Safi v Police
[2022] NZHC 1967
•10 August 2022
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 from driving for six months. Approximately five months later he was stopped for driving in a bus only lane.
[6] The theft and possession charges followed the appellant stealing a courier bag containing $1,940 worth of fuel vouchers, and on his subsequent arrest for an unrelated matter, being found in possession of 1.5 grams of methamphetamine and 4.8 grams of cannabis.
[7] The three charges of breaching prison release conditions related to the appellant having failed to report to his probation officer on 13 April 2021 (for which he was given a warning), 15 April 2021, 20 April 2021 and 27 April 2021;8 failing to report to his probation officer on 22 June 2021; and moving to a new address on 20 July 2021 without the prior written consent of a probation officer.
District Court decision
[8] Judge Bonnar commenced by determining a starting point for the firearms offending which he considered to be the lead charge. He noted that there were clear gang-related overtones to the offending, with evidence linking each of the defendants to the Crips gang, although each of them denied having any active involvement with
8 The appellant also failed to attend a scheduled alcohol and drug test on 9 April 2021.
the gang. He noted that each of the defendants also denied being the person who fired the shots. He accordingly treated them as equally culpable.9
[9] The Judge noted that there is no guideline judgment for firearms offending. He observed that the aggravating features of the offending included that it was a group attack; had gang-related overtones; was clearly planned and premeditated; had the potential to cause serious harm or death; and involved vulnerable victims who were asleep at the time the offending occurred. He referred to a number of cases in fixing a starting point of two years and four months’ imprisonment for what he considered to be near to the most serious offending of its type.10 An uplift of six months’ imprisonment was applied in respect of the remaining charges.
[10] With regard to the appellant’s personal circumstances, the Judge noted that the appellant had 38 previous convictions including for violence and aggravated robbery. He had 19 convictions for dishonesty offending and nine convictions for breaching sentences, court orders or bail, including three breaches of release conditions, one breach of home detention, one breach of community detention, one breach of community work and two breaches of supervision. The appellant had been subject to 21 previous sentences of imprisonment imposed on four separate occasions. He had also been sentenced to home detention in September 2018.
[11] The Judge noted that the appellant had been subject to release conditions at the time of the offending, had poor historical compliance with community-based sentences and was assessed as posing a moderate risk of reoffending (which the Judge considered “generous”) and a high risk of causing harm to others.
[12] The Judge also observed that the appellant had denied any involvement with the firearms offending, despite having pleaded guilty. The Judge said this demonstrated a “complete lack of insight or remorse” on the appellant’s part.
9 District Court decision, above n 1, at [7].
10 R v Smith [2016] NZHC 851; R v Potter (1994) 12 CRNZ 109 (CA); Torea v R [2011] NZCA 96; R v Challis [2008] NZCA 470; Wiringi v New Zealand Police [2017] NZHC 1734; and Enoka v Police HC Hamilton, AP101/96, 12 December 1996.
[13] The Judge expressed concerns over the accuracy of some of the matters referred to in the appellant’s s 27 cultural report noting that it was entirely based on self-reported information. He accepted that the appellant was born in Afghanistan and that the appellant’s father was involved with the Taliban. The appellant came to New Zealand as a refugee at a young age, was exposed to drugs from an early age and ran away from his family at 15 years old. He was disconnected from his culture and religious background. Gangs had been a part of his life for some time. These and other matters were said to have causatively contributed to his offending history. A letter of apology and remorse from the appellant was also provided to the Court.
[14] The Judge applied an uplift of six months to take account of the appellant’s previous convictions and the fact that he was on bail and subject to release conditions at the time of the offending. He allowed discounts of 25 per cent for guilty pleas and a further five per cent for personal circumstances. This produced an end sentence of 28 months’ imprisonment.11 The Judge also observed that while this was not a short- term sentence of imprisonment, even if it was and he was required to consider imposing a sentence of home detention, given the appellant’s background, previous convictions and sentence history and lack of compliance with previous community- based sentences, he would not have considered the appellant to be suitable for home detention.
Submissions
The appellant
[15] Ms Jayanandan, for the appellant, submits that the starting point adopted by the Judge in respect of the firearms offending was too high. She submits that a starting point in the region of two years’ imprisonment would have been more appropriate.12 She notes that the appellant pleaded guilty to an amended charge of discharging a firearm with intent to intimidate, which represents a lesser level of criminal intent than an intent to injure. Counsel submits that this lower level of culpability ought to have been reflected in the starting point.
