R v Jadallah
[2018] NZHC 1211
•28 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-006112
[2018] NZHC 1211
THE QUEEN v
IBRAHIM FAWZI ALI JADALLAH
Appearances: H D L Steele for Crown A M A Ives for Prisoner Date:
28 May 2018
SENTENCING NOTES OF COURTNEY J
R v JADALLAH [2018] NZHC 1211 [28 May 2018]
Introduction
[1] Ibrahim Jadallah, you appear for sentence today having been found guilty on one charge of aggravated robbery.1 The maximum penalty for that charge is 14 years’ imprisonment.
Circumstances of the offending
[2] I begin by recording the circumstances of the offending. The verdict at your trial, which included other charges, meant that the jury accepted that you and an associate went to Mr Hifo’s house intending to rob him of his car using your combined force, whether through actual violence or threats of violence. The verdict does not tell us whether the jury accepted that you were armed or whether your associate assaulted Mr Hifo, as the Crown alleged at trial. As the trial Judge, I sentence on the basis of my view of the evidence in relation to those matters.2
[3] On my view of the evidence the circumstances of the offending on the aggravated robbery charge were as follows. You and Vave Hifo were previously known to one another. There was evidence of previous acrimony, probably as a result of his former relationship with the woman who was then your partner and the fact that he was still in contact with her. Mr Hifo said that a few weeks before the offending you came to your girlfriend’s flat when he was visiting. There was an altercation. You had a revolver with you that night. I accept Mr Hifo’s description of that evening.
[4] On 18 April 2017, you arrived at Mr Hifo’s home with two associates. This meeting had been arranged by an associate of Mr Hifo, ostensibly to clear the air between you. I find that this was a pretext and that you came armed with a revolver and with the intention of exacting retribution. My view about this is based on Mr Hifo’s evidence, which I accepted on the point of you being armed. The other charge against you was that you shot Mr Hifo and you were acquitted of that and I proceed on this sentencing on the basis that there was no shooting in that room that night.
1 Crimes Act 1961, s 235(b). The jury acquitted Mr Jadallah on charge one of wounding with intent to cause grievous bodily harm and another charge of aggravated robbery.
2 Sentencing Act 2002, s 24(1), B (CA58/2016) v R [2016] NZCA 432 at [74]–[76].
[5] However, I do accept Mr Hifo’s evidence that you were armed. And to support that evidence is the fact that I accept his description of the previous occasion on which you were armed and, in addition, several weeks after this event you were stopped by the police with an armed revolver in your vehicle.
[6] So, I find that you were at Mr Hifo’s house and that you threatened him with your gun and that your associate punched him. Then, at your direction, your associate took Mr Hifo’s Honda CRV and drove the car away and the vehicle has never been returned.
Sentencing
[7] I turn now to the sentence that should be imposed. The main objective in sentencing in cases like this is deterrence, denunciation, holding you accountable for the harm that you have done. I have to take into account the gravity of the offending, including the degree of culpability and the seriousness of this type of offence.
[8] The Court of Appeal has given sentencing judges assistance in relation to sentencing on aggravated robbery charges in its decision in R v Mako.3 In particular, it identifies features that should be taken into account in fixing an appropriate starting point.
[9] The first relevant feature is premeditation.4 I find that you went to Mr Hifo’s home on a pretext for the purpose of exacting retribution. If all you went for was to clear the air with him, which your counsel effectively suggested in her written submissions, there would have been no need to be armed and no need to steal the car. Mr Hifo was clearly not expecting to be threatened with a weapon, assaulted or robbed. He was alone at his house and had taken no precautions for his own safety.
[10] Secondly, you had a weapon with you which you threatened Mr Hilo with. I accept that Mr Hifo was justifiably apprehensive of being shot.5 As I say, I do not make a finding that he was shot, but I am satisfied that you threatened him.
3 [2000] 2 NZLR 170 (CA).
