R v Younes
[2023] NZHC 744
•4 April 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2021-004-007141
[2023] NZHC 744
THE KING v
SANDY YOUNES
Hearing: 4 April 2023 Appearances:
R M A McCoubrey for the Crown
T M Cooper KC & O F Kazmierow for Ms Younes
Sentencing Notes:
4 April 2023
SENTENCING NOTES OF TAHANA J
Solicitors/Counsel:
Crown Solicitors, Meredith Connell, Auckland Verus Chambers, Auckland
R v YOUNES (Sentencing Notes) [2023] NZHC 744 [4 April 2023]
Introduction
[1] Ms Younes, you appear for sentencing having pleaded guilty to one charge of being an accessory after the fact to the discharge of a firearm with reckless disregard for the safety of others.1 The charge carries a maximum sentence of three years and six months’ imprisonment.
[2] First, I acknowledge the deceased Mr Rakeem, and his whānau (family). Inna lillahi wa inna ilayhi raji’un. To Allah we belong and to Allah we return. To the family who have joined us here in Court today and for those whānau who reside overseas, Asaalamu alaikum, peace be upon you and may your suffering ease, Inshallah.
[3] Before sentencing, I will outline the summary of facts and my assessment of the facts relevant to your offending based on the evidence I heard at the trial. I will acknowledge the statement from the deceased’s (Mr Rakeem’s) mother. I will then outline the approach I will take in determining your sentence. I will explain the starting point I have adopted and why, and any adjustment I have made to this starting point to reflect your personal circumstances.
Offending
[4] On the evening of 1 October 2021 and into the early hours of the next day, you were at the home you shared with your partner at the time, Mr Mandel Sellick. You had invited people over to socialise, including friends and family. This included the deceased, Mr Rakeem who was your brother’s friend.
[5] For most of the evening Mr Sellick was in the bedroom upstairs from the lounge where people were socialising.
[6] During the evening, Mr Rakeem and another left the house to buy drugs. The drugs were understood to be a mixture of MDMA and cocaine. When they returned, some of the group, including you, snorted some of the drugs.
1 Crimes Act 1961, ss 71, 198(2) and 312. Maximum penalty of three years and six months’ imprisonment.
[7] You complained that the drugs hurt your nose. You went upstairs to your bedroom and told Mr Sellick this and he thought that you had been drugged.
[8] Mr Sellick said during the trial he got the loaded pistol he kept in the bedside table and tucked it in his trousers with his t-shirt over it. You then went downstairs with the pistol concealed.
[9] Mr Sellick confronted the group, demanding to know who had given you drugs. He did not believe that it was MDMA and cocaine. He thought it was “crack” or methamphetamine. I accept that Mr Sellick was very angry because you had been given the drugs.
[10] Mr Sellick’s evidence at trial was that he told everyone to leave. After a short period, people returned. Mr Sellick says he was surrounded by people (not including Mr Rakeem) in the kitchen and he felt threatened.
[11] Mr Sellick said that he presented the pistol at Mr Rakeem when he came up the stairs. He was about a metre or two away from Mr Sellick and Mr Sellick says he told him to leave the house. Mr Sellick’s evidence was that there was a quick struggle, Mr Rakeem jumped at him and the gun, and the gun accidentally went off, shooting Mr Rakeem in the stomach.
[12] The jury did not accept that the shooting was accidental. I do not accept that there was a struggle. Mr Rakeem was unarmed and I accept that he did not threaten Mr Sellick.
[13] The jury did accept that there was no murderous intent. The jury found Mr Sellick guilty of manslaughter and not guilty of murder.
[14] Mr Rakeem was shot in the stomach. He walked down the stairs. The PAC report notes that you helped to get your brother’s car and assisted with putting Mr Rakeem in the car.
[15] The summary of facts records that you approached others present at the house and directed and demanded they help clean up. You threatened them and their families
if they spoke about what happened. You also used Mr Sellick’s gang connections as a threat to intimidate and dissuade those present from saying anything. You also offered to pay them if they did not say anything to the police.
[16]You helped Mr Sellick clean up and moved items around, including the pistol.
Victim impact statement
[17] The Court has received a victim impact statement from Mr Rakeem’s mother, which will be read at the sentencing of Mr Sellick.
