R v Mohamed
[2013] NZHC 1761
•12 July 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2011-019-008332 [2013] NZHC 1761
THE QUEEN
v
NAJI HASHI MOHAMED
Charge:
Plea:
Murder
Guilty
Appearances:
R Douch for Crown
P Morgan QC and T Needham for PrisonerSentenced:
12 July 2013
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Hamilton
Copy to: P Morgan QC/T Needham, Hamilton
R v MOHAMED [2013] NZHC 1761 [12 July 2013]
[1] Mr Mohamed, you are before the Court this morning having pleaded guilty to the murder of your uncle, Mr Awad. Unless it would be manifestly unjust, the sentence for murder in New Zealand is life imprisonment. Mr Morgan has realistically conceded on your behalf that life imprisonment is justified. The issue for the Court this morning is the length of the minimum term of imprisonment to be imposed.
[2] Before I turn to that I am required by law to give you a warning given your conviction for murder. You are now subject to the three strikes law. I am now giving you a warning of the consequences of another serious violent conviction. You will also be given a written notice outlining these consequences which lists serious violent offences.
[3] If you are convicted of any serious violent offence other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[4] Mr Mohamed you are a Somali. You are 28 years old. You have been in
New Zealand since you were 10 years old. You came here as a refugee.
[5] The deceased was your uncle. At the time of his death he was 42. For a time you had lived with him.
[6] On 1 November 2011 you met two other members of the Somalia community. They were looking for somewhere to stay in Hamilton and wondered if they could stay at your uncle’s home. The three of you went to your uncle’s address, arriving there about 3 o’clock in the afternoon. Your uncle was not there but you went with the other two men to another address where your uncle was. He agreed that the two men could stay with him. You then all returned to your uncle’s home.
[7] During the course of the afternoon you were drinking. You became affected by alcohol. Some tension developed between you and one of the other two Somali men. You were aggressive towards him. Matters came to a head and you punched him in the head.
[8] Your uncle then asked you to leave. In the course of leaving you and the other two men got into their car where a further fight developed between you and the man you had hit. This time he hit you a number of times. Your uncle intervened and asked you to leave as he did not want that sort of behaviour at his home.
[9] After that you visited a number of friends’ homes. You continued to drink and were clearly affected by alcohol. You argued with a number of people during the course of the evening. You spoke about your uncle who you described as an arsehole who had f....ing kicked you out. You threatened to kill him because he had kicked you out. You described the other Somali men as strays who were riff raff.
[10] Eventually you returned to your own home at about 11 o’clock. Your landlord observed that when you arrived there you were drunk and angry. Shortly after that you left that address having taken a knife from the kitchen. You went back to your uncle’s home. You arrived there at about 11.30 pm. Your uncle and the other two men were still up watching television. You knocked on the door, walked into the lounge and told your uncle you wanted to see him outside. You told the others not to move. Your uncle got up and went outside with you. You shut the door as he left.
[11] The other men then heard a disturbance outside. They heard a loud moan and saw the deceased lying on the grass at the front of the address. You were standing over him. When they went outside the other men saw the knife down the back of your pants. Your uncle said “he killed me”. You were told to leave. An ambulance was called but your uncle died at the scene. He sustained two significant and fatal wounds, one entering his left chest wall and carrying on into the left lung. The second was a wound at the base of the left side of his neck down to the left lung. There were two other wounds, one to his left arm above the left elbow and one on the front of his left chest, which was superficial. You left the scene and disposed of the knife by throwing it away. When arrested you initially said you were at home at
the time of the murder. In September 2012 you made a statement in which you asserted the offender was one of the other Somali men. It was only more recently as your case was prepared for trial and with the assistance of counsel that you accepted your responsibility by pleading guilty.
[12] I turn to your personal circumstances. Mr Mohamed as a child you lived with your three brothers and two sisters in Somalia. At the time Somalia was embroiled in civil war. You reported witnessing a particularly traumatic event at seven years of age when several members of your family, including your mother, were killed. Some remaining members of your family moved to New Zealand from the Kenyan Refugee Camp settling in Hamilton. You said your uncle was a disciplinarian who meted out physical punishment to you and your siblings as they grew up. You attended a number of different primary schools in Hamilton.
