Omar v Police
[2017] NZHC 288
•28 February 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2017-409-000004 [2017] NZHC 288
BETWEEN ABDI OMAR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 February 2017 Appearances:
R Harcourt and AMS Williams for Appellant
C J Bernhardt for RespondentJudgment:
28 February 2017
ORAL JUDGMENT OF GENDALL J
Summary of appeal
[1] On 25 May 2016, the appellant was at a party on Langdons Road, Christchurch, where he and associates had consumed alcohol and possibly other illicit substances. At some point he was asked to leave, but in the course of being escorted off the property by the complainant, he struck her in the face, allegedly in self-defence. The appellant was accordingly charged with common assault under s 196 of the Crimes Act 1961. In a judgment dated 9 January 2017, he was convicted and sentenced by Judge Saunders in the District Court at Christchurch to
nine months’ imprisonment.1
[2] The appellant appeals primarily against his conviction, but secondly and failing that, he appeals against his sentence on the basis, he says, that it is manifestly
excessive.
1 Police v Omar [2017] NZDC 1089 [Conviction Judgment]; Police v Omar [2017] NZDC 90 [Sentencing Judgment].
OMAR v NZ POLICE [2017] NZHC 288 [28 February 2017]
[3] For the reasons I will now give, the appeal against conviction is dismissed but the appeal against sentence is allowed.
Principles on appeal
[4] Turning now to the principles on appeal, appeals against sentence and conviction are brought under ss 244 and 229 of the Criminal Procedure Act 2011, and must be determined in accordance with ss 250 and 232 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different
sentence should be imposed.2
[5] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R3) in Larkin v Ministry of
Development:4
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[6] The focus on most appeals is thus on the end sentence. In Tutakangahau v
R,5 the Court of Appeal held that:6
…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.
[7] An appeal against conviction must be allowed only if it is found that the
Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.7 Miscarriage of justice means any error, irregularity, or
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Ripia v R [2011] NZCA 101 at [15].
4 Larkin v Ministry of Development [2015] NZHC 680.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 At [36].7 Criminal Procedure Act 2011, ss 232(2)(b) and 232(4)..
occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.8
[8] The appeal proceeds by way of rehearing, and the court on appeal must
examine the Judge’s reasoning carefully and come to its own decision on the facts.9
However, it is generally only in exceptional circumstances that a court on appeal will
interfere with the trial Judge’s findings of fact.10
District Court Decisions
[9] Turning now to the District Court decisions, Judge Saunders in the District Court entered a conviction and sentenced the appellant on 9 January 2017. In relation to the elements of the offence, the Judge adverted to the appellant’s argument that he had acted in self-defence. Mr Omar had said his hoodie had been pulled over his head obscuring his vision, and that he had been dragged around and thought he was being kidnapped. The Judge referred to “discrepancies” in the evidence of the complainant and the complainant’s partner, which arose in the context of all parties concerned consuming alcohol and possibly cannabis over the course of the evening. Overall, and notwithstanding those discrepancies, the Judge favoured the complainant’s evidence and version of events. Mr Omar had been asked to leave the premises, and the complainant, ostensibly acting as the home- owner’s agent, had attempted to escort him off the premises. The Judge found that there was no basis on which the appellant could have anticipated kidnapping, and that his deliberate strike to the complainant’s face (which cracked a tooth and drew blood), was not a justified use of force. Accordingly, the Judge found the elements of the offence proved. There had been an intentional application of force, and the use of that force was not, in any sense, justified.
[10] In respect of the appropriate sentence, Mr Omar was sentenced on the basis that there was no finding of self-defence. The Judge adopted a starting point of six months’ imprisonment, and said the offending warranted a three month uplift to
reflect appellant’s previous criminal history of assaults, in respect of some of which
8 Section 232(4).
9 R v Slavich [2009] NZCA 188.
10 Rae v Police HC Hamilton CRI-2006-419-162 at [38].
sentences of imprisonment had been imposed. The Judge considered that there were no mitigating factors relevant to the appellant in terms of remorse or acceptance of responsibility, and no guilty plea discount was available. Accordingly, the sentence of nine months’ imprisonment was the final outcome.
