Habib v Police - [2017] NZHC 1750

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2017-485-027 [2017] NZHC 1750

BETWEEN
VINCENT PAUL HABIB

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 July 2017

Appearances:

C Thorburn and J Griffiths for Appellant
A Richards for the Respondent

Judgment:

26 July 2017

JUDGMENT OF DOBSON J

[1] Mr Habib had a traumatic childhood and as a result has a number of long- term mental health issues. He has spent most of his adult life in prison and struggles to cope when back in the community. He appeals against the sentence imposed for five burglaries on the basis that there should have been a discount for his mental health, either because his culpability was reduced or because his mental health means that the sentence is more subjectively punitive.

The offending

[2] Having stopped taking medication that had been adequately moderating his mental health condition (because he thought it was making him feel worse), Mr Habib consumed self-prescribed doses of valium in the lead up to the offending. On 12 April 2016 he committed five burglaries at residential properties in the Lower Hutt area. In three cases he forced entry, at one he entered on to the property but was unable to gain access to the house and in the last he walked through an open door.
The circumstances of the burglaries sound amateurish in the retelling. The items

HABIB v NEW ZEALAND POLICE [2017] NZHC 1750 [26 July 2017]

taken from one address were left on the porch of another. He gained access to one of the properties by smashing a window and then cut himself gaining entry, using and leaving behind gloves with his blood on them.1 In the last burglary he was confronted by the occupant, and retreated to the roadside lawn outside the property, apparently waiting for the Police to arrive. They found him there, eating a piece of fruit.

[3] Notwithstanding that characterisation of the offending, all such burglaries constitute serious offending. They engender justifiable feelings of violation for the victims, they are destructive of property and they put offenders like Mr Habib in a position where even more serious offending can occur if they panic when confronted by occupants.

[4] Those considerations were reflected in the starting point proposed by Judge Tuohy, as was the length of Mr Habib’s list of 62 previous convictions for burglary, in adopting a starting point of five years’ imprisonment. That was conveyed in a sentence indication provided on 19 December 2016. It was subject to a 25 per cent reduction in recognition of early guilty pleas. The Judge then sentenced Mr Habib on 10 April 2017.2

[5] On sentencing, the Judge accepted that there had been an arithmetic error in providing a 25 per cent discount from five years’ imprisonment. The correct end sentence was not four years as indicated, but three years and nine months. Consistently with the sentencing indication, the Judge also imposed a minimum period of imprisonment of two years and four months. The…

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.

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Details

Case: [2017] NZHC 1750
Decision Date: 26 July 2017

CaseChat Overview and Summary

Vincent Habib appeals against his sentence for five burglaries, arguing that his mental health condition warranted a discount. The High Court of New Zealand considered whether Habib's mental health justified a reduction in his sentence. The court examined Habib's history of mental health issues, stemming from a traumatic childhood, and his struggle to cope in the community without structured support. The court acknowledged that Habib's mental health condition did reduce his culpability and made the sentence more burdensome for him. However, the seriousness of the offending and the need to protect the community limited the extent of the discount.

The court found that Habib's mental health issues did impact his culpability and the severity of the sentence, warranting a modest reduction. The court allowed the appeal, reducing the sentence from three years and nine months to three years and six months and reducing the minimum period of imprisonment from two years and four months to one year and ten months. The court emphasized the importance of providing adequate support for Habib's rehabilitation in the community to prevent reoffending.

Orders