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Nassery v R

Nassery v R

Case [2022] NZCA 213 26 May 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA26/2022
[2022] NZCA 213

BETWEEN	MOHAMMED OMAR NASSERY Appellant
AND	THE QUEEN Respondent

Hearing:	9 May 2022
Court:	Clifford, Venning and Moore JJ
Counsel:	N T C Batts for Appellant C P Paterson and M J Mortimer-Wang for Respondent
Judgment:	26 May 2022 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Following a jury trial in the District Court at Auckland, Mohammed Nassery was convicted of two charges of aggravated robbery, a charge of theft of petrol, and a charge of receiving stolen registration plates. Judge C M Ryan sentenced Mr Nassery to two years, six months’ imprisonment.[1] She also remitted Mr Nassery’s outstanding fines of $4,427.60.
[1]R v Nassery [2022] NZDC 868 [Judgment under appeal].
Mr Nassery appeals against the sentence of imprisonment. He says he should have received home detention which would have enabled him to attend a rehabilitative course.

Background offending

On 27 November 2019, Mr Nassery went to a Mobil petrol station and filled his work van with fuel to the value of $50. Although Mr Nassery approached the counter he did not pay. He left the petrol station and drove away without paying. Mr Nassery paid the $50 shortly before trial.
On 29 November 2019, Mr Nassery went into a PK Superette in Point Chevalier at about 10.30 am. He was wearing a white Halloween mask. He demanded money from the sole attendant. While carrying out the robbery he held a thick stainless steel knife. Mr Nassery took between $300 and $400 in cash and eight to 10 packets of cigarettes. The licence plate on the van Mr Nassery used to leave the scene was covered to avoid identification.
The next day, on 30 November 2019, Mr Nassery went to the Taikata Dairy in Te Atatu. Again he was wearing a white mask and carrying a large knife. Mr Nassery threatened the store attendant. Mr Nassery took around $250 cash and an unspecified number of packets of cigarettes.
The final charge was receiving stolen property. Mr Nassery was found in possession of stolen registration plates on or about 1 December 2019.

The District Court sentence

In her lengthy sentencing notes Judge Ryan identified the aggravated robbery of the PK Superette as the lead offence because slightly more cash had been taken in that robbery. Having regard to the guideline judgment in R v Mako she considered a starting point of four years, six months was appropriate.[2] She then uplifted that by four months for the second offence which had taken place the next day and added a further two months for the other offences, namely the theft from the petrol station and the receiving. The adjusted starting point was five years’ imprisonment.[3]
[2]R v Mako [2000] 2 NZLR 170 (CA).
[3]Judgment under appeal, above n 1, at [101].
Although Mr Nassery had prior convictions they…

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 Nassery v R

Details

AGLC: Nassery v R [2022] NZCA 213
Case: [2022] NZCA 213
Decision Date: 26 May 2022 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mohammed Omar Nassery appealed against his sentence of two years and six months' imprisonment, imposed by Judge C M Ryan following his conviction for aggravated robbery, theft of petrol, and receiving stolen registration plates. The Court of Appeal, consisting of Clifford, Venning, and Moore JJ, dismissed the appeal. The appellant argued that the sentencing judge had failed to adequately consider the purposes and principles of sentencing under section 16 of the Sentencing Act 2002 and that he should have received home detention instead of imprisonment to enable him to attend a rehabilitative course. The Court of Appeal found that the appellant's arguments were misguided. They held that section 16 of the Sentencing Act does not operate as a free-standing, first principle that allows the court to approach the sentencing exercise in the manner argued by the appellant. The court found that the sentencing judge had followed an orthodox approach in determining the sentence, taking into account the guideline judgment in R v Mako, the personal aggravating and mitigating features of the appellant, and ultimately arriving at an end sentence of two years and six months' imprisonment. The Court of Appeal concluded that the sentence was not manifestly excessive and dismissed the appeal against sentence.

Orders