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Safi v Police

Safi v Police

Case [2022] NZHC 1967 10 August 2022

Sentencing

Breach of Bail

Unjust Enrichment

Aggravated & Exemplary Damages

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-174

[2022] NZHC 1967

BETWEEN
MUSHTAQ SAFI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 August 2022

Appearances:

I Jayanandan for Appellant L E Kenner for Respondent

Judgment:

10 August 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 10 August 2022 at 3:30pm

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

SAFI v POLICE [2022] NZHC 1967 [10 August 2022]

Introduction

[1] Mushtaq Ahmad Safi (the appellant) appeals against the sentence of 28 months’ imprisonment imposed by Judge Bonnar QC in the Auckland District Court on 6 May 2022.1 The appellant was sentenced having earlier pleaded guilty to the following charges:

(a)discharging a firearm with intent to intimidate people inside a dwelling- house;2

(b)theft (over $1,000);3

(c)driving while disqualified;4

(d)breach of prison release conditions (x 3);5

(e)possession of methamphetamine;6 and

(f)possession of cannabis.7

[2] The appellant appeals the sentence on the basis that it was manifestly excessive: the starting point adopted by the Judge for the firearms offending was too high; the uplift of six months to reflect the appellant’s previous convictions and the fact that he was on bail and subject to release conditions at the time of the offending was too high; and the discount given for the appellant’s personal circumstances was insufficient. He submits that the end sentence should have been a short term of imprisonment with the possibility of home detention.

1      New Zealand Police v Safi [2022] NZDC 8880 [District Court decision].
2      Crimes Act 1961, s 308(b): carrying a maximum penalty of three years’ imprisonment.
3      Sections 219 and 223(b): carrying a maximum penalty of seven years’ imprisonment.
4      Land Transport Act 1998, s 32(1)(a) and (3): carrying a maximum penalty of three months’ imprisonment or a $4,500 fine (in addition to mandatory disqualification for six months or more).
5      Sentencing Act 2002, s 96(1): carrying a maximum penalty of one year’s imprisonment or a $2,000 fine.
6      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a): carrying a maximum penalty of six months’ imprisonment and/or a $1,000 fine.
7      Section 7(1)(a) and (2)(b): carrying a maximum penalty of three months’ imprisonment and/or a
$500 fine.

Background

[3]The following is a summary of the offending.

[4]On 3 July 2021 the appellant was in a vehicle with three co-defendants. At

4.22 am the vehicle was stopped outside an address in Raetihi where four adults and two young children were sleeping. At 4.24 am, two shots were fired from a handgun by one of the occupants of the vehicle. One of the bullets went through a bedroom window and hit a robe that was hanging over the end of a bunk bed. The second bullet passed through the front door of the house and hit the wall located inside the entrance of the house. The vehicle was driven away.

[5] The driving while disqualified offending followed the appellant being convicted of reckless driving and disqualified…

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 Safi v Police

Details

AGLC: Safi v Police [2022] NZHC 1967
Case: [2022] NZHC 1967
Decision Date: 10 August 2022

CaseChat Overview and Summary

The case of Safi v Police involves an appeal by Mushtaq Ahmad Safi against his sentence of 28 months' imprisonment imposed by the Auckland District Court for multiple charges including firearms offences, theft, driving while disqualified, and possession of drugs. The appellant argued that the sentence was manifestly excessive, citing that the starting point for the firearms offence was too high, the uplift for his criminal history was excessive, and the discount for his personal circumstances was insufficient. The court needed to determine whether the sentence imposed was appropriate, taking into account the nature of the offences, the appellant's criminal history, and his personal circumstances.

The High Court found that the starting point of 28 months' imprisonment was within the acceptable range given the premeditation and seriousness of the offending. However, the court determined that the six-month uplift to account for the appellant's previous convictions and his status on bail was excessive. While the court acknowledged the appellant's extensive criminal history, it was noted that he did not have prior convictions for firearms offences or violent crimes. The uplift, therefore, should have been modest, around three months. Additionally, the court found that a greater discount for personal circumstances was warranted, considering the appellant's background as a refugee from Afghanistan and his early exposure to crime and gangs. A discount of 10 per cent was deemed appropriate, in addition to the 25 per cent discount for the guilty pleas.

The court concluded that the appropriate sentence, after considering the starting point, uplifts, and discounts, should be two years and one month's imprisonment. Although this sentence could be commuted to home detention, the court found that imprisonment was necessary to adequately denounce the offending and deter future reoffending due to the serious nature of the crimes and the risk they posed to the community.

The appeal was allowed, and the sentence was substituted with a term of two years and one month's imprisonment.

Orders