11 On each of the remaining charges the Judge imposed concurrent sentences of three months’ imprisonment.
12 By reference to Carrington v New Zealand Police [2016] NZHC 2351; and distinguishing the “much more serious” offending in Torea v R, above n 10.
[16] In her written submissions, Ms Jayanandan submitted that the Judge had erred in considering that the appellant was as equally culpable as his co-defendants when none of them took responsibility for personally discharging the firearm. She said that there was no evidence to show that the appellant was inside the car at the time the firearm was discharged. This submission was plainly inconsistent with the appellant’s guilty plea, and also inconsistent with the summary of facts from which it was clear that the appellant had been in the vehicle when the shots were fired into the house. Ms Jayanandan withdrew this submission at the hearing of the appeal.
[17] Ms Jayanandan takes no issue with the six month uplift applied for the remainder of the offending, but she submits that the additional uplift of a further 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 excessive. This was particularly so in the context of a starting point of 28 months’ imprisonment. She submits that any uplift to recognise these factors ought to have been modest.
[18] Finally, Ms Jayanandan submits that the discount of five per cent allowed for personal circumstances was inadequate. A discount of at least 20 per cent would have been appropriate to reflect the appellant’s cultural and religious disconnection, his experience of persecution and living in a warzone and his early exposure to crime, drugs and gangs.
The respondent
[19] Ms Kenner, for the respondent, submits that the starting point adopted by the Judge was not too high. She submits that while the circumstances of firearms offending vary greatly, the decisions in R v Potter, Katene v R and Gathergood v R provide useful comparisons.13
[20] The Court of Appeal in Potter considered there was force in the argument that the starting point of two and a half years was too low, and a starting point of three years could have been appropriate for offending in which the appellant intended to
13 R v Potter, above n 10; Katene v R [2010] NZCA 394; and Gathergood v R [2010] NZCA 350.
throw a stick of explosive into the yard of the victim’s property but it exploded before he could do so.14
[21] In Katene, a father and son drove to the victim’s farm to confront him as part of a family feud.15 The father fired in the direction of the victim’s property, then at the victim himself. The son fired at the victim’s vehicle, and the father continued to fire at two of the residents. The lead charge was discharging a firearm with intent to cause grievous bodily harm. The Court of Appeal upheld starting points of five years for the father as “well within the range available” and three and a half years for the son as properly reflecting the gravity of the offending in which he actively participated.16
[22] In Gathergood, a starting point of three years’ imprisonment was considered appropriate for the lead charge of discharging a firearm with reckless disregard.17 The offending involved the appellant and his co-offender firing multiple shots from their vehicle at another vehicle, following a verbal altercation with the occupants.
[23] Ms Kenner submits that although the charges in Katene and Gathergood were more serious than the offence to which the appellant pleaded guilty, the offending shared similar features. The appellant’s offending was, if anything, more serious than the offending in Gathergood given that the firearm was discharged into the bedroom of a family home while the occupants were asleep. Ms Kenner also distinguishes the appellant’s “significantly more culpable” conduct from the offending in Carrington v New Zealand Police which involved the accidental discharge of a firearm for which the offender apologised at the time.18
[24] Ms Kenner submits the argument that the appellant was not responsible for discharge of the firearm, and is therefore less culpable than his co-defendants, is inconsistent with his guilty plea. She submits that accepting a more favourable interpretation of the facts would be contrary to s 24(1)(b) of the Sentencing Act 2002, which provides that a court “must accept as proven all facts, express or implied, that
14 R v Potter, above n 10, at 113.
15 Katene v R, above n 13, at [4].
16 At [21] and [27].
17 Gathergood v R, above n 13, at [28].
18 See Carrington v New Zealand Police, above n 12.
are essential to a plea of guilty”.19 She submits that having regard to the gravity of the offending and comparable authorities, the starting point of two years and four months was not too high and says that a starting point of three years’ imprisonment could have been justified.
[25] As to the remaining grounds, Ms Kenner submits that 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 warranted. It represented
17.6 per cent of the adjusted starting point of 34 months’ imprisonment and was appropriate in light of the appellant’s extensive criminal history and pattern of offending while on bail. With respect to the appellant’s personal circumstances, Ms Kenner submits that no greater discount than the five per cent allowed by Judge Bonnar is required. She also submits that no discount is necessary to reflect the appellant’s rehabilitation or employment prospects.
