Sadiq v R
[2012] NZCA 396
•30 August 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA790/2011 [2012] NZCA 396 |
| BETWEEN SLAR NAZAR SADIQ |
| AND THE QUEEN |
| Hearing: 2 August 2012 |
| Court: Glazebrook, Winkelmann and Rodney Hansen JJ |
| Counsel: N G Cooke for Appellant |
| 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 new country, language and culture and to anger management problems he had had throughout his school years, as a consequence of which he was referred to counselling while at secondary school. He had under-achieved at school and was described by the Judge as not having an impressive work history.
Mr Sadiq has one previous conviction, for a relatively minor traffic matter. On this basis he was assessed as at low risk of further offending. However, his propensity to violence was seen as likely to elevate the risk of further offending unless “appropriate interventions” occurred.
Judge McAuslan identified as aggravating features of the offending, the use of a weapon, the harm to the victim and the element of premeditation. She accepted the Crown submission, relying upon Grimshaw-Jones v R,[2] R v Stent[3] and R v Tuwairua[4] in adopting a starting point of between two years and eight months and three years. She rejected the defence submissions that the victim was intoxicated or that blame otherwise attached to the victim. She concluded that a starting point of two years and nine months’ imprisonment was justified. She discounted the sentence by six months to take account of Mr Sadiq’s youth and lack of previous convictions. It was accordingly unnecessary to finally determine the defence contention that a sentence of home detention was appropriate, although the Judge noted authorities which suggested that a sentence of home detention would not adequately serve the purpose of deterrence in offending of this nature.
Grounds of appeal
[2] Grimshaw-Jones v R [2010] NZCA 490.
[3] R v Stent CA115/98, 4 August 1998.
[4] R v Tuwairua [2009] NZCA 495.
Mr Cooke submitted that the starting point adopted by the Judge was too high, having regard to the sentencing bands in R v Harris.[5]He submitted that the offending fell within band two which applies where injuries are moderate and provides for sentences of up to two years. He submitted that cases such as Grimshaw-Jones relied on by the Judge in selecting the starting point, involved significantly higher levels of violence and much more serious injuries.
[5] R v Harris [2008] NZCA 528.
Mr Cooke contended that Mr Sadiq’s offending was characterised by an absence of extreme violence or serious injury. He maintained there was an absence of “fulsome premeditation”, rather a response to an unexpected turn of events. He pointed out that the knife was not used until the piece of wood had been discarded and Mr Sadiq had himself been subjected to attack. He said Mr Sadiq did not display uncontrolled aggression towards the victim; outnumbered by the Webby family, he could be seen as vulnerable.
Crown’s position
Mr Lillico contended that the offending involved three of the aggravated features identified in R v Taueki,[6] namely, premeditation, use of a weapon and vigilante action. It also involved a street attack accompanied by a weapon. He said that arguably the offending came within band two of Taueki and, at least on a mathematical basis, a starting point of four to five years is indicated. Having regard to decisions of this Court referred to by the Judge, it was submitted that a starting point of two years nine months was well within range.
[6] R v Taueki [2005] 3 NZLR 372 (CA).
Mr Lillico accepted that the discount of six months was appropriate. He submitted, however, that even if a lower starting point were to bring the sentence below two years, the use of a knife and the absence of mitigating factors of an exceptional nature, excluded the option of home detention.
Discussion
By reference to the injuries inflicted and comparison with the other cases referred to by the Judge, the starting point was within the available range. It compares, for example, to three years adopted in Stent where the appellant took a knife from a knife block and stabbed the complainant in the abdomen, scoring his bowel. The complainant was hospitalised and required eight weeks off work. The weapon used was more deadly than in the present case, and the injuries caused, far more serious. However in Stent the seriousness of the offending was significantly mitigated by the conduct of the complainant who had entered the appellant’s house (the entry was described as violent), while the appellant’s partner and children were present. It was while the appellant was being held by the victim in a choke hold that he grabbed the knife from the knife block and stabbed the victim. The Crown said that although the appellant’s reaction had been disproportionate, it nevertheless accepted that there had been limited options available to him to deal with the attack.
In Tuwairua, the appellant and his father got into a drunken fight. The appellant grabbed a steak knife, using it to lunge and jab it at his father. In the course of this he stabbed his father in the back of the hand when his father sought to protect his stomach area from attack. An artery was severed. The fact that the appellant immediately called an ambulance for his father was regarded as mitigating the seriousness of the offending. A starting point of two years eight months was said to be well within the appropriate range. We regard this offending as roughly comparable to the present. There was less premeditation – the appellant simply grabbed a knife that was to hand. The weapon was comparable, a small knife. There were fewer blows struck with the knife although the injury inflicted by the one blow was more serious. The appellant went to the aid of the victim, a factor missing in the present case.
In Grimshaw-Jones a starting point of two years eight months was also adopted. Again, a knife was used. There were two victims, a woman who sustained a cut to the jugular vein requiring three stitches and her male companion who received a wound to the jaw 11 cm long and 2 cm deep, requiring 24 stitches. He was left with significant scarring. The offending was undoubtedly more serious than Mr Sadiq’s. The weapon was more deadly, there were more victims and the injuries again were far more serious. However it is apparent that this Court regarded the sentence as lenient, describing it as “by no means excessive”, and noting that in Harris a starting point of two and a half years’ imprisonment was upheld on appeal even though the offence involved a lesser maximum sentence, a lesser range of aggravating factors and a less serious injury.[7]
[7] At [13].
Mr Cooke submitted that it is significant that in this case there was an absence of what he described as “fulsome premeditation”. Rather, he said, Mr Sadiq responded to an unexpected turn of events. But Mr Sadiq took the knife to the scene, he initiated the chain of events which led to its use (by brandishing the block of wood in a threatening manner) and he took the decision to use the knife in what would otherwise have been a scuffle.
The use of a knife invariably carries with it the potential to inflict lethal injuries. It will generally take the offending out of the bands in Harris which assume a broad correspondence between the actual injury and what was intended or the level and nature of the violence inflicted. Considerations of deterrence, denunciation and the protection of the community, require that attacks involving the use of a knife, even where relatively minor injuries result, are met with condign sentences. The cases relied upon by the Judge in reaching her starting point can be compared and contrasted in a number of ways. We consider that when all of the relevant factors are weighed, the starting point adopted by the Judge was within the available range.
We agree that the discount allowed for youth and the absence of significant previous convictions was appropriate. The end sentence was accordingly stern but within the available range.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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