Police v Zafiri HC Auckland CRI 2010-404-316

[2010] NZHC 2022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-316

NEW ZEALAND POLICE

Appellant

v

AHMED FLAYEH ZAFIRI

Respondent

Hearing:         16 November 2010

Counsel:         N Walker for Appellant

H Retzlaff for Respondent

Judgment:      16 November 2010

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      On   5 December   2009   at   about   5.15 a.m.   Mr Park   was   walking   up Parnell Road.  The respondent and another man were in their Mercedes parked on the side of the road.  They got out.  Mr Zafiri armed himself with a metal car jack brace.  Both men then approached Mr Park and demanded he hand over his bag.  He refused.  He was then attacked, struck around the head with the car jack brace and kicked on the ground.  His bag was taken and the two men ran off.  The respondent

was charged with aggravated robbery.

NEW ZEALAND POLICE V AHMED FLAYEH ZAFIRI HC AK CRI 2010-404-316  16 November 2010

[2]      In the District Court the Judge imposed a sentence of six months community detention,   250 hours   community   work,   intensive   supervision   and   order   the respondent pay the victim $1,000 emotional harm reparation.  The police now appeal this sentence saying it is manifestly inadequate.

Further background facts

[3]      After the two men demanded Mr Park hand over his bag he refused.   A physical  struggle  then  ensued  as  the  two  offenders  tried  to  pull  it  from  his possession.  The respondent struck the victim a number of times on the head with the car jack brace eventually knocking him to the ground.  While he was on the ground the other man kicked him in his head and body while the respondent continued to hit him on the head with the cark jack brace.  The two men then grabbed the bag and ran off.

[4]      The victim had $120 in cash, some bus tickets, a cell phone and a digital camera  stolen  from  him.    Shortly  afterwards  both  offenders  were  located  and arrested.   Included amongst the items seized was a blood soaked metal cark jack brace.

[5]      Mr Park suffered serious injuries.  The medical report and his victim impact report record the following:

a)        a frontal skull fracture;

b)        a frontal sinus fracture;

c)        multiple facial lacerations;

d)       an intracerrebral haemorrhage; and

e)        a thumb cast applied to the left thumb.

[6]      He had two operations to his head on 5 and 14 December and spent 12 days in hospital.  He has had regular scans on his head since that time.  Mr Park now has large scars on his face as a result of the attack.  He continues to suffer dizzy spells as a result of the head injury.   Neither of the attackers knew the victim beforehand. Understandably the victim’s freedom of movement has been to some degree compromised.

[7]      The respondent’s co-accused has pleaded not guilty and will be tried next year.

District Court Sentence

[8]      The Judge in the District Court adopted a starting point of between four and a half and five years’ imprisonment.   The Judge then deducted 10% for what she called remorse and psychological factors; 33% for an early guilty plea; because the respondent had been on electronic bail for six months she deduced three to four months.  She ended up therefore with a sentence of around about 30 months or more imprisonment.  She observed that “therefore home detention is not available”.  The Judge then went on to impose community detention together with the other sentences imposed.

Discussion

[9]      The respondent submits that the proper starting point was no more than four years.  He says this was a street robbery with violence and in terms of R v Mako[1] required a sentence of 18 months to three years with an uplift to four years for the violence involved.

[1] R v Mako [2000] 2 NZLR 170; (2000) 17 CRNZ 272 (CA).

a)       the  10%  allowance  for  remorse  and  psychological  factors  was justified given the respondent established psychological vulnerability and also taking into account the restorative justice meeting;

b)the reduction of three to four months in sentence when the respondent was on E-bail was also justified;

c)       this was a very strong case for a rehabilitative sentence with unusual circumstances justifying a special sentence.

[11]     In this case the violence was much worse than the robbery itself.  And so the facts required an assessment of the R v Taueki[2]  factors to identify the appropriate sentence as well as a R v Mako aggravated robbery analysis.  Identifying this case primarily as a street robbery with some violence however missed the essential point of the extreme violence used to facilitate the robbery.

[2] R v Taueki [2005] 3 NZLR 372; (2005) 21 CRNZ 769 (CA).

[12]    The second fundamental error was that once the Judge concluded home detention  was  not  available  because  the  appropriate  prison  sentence,  at  about

30 months, was too long, it was an error of principle to drop down the hierarchy of sentences and impose a sentence of community detention.  If home detention was not appropriate because the period of imprisonment justified by the offending was too long then a sentence lower in the hierarchy of sentences could not possibly be imposed (s 10A, Sentencing Act 2002).

