Rafiee v R - [2010] NZCA 180

IN THE COURT OF APPEAL OF NEW ZEALAND
[2010] NZCA
[2010] NZCA 180
BETWEENALI REZA RAFIEE

Appellant

ANDTHE QUEEN

Respondent

Hearing:3 May 2010

Court:Chambers, Potter and Miller JJ
Counsel:M S Gibson for Appellant

N P Chisnall for Respondent

Judgment:11 May 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1]        Following trial by jury Tuale Fuimaono, Ahmad Matlobyaygazwini and the appellant Ali Reza Rafiee were each found guilty of manslaughter in relation to the death of Bjorn Henderson on or about 9 March 2008.
[2]        On 18 November 2009 Lang J, the trial Judge, sentenced Mr Fuimaono to eight years imprisonment, Mr Matlobyaygazwini to seven years imprisonment and Mr Rafiee to six years imprisonment.[1]
[1] R v Rafiee HC Auckland CRI-2008-014-6716, 18 November 2009.
[3]        Mr Rafiee appeals against his sentence on two grounds:
a)Insufficient distinction was drawn by the sentencing Judge between Mr Matlobyaygazwini and the appellant in relation to their respective involvement and degree of premeditation, to the extent that a reasonably minded and independent observer would conclude something had gone wrong.
b)The sentencing Judge placed a disproportionate emphasis on his finding that Mr Rafiee took a weapon to the address.

[4]        The appellant submits that the appropriate sentence would be five years imprisonment.
[5]        The Crown submits that the appellant has failed to demonstrate an error that necessitates the intervention of this Court on appeal.
Factual background
[6]        Following the jury’s verdicts, at the request of counsel for the offenders, Lang J held a disputed facts hearing under s 24 of the Sentencing Act 2002. He set out his detailed factual findings in a minute dated 20 October 2009. He summarised those findings in his sentencing judgment as follows:
[3]... the incident that led to you being charged had its genesis in an incident that occurred a few days earlier. During that earlier incident Mr Henderson had come to Mr Matlobyaygazwini’s motel unit in the early hours of the morning accompanied by some other men. There they assaulted Mr Matlobyaygazwini and stole money and drugs from him.
[4]This led to a series of events that occurred on the afternoon of 9 March 2008. Earlier that day Mr Matlobyaygazwini had learned that Mr Henderson was in the Auckland area. He made efforts to ensure that Mr Henderson came to an address on the Ellerslie-Panmure Highway where an associate of Mr Matlobyaygazwini’s was living. Mr Matlobyaygazwini then went round to collect Mr Rafiee from his home address. When Mr Rafiee got into the vehicle, I am satisfied that he was carrying a pistol and also another form of weapon, the precise nature of which I have never been able to determine.
[5]They went back to the address at Ellerslie-Panmure Highway and awaited the arrival of Mr Henderson. When Mr Henderson arrived, Mr Matlobyaygazwini immediately confronted him in his vehicle. Quite clearly he was terrified because he tried to reverse his vehicle in an effort to escape.…

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 Rafiee v R

Details

AGLC: Rafiee v R [2010] NZCA 180
Case: [2010] NZCA 180
Decision Date: 11 May 2010

CaseChat Overview and Summary

The case of Rafiee v R involved Ali Reza Rafiee, who appealed against his six-year imprisonment sentence for manslaughter. The appeal was dismissed by the Court of Appeal of New Zealand, with the judges concluding that the sentencing judge had appropriately distinguished between the culpability of the co-offenders. The court found that the sentencing judge had carefully assessed the relative culpability of each offender, with the appellant's involvement in carrying a firearm to the scene being appropriately reflected in the starting point and sentence adopted.

The primary legal issue the court had to decide was whether the disparity between the sentences imposed on the appellant and his co-offenders was so gross that it warranted intervention by the Court of Appeal. The appellant argued that the sentencing judge did not sufficiently distinguish between his culpability and that of his co-offenders, and that the emphasis placed on the weapon he carried was disproportionate.

The court, however, held that the sentencing judge had made detailed factual findings and carefully assessed the respective culpability of each offender. The judges found that the significance of the appellant carrying a firearm to the scene was appropriately reflected in the sentence imposed. The court concluded that the disparity in the sentences imposed was not so gross as to warrant intervention by the Court of Appeal.

In summary, the Court of Appeal dismissed the appeal, finding that the sentencing judge had carefully assessed the relative culpability of each offender and appropriately reflected the appellant's involvement in carrying a firearm to the scene in the sentence imposed. The disparity in the sentences imposed was not so gross as to warrant intervention by the Court of Appeal.

Orders