[13] You left school at the end of the fourth form in 1998 without any qualifications. Records note you were expelled from school for fighting and swearing at a teacher. You have never completed any of the alternative education courses you have attended. Your employment history has been limited to construction labouring type work and seasonal work. The probation report records you appear to have a harmful pattern of alcohol consumption. You report you suffered a concussion when you fell off a bike in October 2011 which may have exacerbated your underlying medical issues. You have been diagnosed with Post Traumatic Stress Disorder and Bipolar Disorder as a child and have received psychological and psychiatric intervention. You were involved with Child and Adolescent Mental Health Services in the past. The Post Traumatic Stress Disorder and your Bipolar Disorder were factors taken into account on the occasion of an earlier sentencing when they were brought to the Court’s attention.
[14] You described your offending to the probation officer as a spur of the moment reaction and said that you never meant to kill your uncle. I have to say Mr Mohamed that I do not accept that explanation, given the statements recorded in the agreed summary of facts about your attitude towards your uncle and the fact you went home, obtained a knife and returned to your uncle’s property and then very shortly after calling him outside stabbed him to death.
[15] You are assessed as being at a high risk of further violent offending. That risk is elevated when you are faced in situations where you feel threatened or tense. You remain at a high risk of harm to others. It is said you verbalised regret and remorse and showed some insight into your behaviour by acknowledging the death was as a result of your violent behaviour. You have repeated those expressions to the Court in the letter you have written to the Court this morning. However, it is a matter of concern that after about two months after being discharged from your Parole Board release conditions on other violent offending you committed this current offending.
[16] Mr Morgan obtained an updated assessment of your psychological state from Professor Mellsop. The doctor’s report sheds some light on your issues. It notes that you have significant psychopathology, the genesis of which can be readily seen in multiple, recurrent and continuing traumas to which you have been exposed. These include the effect of the direct physical violence, lack of emotionally stable development, and the continuing stressors of your life in New Zealand. In the doctor’s opinion it would be diagnostically reasonable to attribute a variety of labels as applicable, but they centre around various, severe, manifestations of anxiety. These extend to panic attacks, PTSD related symptoms, your levels of social paranoia and your behavioural, alcohol and philosophical attempts to cope with it, all of which are complicated by your alcohol abuse. In the doctor’s opinion, while you will continue to need the assistance of mental health services you are not psychotic.
[17] Against the background of your offending and your personal circumstances I have to consider and fix an appropriate minimum non-parole period having regard to the purposes and principles of the Sentencing Act.
[18] The first issue for the Court is whether s 104 of the Act is engaged, particularly in the first instance s 104(1)(c), namely:
(c) if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; ...
[19] The Crown submits that although you killed your uncle outside his home the murder effectively involved the unlawful entry into a dwelling place. Mr Douch
emphasised the section refers to involved and the murder need not have been committed within. He submitted you went to the address with the unlawful intent and effectively got the deceased to come out of the sanctuary of his home.
[20] The Crown refer to the case of R v Pahau1 where the prisoner followed the victim onto the deck of his home and caught and stabbed him as he climbed through the window. Asher J accepted the dwelling place did not include the grounds of the section but nor was it restricted to the interior of the walls and roof of the property. He applied s 104(1)(c). Both the Court of Appeal2 and Supreme Court agreed with that reasoning, the Supreme Court noting that:3
... there is a sanctuary purpose implicit in the term “dwelling-place” that will
be of significance in marginal cases.
[21] However, despite the Crown’s submissions I am not able to accept in this case that s 104(1)(c) applies. The scene photographs confirm the killing was outside the house and well onto the front lawn. Your uncle apparently went willingly outside to talk to you. As Mr Morgan submitted it is to a degree speculative as to whether your brief entry into the house was itself unlawful. The focus must be on the murder itself. I note that your uncle went willingly outside to talk to you. Unlike Pahau, he was not seeking sanctuary of the dwelling when killed. The legislative intent behind s 104 seems to be to recognise the aggravating feature of the killing taking place in the dwelling-place, the place of sanctuary. I accept Mr Morgan’s submission that the circumstances of this present case do not elevate it to or bring it within the threshold required by s 104(1)(c).
[22] Nor am I able to accept the alternative submission that it is a case of a particularly brutal or callous killing under s 104(1)(e). It is regrettable but the circumstances of the killing and the wounds as terrible as they are, cannot be said to be any more brutal or callous than other similar killings with a knife involving one or
two fatal blows.
