Koura v The Queen - [2005] NZCA 118

IN THE COURT OF APPEAL OF NEW ZEALAND
CA16/05
THE QUEEN
v
EBRAHIM MOHAMMED KOURA
Hearing:23 May 2005

Court:William Young, Panckhurst and Doogue JJ
Counsel:T W Fournier for Appellant

P J Shamy and K T Dalziel for Crown

Judgment:24 May 2005

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS
(Given by William Young J)
Introduction
[1]       The appellant was found guilty by a jury on charges of forgery and breaching the Residential Tenancies Act 1986 by giving false evidence to the Tenancy Tribunal. He was subsequently sentenced by the trial Judge, Judge P A Moran, to 12 months imprisonment (with leave to apply for home detention). He now appeals against sentence.
The facts
[2]       The appellant was formerly a residential tenant at 708 Worcester Street, Christchurch. At the end of the tenancy, there was dispute between him and his landlord about some curtains and drapes (worth around $1,800) which he had removed from the premises. The upshot was that the landlord brought proceedings against the appellant before the Tenancy Tribunal to recover the curtains and drapes or their value.
[3]       In the course of the proceedings, the appellant gave evidence (under a promise to tell the truth) that he had given the curtains and drapes to the landlord’s property manager, a Ms Swarbrick. In support of that claim, he produced what appeared to be photocopy of a receipt, signed by Ms Swarbrick, for the curtains and drapes. This document was a forgery which the appellant had created by splicing words that he had written together with a photocopy of Ms Swarbrick’s signature from another document.
[4]       The Tribunal did not accept the appellant’s evidence and found for the landlord.
[5]       The appellant was then prosecuted for forgery (in relation to the receipt) and under the Residential Tenancies Act 1986 for giving false evidence. He was found guilty by a jury in the District Court at Christchurch on both counts.
[6]       We are not sure whether the forgery of which the appellant was found guilty was within s 256(1) or (2) of the Crimes Act 1961. If the case was within s 256(1) the maximum penalty available was 10 years imprisonment. On the other hand, if it was within s 256(2), the maximum penalty was only three years imprisonment. The case would appear to us to have been within s 256(1) but, conceivably, the Judge may have summed up to the jury under s 256(2) in which case the maximum penalty would have to be three years imprisonment. How the Judge summed up is not apparent from the materials before us.
The appellant
[7]       The appellant is now 61. He was born in Egypt where he lived until 1989 when he emigrated to New Zealand.
[8]       In the 18 months prior to appearing for sentence on the current charges, he accumulated convictions for possession of cannabis, threatening to kill and possession of an offensive weapon.
[9]       His only income consists of payments from the Accident Compensation Corporation.
The Judge’s sentencing…

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 Koura v The Queen

Details

AGLC: Koura v The Queen [2005] NZCA 118
Case: [2005] NZCA 118
Decision Date: 24 May 2005

CaseChat Overview and Summary

The case of Koura v The Queen involved the appellant, Ebrahim Mohammed Koura, who was found guilty of forgery and breaching the Residential Tenancies Act 1986 by providing false evidence to the Tenancy Tribunal. The appellant appealed against the 12-month imprisonment sentence imposed by Judge P A Moran, with leave to apply for home detention. The Court of Appeal dismissed the appeal, upholding the sentence.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the trial Judge was manifestly excessive. The appellant argued that the offence under the Residential Tenancies Act, which carries a maximum penalty of three years imprisonment, should have been the primary consideration for sentencing. The appellant's counsel contended that the sentence was disproportionate to the gravity of the offending, which occurred in the context of a minor civil dispute over $1,800. The Crown, however, maintained that the 12-month imprisonment sentence was within the range available to the trial Judge.

The Court of Appeal considered the appellant's lack of remorse, his recent history of dishonesty-related convictions, and the seriousness of his conduct, which involved forging a document to support his false testimony. The Court emphasised the importance of deterrence in cases of perjury or providing false evidence, even in the context of minor civil proceedings. The Court concluded that the sentence imposed was not manifestly excessive, given the premeditated nature of the offending and the need for deterrence.

In light of the Court of Appeal's decision, the appeal was dismissed, and the original sentence of 12 months imprisonment with leave to apply for home detention was upheld.

Orders