R v Ismail - [2015] NZHC 3216

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-005323 [2015] NZHC 3216

THE QUEEN

v

MUHAMMAD RIZALMAN BIN ISMAIL

Hearing: 4 and 11 December 2015

Counsel:

G J Burson and A R van Echten for Crown
D L Stevens QC and J M Robertson for Defendant

Judgment:

15 December 2015

JUDGMENT OF COLLINS J [Disputed Facts Hearing]

Summary of judgment

[1] This judgment explains my findings in relation to facts which were disputed when Mr Rizalman pleaded guilty on 30 November 2015 to a charge that he indecently assaulted Ms Billingsley1 in her home on 9 May 2014.2

[2] I have concluded:

(1)Mr Rizalman had a sexual motive when he followed Ms Billingsley to her home on the evening of 9 May 2014 and when he entered her
bedroom naked from his waist down.

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.

(2)Mr Rizalman was in an abnormal state of mind when he indecently assaulted Ms Billingsley.

(3)Mr Rizalman’s abnormal state of mind may have diminished his level of understanding when he offended. However, Mr Rizalman’s possible “diminished understanding” is not a mitigating factor because at the time of his offending Mr Rizalman was, in all likelihood, affected by drugs which he had voluntarily consumed.

[3] The Crown accepts Mr Rizalman did not intend to sexually violate

Ms Billingsley or force himself upon her in a sexual sense.

[4] Although Mr Rizalman may have had diminished understanding at the time of his offending he did not suffer from a disease of the mind within the meaning of s 23 of the Crimes Act 1961. Nor is there any suggestion Mr Rizalman suffers mental impairment within the meaning of the Criminal Procedure (Mentally Impaired) Persons Act 2003.

[5] I shall:

(1) explain the charges Mr Rizalman originally faced; (2) set out the accepted facts;
(3) explain the guilty plea;

(4) analyse the onus and standard of proof in a disputed facts hearing; (5) explain the evidence;
(6) explain the analysis that has underpinned my conclusions; and

(7) set out my conclusions.

Original charges

[6] Initially, Mr Rizalman was charged with:

(1) having committed burglary by entering and remaining in

Ms Billingsley’s home without authority with intent to assault her;3 (2) assaulting Ms Billingsley with intent to sexually violate her;4 and (3) indecent assault.

[7] The key areas of dispute concern Mr Rizalman’s intentions when he followed Ms Billingsley home and entered her bedroom, and his mental state at the time of his offending. I formed the view Mr Rizalman’s intentions when he entered Ms Billingsley’s home and bedroom and his mental state were matters that were
likely to carry significant weight in any sentence I imposed.5

[8] I therefore conducted a disputed facts hearing pursuant to s 24 of the Sentencing Act 2002 on 4 and 11 December 2015.…

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 [2015] NZHC 3216
Case: [2015] NZHC 3216
Decision Date: 15 December 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Collins J considered the case of R v Ismail. The defendant, Muhammad Rizalman Bin Ismail, pleaded guilty to indecently assaulting Ms Billingsley on 9 May 2014. The court held a disputed facts hearing to determine Mr Rizalman's motive and state of mind at the time of the offence. The court found that Mr Rizalman had a sexual motive when he followed Ms Billingsley to her home and entered her bedroom naked from the waist down. The court also concluded that Mr Rizalman was in an abnormal state of mind at the time of the offence, potentially suffering from diminished understanding. However, the court found that Mr Rizalman's abnormal state of mind was likely caused by his use of synthetic cannabis, which he had voluntarily consumed. As a result, the court determined that Mr Rizalman's possible diminished understanding was not a mitigating factor for sentencing purposes. The court will hear an application for a discharge without conviction on 4 February 2016 and has requested a pre-sentence report, including a report on Mr Rizalman's eligibility for home detention.

Orders