R v Ali - [2017] NZHC 2973

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CRI-2016-019-006663 [2017] NZHC 2973

THE QUEEN

v

SAMEH KHALIL SALEM ALI

Hearing: 1 December 2017

Counsel:

RG Douch for Crown
T Sutcliffe for Defendant

Judgment:

1 December 2017

SENTENCING NOTES OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Hamilton.
T Sutcliffe, Hamilton.

R v ALI [2017] NZHC 2973 [1 December 2017]

Introduction

[1] Mr Ali, you appear for sentence in relation to a charge of attempted murder. It is common ground a substantial term of imprisonment is required. The primary question is: how long should the sentence be?

The facts in brief

[2] On the evening of 20 October 2016 you were at your ex-partner’s home. You and she continued to enjoy a cordial relationship. You were living there temporarily. Also present was the male victim. Everyone was drinking.

[3] Later that evening the victim and your ex-partner went into her bedroom. You believed they were becoming, had, or were about to become, intimate. You snuck into the darkened room with a knife or similarly sharp object. You jumped on the victim and cut him to the right side of his neck.

[4] You inflicted a large and deep wound, 12–15 centimetres long. Fortunately, no major vessels were cut. But this was a significant injury. The trial photographs made that clear. The victim was hospitalised for a night.

[5] You fled the scene. You threw away the weapon. You went to the home of extended family members. You told them you had killed the victim. You said you had slashed his throat. You gestured to that effect with your hand. You said you had seen the victim touching your former partner’s bottom.

[6] Police arrested you shortly thereafter. You said little to them other than “what else would you do if you found him with your missus?”.

[7] You went to trial. You testified. You denied attacking the victim and implied someone else was responsible. Unsurprisingly, the jury rejected your account. The case against you was very strong.

Starting point

[8] Your offending has four aggravating features; things that make it more serious. First, you used a sharp weapon of some sort. I say “some sort” because whatever you used, you threw it away. It was not found. But whatever you used was sharp: the edges of the wound were clean rather than jagged.

[9] Second, you attacked the victim to a particularly vulnerable part of his body. I have no doubt you were trying to cut his throat. Indeed, you believed you had. You said just that in the immediate aftermath. And as I explained earlier, you gestured with your hand to demonstrate a throat slashing motion to a member of your extended family. If you had cut the front and side of the victim’s throat, which is what you intended to do, the victim might well have died.

[10] Third, your offending has caused both physical and psychological harm. The victim suffered a…

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 R v Ali

Details

AGLC: R v Ali [2017] NZHC 2973
Case: [2017] NZHC 2973
Decision Date: 1 December 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Sameh Khalil Salem Ali was sentenced for the attempted murder of a man at his ex-partner's home on 20 October 2016. Ali, who was living temporarily at the residence, attacked the victim with a sharp object, causing a deep wound to the victim's neck. Ali fled the scene and later confessed to family members that he had killed the victim. Ali denied the charges at trial, but was found guilty. The court was required to determine the appropriate length of imprisonment for Ali's crime, taking into account the aggravating and mitigating factors. The court found that the use of a sharp weapon, the vulnerable location of the attack, the physical and psychological harm caused to the victim, and the element of premeditation all contributed to the severity of the crime. The court also considered Ali's background, which included positive references from previous employers and a largely blameless and law-abiding life prior to the offence. The court determined that a nine-year starting point was appropriate, but granted a three-month deduction due to the lack of great mitigating factors. A minimum period of imprisonment was also imposed, with half of the term being the least the court could impose in these circumstances.

The court sentenced Ali to a term of eight years and nine months' imprisonment, with a minimum period of imprisonment of four years and four months. The court's decision was based on the seriousness of the crime and the need to provide accountability, denunciation, deterrence, and protection of the public. The court's final orders were that Ali be imprisoned for eight years and nine months, with a minimum period of imprisonment of four years and four months.

Orders