R v Abdille HC Christchurch CRI 2008-009-19673

[2010] NZHC 1481

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-009-019673

REGINA

v

ASHA ALI ABDILLE

Appearances: P A Currie for Crown

E C Bulger for Prisoner
JHM Eaton - Amicus

Judgment:      27 August 2010

SENTENCE OF HON. JUSTICE FRENCH

[1]      Ms Abdille, following a plea of guilty you appear this morning for sentence on a charge of hijacking under s 3 of the Aviation Crimes Act 1972.  The maximum penalty for this offence is life imprisonment.  It is an extremely serious offence.

Facts of the offending

[2]      On  8  February  2008  you  boarded  a  commercial  Air  National  flight  in Blenheim bound for Christchurch.  You were carrying three knives and were intent on  a  plan  which  was  to  put  the  lives  of  the  two  flight  crew  and  seven  other passengers in serious danger.

[3]      About ten minutes into the flight you approached the cockpit brandishing one of the knives.   You demanded the captain take you where you wanted to go and

R V ABDILLE HC CHCH CRI-2008-009-019673 [27 August 2010]

thrust the knife towards him.   He parried the blow.   There was a struggle, during which he sustained minor cuts to his shoulder and right hand.

[4]      You  said  you  wanted  to  go  to  Australia,  and  became  aggressive  when informed that was not possible due to insufficient fuel.  You suggested they could crash into the sea, and also told the captain you had a bomb in your bag.

[5]      The captain managed to engage you in conversation while the first officer flew  the  plane.    During  this  phase  of  the  incident  you  are  reported  as  having exhibited violent mood swings and stating that everyone was going to die.

[6]      At about the halfway point of the journey you became agitated again and started  hitting  the  first  officer  on  the  side  of  his  head  with  your  knife  hand, repeatedly stating “You crash the plane, you crash the plane.”   One of the female passengers very bravely approached you  in an effort to calm you down.  However you ordered her back to her seat, lunging at her and inflicting a small cut to her left hand.

[7]      As the aircraft began its descent you reached up to the console and started interfering with the switches, saying “I'm going to crash the plane and kill everybody.”   Fortunately, critical fuel cut-off switches had mechanical guards and you were unable to operate them.

[8]      Upon landing you told the pilot the passengers could leave, which they did. Still holding the knife, you turned to the captain and said “It’s just you and me now.” He tried to wrest the knife from your grip, and during the struggle sustained a serious injury to his left hand, severing tendons and an artery, later necessitating the partial amputation of his thumb.

[9]      The first officer, who had been ushering the passengers safely off the plane came to his rescue and managed to release your grip on the knife, sustaining a cut to his foot in the process.  You were eventually subdued.

[10]     Police located a second knife loose in the cabin and the third knife secreted in the sole of your right shoe.

[11]     Since the hijacking, you have given various explanations for your actions. You have said you desperately wanted to leave New Zealand; that you wanted to bring attention to a number of perceived injustices and seek revenge; and that you wanted to re-establish contact with your sister.  You are also recorded as having told one of the psychiatrists, shortly after the incident, that you wished you had taken a gun or tried to stab one of the pilots in the neck, as this would have been effective. He says you expressed no regret and indicated in fact that you wished you had succeeded.  I do, however, accept that since then, as you have become more stable, there does appear to be more insight.

Reports

[12]     The material before me includes victim impact reports from some of the traumatised passengers and one of the pilots.   They were subjected to what must have been an absolutely terrifying ordeal.  As is only to be expected, the effects have been long-lasting and profound.   The victims speak of an overwhelming sense of helplessness,  fear  of  flying,  nightmares,  stress  and  associated  health  problems. Sadly, the incident has resulted in one of the pilots deciding to give up flying.  He also reports feeling angry about the fact that your actions have resulted in the need for increased security, and that the costs of that will filter down to all passengers.

[13]     In addition to the victim impact report, I have read the medical reports, the pre-sentence report, as well, of course, as the personal statement that was read out to us this morning.  The reports tell me you are 36 years of age, of Somalian descent, who came to this country as a refugee in 1994.

[14]     You have some 27 previous convictions, including convictions for assault, threatening behaviour and possession of an offensive weapon.

[15]    It is clear that you have had a very troubled and unhappy life, with a documented history of mental health problems.   The director of the New Zealand

Refugee Settlement Agency has apparently recorded in one letter that your history of flight and resettlement is among the most tragic they have ever seen.

[16]     As a result of your experiences in Africa, you suffer from post-traumatic stress disorder.   You have found living in New Zealand very difficult, displaying what one of the doctors has described as ongoing adjustment difficulties and severe behavioural disturbance.  Because of your behavioural problems, you have become isolated, never being able to fit in anywhere or form relationships.   You have developed persecutory beliefs.

[17]     As well as post-traumatic stress disorder, you have a possible past history of major depressive episode and obsessive compulsive disorder.  You have also been considered as suffering from a personality disorder of anti-social type, characterised by  repeated  offending  behaviour,  impulsivity,  irritability  and  aggressiveness, reckless disregard for the safety of others and lack of remorse.

[18]     Significantly, Dr Monasterio says that at the time of the hijacking you most likely experienced symptoms of chronic post-traumatic stress disorder and partial symptoms of a major depressive episode.

Sentencing analysis

[19]     I turn now to explain the sentencing decisions I have to make today.

[20]     First and foremost I am required to apply the purposes and principles of the

Sentencing Act 2002.

