court for the purposes of apportionment.

Addendum

[25]     Mr Butler advised me that Mr Ghulami has in fact served three months of a term of imprisonment.  In those circumstances, I amend the revised sentence to one of six months home detention.

[26]     Naturally the commencement of the home detention will be dependent upon confirming the suitability of the address and its availability.  I am advised by counsel that that should be capable of being arranged by next Wednesday, 15 May.

[27]     The appellant is to remain incarcerated until the suitability of the address for home detention is confirmed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch