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 Latifi to provide this statement; the Crown did not call him as a witness in the proceedings against his co‑offender.  The Crown considered the statement largely self‑serving and did not accept it was all true.  It was a significantly different account from that which Mr Latifi had provided at the time of arrest.  Ms Edwards further noted that, even at sentencing, Mr Latifi continued to dispute aspects of the Crown case again him.  There was a disputed facts hearing.  Winkelmann J did not accept Mr Latifi’s version of the disputed facts. 

[10]     Although the judge gave an allowance for remorse, there was no real evidence of it, as Mr Hart was constrained to concede. 

[11]     It was appropriate that a moderate allowance was given for restrictive bail conditions which applied for some of the time Mr Latifi was on remand.  But it should be borne in mind that Mr Latifi was bailed to Mr Hart’s farm: the physical environment Mr Latifi therefore enjoyed was markedly superior to remand in a prison.  In R v Nichols CA406/02 16 June 2003, this court rejected an argument that any discount of sentence was warranted in circumstances where Mr Nichols was bailed to his farm on electronic monitoring conditions for a period of 14 months.  Although it was accepted that Mr Nichols had faced significant restrictions on his liberty, this court concluded that his situation was markedly different from that of the appellant in R v Faisandier CA185/00 12 October 2000, where an allowance was given on this head. 

[12]     Overall, it has not been demonstrated the allowance for mitigating factors was insufficient.  Two years’ discount for these four factors was, in our view, about right. 

Was the discount for the guilty pleas insufficient?

[13]     The judge allowed a two year discount (22%).  Mr Hart argued it should have been three years (33%).  We cannot agree.  This was not an early guilty plea.  Mr Latifi was arrested in February 2005.  He did not plead guilty until 27 June 2006, over six months after he was committed for trial.  The maximum discount (30-33%) is reserved for cases where the plea is entered at the earliest possible opportunity: R v Fonotia [2007] NZCA 188. The discount of 22% was clearly within acceptable limits, given its timing.

Should time for appealing be extended?

[14]     The only ground given for the delay in appealing was this:

Co-offender’s appeal against sentence has just been allowed and was given a lesser sentence of four and a half years (down from six years). 

[15]     That was a reference to Mr Hadfield’s appeal: R v Hadfield CA337/06 14 December 2006. The first point to note is that that decision was released just ten days after Mr Latifi was sentenced (i.e. within the appeal period). Further, Mr Hadfield’s appeal was allowed because of extra assistance he had given to the authorities after he was sentenced. This court stressed that Mr Hadfield’s original sentence “was entirely appropriate based on factors known to [the sentencing judge] at the time of sentencing”: at [31]. So Mr Hadfield’s sentence was allowed for reasons which had no relevance to Mr Latifi at all. His appeal outcome cannot be used as an excuse for a late appeal by Mr Latifi.

[16]     We are satisfied time for appealing ought not to be extended in circumstances where the proposed appeal is completely lacking in merit. 

Solicitors:
Crown Law Office, Wellington