Kadir v Police - [2020] NZHC 1108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000075

[2020] NZHC 1108

BETWEEN
NABIL KADIR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 May 2020

Appearances:

H Redwood for Appellant S Murphy for Respondent

Judgment:

26 May 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 26 May 2020 at 3 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland Counsel:
H Redwood, Barrister, Auckland

KADIR v NEW ZEALAND POLICE [2020] NZHC 1108 [26 May 2020]

[1] Following a Judge-alone trial in the District Court Judge B A Gibson found Mr Kadir guilty on a charge of burgling a residential address. In addition, Mr Kadir pleaded guilty to charges of receiving stolen property, driving whilst forbidden to do so and being in possession of cannabis and a methamphetamine pipe. He committed those offences whilst on bail on the burglary charge.

[2] On 12 February 2020 Judge Gibson sentenced Mr Kadir to 25 months imprisonment on all charges.1 Mr Kadir appeals against sentence on the basis that errors in the formulation of the sentence led to an end sentence that was manifestly excessive.

The offending

[3] Mr Kadir went to a residential property on the night of 13 June 2018. He entered the property through a bathroom window and managed to move some items before one of the occupants became aware of his presence and raised the alarm. Mr Kadir fled from the scene without taking any property. He was subsequently arrested in mid-July 2018 and released on bail.

[4] The receiving charge related to a stolen credit card found in Mr Kadir’s possession when he was arrested on an unrelated matter on 30 March 2019. The credit card had been taken in a burglary of residential premises approximately a week earlier. He was also found in possession of a small amount of cannabis and a methamphetamine pipe.

[5] The final charge related to an incident on 21 May 2019 when Mr Kadir was found driving a motor vehicle the registration of which had expired. He was unable to produce his driver’s licence and told the police he had been forbidden to drive. Subsequent enquiries confirmed he had earlier been forbidden to drive until he obtained a driver’s licence.

1 New Zealand Police v Kadir [2020] NZDC 4732.

The sentence

[6] The Judge took a starting point of 19 months imprisonment on the lead charge of burglary. He increased that by three months to reflect the charges to which Mr Kadir had pleaded guilty. From the resulting sentence of 22 months imprisonment the Judge applied uplifts of three and two months respectively to reflect Mr Kadir’s previous convictions for burglary and the fact that the offending on 30 March and 21 May 2019 had occurred whilst Mr Kadir was on bail on the burglary charge.

[7] The Judge applied a discount of one month to reflect difficulties Mr Kadir has faced since his arrival in…

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 Kadir v Police

Details

AGLC: Kadir v Police [2020] NZHC 1108
Case: [2020] NZHC 1108
Decision Date: 26 May 2020

CaseChat Overview and Summary

In Kadir v Police, Nabil Kadir, the appellant, sought to appeal against his sentence on the basis that the formulation of the sentence was erroneous and resulted in an end sentence that was manifestly excessive. The sentence was imposed by Judge Gibson following a trial in the District Court, where Kadir was found guilty of burgling a residential address, receiving stolen property, driving while forbidden, and possession of cannabis and a methamphetamine pipe. Kadir committed these offences while on bail for the burglary charge. The High Court of New Zealand heard the appeal on 25 May 2020, with appearances by H Redwood for the appellant and S Murphy for the respondent. The judgment was delivered by Lang J on 26 May 2020.

The court was required to decide whether the starting point on the burglary charge, the uplift for other offences, the uplift for previous convictions, and the uplift for offences committed while on bail were appropriate. Additionally, the court needed to determine whether the end sentence of 25 months imprisonment was manifestly excessive. The court concluded that while the starting point of 19 months imprisonment on the burglary charge was within the appropriate range, the uplift of two months to reflect the offences committed while on bail was excessive, and an uplift of no more than one month would have been appropriate. Consequently, the end sentence of 25 months imprisonment was considered manifestly excessive, as a reduction of one month would result in automatic release after serving half of the sentence and make home detention a viable option.

The court allowed the appeal against sentence, quashed the sentence of 25 months imprisonment imposed on the burglary charge, and imposed a sentence of 24 months imprisonment in its place. All other concurrent sentences remained intact. The court also noted that there was no utility in granting Kadir leave under s 80I of the Sentencing Act 2002 to apply for the sentence to be converted to one of home detention, as he did not have a suitable address at the time of sentencing.

Orders