[13]     The sole application of the guideline judgment of R v Mako was inapt in the facts of this case.  The focus in R v Mako is appropriate on the robbery aspect of the facts together with the aggravating features relating to the robbery. For example planning, disguises, the type of persons or premises targeted ([34], [36]–[51]). And so the robbery of a bank is by itself of greater significance than a street robbery. The robbery in this case was a street robbery where a modest value of goods was taken.

[59]      At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.

[15]     Those observations illustrate that if R v Mako is solely relied upon the danger is (as here) that the sentencing Court will miss the essential criminality of what was a very brutal assault which ended in the theft of Mr Park’s bag and contents.

[16]     I take into account, as I must, that this is a police appeal and any increase in sentence must be the least appropriate, consistent with a fair and proper sentence.[3]

Further, special care must be taken when considering increasing a non custodial sentence to a custodial sentence.[4]

[3] R v Xie [2007] 2 NZLR 240; (2006) 22 CRNZ 949 (CA) at [31].

[4] R v Nathan CA209/06 29 November 2006 at [26] and [27].

[17]     To return to Taueki. The first step is to assess what category the offending comes within. That requires an analysis of those factors set out at [31], [32] and [33] of Taueki.

Extreme violence

[18]     While the violence here was not the most extreme it was a very violent incident which clearly went on for some time.  The victim has no recollection of the events.  He was beaten about on his head with a weapon and kicked in the head until unconscious.

[19]     There was some pre-meditation.  The two men involved left a vehicle armed with a weapon clearly intending to rob the victim.   The pre-meditation was not lengthy but the attack was not spontaneous.

Serious injury

[20]     I have already recounted the very serious injuries.  The victim has permanent scarring and has some residual effect from the head injuries.

Use of weapons

[21]     A metal wheel brace was used.  This was a very serious weapon, not in the most serious category, for example, a gun, but at the high end.

Attacking the head

[22]     The victim was not only hit with the metal wheel brace on the head but also kicked in the head.

Facilitation of a crime

[23]     The  purpose  of  the  grievous  bodily harm  was  to  facilitate  the  crime  of robbery.

Multiple attackers

[24]     There were two attackers.

[25]     The victim was not particularly vulnerable but there were two attackers.

[26]     As  to  the  matters  which  might  reduce  the  seriousness  there  was  no provocation, nor any excessive self defence.

[27]     This case therefore features to a greater or lesser degree seven aggravating features.  That places it easily within band three of Taueki, being a serious concerted street attack.  Band three has a range of between nine and 14 years.

[28]     To return to R v Mako.  This robbery was a street robbery but the violence was so extreme that it effectively overwhelms the criminality of the robbery.  Given both aggravated robbery and wounding with intent to cause grievous bodily harm have the same maximum penalty it can hardly be correct that a sentence for the same crime will vary widely depending upon the actual charge faced.  If the appellant had faced  sentence  for  wounding  with  intent  to  cause  grievous  bodily  harm  then  I consider a start sentence of eight to nine years could easily be justified on a police appeal.

[29]     In this case the police have only argued for a start sentence of six years’ imprisonment.  On the facts this could not possibly be argued against.  I therefore propose to take that as the appropriate starting point.

Mitigation

[30]     The Crown submitted that the discounts of 33% for the guilty plea, 10% for remorse and psychological factors and three to four months for the electronic bail allowance were at or above “the required” amount, but did not challenge those deductions.

[31]     The appropriate course, therefore, is for me to adopt those deductions.   I

agree, however, that the 10% deduction for personal factors and the three to four

months for electronically monitored bail here was generous.   But for the reasons given, I leave them untouched.

[32]     I therefore deduct 43% from the start sentence of six years’ imprisonment reducing that sentence therefore to 41 months’ imprisonment.   I deduct a further three months for the electronic bail allowance leaving a sentence of three years and two months’ imprisonment.

[33]     No further reduction is required to reflect the fact that this is a Crown appeal. The appellant has already had a substantial discount in this case given the Crown’s modest starting point.  One further allowance is properly made.  The appellant has served part of his sentence.  In those circumstances I deduct a further three months’ imprisonment leaving a final sentence of two years, 11 months’ imprisonment.

[34]     I am very reluctant to send a man to prison on appeal in these circumstances but this is caused primarily by the serious failure in the District Court to identify what is very serious offending.

[35]     The appeal is allowed.   All sentences in the District Court are quashed. Instead I impose a sentence of two years, 11 months’ imprisonment.   I was not asked, nor do I intend to impose a minimum non-parole period.

[36]     The respondent should surrender to the Auckland central police station by

4.00 p.m. Thursday, 18 November failing which a warrant for his arrest will issue.

Ronald Young J

Solicitors:

N Walker, Meredith Connell, PO Box 2213, Auckland, email:  natalie[email protected]

H Retzlaff, Solicitor, Auckland