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 substantial wound to his neck.   He will be scarred permanently. The victim says he has suffered significant emotional harm—what  you did still makes him very angry.  Unsurprisingly, his wife and children were very frightened for his safety.

[11]     Fourth, there was an element of premeditation to this act.   I use the word “element” because you gave it no great thought.  Rather, it was a reaction to events on the evening.  That said, you snuck into the room with a knife or sharpened object, intending to carry out this attack.

[12]     This mix places your offending firmly within what is known as band two of a decision of the Court of Appeal called R v Taueki.1   I appreciate this detail may be of little concern to  you—you have repeatedly shaken  your head and spoken aloud during my sentencing remarks that none of this is true.  However, the victim, public and higher Courts are entitled to my workings. And so are you.

[13]     The parties disagree on exactly where your case sits.  The Crown contends a starting point at the top of the band is appropriate, and so approximately nine or 10

1      R v Taueki [2005] 3 NZLR 372 (CA).

years’ imprisonment.   Mr Sutcliffe, who was instructed to act for you after trial,

contends a starting point of eight years’ imprisonment is warranted.

[14]     He and Mr Douch have referred me to many cases in this area.  I thank them for their industry.   However, no cited case is that similar to yours.   Many involve attacks upon a female victim by their male partner or estranged male partner.  Some involved frenzied attacks.  None is on all fours.2

[15]     I consider a nine-year starting point apt because of the aggravating features I have  described.    Your  attack  was  not  frenzied,  but  that  is  because  you  rather clinically attempted to take another man’s life.  The existence of a murderous intent calls for a longer sentence than would otherwise be imposed for an offence involving an intention to cause grievous bodily harm.3

Mitigating features?

[16]     You are 42.  You came to New Zealand from Egypt in 2006.  You were there a tour guide. You speak English, albeit as a second language.  You had the benefit of an interpreter at trial to provide assistance when you required it. You have one today.

[17]     I  gather  you  are  single  and  without  children.    You  have  only  modest experience of the criminal justice system.   You have two convictions for alcohol- related offending under the Land Transport Act 1998.   Obviously, neither is particularly relevant to today’s exercise.

[18]     However, you continue to deny the offending.   You have made that plain again today by your conduct in court.  You also told the person who wrote the pre- sentence report you are not guilty of this offence.   She assesses you as posing a

medium risk of re-offending, with the risk of harm to others being high.

2      R  v  Tuuta  CA296/00, 21  September 2000;  R  v  Nelson HC Rotorua CRI-2004-077-15577,

16 August  2005;  R  v  O’Kane  HC  Dunedin  CRI-2009-002-190, 2 April  2009;  R  v  Kamal [2014] NZHC 698; R v Mullen [2014] NZHC 917; R v Owens [2016] NZHC 2236; R v Ae [2016] NZHC 965; R v Fotuaika HC Wanganui CRI-2008-083-73, 22 October 2008.

3      Taylor v R [2017] NZCA 53 at [21].

[19]     You are something of a paradox.  Five references from previous employers have been placed before me.  They all speak highly of you.  Clearly this offending constitutes an aberration.  It is, however, a particularly serious one.

[20]     There are no great mitigating features, but some modest allowance should be made for the fact that up until this offence you had led a largely blameless and law abiding life. A three-month deduction from the nine-year starting point is proper.

Minimum period of imprisonment?

[21]     The  Crown  seeks  a  minimum  period  of  imprisonment  of  50  percent. Mr Sutcliffe contends no such period is required.  He notes some of the cases cited have  resulted  in  minimum  periods,  but  not  all.    That  submission  is  accurate. However, what matters is whether the facts of your case meet the legal test: whether the Court is satisfied parole eligibility after one-third of the sentence is insufficient in terms of accountability, denunciation, deterrence and protection of the public.

[22]     I conclude a minimum period is required.  Your attack was not frenzied, but that is, as I have said, because you rather clinically attempted to take another man’s life by cutting his throat with a weapon chosen for that purpose.  And, you believed you  had.     Offending  of  this  type  still  shocks  the  community,  even  though New Zealand is no longer a gentle place, if indeed it ever was.  Half of the term is the least I can impose in these circumstances.

[23]     Mr Ali please stand.  On the charge of attempted murder, I sentence you to a term of eight years and nine months’ imprisonment.   I impose also a minimum period of imprisonment of four years and four months. You may stand down.

……………………………..

Downs J