Analysis
Appeal against conviction
[11] Turning now to the present appeal, the appellant’s two primary contentions on his appeal against conviction are first, that the Judge erred by accepting or preferring the evidence of the complainant, and secondly, that he erred by taking into account a “primary matter” which was not in evidence, namely the views of the homeowner – specifically the view that the appellant should leave the premises.
[12] The evidence of three of the relevant parties (the appellant, the complainant, and the complainant’s partner) clearly did not align in all respects. As the appellant submits, in the main the complainant gave a different account of events to that given by the appellant and the complainant’s partner, whose accounts of events were mostly consistent.
[13] Essentially, the Judge’s preference for the evidence given by the complainant was a function of his credibility finding in favour of the complainant. It has often been said that a court on appeal should be slow to interfere with a decision made in the context of findings of credibility, as the trial Judge will have had the especial benefit of hearing the witnesses personally.11
[14] The appellant refers to parts of the evidence given which are said to demonstrate that the complainant was not a credible witness, or at least that the appellant should have been given the benefit of the doubt as to the evidence of events. For example, it was the complainant’s evidence that the appellant had arrived at the party with alcohol, but both the appellant and the complainant’s partner
gave evidence that they had driven the appellant to a liquor store to obtain alcohol.
11 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30].
[15] The circumstances were such that findings of credibility here involved an exercise of relativity. The Judge was clearly alive to the “discrepancies” which arose on the evidence. It is likely, in my view, that no one person’s account was wholly reliable in the sense that it was without some uncertainty or error. However, the Judge was properly concerned with the account of the evidence at the relevant time, namely the assault and the moments leading up to it. In that respect, the Judge was clear that, notwithstanding discrepancies exploited in cross-examination, he “certainly accept[ed] [the complainant’s] evidence of the way in which the matter came to an end” (emphasis added). Additionally, the respondent refers to allegations made by the appellant in evidence, specifically that the complainant had racially abused him and at an earlier time had attempted to procure him to purchase methamphetamine, which were clearly of some relevance to the Judge’s assessment of the appellant’s credibility.
[16] I therefore consider that the Judge was entitled to reject the appellant’s account of events and similarly to reject the notion that, at the critical time, the appellant believed he was being kidnapped and justified in using force. The appellant had been asked to leave, and was being escorted up the driveway by the complainant for that very purpose.
[17] The primary matter which was “not in evidence” was the view of the homeowner that the appellant leave the premises. This was the basis on which the complainant was said to be acting when she escorted the appellant up the driveway to the point where he struck her. The prosecution had intended to call the homeowner to give evidence, but she did not attend on the day, and the prosecution, as I understand it, elected to proceed without that evidence. I accept that those specific views, given from the perspective of the homeowner, were not properly part of the evidence. To that extent, the Judge may have been in error when he referred to the homeowner “clearly desiring people to cease activities in the garage”. However, as the respondent notes, it was part of the evidence of the complainant, and indeed accepted by the appellant, that he had been asked to leave. The Summary of Facts similarly records that position. That was the context in which the altercation on the driveway between the appellant and the complainant took place. The reasoning
behind the request to leave, and the issue as to who made that request, are therefore largely incidental issues.
[18] In any case, the appellant must also demonstrate that, if the Judge did make such an error in his assessment of the evidence, that it amounted to a miscarriage of justice in the sense of having a real impact on the outcome of the trial. As the respondent submits, and I accept, the Judge did not give as the appellant terms it “significant weight” to the homeowner’s request to leave, but rather, and for the purposes of the elements of the offence and the defence raised, considered whether the appellant could reasonably have thought he was being kidnapped and under that belief used the force he did. The Judge’s findings relevant to that question were based on the evidence actually admitted and in particular his preference for the complainant’s evidence, which preference I consider he was entitled to hold. I consider that, without reference to whether or not the homeowner had indicated the appellant should leave, it was open to the Judge to find the elements of the offence proved and the defence to that successfully rebutted.