[21]     In this case the sentencing purposes of particular relevance are as follows: the need to hold you accountable for the harm you have done to the victims and to the community; to promote in you a sense of responsibility and an acknowledgement of that harm; to provide for the interests of the victims; to denounce your conduct, and by that I mean the need to express the community’s condemnation and sense of outrage at what you have done; the need to protect the community from you; the need to deter you from any further offending, and the need to deter others who may be like-minded.  Finally, the need to rehabilitate you, to help you change.

[22]     As regards the principles of sentencing, the principles of particular relevance are the seriousness of this offending, the effect of that offending on the victims and the need to impose the least restrictive sentence appropriate in the circumstances.

[23]     Those, then, are the key principles and purposes of sentencing.

[24]     In applying those principles and purposes I am required to follow what is loosely called a two-stage approach.

[25]     In the first stage I must fix what is known as the starting point.  That means the sentence which reflects the culpability or blameworthiness associated with your offending.  That is the first stage.  Fixing the starting point.

[26]     The second stage is, having fixed that starting point, whether your personal circumstances warrant any adjustment to it.

[27]     Turning then to the first stage: identifying the starting point.

[28]     This is the first time that anyone has been sentenced in New Zealand for hijacking.  Accordingly, there are no guideline decisions in New Zealand.  Counsel have, however, referred me to a number of overseas decisions.  These are of limited value, but given the lack of New Zealand authority, and the international dimension of hijacking, they are nevertheless of some relevance.

[29]     Those  cases  show  a  range  of  sentences  between  five  and  25  years’

imprisonment.

[30]     I identify the aggravating features in your case as being:

i)The pre-meditation.  Your actions included the initial booking of the flight under a false name and then returning and re- booking it under your real name.   You purchased two of the knives the day before, specifically to take on board for the purpose of hijacking the plane.

ii)       The use of a weapon and the use of actual physical violence.

iii)The effect on the victims.  The fact that people were physically injured, at least one of them seriously, and the fact they have all suffered considerable and long-lasting effects, including of course the loss of one person’s career.

[31]     As  acknowledged  by  counsel,  there  are  no  significant  mitigating  factors relating to the offending.

[32]   Parliament has marked the seriousness of this offence by imposing life imprisonment as the maximum penalty.   Having regard to that fact, and the aggravating features in your case, I consider that a starting point of 15 years’ imprisonment is appropriate, as submitted by the Crown.  In my view, Ms Bulger’s suggestion of five to eight years is an inadequate reflection of the seriousness of the offending, and the case she principally relies on is distinguishable because of the element of duress.

[33]     Turning then to the second stage.  That is to determine whether there are any aggravating or mitigating factors that relate to you personally, as distinct from the offending, that require an adjustment to that starting point of 15 years.

[34]     Unfortunately,  there  are  aggravating  features  relating  to  you  personally. Those  are  your  previous  convictions,  and  the  fact  you  were  on  bail  for  other offending involving threatening to kill and possession of a weapon at the time of the hijacking.  On account of those aggravating factors I consider that a further uplift of

12 months is warranted.

[35]     There  are,  however,  two  important  mitigating  factors  relating  to  you personally.  They are your mental health problems and your guilty plea.

[36]     The mental health problems do not afford you a defence.   However, I am satisfied there is a nexus between the offending and your mental health problems, and that those problems render you less morally culpable.  The weight to be afforded

those problems must be balanced against the need for denunciation, deterrence and protection of the public.  Having undertaken that exercise, I consider you are entitled to a discount of two and a half years.

[37]     As regards the guilty plea, this was only entered on 14 July 2010 – a month before the trial date and some two and a half years after the incident.  However, I accept Ms Bulger’s submission that you should receive the full third discount.  There was an issue over your fitness to stand trial, and the Court of Appeal has said in R v Hessell [2010] 2 NZLR 298 that in those circumstances time should not run against the offender until that issue is resolved. I acknowledge the point made by Ms Currie that the fitness issue was only raised late in the piece. However, against that is the fact that there were undoubtedly communication problems with your previous lawyers, and I am prepared to take those into account.

[38]     After deducting the two and a half years for your mental health problems, and a further third discount on account of the guilty plea, I therefore arrive at an end sentence of nine years’ imprisonment.

[39]     The Crown seeks a minimum period of imprisonment, or as it is commonly called, a non-parole period.  This is strongly opposed by Ms Bulger.

[40]     A significant factor pointing away from the imposition of a minimum period of imprisonment is that it will delay effective treatment.  However, against that is the need for deterrence and denunciation.

[41]     After  very careful  reflection,  I consider  the  requirements  of  s  86  of  the Sentencing Act are satisfied, and that having regard to the seriousness of this offending, the usual minimum non-parole period of a third will not be sufficient to achieve the purposes of accountability, denunciation and deterrence, all of which must be paramount in this case.   I consider a minimum non-parole period of two- thirds, that is to say six years’ imprisonment, is appropriate.

[42]     As Ms Currie put it, the kidnapping in effect of innocent travellers and flight crew must be met with a strong response from the Courts.  The community expects no less.

Sentence

[43]     Ms Abdille, you are convicted of the charge of hijacking and sentenced to a term of imprisonment of nine years.  I impose a minimum period of imprisonment of six years.  You are discharged on all the remaining counts in the indictment.

Solicitors:

Crown Solicitor’s Office, Christchurch

E C Bulger, Christchurch

JHM Eaton, Christchurch