R v Shaheem - [2019] NZHC 1200

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-092-005761

[2019] NZHC 1200

THE QUEEN

v

MOHAMMED SHAIYAZ SHAHEEM AND

TRINITY MARKS

Hearing: 29 May 2019

Appearances:

M Williams & S Norrie for Crown

P Tomlinson & T Beach for Mr Shaheem S K Green for Mr Marks

Judgment:

29 May 2019

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors:
Crown Solicitors, Manukau Counsel:
P Tomlinson, Barrister, Auckland T Beach, Barrister, Auckland
S K Green, Barrister, Auckland

R v SHAHEEM & MARKS [2019] NZHC 1200 [29 May 2019]

Introduction

[1] Mohammed Shaheem and Trinity Marks, you appear for sentence having been found guilty, following trial by jury, of the murder of Jima Zaya. I gave you both first strike warnings when entering your convictions.

[2] The Crown case was that you, together with Mr Wilson Josephs, were either principal offenders or were parties to the offending, intentionally assisting or encouraging the other or Mr Josephs, to cause the death of Mr Zaya.

[3] Mr Josephs has also been charged with Mr Zaya’s murder but did not stand trial with you because he awaits trial in Australia for separate offending.

Circumstances of the offending

[4] In the early hours of 20 May 2017, Mr Marks and Mr Josephs, together with their cousin, Te Aroha Neho picked up Mr Zaya. They drove to various houses in South Auckland for the purpose of obtaining money or drugs that Mr Zaya apparently owed to Mr Josephs or Mr Marks. They were unsuccessful in obtaining whatever they were after, and Mr Marks became angry with Mr Zaya.

[5] They then drove to the boarding house where Mr Zaya lived. As they arrived, Mr Josephs hit Mr Zaya heavily in the face. He followed that up with further blows to Mr Zaya’s head. Mr Josephs again hit Mr Zaya after they had exited the car. Mr Josephs and Mr Marks then went with Mr Zaya into the boarding house while Ms Neho remained in the car.

[6] Mr Zaya, followed by Mr Josephs and Mr Marks, went to Room 5 where Mr Shaheem, together with his then girlfriend, Kaytlyn Knight, were present. Junior Richmond, another boarding house resident tenant, was also in the room. Angry words and curses were exchanged between Mr Zaya and Mr Shaheem after Mr Zaya demanded drugs from Mr Shaheem in what Mr Shaheem and Ms Knight perceived to be a “stand-over”.

[7] An altercation and then a fight broke out. There was a conflict in the evidence at trial as to where those happened, who started the fight and who were the main actors. But there is no dispute that:

(a)First, Mr Shaheem, Mr Marks and Mr Josephs were present throughout the fight, which involved multiple kicks and punches to Mr Zaya’s head, torso and legs;

(b)Second, Mr Zaya received traumatic brain injuries that caused his death as well as a cracked skull, other severe injuries to his head and to his…

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 Shaheem

Details

AGLC: R v Shaheem [2019] NZHC 1200
Case: [2019] NZHC 1200
Decision Date: 29 May 2019

CaseChat Overview and Summary

Mohammed Shaheem and Trinity Marks appeared before the High Court of New Zealand for sentencing after being found guilty of the murder of Jima Zaya. The court had to decide the minimum periods of imprisonment for both defendants, considering various factors including the aggravating and mitigating circumstances of the offence, the defendants' culpability, and their personal circumstances. The Crown argued for a minimum term of 12 years for both defendants, citing the extreme violence of the attack, the vulnerability of the victim, and the presence of multiple attackers. Defence counsel for Shaheem argued for a minimum term of 11 years, taking into account Shaheem's mental health, while counsel for Marks contended for a minimum term of 10 years, asserting that Marks' culpability was less than Shaheem's.

In determining the appropriate minimum periods of imprisonment, the court considered the defendants' personal histories, the severity of the assault, and the principles of accountability, denunciation, deterrence, and community protection. The court found Shaheem's culpability to be higher due to his direct involvement in inflicting the fatal injuries and his extensive history of violence. A minimum term of 12 years was deemed appropriate for Shaheem, with an additional six months added to account for his criminal history. For Marks, whose involvement was deemed less culpable, a minimum term of 10 years was considered appropriate. The court rejected arguments for reductions based on mental health or cognitive impairment, finding that these factors did not sufficiently mitigate the defendants' culpability or the severity of the offence.

The final orders of the court were that Mohammed Shaheem be sentenced to life imprisonment with a minimum period of 12 years, and Trinity Marks to life imprisonment with a minimum period of 10 years.

Orders