Omar v Police - [2017] NZHC 288

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 Respondent

Judgment:

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…

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 Omar v Police

Details

AGLC: Omar v Police [2017] NZHC 288
Case: [2017] NZHC 288
Decision Date: 28 February 2017

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Abdi Omar against his conviction and sentence for common assault. The appellant was at a party where he had consumed alcohol and possibly other illicit substances. He was asked to leave the premises, and during the process of being escorted off the property by the complainant, he struck her in the face, allegedly in self-defence. The appellant was charged with common assault under s 196 of the Crimes Act 1961. He was convicted and sentenced to nine months’ imprisonment by Judge Saunders in the District Court at Christchurch.

The legal issues in this appeal were whether the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, and if the sentence was manifestly excessive. The principles on appeal require that the Court may only allow an appeal against sentence if there has been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed. An appeal against conviction must be allowed only if the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.

The court found 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 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 the Court considered he was entitled to hold. As for the sentence, the court considered that the uplift imposed of 50 per cent resulted in a sentence which was manifestly excessive. An uplift of one month two weeks, that is 25 per cent, was the proper uplift in this case.

The appeal against conviction was dismissed but the appeal against sentence was allowed. The sentence of nine months’ imprisonment was set aside and a sentence of seven months two weeks’ imprisonment was imposed in its place.

Orders