Mohammed v R - [2016] NZCA 254

IN THE COURT OF APPEAL OF NEW ZEALAND

CA433/2015
[2016] NZCA 254

BETWEEN	AIYAZ MOHAMMED Appellant
AND	THE QUEEN Respondent

Hearing:	24 May 2016
Court:	Stevens, Woodhouse and Wylie JJ
Counsel:	R P Chaudhry for Appellant B D Tantrum and P J Arnold for Respondent
Judgment:	14 June 2016 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeals against conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Wylie J)

Introduction

In March 2015 the appellant, Mr Mohammed, was found guilty following a trial by jury presided over by Judge Treston in the Manukau District Court of:
(a)nine charges of offering to supply methamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1975;
(b)seven charges of possessing methamphetamine for supply, contrary to s 6(1)(f); and
(c)six charges of supplying methamphetamine, contrary to s 6(1)(c).
Mr Mohammed was subsequently sentenced by Judge Andrée Wiltens to three years’ imprisonment, to be served concurrently, on all charges.[1]
[1]R v Mohammed [2015] NZDC 11679.
Mr Mohammed appeals his convictions on three grounds. In summary, he asserts that:
(a)Judge Treston erred in refusing an application for an adjournment;
(b)the actions of his trial counsel resulted in a miscarriage of justice; and
(c)Judge Treston erred in his summing-up.

All other matters raised in an amended notice of appeal filed on 16 November 2015 were abandoned.

Mr Mohammed also appeals his sentence. He says that the sentence imposed was manifestly excessive.
The notice of appeal was filed out of time. The Crown was neutral on the grant of an extension. Although the delay was not adequately explained, the Crown suffered no prejudice. We therefore grant the application for an extension of time to appeal.

The verdicts

The jury found that Mr Mohammed was a low level supplier of methamphetamine. The offending occurred between 31 October 2012 and 5 February 2013. Mr Mohammed offered to supply 1.8 grams of methamphetamine, possessed for supply a further 1.2 grams and supplied 1 gram.
The Crown case was based on text messages sent and received on a particular number associated with an identified cellphone. It was not disputed at trial that the text messages referred to methamphetamine dealing. The question for the jury was whether or not Mr Mohammed, or one of his employees, a Mr Narayan, had sent and received the text messages.
The Crown adduced evidence that:
(a)the cellphone was found beside Mr Mohammed’s bed when the police searched his home;
(b)Mr Mohammed initially admitted to the police that the cellphone was his;
(c)Mr Mohammed said that he had had the cellphone for a period of some six or seven months, including the period over which the offending took place;
(d)Mr Mohammed’s wife said that she had given the cellphone to him, and that she frequently contacted him on the cellphone;
(e)Mr Narayan said that the cellphone belonged to Mr Mohammed;
(f)Mr Narayan denied using the cellphone to send or receive 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.

Continue reading Mohammed v R

Details

AGLC: Mohammed v R [2016] NZCA 254
Case: [2016] NZCA 254
Decision Date: 14 June 2016 at 2.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Mr Aiyaz Mohammed, sought an appeal against his convictions and sentence for drug-related offences. The appeal against conviction was based on three grounds: an alleged error by the trial judge in refusing an adjournment, the actions of his trial counsel resulting in a miscarriage of justice, and an alleged error in the summing-up by the trial judge. The appeal against sentence contended that the sentence imposed was manifestly excessive. The Court of Appeal found that there was no error by the trial judge in declining the adjournments, nor was there a miscarriage of justice due to the actions of the trial counsel. The summing-up by the trial judge was also found to be fair and balanced. As for the sentence appeal, the Court of Appeal determined that the sentence imposed was within the appropriate range for the type of offending and was not manifestly excessive. Consequently, the application for an extension of time to appeal was granted, but the appeals against both conviction and sentence were dismissed.

Orders