R v Latifi - [2007] NZCA 372

IN THE COURT OF APPEAL OF NEW ZEALAND
CA169/07
[2007] NZCA 372
THE QUEEN
v
MORTEZA LATIFI
Hearing:21 August 2007

Court:Chambers, Randerson and John Hansen JJ
Counsel:B J Hart and A J Trenwith for Appellant

S B Edwards for Crown

Judgment:29 August 2007 at 3 pm

JUDGMENT OF THE COURT

The application to extend time for appealing is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Importing methamphetamine
[1]       Morteza Latifi was party to an importation of the class A controlled drug methamphetamine. He was also charged with possessing that drug for supply. The quantity of methamphetamine was approximately 768 grams of 79% purity.
[2]       Mr Latifi pleaded guilty. He came up for sentence before Winkelmann J: HC TAU CRI 2005-070-1079 4 December 2006. She noted that, in terms of this court’s decision in R v Fatu [2006] 2 NZLR 72, a starting point of at least 12 years’ imprisonment would have been justified on the importation charge. She noted, however, that the judges sentencing two of Mr Latifi’s co-offenders had adopted 11 year starting points; in the interests of parity, she did the same. Winkelmann J allowed two years’ discount for the following mitigating factors: offer of assistance; remorse; existence of restrictive bail conditions; and ill health. She also allowed two years’ discount for the guilty pleas. The end sentence on the importation charge was, therefore, seven years’ imprisonment. She imposed a concurrent sentence of four years’ imprisonment on the charge of possession of methamphetamine for supply.
[3]       Mr Latifi, who was represented both at sentencing and before us by Mr Hart, elected not to appeal. He then changed his mind and on 24 April this year lodged a notice of appeal, over three months out of time. The Crown opposes an extension of time for appealing.
Issues
[4]       The first issue is whether we should extend time for appealing. No satisfactory explanation for the delay has been provided. The only ground, therefore, on which the delay could be overlooked is if the proposed appeal is overwhelming on the merits. For that purpose, we examine the merits. Mr Hart did not challenge the appropriateness of the starting point; his complaints related to the discounts from it.
[5]       The first complaint was that the discount for mitigating factors other than the guilty pleas was insufficient.
[6]       The second was that the discount for the guilty pleas was insufficient.
[7]       We shall consider the two grounds of appeal first, before we assess whether time should be extended.
Was the discount for the mitigating factors other than the guilty pleas insufficient?
[8]       Mr Hart submitted three years’ discount should have been allowed for these mitigating factors, not two years. We disagree.
[9]       The offer of assistance to the authorities was worth little. After Mr Latifi eventually pleaded guilty, he gave a statement to the police and offered to give evidence for the Crown. Ms Edwards, for the Crown, submitted the statement contained nothing new. The Crown had not asked Mr…

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 Latifi

Details

AGLC: R v Latifi [2007] NZCA 372
Case: [2007] NZCA 372
Decision Date: 29 August 2007

CaseChat Overview and Summary

Morteza Latifi was involved in the importation of a large quantity of methamphetamine, a class A controlled drug, and was also charged with possessing that drug for supply. He pleaded guilty to the charges. The appeal concerns the sentencing imposed by Winkelmann J, who determined a starting point of 11 years' imprisonment on the importation charge and applied discounts for mitigating factors and guilty pleas, resulting in a sentence of seven years for the importation charge and a concurrent four-year sentence for possession of methamphetamine for supply. Latifi initially chose not to appeal but later changed his mind and lodged a notice of appeal outside the allowed time frame. The Crown opposed the extension of time for appealing.

The legal issues before the court were whether to extend the time for appealing and, if so, whether the sentence was appropriate in light of the mitigating factors and guilty pleas. The court first examined the appropriateness of the discount for mitigating factors other than the guilty pleas and found it to be sufficient. The offer of assistance to the authorities was deemed minimal, and the evidence of remorse was lacking. Although a moderate allowance was appropriate for restrictive bail conditions, the court found that the overall two-year discount was appropriate. Regarding the discount for guilty pleas, the court found that a two-year discount was acceptable given that the plea was not entered at the earliest opportunity.

The court concluded that the proposed appeal was completely lacking in merit and declined to extend the time for appealing. The appeal was dismissed, and the original sentence stood.

Orders