4 R v Mako [2000] 2 NZLR 170 (CA) at [36].
5 The jury returned a not guilty verdict on a charge of wounding with intent to cause grievous bodily harm by shooting Mr Hifo.
[11] Thirdly, your associate inflicted some actual violence, though I accept it was not especially serious.
[12] Fourthly, although I do not have evidence as to the value of the car, the loss of a vehicle is not insignificant, particularly to a man in Mr Hifo’s position, who is widowed with children.
[13] The Crown submits that a starting point of eight to nine years’ imprisonment is appropriate. Although Mr Steele resiled slightly from that, on my indication that I would not find there had been an actual shooting. The Crown bases its submission on the case of Waiera v R, where the sentencing Judge took a starting point of eight years’ imprisonment.6 The Court of Appeal considered the starting point was high. There was, however, no real discussion because the end sentence was within range. The Crown says that this offending in Waiera was less serious than your case which I am not really convinced about, because Waiera involved a woman alone at home with children confronted by two men, one of whom was armed with a BB gun who pushed her aside, searched the house and took valuable items. It was at least as serious as this case. However, there was not real analysis by the Court of Appeal because that issue was not in focus.
[14] Although not referred to by the Crown, I also find that the case in R v Currie is comparable.7 The offender, armed with a shotgun, entered the victim's home after being invited in. He hit the victim several times in the face with the barrel and butt of the gun and made threats before driving off in his vehicle. The starting point of eight years was upheld but with the express recognition that it reflected the overall criminality of other offending, which included two charges of threatening to kill.
[15] Your counsel argued that the facts in this case were more comparable to another case, R v Crawford, which involved the aggravated robbery of a boarding house occupant where the occupier, after drinking with associates, was turned on by them, beaten and threatened with a knife. The starting point was four years six months. I only find this case moderately helpful. The offending itself was very serious but the context in which it happened suggested opportunism rather than premeditation.
6 Waiera v R [2012] NZCA 423.
7 Currie v R [2010] NZCA 44.
[16] Ms Ives also relies on the case in Reid v R, in which the sole offender gained entry to the house of an acquaintance, threatened and assaulted the occupier before taking money and a motorbike. There was an additional act in forcing the victim to withdraw money from an ATM.8 The sentencing Judge took a starting point of four years and the Court of Appeal viewed that as well within range, even lenient, when the element of home invasion was taken into account. So, I do find that case comparable but note that there was only one offender and he threatened the occupant with a knife, not a gun.
[17] So, Mr Jadallah, I am sentencing on the basis of a premeditated robbery of a vehicle by two people, one of whom was armed and threatened violence and the other of whom actually assaulted the victim. I consider that a starting point of seven years is the right one.
Adjusting the starting point
[18] There are no mitigating factors that would justify reducing the starting point. I note that you still deny the offending. I do, however, accept Ms Ives’ submission, as does Mr Steele, for the Crown, that there should be some reduction to reflect the fact that last year you were convicted of the Arms Act offence that I have already referred to, and given the timing, that could have been sentenced together with this offending. Had it been, then the arms offending for which you were sentence to 19 months would have been dealt with by an uplift, probably of around 12 months. So, taking that fact into account, I am going to reduce the starting point by six months.
[19] The Crown has sought that I uplift the end sentence to reflect your previous criminal history, and I have to say it is a very poor criminal history full of disgraceful behaviour really. You are into drugs. You are into guns. You are violent. It is just a pretty depressing picture Mr Jadallah. However, I am not going to impose an uplift because I think some of those relevant arms offences are quite old and I would like to think, somewhat optimistically perhaps, that you might think better of your ways while you are serving this term of imprisonment and do something about your behaviour. I notice that you do have a child and this is a dreadful example to be setting to that child, absolutely dreadful.
8 Reid v R [2017] NZCA 451.
End sentence
[20] So your end sentence is six-and-a-half years. I note that you received a first strike warning upon conviction so I do not need to make a further warning for that.
P Courtney J