Mohammed Omar Nassery v The Queen - [2022] NZSC 97

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 54/2022
[2022] NZSC 97

BETWEEN	MOHAMMED OMAR NASSERY Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	N T C Batts for Applicant T R Simpson for Respondent
Judgment:	12 August 2022

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mohammed Nassery seeks leave to appeal against the dismissal in the Court of Appeal of his sentence appeal.[1]
[1]Nassery v R [2022] NZCA 213 (Clifford, Venning and Moore JJ) [CA judgment].
Mr Nassery was convicted by a jury following trial in the Auckland District Court on the following charges: two charges of knife-based aggravated robbery (in each case, a few hundred dollars cash and cigarettes from different dairies); one charge of stealing $50 worth of diesel from a service station; and one charge of receiving stolen registration plates valued at between $20 and $30.
He is a former refugee from the Soviet invasion of Afghanistan, and was 42 years old at the time of sentencing. He arrived in New Zealand as an 11-year-old. He is a methamphetamine addict who relapsed following early exit from a drug rehabilitation programme. He has prior convictions, but none are relevant.

Lower Court judgments

In the District Court, Judge Ryan took a starting point of five years for all offending,[2] then deducted 50 per cent for background factors (addiction 20 per cent, refugee and family background 20 per cent, separate mental health issues five per cent and other general factors such as EM bail five per cent). This left a final sentence of two years and six months.[3]
[2]Four years and six months for the first robbery, a four-month uplift for the second robbery and two months for the other two charges.
[3]R v Nassery [2022] NZDC 868.
While these are significant discounts, the essential argument for the applicant was articulated in the Court of Appeal as a matter of evaluative process. It was argued that the guideline judgment (R v Mako)[4] and the necessity of reaching the two-year limit to qualify for home detention, were applied too rigidly. A prior and broader assessment should have been made. That is, the sentencing Judge failed first to satisfy herself, as required by s 16 of the Sentencing Act 2002, that relevant purposes and principles of sentencing could only be met by a sentence of imprisonment.
[4]R v Mako [2000] 2 NZLR 170 (CA).
The Court of Appeal described the applicant’s argument as “misguided”.[5] The Court said s 16 is not a free-standing first principle or a dominant purpose section. It referred to s 15A(1)(b) directing that a sentence of home detention is only available if the applicable sentence would otherwise have been “a short-term sentence of imprisonment” — that is, a term of 24 months or less as defined in s 4(1) of the Parole Act 2002.
[5]CA judgment, above n 1, at [21].
The Court referred…

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: [2022] NZSC 97
Decision Date: 12 August 2022

CaseChat Overview and Summary

Mohammed Omar Nassery has applied to the Supreme Court of New Zealand for leave to appeal against the dismissal of his sentence appeal in the Court of Appeal. Mr Nassery was convicted of multiple charges, including two counts of knife-based aggravated robbery, theft of diesel, and receiving stolen registration plates. The District Court sentenced him to two years and six months imprisonment, after applying significant discounts for various background factors. The applicant argued that the Court of Appeal erred in its application of guideline judgments and the Sentencing Act 2002, specifically sections 15A and 16. He contended that the purposes and principles of sentencing could have been met with a non-custodial sentence, but the Court of Appeal held that home detention was not an available option as the sentence exceeded the short-term imprisonment threshold of 24 months.

The Supreme Court considered whether the appeal raised a sufficient question of principle to warrant leave to appeal, but ultimately concluded that the discounts already applied were generous. The sentencing judge had explicitly concluded that a two-year sentence was necessary, and the applicant's argument did not adequately address this conclusion. The Court found that the applicant's proposed appeal lacked sufficient prospects of success to justify the grant of leave.

The application for leave to appeal is dismissed.

Orders