Personal circumstances
[18] Ms Younes, before sentencing you today, I have read a provision of advice to Courts (“PAC”) report dated 8 March 2023. I have also read a cultural report prepared under s 27 of the Sentencing Act 2022 (“the Act”) dated 29 March 2023. You have three prior convictions, for behaving threateningly, wilful damage, and driving with excess breath alcohol. I will refer to these reports when I discuss your personal circumstances and whether they justify an uplift or discount from the starting point.
Approach to sentencing
[19] I will now turn to your sentence. The relevant purposes of sentencing which the Court may take into account are:2
(a)holding you accountable for the harm done to the victim and to the community by your offending;
(b)promoting a sense of responsibility for, and acknowledgment of that harm;
(c)denouncing and deterring your conduct; and
(d)to assist in your rehabilitation.
2 Sentencing Act 2002, s 7.
[20] The principles of sentencing must be taken into account. Those of particular relevance to you in this case are:3
(a)The need to take into account the gravity of the offending and the degree of your culpability;
(b)The desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offending, and later I will talk about comparable cases;
(c)The Court must impose the least restrictive outcome that is appropriate in the circumstances; and
(d)The Court must take into account your personal, family, community and cultural background.
Starting point
[21] There is no guideline judgment for accessory after the fact offending. This reflects the broad range of circumstances in which a person can be an accessory after the fact to other offending. This means I must consider comparative cases to set a starting point.
[22] Despite the broad range of circumstances for accessory after the fact offending, two factors are relevant in determining the seriousness of your offending:4
(a)First, the seriousness of the crime which the defendant (that’s you) has assisted; and
(b)Second, the level or degree of assistance which has been provided.
[23] These two factors, in combination with comparative cases, are relevant to setting the starting point.
3 Sentencing Act 2002, s 8.
4 R v Tito [2015] NZHC 2969 at [20].
[24] Mr McCoubrey for the Crown submits a starting point of 10 to 12 months’ imprisonment is appropriate. Your counsel, Ms Cooper KC, proposes a starting point of eight to 10 months.
[25] The Crown refers to the case of R v Tito.5 In that case, Ms Tito pleaded guilty to one charge of being an accessory after the fact of wounding with intent to injure. The principal offender, Mr Herkt, her partner at the time, fatally stabbed the deceased after an argument. Ms Tito was not present or involved in the stabbing in any way. The deceased was taken to hospital by others. Ms Tito assisted Mr Herkt by dumping evidence, including the knife and clothing. Ms Tito helped Mr Herkt avoid police detection by hiding him and helping him get away from the scene. A starting point of 10 months’ imprisonment was adopted.
[26] Both the Crown and Ms Cooper refer to the case of Duncan v R.6 In that case Ms Duncan was convicted of accessory after the fact to wounding with intent to cause grievous bodily harm. Ms Duncan’s partner, Mr Tahuri, shot a neighbour in the shoulder. Ms Duncan promptly drove Mr Tahuri and the gun away from the scene, assisting him to avoid arrest for 30 hours. The gun was disposed of and never recovered. A starting point of 12 months was adopted and upheld on appeal.
[27] Ms Cooper refers to R v Rodgers.7 In that case Mr Rodgers pleaded guilty to one charge of accessory after the fact to the discharge of a firearm with reckless disregard for the safety of others (that is the same charge as what you have been charged with), as well as to two charges of aggravated assault. Mr Rodgers was driving and the principal offender, Mr Kovaleski, was in the passenger seat. The two men knew the people in the car in front of them, Mr Rodgers tailgated the car, and Mr Kovaleski shot at the vehicle. Mr Rodgers then sped away from the scene, assisting Mr Kovaleski to avoid police. The next morning Mr Rodgers and Mr Kovaleski committed aggravated assault during a home invasion. The starting point adopted for the accessory after the fact offending was 10 months. In that case the Crown accepted that the degree of assistance was not extensive in circumstances
5 R v Tito [2015] NZHC 2969.
6 Duncan v R [2013] NZCA 354.
7 R v Rodgers [2022] NZHC 1942.
where they were speeding in a car on an open road and Mr Rodgers knew Mr Kovaleski had a gun.
