R v Abdi aka Farah - [2012] NZHC 3134

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-020026 [2012] NZHC 3134

THE QUEEN

v

ABDINOR ABDI

(ALSO KNOWN AS CANADA FARAH)

Hearing: 22 November 2012

Counsel: S N B Wimsett and M R Walker for the Crown
P J Kaye for the Prisoner

Judgment: 22 November 2012

SENTENCE OF DUFFY J

Counsel: P J Kaye P O Box 941 Shortland Street Auckland 1140 for the Prisoner

Solicitors: Meredith Connell P O Box 2213 Shortland Street Auckland 1140 (DX CP24063) for the Crown

R v ABDI HC AK CRI-2011-004-020026 [22 November 2012]

[1] First, Mr Abdi, I am required to give you a first strike warning and will now do so.

[2] If you are convicted of any serious violent offence, except a murder, committed after you receive the first warning, you will receive a final warning. In addition, if the judge imposes a sentence of imprisonment for that offence, other than life imprisonment for manslaughter, or preventive detention, then you will serve that sentence without parole or early release.

[3] If you are convicted of a murder committed after you receive the first warning, you will be sentenced to imprisonment for life. You must serve the life sentence without parole, unless it would be manifestly unjust to do so. If you receive a life sentence without parole, you will not be released from prison. If serving the sentence without parole would be manifestly unjust, the judge must specify the minimum term of imprisonment you will serve.

[4] I now turn to deal with the sentencing.

Offences

[5] Mr Abdi, you were found guilty of the following charges by a jury:

(i)One charge of abduction for the purposes of sexual connection on 4 June 2011;

(ii) One charge of rape on 4 June 2011;

(iii) Three charges of party to rape on 4 June 2011; and

(iv) One charge of threatening to kill on 4 June 2011.

[6] Accordingly, convictions on these charges have been entered against you.

Facts

[8] I am satisfied from the evidence heard at the trial and the verdicts of the jury that the background of the offending is as follows:

[9] At approximately 10:30 pm on 4 June 2011, the victim was at the Twenty Four Seven Bar in Auckland. In the bar, she met a group of dark-skinned African males, one of whom had two gold front teeth. She described these men as being from Africa. You, Mr Abdi, were one of the group, being the man with the two gold front teeth.

[10] These men talked to the victim and played pool with her. They invited her outside to look for her friends, one of whom was called Betty. The victim left the bar, crossed Karangahape Road and was followed by some of the African men from the bar.

Abduction charge

[11] The men walked the victim towards a vehicle that was parked…

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.

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Details

Case: [2012] NZHC 3134
Decision Date: 22 November 2012

CaseChat Overview and Summary

Abdi, also known as Canada Farah, was convicted of one count each of abduction for the purposes of sexual connection, rape, and threatening to kill, as well as three counts of being a party to rape. The court was required to decide on the appropriate sentence, taking into account the purposes and principles of sentencing, the aggravating and mitigating factors, and the tariff guidelines set out in R v AM. The court considered the gravity of the offending, the harm caused to the victim, and the offender's personal circumstances, including his lack of remorse and propensity for violence. The court determined that the offending fell within band four of the tariff guidelines, with a starting point of 16 years' imprisonment. The court also imposed a minimum period of imprisonment of eight years, considering the offender's level of culpability and the need to hold him accountable for the harm done, denounce the conduct, deter the offender and others, and protect the community. The final orders were that Abdi be sentenced to 16 years' imprisonment for the lead offence of rape, with a minimum period of imprisonment of eight years, and to concurrent sentences of 12 years' imprisonment for each of the three counts of being a party to rape, 10 years' imprisonment for the offence of abduction, and five years' imprisonment for the offence of threatening to kill.

Orders