[26] Ms Kenner says that the ultimate focus must remain upon whether the end sentence is manifestly excessive. The starting point adopted by the Judge was generous and the appellant received the full 25 per cent discount for his guilty pleas, entered after the lead charge was amended. She accordingly submits that the end sentence of 28 months’ imprisonment was not manifestly excessive.
Approach on appeal
[27] Section 250(2) of the Criminal Procedure Act 2011 states that the court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[28]In any other case, the court must dismiss the appeal.20
19 Gathergood, above n 13, at [17].
20 Criminal Procedure Act 2011, s 250(3).
[29] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.21 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.22
[30]The approach taken under the former Summary Proceedings Act was set out in
R v Shipton:23
(a)There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error principle”.
(b)To establish an error in sentencing it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of additional material submitted to the appeal court.
(c)It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.
[31] The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which that sentence is reached.24
Discussion
[32] I am satisfied that the starting point of 28 months’ imprisonment adopted by the Judge was within the available range. The cases which the parties have referred to in most instances involved offending that is readily distinguishable from the present. For example, cases in which a firearm was pointed at and fired directly towards another person and where the risk of serious injury would have been obvious,25 or
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
22 At [33] and [35].
23 R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
24 Ripia v R [2011] NZCA 101 at [15].
25 See, for example, Katene and Gathergood, above n 13.
cases where a firearm was accidentally discharged.26 Neither of those situations is directly comparable to the appellant’s offending. However, like many of the cases cited, the appellant’s offending was undoubtedly serious and carried a risk of serious injury or death, in this instance to the sleeping occupants of the house. There is a clear need for denunciation and deterrence in these circumstances.27 I find that the starting point adopted by the Judge in this case was well within range having regard to the premeditation of the defendants and the risk of serious harm inherent in offending of this kind. I also agree with the Judge that the circumstances in a case like R v Challis demonstrate how severe the consequences here could have been.28
[33] I find that the uplift of six months for the balance of the charges was also within range and appropriate. However I consider that the uplift applied 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 excessive. The appellant’s criminal history includes a number of convictions for non-compliance and property related offending, but does not include any firearms offending and only a limited number of convictions for violent offending. As a proportion of the adjusted starting point, I consider an uplift of three months would have sufficiently taken account of the appellant’s criminal history, and the fact that he was on bail and subject to release conditions at the time of the offending.
[34] However I consider that a greater discount is warranted for the appellant’s personal circumstances than the five per cent allowed by the Judge. Having regard to the appellant’s background, the self-reported nature of the information provided to the author of the s 27 report is to be expected. I agree with the Judge that it is appropriate to treat the accuracy of such information with a measure of caution. However there is nothing to indicate that the appellant has fabricated his personal history. He was born in Kunar, Afghanistan at the height of the Afghan Civil War, and he says that his father was a member of the Taliban. Whether or not what he has said about his father is accurate or not, the key features of his personal background as he has described them appear to be reliable. The appellant came to New Zealand as a refugee at a young age.
26 Carrington v New Zealand Police, above n 12.
27 See R v Richardson CA450/02, 25 March 2003 at [33].
28 District Court decision, above n 1, at [22], citing R v Challis [2008] NZCA 470.
The associated disengagement and marginalisation he experienced growing up as an Afghan refugee in New Zealand appears to have led to him becoming involved with gangs and criminal activities from a young age. These associations and his background have contributed to him having adopted an anti-social lifestyle and his willingness to become involved in the sort of offending which occurred in this case. I consider that a discount of 10 per cent is warranted to reflect these factors in addition to the 25 per cent allowed for the appellant’s guilty pleas.
[35] From a starting point of 28 months, these uplifts and discounts would produce an end sentence of two years and one month’s imprisonment. While a sentence of this length may be commuted to a sentence of home detention, I consider that home detention would not be appropriate in the circumstances of this case. The seriousness of the offending and the risk of harm or death inherent in that offending, its profound effect on the victims, and the particular need for denunciation and deterrence in the case of firearms offending all militate against a sentence of home detention.29 The appellant’s history of poor compliance with court orders reinforces the need for the sentence imposed to clearly denounce this offending and deter him from future offending. A sentence of imprisonment is the least restrictive outcome appropriate in this case.30
Result
[36]The appeal is allowed.
[37] The sentence of two years and four months’ imprisonment is quashed and substituted with a sentence of two years and one month’s imprisonment.
Paul Davison J
29 I acknowledge, of course, that a sentence of home detention also serves the purposes of denunciation and deterrence, albeit to a lesser extent. See Fairbrother v R [2013] NZCA 340 at [30].
30 Sentencing Act, s 8(g).
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