[19] I find the appellant’s contention that the Judge used inadmissible evidence to bolster his assessment of the complainant’s evidence, to be similarly unfounded. Although arguably part of the matrix of fact, the common premise on which the issue of the assault and self-defence fell for consideration was the fact that, as accepted by the appellant, he had been asked to leave. To that extent, whilst the Judge would not have been entitled to use the uncalled evidence to bolster his opinion of the complainant’s evidence, he was nevertheless not precluded from finding the complainant’s account to be the more credible one.
[20] It follows that I do not consider the Judge to have erred in his assessment of the evidence to such an extent that there was a miscarriage of justice here. It is necessary therefore and I now turn to consider the second aspect of the appeal, namely the appellant’s appeal against sentence.
Appeal against sentence
[21] On this, the appellant argues that the sentence of nine months’ imprisonment
imposed on him for the assault was, in the circumstances, manifestly excessive. The
appellant accepts that his remand status was such that imprisonment was the only appropriate outcome, but he submits that both the starting point and the subsequent uplift for previous convictions were excessively high such that the end sentence was manifestly excessive.
[22] Taking first the starting point, the six months adopted by the Judge represented half of the available one year maximum. The appellant submits, although it seems generally without authority or argument, that a starting point of two to three months was appropriate. I disagree. The injuries sustained by the victim referred to above were not trifling. As the respondent notes, it is arguable that a charge of assault in an aggravated form, i.e. male assaults female, could have been laid here. That attracts a maximum penalty of three years’ imprisonment. Overall, I consider that a starting point of six months’ imprisonment was commensurate with the seriousness of this offending, viewed in the context of the charge laid and the available maximum. It follows that the sentence was not manifestly excessive by reason of the starting point.
[23] The Judge’s uplift of three months to take into account the appellant’s criminal history amounted to a 50 per cent uplift, which the appellant submits was neither proportionate in the circumstances, nor supported by authority. The circumstances of any particular defendant are infinitely variable, and direct comparison with even “comparable” cases can only take the analysis so far. However, the appellant here cites the Court of Appeal authorities which suggest that
uplifts for previous relevant violent offending are conventionally modest.12 Further,
in Williams v Police,13 Asher J upheld an end starting point of the 12 months maximum on a charge of assault, for offending which was on the very high end of the spectrum. The appellant there had eight assault-related convictions, and the inference is that a small uplift took offending “close to the most serious”, to “the most serious”. In Soper v Police,14 the appellant was sentenced on one count of assault and one count of male assaults female. Although the appeal was allowed on
other grounds, an uplift of six months on a (substituted) starting point of 15 months
12 See Tiplady-Koroheke v R [2012] NZCA 477; Hodgkinson v R [2012] NZCA 478.
13 Williams v Police [2015] NZHC 3285.
14 Soper v Police [2014] NZHC 2536.
(40 per cent) was considered appropriate to reflect the appellant’s 11 previous assault
convictions (of which seven were for various forms of aggravated assault).
[24] The appellant here has nine previous convictions for violence-related offending, of which six resulted in custodial sentences. The most recent conviction was in 2015, although there is a sizeable gap between that and the next most recent, in 2006. Clearly, the appellant has a relevant criminal history which warranted an uplift to reflect that, although the appellant’s criminal history is by no means the most serious example to be found.
[25] The respondent accepts that the uplift of three months equating to roughly half of the starting point was “stern”, but that ultimately, an end sentence of nine months’ imprisonment was perhaps open to the Judge. Being mindful both of the need to avoid double punishment, but also of the need to denounce and deter, in light of the appellant’s poor track record here I consider that an uplift of one month two weeks, that is 25 per cent, was the proper uplift in this case. I therefore consider that the uplift imposed of 50 per cent resulted in a sentence in this case which was outside the range of sentences available to the District Court Judge and was therefore manifestly excessive.
Conclusion
[26] For all of these reasons I confirm that the appeal against conviction is dismissed but the appeal against sentence is allowed, but only to the extent necessary to correct the excessive 50 per cent uplift which I find was disproportionate in the circumstances and resulted in a sentence which was manifestly excessive. The sentence of nine months’ imprisonment is set aside and a sentence of seven months two weeks’ imprisonment is imposed in its place.
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Gendall J
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly, Christchurch
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