R v Mohamed - [2013] NZHC 1761

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 Prisoner

Sentenced:

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…

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 Mohamed

Details

AGLC: R v Mohamed [2013] NZHC 1761
Case: [2013] NZHC 1761
Decision Date: 12 July 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant, Naji Hashi Mohamed, pleaded guilty to the murder of his uncle, Mr Awad. The court was required to determine the length of the minimum term of imprisonment. Mr Mohamed, a 28-year-old Somali refugee who had been in New Zealand since he was 10, had a history of violent offending, alcohol abuse, and mental health issues. The murder occurred after an altercation at the victim's home, during which Mohamed stabbed his uncle to death.

The legal issues the court had to decide included whether section 104 of the Sentencing Act applied and, if not, the appropriate minimum term under section 103. The Crown argued that the murder involved unlawful entry into a dwelling place, but the court found that the killing occurred outside the house and did not meet the criteria of section 104(1)(c). The court also rejected the argument that the murder was particularly brutal or callous under section 104(1)(e). Instead, the court focused on section 103, which directs the court to impose the minimum term necessary to satisfy the purposes of accountability, denunciation, deterrence, and protection of the community.

Considering the aggravating factors, including the degree of premeditation, the attack on an unarmed victim, and Mohamed's post-event conduct, the court determined that a minimum term of 16 years would be required. After accounting for mitigating factors such as Mohamed's mental health issues and his guilty plea, the court imposed a minimum term of 14½ years. Mohamed was sentenced to life imprisonment with a non-parole period of 14½ years.

Orders