R v S - [2018] NZHC 2465

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-005092

[2018] NZHC 2465

THE QUEEN

v

MOHAMED SAMSUDEEN

Hearing: 19 September 2018

Appearances:

F M T Culliney for the Crown E Priest for the Defendant

Sentencing:

19 September 2018

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:
Meredith Connell, Auckland E Priest, Auckland

R v SAMSUDEEN [2018] NZHC 2465 [19 September 2018]

Introduction

[1] Mr Samsudeen, you appear for sentence today having pleaded guilty to the following charges:

(a)two charges of dishonestly using a document for a pecuniary advantage. This is an offence pursuant to s 228(1)(b) of the Crimes Act 1961. The maximum penalty for each offence is one of seven years’ imprisonment;

(b)two representative charges of knowingly distributing restricted material. This is an offence pursuant to s 126(1)(a) of the Films, Videos, and Publications Classification Act 1993. The maximum penalty for each offence is three months’ imprisonment, or a fine not exceeding $10,000;1 and

(c)failing to assist a police officer exercising a search power. This is an offence pursuant to s 130(1) of the Search and Surveillance Act 2012. The maximum penalty is one of three months’ imprisonment.2

Adjournment request

[2] You were due to be sentenced as long ago as 7 August 2018. Immediately prior to that date, you terminated the retainer of counsel then representing you. Ms Priest was instructed by Legal Services to take over your representation. She understandably applied for an adjournment. The sentencing date was adjourned. Sometime later, Ms Priest applied for a further adjournment. Again, that adjournment was granted. In both cases, it was granted on the basis that you were contemplating making application to vacate your guilty pleas.

[3] Earlier this week, I received a memorandum from Ms Priest advising me that her instructions had been withdrawn. However, at approximately 11.45pm last evening, the Registrar received some 45 pages of material from Ms Priest. She

1 Films, Videos, and Publications Classification Act 1993, s 126(2)(a).
2 Search and Surveillance Act 2012, s 178.

appeared in Court this morning. I granted her an adjournment so that she could speak to you. She tells me that she is now re-engaged to act on your behalf.

[4] She has requested yet again that the sentencing should be adjourned to give you the opportunity to vacate your guilty pleas. She has made available to me a letter written by you. As I understand it, you take the view that the Crown has reneged on an agreement and has re-laid a charge of being in possession of an offensive weapon which it dropped at the time that you entered guilty pleas to the charges I have already…

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 S

Details

AGLC: R v S [2018] NZHC 2465
Case: [2018] NZHC 2465
Decision Date: 19 September 2018

CaseChat Overview and Summary

Mohamed Samsudeen was convicted of multiple offences, including dishonestly using a document for a pecuniary advantage, knowingly distributing restricted material, and failing to assist a police officer exercising a search power. The court considered the nature and gravity of the offences, the volume and purpose of the distributed material, and the appellant's role in the making or distribution of the content. The court also took into account the appellant's personal circumstances, including his isolated lifestyle, high sense of entitlement, and propensity for violence. The court imposed a sentence of supervision for a term of one year, subject to several special conditions aimed at assisting in the appellant's rehabilitation and reintegration into the community.

The court concluded that the appropriate starting point for the two charges of knowingly distributing restricted material would be one of two months' imprisonment. However, the appellant had already spent a considerable time in custody on remand, so the court did not impose a further sentence of imprisonment or a community-based sentence. Instead, the court imposed a sentence of supervision, which was considered appropriate to encourage the appellant's rehabilitation and reintegration and to reduce the risk of further offending. The court also imposed several special conditions to assist in the appellant's rehabilitation and reintegration, including restrictions on the use of electronic devices and social media accounts, and participation in a rehabilitation programme offered by Just Community. The court also made a reparation order, requiring the appellant to pay $3,920 to Baycorp Limited.

Orders