Rafiq v R - [2017] NZCA 220

IN THE COURT OF APPEAL OF NEW ZEALAND

CA488/2016
[2017] NZCA 220

BETWEEN	MOHAMMED SAHAD RAFIQ Appellant
AND	THE QUEEN Respondent

Hearing:	23 May 2017
Court:	Asher, Venning and Ellis JJ
Counsel:	N P Chisnall and A A Rasheed for Appellant E J Hoskin for Respondent
Judgment:	30 May 2017 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Following trial in the District Court at Manukau Mohammed Rafiq was convicted of injuring Jitendra Singh with intent to injure. Judge Andrée Wiltens sentenced Mr Rafiq to two and a half years’ imprisonment.[1] Mr Rafiq appeals against sentence.

Facts

[1]R v Rafiq [2016] NZDC 18695.

Mr Rafiq and his wife were neighbours of Mr Singh, who lived alone in the same apartment block. Mr Rafiq’s wife occasionally provided meals to Mr Singh. They also exchanged Facebook messages. On the night preceding the assault Mr Singh had gone to the Rafiq home to return a container from one of the meals. Mr Rafiq was at work. When there was no answer at the front door Mr Singh went around to the rear of the apartment. Through a window at the back he was able to see Mr Rafiq’s wife showering. Mr Rafiq’s wife realised that Mr Singh had seen her and was upset. Mr Singh also sent her some sexually suggestive texts after the incident. She complained to Mr Rafiq about Mr Singh’s actions that night.
The following morning, as Mr Singh brought out his rubbish, Mr Rafiq, who had lain in wait, attacked him. Mr Rafiq struck Mr Singh several times with a piece of wood. The wood was broken in the attack. Mr Singh said he tripped and fell to the ground in the course of the attack. While on the ground Mr Rafiq punched him three to four times and also kicked him. Mr Rafiq was wearing work boots. As a result of the attack Mr Singh suffered swelling and bruising to his face, a black eye, and a split lip which required stitches. He also lost a tooth. Mr Singh sought refuge in his apartment. Mr Rafiq followed him in but Mr Singh locked himself in his bedroom.
Almost immediately after the incident Mr Rafiq telephoned the police alleging that his unit had been burgled by Mr Singh. Mr Rafiq’s defence at trial was that he was acting in self-defence or had applied reasonable force in effecting a citizen’s arrest of Mr Singh. The explanation was rejected by the jury in finding Mr Rafiq guilty.

Sentencing judgment

In his sentencing remarks the Judge noted four aggravating features:
(a)pre-meditation;
(b)use of a weapon;
(c)attack to the head; and
(d)vigilante action in that Mr Rafiq had taken matters into his own hands.
The Judge considered the attack was unnecessary. He took a starting point of three years’ imprisonment, but reduced that by six months to take account of the incident between Mr Rafiq’s wife and Mr Singh which…

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 Rafiq v R

Details

AGLC: Rafiq v R [2017] NZCA 220
Case: [2017] NZCA 220
Decision Date: 30 May 2017 at 10 am

CaseChat Overview and Summary

In the appeal of Mohammed Sahad Rafiq against the Crown, the appellant sought to challenge his sentence for injuring Jitendra Singh with intent. The case was heard by the Court of Appeal of New Zealand on 23 May 2017, with judgment delivered on 30 May 2017. The appeal was dismissed by the Court. The primary legal issue before the Court was whether the sentence imposed by the District Court was manifestly excessive. The appellant's counsel argued that the starting point of three years was too high, that the judge should have taken into account the appellant's offer to make amends, and that insufficient credit was given for the contributory conduct of the victim.

The Court of Appeal examined the starting point for sentencing, noting that the District Court Judge had identified four aggravating features of the attack: pre-meditation, use of a weapon, attacking the head, and vigilante action. The Court of Appeal agreed with the Judge's assessment that these factors justified a starting point within band three of Nuku v R. The Court found that the attack was serious and violent, with the appellant lying in wait, armed himself with a block of wood, and attacking Mr Singh to the head. The Court also considered the appellant's offer of amends, but found that it was not genuine and capable of fulfillment, and that the appellant had demonstrated a lack of remorse. The Court concluded that the sentence imposed by the District Court was appropriate.

In conclusion, the Court of Appeal dismissed the appeal against sentence, finding that the District Court Judge had appropriately considered the aggravating and mitigating factors in determining the sentence. The Court noted that the appellant's attack was serious and violent, and that the sentence imposed was commensurate with the gravity of the offending. The final orders of the Court were that the appeal be dismissed.

Orders