[28] Ms Cooper also refers to R v Bushell.8 Mr Bushell pleaded guilty to being an accessory after the fact to using a firearm against a law enforcement officer. The principal offender was driving dangerously, was being pursued by police, had fired multiple shots at police, driven off in a police car, and evaded police for hours. This resulted in the town being put into lock down and the armed offenders squad was called. The principal offender went to Mr Bushell’s house and asked for a ride. Mr Bushell did so but was pulled over by police and the principal offender was found in the car. Mr Bushell admitted to providing the ride but did not know about the earlier events. The Court accepted that Mr Bushell agreed to provide the ride to get the principal offender away from his home and family. The Court also noted that because the assistance was “one-off” and he did not destroy or tamper with evidence, the offending was at the lower end of the scale. The Court did not state explicitly what the starting point was, but the end sentence was nine months’ supervision and 250 hours of community work.
[29] Returning to your case Ms Younes, in terms of the seriousness of the crime which you have assisted, discharging a firearm with reckless disregard for the safety of others carries a maximum penalty of seven years’ imprisonment, which indicates it is serious. In your case, the consequences of that offence were extremely serious in that Mr Rakeem passed away.
[30] You were present in the room when the shooting took place although you do not recall seeing it happen. You knew Mr Rakeem had been shot but you did not know if the shot would result in his death.
[31] You assisted Mr Sellick in cleaning the interior of the address and moving items around. You also approached other persons present and demanded that they assist with cleaning. You threatened them and their families if they spoke with police about what happened. You also offered to pay them if they did not say anything. To
8 R v Bushell [2016] NZHC 750.
give force to your threats you referred to Mr Sellick’s position within the Mongols gang. You also picked up the pistol although you say you put it on the table.
[32] The Crown accepts that you did not help Mr Sellick flee the scene or destroy evidence. However, they say that the assistance you provided after Mr Rakeem was shot, did result in some witnesses being initially reluctant to engage with police.
[33] Ms Cooper says that while you helped to clean up, you were cleaning up Mr Sellick’s blood after he cut his hand. Ms Cooper submits that your conduct did not result in Mr Sellick avoiding being caught.
[34] In relation to other witnesses, Ms Cooper says that they ultimately co-operated with police so that your conduct did not result in evidence being withheld. The witnesses who were dishonest were not witnesses that you spoke to at your address that evening.
[35] Ultimately the crime Mr Sellick was convicted of is extremely serious and the level of assistance was reasonably significant. In comparison with the other cases, while you did not assist in Mr Sellick fleeing the scene, you did threaten other witnesses that were present, and that was not present in the cases to which I have referred.
[36] For those reasons and considering the comparative cases I have discussed I adopt a starting point of 10 months’ imprisonment.
Personal circumstances
[37] I will now consider circumstances personal to you which may justify applying an uplift or discount to the starting point.
No aggravating factors
[38] Mr McCoubrey and Ms Cooper agree that there are no personal aggravating factors which would justify an uplift to the starting point. I agree with that submission.
Guilty plea
[39] Ms Cooper submits that a discount of 20 per cent should be applied to acknowledge your guilty plea. Mr McCoubrey submits that any guilty plea discount should not exceed 20 per cent.
[40] You pleaded guilty at the earliest opportunity following resolution discussions. I accept that in the circumstances a discount of 20 per cent is appropriate.
Remorse
[41] I have this morning received two letters, one that you have written to the Court and one to Mr Rakeem’s family. Ms Cooper submits that you show genuine remorse and that a five per cent discount is appropriate.
[42] A discount is available if genuine remorse is shown. Remorse does not need to be extraordinary, but it does require that something more than the bare acceptance of responsibility inherent in a guilty plea be shown.9
[43] Your genuine remorse is referred to in the PAC report and the s 27 report. The PAC report writer said that you were visibly upset and tearful when talking about Mr Rakeem. You said that you feel horrible, ashamed and sad about what happened. You wish you could tell Mr Rakeem’s family the words you spoke to him in Arabic, when you helped to put him in the car that night. I accept your remorse is genuine. I saw your tears when you pleaded guilty prior to the trial. You said you will accept whatever sentence you get. You want to apologise to Mr Rakeem’s mother and want peace for her. Inshallah, if Allah wills it.
[44]I accept that a discount of five per cent for genuine remorse is appropriate.
9 Moses v R [2020] NZCA 296 at [24].
Section 27 report
[45] Ms Cooper submits that due to the strong causal nexus between the factors identified in the s 27 report and your offending a discount of 20 to 25 per cent is appropriate.
