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Moheebi v R

Moheebi v R

Case [2020] NZCA 343 12 August 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA489/2018
[2020] NZCA 343

BETWEEN	AMIR MOHEEBI Appellant
AND	THE QUEEN Respondent

Hearing:	16 June 2020
Court:	Courtney, Brewer and Hinton JJ
Counsel:	M W Ryan and JAE Tulloch for Appellant MRL Davie for Respondent
Judgment:	12 August 2020 at 11 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of 10 years and five months’ imprisonment with a minimum period of imprisonment of five years is quashed and a sentence of nine years’ imprisonment substituted.
CNo minimum period of imprisonment is imposed under s 86(2) of the Sentencing Act 2002.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

Introduction

On 1 August 2018, Judge Bergseng sentenced Mr Moheebi to 10 years and five months’ imprisonment with a minimum term of imprisonment of five years. This followed a guilty plea to two charges of importing methamphetamine,[1] one representative charge of supplying methamphetamine,[2] one representative charge of offering to supply methamphetamine,[3] one representative charge of selling cannabis,[4] and one charge each of offering to sell cannabis,[5] unlawfully possessing a restricted weapon (pepper spray),[6] possessing cannabis,[7] and possessing cannabis utensils.[8]
[1]Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a). Maximum penalty life imprisonment.
[2]Sections 6(1)(c) and 6(2)(a). Maximum penalty life imprisonment.
[3]Sections 6(1)(c) and 6(2)(a). Maximum penalty life imprisonment.
[4]Sections 6(1)(e) and 6(2)(c). Maximum penalty eight years’ imprisonment.
[5]Sections 6(1)(e) and 6(2)(c). Maximum penalty eight years’ imprisonment.
[6]Arms Act 1983, s 45(1)(b). Maximum penalty four years’ imprisonment and/or a $5,000 fine.
[7]Misuse of Drugs Act, ss 7(1)(a) and 7(2)(b). Maximum penalty three months’ imprisonment and/or a $500 fine.
[8]Sections 13(1)(a) and 13(3). Maximum penalty one year’s imprisonment and/or a $500 fine.
Mr Moheebi now appeals against sentence. He says the sentence is manifestly excessive as the starting point the Judge adopted was too high having regard to Mr Moheebi’s role and his analysis of the relevant drug quantity. Moreover, he says the discounts for personal mitigating factors and guilty plea were inadequate. The appellant also contends the Judge erred in imposing a minimum period of imprisonment under s 86(2) of the Sentencing Act 2002.
The appeal was filed before this Court’s new guideline decision for methamphetamine offending, Zhang v R, was delivered.[9] If the sentence would be lower under Zhang, Mr Moheebi will be entitled to the benefit of it. Ms Tulloch, for Mr Moheebi, submits that the appropriate sentence would be less under Zhang. For the Crown, Mr Davie submits that Zhang would not make any difference and the appeal should be dismissed.
[9]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(p)] and [188]–[191].
Practically speaking, while the approach on this appeal nominally (in terms of the Criminal Procedure Act 2011 framework) remains one of error correction, our task is to compare the sentence imposed with the sentence that would be imposed under Zhang. If the latter is materially less, we…

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 Moheebi v R

Details

AGLC: Moheebi v R [2020] NZCA 343
Case: [2020] NZCA 343
Decision Date: 12 August 2020 at 11 am

CaseChat Overview and Summary

Amir Moheebi appeals against his sentence for drug-related charges, which resulted in a 10 year and 5 month imprisonment sentence, with a minimum term of imprisonment of 5 years. Moheebi argues that the sentence is manifestly excessive, that the starting point was too high given his role in the drug offences, and that the discounts for personal mitigating factors and the guilty plea were inadequate. Additionally, Moheebi contends that the judge erred in imposing a minimum period of imprisonment. The appeal was filed before the Court's guideline decision for methamphetamine offending, Zhang v R, was delivered. The appeal court finds that the starting point adopted by the sentencing judge was excessive, that the discounts for personal mitigating factors were inadequate, and that the imposition of a minimum period of imprisonment was an error in law. The appeal against sentence is allowed, and the sentence of 10 years and 5 months’ imprisonment with a minimum term of imprisonment of 5 years is quashed and a sentence of 9 years’ imprisonment is substituted. No minimum period of imprisonment is imposed.

Orders