Musaad v Police HC Christchurch CRI 2010-409-219

[2010] NZHC 2261

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000219

KHALID MUSAAD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 December 2010

Counsel:         A J McKenzie for Appellant

C J Boshier for Respondent

Judgment:      15 December 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a sentence of six months’ imprisonment imposed in relation to an offence of burglary and four offences of using a document to obtain pecuniary advantage.  The burglary was committed on 19 June 2010.  The appellant entered an unlocked door into a dwelling and from a bedroom removed a mobile phone, passport and other objects to a value of about $600.   He was granted bail. However, between 12 and 13 July, he committed the four further offences of using a document.    Through  Trade  Me  he  obtained  a  position  in a  flat.    His flatmates employed an Eftpos card to meet living expenses.  Mr Musaad used that card on four

separate occasions to obtain cash totalling $600 which he used for himself.

KHALID MUSAAD V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000219  15 December 2010

[2]      He entered a plea of guilty to the burglary on 7 August and to the remaining charges on 28 October.   On 8 November he was sentenced by Judge Crosbie in relation to all matters.   For reasons to which I will refer in a moment, the Judge concluded that denunciation and personal deterrence had  to be the predominant sentencing considerations.   He set a starting-point of six months’ imprisonment, which was then increased by three months for what he termed aggravating features, being the fact that the appellant had committed two offences of theft from a dwelling in May and June of 2010 and the further circumstance that he was both subject to a sentence of community work when he committed the burglary, and on bail when he committed the using a document offences.   With this uplift, a sentence of nine months’ imprisonment was indicated, but a one-third reduction was made in recognition of the guilty pleas, to arrive at the end sentence of six months’ imprisonment.

[3]      The appellant is 31 years of age.  He was born in the United Arab Emirates but has been a resident in New Zealand since his mid-teens.  He had, at the time of sentencing, three previous convictions for theft, the two to which I have already referred, and another committed in 2007, plus convictions for possessing cannabis and for driving with a breath alcohol excess.   He had previously received only community-based sentences.

[4]      Moreover, he completed a Bachelor of Science degree at Otago University with first class honours and was engaged in study to become a dental technologist when, apparently, he went off the rails and the offending, to which I have referred, commenced.  There is no issue that the cause of his demise has been amphetamine dependence.   This has resulted in his receiving treatment at both Dunedin and Christchurch Hospitals including, on occasions, when he was considered to be at risk for psychiatric or psychological reasons.  Between February and April of this year he participated in a Bridge Programme, but he soon relapsed on his re-entering the community.

[5]      The pre-sentence report contained this at p 3:

Khalid Mussad is a pleasant capable young man who has had a fall from grace associated with his amphetamine addiction.  While he has sought some

assistance he has struggled to bring this problem under control.  He has been left with feelings of self hatred and remorse associated with consequent drug using lifestyle and his behaviours.   He is currently prescribed relevant medication to deal with issues of anxiety and depression.

[6]      Electronically monitored sentences were in contemplation when the report was prepared.   But, in the event, there was not a suitable address to which the appellant could go in order to serve a monitored sentence.  Instead the report writer recommended a sentence of community work, coupled with intensive supervision, subject to the special condition that the appellant undertake a drug and alcohol assessment  and  then  participate  in  any  recommended  treatment  plan  to  the satisfaction of his probation officer.   As I commented earlier, however, the Judge considered that denunciation and deterrence must prevail at the expense of personal rehabilitation.

[7]      Mr  McKenzie  contested  that  basic  conclusion.    He  submitted  that  the appellant was an intelligent person, enjoyed the benefit of a generally positive pre- sentence report and that despite the difficulties in relation to his recent offending, that this was a case where a rehabilitative focus should have prevailed rather than a sentence of imprisonment.  In short, he submitted that the sentence was inappropriate in principle, rather than necessarily clearly excessive.

[8]      Ms  Boshier,  on  the  other  hand,  submitted  that  the  Judge,  in  a  carefully reasoned decision, had reached an outcome which was well open to him and that interference on the part of this Court would be inappropriate.

[9]      This  impresses  me  as  an  unusual  and  difficult  case.     Mr  McKenzie commented that there may well be a cultural aspect to the offending.  The appellant has a mother and sister who reside in Auckland (and other siblings who live overseas).  It is evident, I think, that his involvement in these crimes has taken a toll on him as indicated by the need for his resort to emergency psychiatric services on a number  of  occasions  in  the  middle  and  latter  part  of  this  year.    Following his admission to prison, he was in an at-risk facility for a time, but now is apparently at Rolleston Prison.

[10]   The other point urged by Mr McKenzie was that the present sentence represented a significant jump in terms of the options available within the hierarchy of sentences.   He had to acknowledge that home detention, for example, was not available for the reason I have explained, but nonetheless, the submission continued, there  was  scope  to  follow  the  recommendation  and  thereby  avoid  a  first  time sentence of imprisonment for this man.

[11]     I do not consider this an easy case.   On balance, I am persuaded that a rehabilitative approach should have been adopted at the expense of a sentence of imprisonment.  Put another way, I think that proceeding direct to imprisonment was inappropriate in all the circumstances of this case.  I regard the pre-sentence report as positive.  The recommendation of the writer is a well-reasoned one and, in my view, a structured rehabilitative sentence was what was required in this instance.

[12] For these reasons I allow the appeal, quash the sentence of imprisonment and substitute a sentence of intensive supervision for a period of 12 months. In terms of s64C of the Sentencing Amendment Act 2007 I am satisfied that intensive supervision would reduce the likelihood of further offending and that the appellant’s rehabilitative needs require a 12 month term. Such sentence will be upon standard conditions and the special condition recommended by the Probation Officer and quoted above (para [6]).

[13]     With reference to the need for a term of community work as well, I note that the appellant has now served five weeks of a prison sentence.   To my mind this meets the punitive aspect which community work would otherwise have achieved.  I consider it is preferable that he be released back into the community, subject to a solely  rehabilitative  focus  and,  accordingly,  I  limit  the  sentence  to  intensive

supervision.

Solicitors:

Andrew McKenzie Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent