[2] When you pleaded guilty to indecently assaulting Ms Billingsley your counsel asked that I refrain from convicting you pending an application for discharge without conviction. That application has not been pursued. I therefore convict you of indecently assaulting Ms Billingsley. That conviction requires a three strikes
warning, which I will give after I have sentenced you.

1 Ms Billingsley’s name is not suppressed following an order made in the Wellington District
Court, Billingsley v New Zealand Police DC Wellington CRI-2014-085-5323, 9 July 2014.
2 Crimes Act 1961, s 135. Maximum penalty is seven years’ imprisonment.

R v ISMAIL [2016] NZHC 79 [4 February 2016]

[3] In sentencing you, I shall:

(1) Summarise your offending.

(2) Explain the impact of your offending. (3) Summarise your circumstances.
(4) Explain the starting point I am adopting.

(5) Explain the adjustments I am making to that starting point. (6) Explain your end sentence.

Your offending

[4] In my judgment of 15 December 2015, I explained the circumstances of your offending. That judgment should be read in conjunction with these sentencing notes. I will now briefly summarise my factual findings.

[5] You came to New Zealand in September 2013 following your appointment as Assistant to the Defence Advisor in the Malaysian High Commission in Wellington. Your wife and three young children accompanied you to Wellington.

[6] During the course of 2014, you began to act in strange ways. You appear on occasions to have become forgetful and disorientated. You were also observed to be inexplicably drowsy and unable to concentrate.

[7] In early May 2014, you purchased synthetic cannabis from a shop on Cuba Street, Wellington. On one occasion you acted in a sexually inappropriate way to young women working in that shop. You endeavoured to “pick up” one of those women. On 8 May 2014, you again appeared to have tried to pick up another woman in central Wellington. You did not know that woman and she did not appreciate your advances.

[8] On 9 May 2014, you spent most of the day in the Brooklyn shopping precinct. At about 5.30 pm you saw Ms Billingsley. When Ms Billingsley walked out of a food shop you believed she smiled at you in an inviting way.

[9] You chose to follow Ms Billingsley. She did not know you were following her. You followed Ms Billingsley approximately 400 metres to 500 metres to her home located up a long flight of steps. You waited outside the front of Ms Billingsley’s home for approximately 30 to 40 minutes. You say you were expecting to be invited in. At…

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 Ismail

Details

AGLC: R v Ismail [2016] NZHC 79
Case: [2016] NZHC 79
Decision Date: 4 February 2016

CaseChat Overview and Summary

In the case of R v Ismail, the defendant, Muhammad Rizalman bin Ismail, was convicted for indecently assaulting Ms Billingsley in her home on 9 May 2014. Ismail, a Malaysian national, had followed Ms Billingsley to her home and entered her bedroom under the mistaken belief that she had shown him a sexual advance. Upon entering, he removed his trousers and underpants, causing Ms Billingsley to scream and attempt to push him out. The court determined that Ismail's actions, though not involving sexual touching, constituted an indecent assault due to his state of undress and the significant impact on Ms Billingsley. The case required the court to address several legal issues, including the appropriate starting point for sentencing, the factors to consider in adjusting the starting point, and the application of the three strikes warning.

The court found that the appropriate starting point for Ismail's sentence was two years and three months' imprisonment, considering factors such as the premeditated nature of the assault, the invasion of Ms Billingsley's home, and the lack of immediate departure upon being asked to leave. Adjustments to the starting point were made based on Ismail's cooperation with extradition, his good character prior to the offence, and his offer of reparation to Ms Billingsley. Despite Ismail's lack of genuine remorse during his testimony, the court accepted his later apology and offer of compensation. Ultimately, the court sentenced Ismail to nine months of home detention, reflecting the principles of accountability, deterrence, and denunciation, while also considering the least restrictive outcome for the circumstances.

The final orders included a sentence of nine months' home detention, a three strikes warning, and an order for Ismail to make reparation to Ms Billingsley. The court also suppressed Ms Billingsley's victim impact statement and details of the address where Ismail would serve his home detention.

Orders