[46]I refer now to the s 27 report.
[47] Your parents are Kurdish, they are from Iraq and Iran. They came to New Zealand as refugees. The s 27 report writer acknowledges the trauma, stress and isolation many refugees experience. The writer notes that your family became disconnected from the Kurdish community due to your father’s behaviour.
[48] The s 27 report notes that during your childhood you experienced poverty, violence and abuse. It records that you felt betrayed when you were not believed when you spoke out about the abuse you suffered. You were forced to leave school at 15 and you left home at 16.
[49] You were homeless for a period. You then met your first partner and moved in with him. You say the relationship was abusive. You had a child three years later and became a young mother.
[50] You then met Mr Sellick. You say nobody has ever been so nice to you before. You were happy and infatuated. Some time into the relationship you found out about his criminal history, gang connections and drug use. Although you say your knowledge was limited.
[51] Ms Cooper says that the mixture of loyalty and fear you felt towards Mr Sellick meant that on the night Mr Rakeem died you acquiesced to Mr Sellick’s demands and helped him.
[52] I accept that you have had a difficult life, I acknowledge the circumstances into which you born and that there is a sufficient nexus between your background, especially the abusive and dysfunctional relationships you have experienced, and your
offending to justify a discount to your sentence. In the circumstances, a discount of 20 per cent is appropriate.
Youth
[53] You were 20 years old at the time of the offending. Mr McCoubrey accepts that the Court may consider that a discrete discount for your youth is appropriate. Ms Cooper submits that a discount of 10 per cent is appropriate.
[54] The Court of Appeal has stated that an offender’s youth may be relevant to sentencing in three ways:10
(a)There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures, including peer pressure, and may be more impulsive than adults;
(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing for young people; and
(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
[55] I acknowledge Ms Younes the steps that you have taken to train as a personal trainer and your employment, and I urge you to continue on that path. The Crown submits that at the time of the offending you had appeared before the court three times before. They say this means you must have had some awareness of the consequences of your actions. They also say that the nature of your offending shows that you had some awareness of the consequences of Mr Sellick’s offending.
[56]Ms Cooper says that the context of your offending is of a kind discussed in
Churchward.11 You were panicked, intoxicated, felt pressure from Mr Sellick, and this
10 Churchward v R [2011] NZCA 531 at [77].
11 Churchward v R [2011] NZCA 531.
clouded your judgment. Ms Cooper submits that your minor previous convictions should not preclude a discount for youth, but that they are a further example of the rationale for youth discounts – that the neurological state of those under the age of 25 reduces culpability because youth are more vulnerable to types of thinking which is more likely to lead to offending.
[57]I consider that a small discount of five per cent is appropriate for youth.
End sentence
[58] Applying the discounts above (50 per cent in total), this results in an end sentence of five months’ imprisonment. This is within range for me to consider a non- custodial sentence (non-prison sentence). I turn to that now.
Type of sentence
[59] The Crown accepts that the least restrictive sentence in the circumstances is a period of home detention or community detention. Ms Cooper submits community detention and intensive supervision are appropriate.
[60] The PAC report recommends home detention but provides community detention and supervision as options and identifies your address as suitable for electronic monitoring. The report writer recommends courses which the writer considers would be of benefit to you and your completion of those courses are recommended as conditions of supervision that might be imposed.
[61] I am satisfied that in the circumstances a sentence of community detention and intensive supervision is appropriate and that your sentence of five months’ imprisonment should be commuted to two and a half months’ community detention and twelve months’ intensive supervision.
[62] Community detention and supervision acknowledge the principles and purposes of sentencing which I am obliged to consider, as well as allowing you to stay in employment and to continue to support and raise your son. Supervision will reduce
the likelihood of further offending through your rehabilitation and assistance with reintegration.
End sentence
[63]Ms Younes, please stand.
[64] On the charge of being an accessory after the fact to the discharge of a firearm with reckless disregard for the safety of others, I sentence you to two and a half months of community detention and twelve months’ intensive supervision on the conditions specified in the PAC report.
[65] I note the community detention conditions in the PAC report include a curfew period of 10 pm to 6 am daily with the first curfew to start today, the day of sentencing.
[66]Please stand down.
Tahana J
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