Sadiq v R - [2012] NZCA 396

IN THE COURT OF APPEAL OF NEW ZEALAND

CA790/2011
[2012] NZCA 396

BETWEEN SLAR NAZAR SADIQ
Appellant

AND THE QUEEN
Respondent

Hearing: 2 August 2012

Court: Glazebrook, Winkelmann and Rodney Hansen JJ

Counsel: N G Cooke for Appellant
M J Lillico for Respondent

Judgment: 30 August 2012 at 12.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

After trial before Judge McAuslan and a jury in the District Court at Papakura, Mr Sadiq was found guilty on one charge of wounding with intent to injure. He was sentenced to two years and three months’ imprisonment.[1] He appeals against sentence.

Facts

[1] R v Sadeq DC Papakura CRI-2010-092-18069, 23 November 2011.

The charge arose from an incident at the Highland Park shopping complex at Pakuranga, Auckland, on 17 September 2010. Following an exchange of text messages, Mr Sadiq arranged to meet Cody Webby at the Highland Park shops. Mr Sadiq believed that Cody Webby had been responsible for an attack on Mr Sadiq’s cousin, which Mr Sadiq sought to avenge.
When Mr Sadiq arrived at the shopping complex, he found Cody Webby present with two older brothers, Jesse and Daniel. When Mr Sadiq approached the group, words were exchanged. Mr Sadiq walked away and picked up a plank of wood which he brandished in the direction of the group. Daniel Webby, thinking that the plank would be used against his younger brother, ran towards Mr Sadiq who dropped the piece of wood and jumped up and kneed Daniel Webby in the chest. Mr Sadiq then drew a small knife from his pocket and stabbed Daniel Webby three times, in the chest, the upper back and upper arm. He then ran from the scene. He was caught by the other Webby brothers and beaten. The sequel was described by the Judge as regrettable but, in the circumstances, understandable.
Daniel Webby was not seriously hurt. The stab wounds were relatively minor but they required several stitches and there was evidence that the wounds caused a significant loss of blood. He required pain medication for about two weeks after the incident and had to take a total of four days off work. He suffered no long-term ill-effects.
The knife used by Mr Sadiq was not recovered, but it is common ground that it was a small knife, as it fitted into Mr Sadiq’s pocket.

Judge’s sentencing

In sentencing Mr Sadiq, the Judge noted that the jury had rejected Mr Sadiq’s plea of self-defence and his denial of having taken the knife to the scene. She said Mr Sadiq instigated the fight and took the knife to the scene.
The Judge remarked on a helpful pre-sentence report. At the time he was sentenced, Mr Sadiq was 21 years of age, living at home with his parents and three siblings. The family had fled Iraq in 2000 and settled in New Zealand in 2002. The Judge referred to difficulties Mr Sadiq had coping with a…

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 Sadiq v R

Details

AGLC: Sadiq v R [2012] NZCA 396
Case: [2012] NZCA 396
Decision Date: 30 August 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Sadiq v R involved the appellant, Slar Nazar Sadiq, appealing against his sentence for a charge of wounding with intent to injure. Sadiq had been found guilty following a trial before Judge McAuslan and a jury in the District Court at Papakura. Sadiq had arranged to meet Cody Webby at the Highland Park shopping complex in Pakuranga, Auckland, to seek revenge for an attack on Sadiq’s cousin. During the confrontation, Sadiq stabbed Daniel Webby with a small knife, resulting in minor injuries that required stitches and caused significant blood loss, though no long-term effects.

The legal issues in the appeal were primarily concerned with the appropriateness of the starting point for sentencing, which the Judge had set at two years and nine months’ imprisonment, and whether the discount for Sadiq’s youth and lack of previous convictions was justified. The Crown argued that the sentence was appropriate given the premeditation, use of a weapon, and vigilante nature of the attack, while the defence contended that the starting point was too high and that the circumstances did not warrant such a severe sentence.

The Court of Appeal found that the starting point adopted by the Judge was within the available range, considering the injuries inflicted and the comparison with other cases. The Court noted that while the injuries in this case were not as severe as in some other cases, the use of a knife and the nature of the attack warranted a stern sentence. The discount for Sadiq’s youth and lack of significant previous convictions was deemed appropriate, leading the Court to conclude that the final sentence was within the appropriate range. Therefore, the appeal was dismissed.

Orders