1 R v Pahau HC New Plymouth CRI-2008-043-4555, 16 August 2010.
2 Pahau v R [2011] NZCA 147.
3 Pahau v R [2011] NZSC 88 at [4].
[23] I am satisfied that I have to deal with this matter on the basis of s 103. Pursuant to that section the Court is directed to impose the minimum term necessary to satisfy all or any of the following purposes in particular:
(a) holding you accountable for the harm done to the victim; (b) denouncing and deterring your conduct;
(c) deterring you or others from committing the same offence; and
(d) protecting the community from you.
[24] I also take into account the general purposes and principles of the Sentencing Act. In relation to that I have particular regard to the effect of your offending on the victims of your offending.
[25] I have had the advantage of reading the victim impact statements of the deceased’s mother, his sisters and brother. They all express the sense of loss they have suffered at your hands and the effect that that has had on them.
[26] In this case the aggravating features of the offending are:
(a) the degree of premeditation or planning inherent in your actions.
Over the course of the evening you said what you were going to do. You were going to sort out your uncle. You went back to your home. You took a knife which you have done in the past and then you went back to your uncle’s home. You went back there with a plan it seems of doing some harm to him;
(b)the fact the offence followed your calling your uncle out effectively from his home to deal to him;
(c) the attack itself on your uncle with the particular knife in question. It is not just an ordinary domestic knife. It is a particular type of knife. Your uncle was unarmed which is also relevant;
(d)your post event conduct by denying you were even at the scene and maintaining that denial for a considerable period of time.
[27] The overarching concern for the Court, however, must be the need to protect the community from you, a need that arises particularly from this offending and your violent criminal history. On 2 May 2007 you were sentenced to eight years’ imprisonment, which was subsequently reduced to six years on appeal, primarily because of your mental condition and young age at the time of that offending. At that time of that offending you were 20 years old. But in that instance you again had taken a knife and stabbed someone by way of reprisal for and perceived slight. It is to that extent very similar to the present offending and of particular concern to this Court. Apart from that, you have a number of previous convictions for other serious violent offending, including possession of a knife in a public place on two occasions, injuring with intent to injure, and other assaults.
[28] I refer to the cases Mr Morgan referred to because I am conscious of the need that sentencing should be consistent as much as possible with similar types of cases. In R v Tait4 the prisoner had a previous good record. In my judgment his case is
quite different. In the case of R v Reekers5 a 15 year minimum term of imprisonment
was upheld by the Court of Appeal. In R v Sauaki6 a minimum term of imprisonment of 12 years was upheld. There was a suggestion of one previous conviction of injuring with intent. In R v Falaniko7 the Judge imposed a 10 and a half year period of imprisonment. With respect I am not able to accept that the particular sentence is consistent with the other authorities and the principles applicable to a killing, particularly of the nature of your offending in this case, given your background.
[29] To address the purposes and principles of the Act and s 103 in this case, particularly the need to protect the community, I consider that subject to mitigating factors a minimum term of imprisonment of 16 years would be required. Put another
way, for the circumstances of your offending in this particular case, given the
4 R v Tait HC Tauranga CRI-2010-070-5571, 16 September 2011.
5 R v Reekers CA297/10, 11 August 2011.
6 R v Sauaki HC Auckland CRI-2006-092-9497, 11 August 2011.
7 R v Falaniko HC Auckland CRI-2005-092-1194, 16 February 2007.
aggravating features of the offending I have referred to, but without taking account of your past record, a minimum term of 14 years would be justified. An uplift of a further two years would be justified for your past bad record.
[30] I take then as a starting point 16 years as the minimum term. From that I deduct six months for the undoubted mental health issues that Mr Morgan has referred to as it impacts on your culpability. However, I am not prepared to make any further allowance than that, having regard to the concession granted previously by the Court of Appeal and your failure to comply with post release conditions in the past. I then allow a further year by way of deduction for the guilty plea, which was an acknowledgement of your responsibility. That leaves a minimum period of imprisonment of 14½ years.
[31] Mr Mohamed please stand. On the charge of murder to which you have pleaded guilty you are sentenced to life imprisonment. You are to serve a minimum
period of 14½ years’ imprisonment. Stand down.
Venning J