Sahib v Police - [2012] NZHC 3324

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000271 [2012] NZHC 3324

MOHAMMED RAFIQ SAHIB
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 4 December 2012

Counsel: RA McKelvin for Appellant
K Snelgar for Respondent

Judgment: 10 December 2012

JUDGMENT OF ASHER J

This judgment was delivered by me on Monday, 10 December 2012 at 3.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Berman & Burton, DX CP 34009, Auckland.
Email: advice@bermanburton.co.nz and meyrickassoc@xtra.co.nz
Crown Solicitor, DX CP24063, Auckland 1140. Email: kingi.snelgar@meredithconnell.co.nz

SAHIB V NZ POLICE HC AK CRI-2012-404-000271 [10 December 2012]

Introduction

[1] Mohammed Rafiq Sahib appeals a sentence of three years and four months’ imprisonment imposed upon him by Judge C S Blackie at the District Court at Manukau on 13 July 2012. He had pleaded guilty to counts of theft in a special relationship, and of altering documents with intent to deceive. There were six counts in total.

[2] Mr Sahib was a trustee and secretary of the East Auckland Islamic Trust (“the Trust”). In 2003 the Trust purchased a property in Pakuranga with the intention of converting the building into a mosque. The offending took place over three years. The original offending took place on 11 April 2007 when the appellant obtained
$60,000 from the Trust claiming that it was to finalise plans for the mosque. That money was instead used to support the appellant’s business. Then over the following two years Mr Sahib obtained $222,364 through the use of the Trust’s Mastercard, and $42,562 through using Trust cheques deposited into accounts that he controlled. He then sought to obtain a mortgage to pay back the money by the use of a fraudulent document. That mortgage has been repaid in full. He then altered documents on two occasions to obtain home loans and then on a further three occasions to obtain a further home loan from the BNZ. Finally, he altered documents with intent to deceive on four occasions against the ANZ.

[3] The net effect of this offending was that Mr Sahib dishonestly received a total sum of $1,339,176. The actual losses were somewhat less than this because he was, to an extent, borrowing to repay those who he owed as a consequence of his wrongdoing. The family home has been sold and the net monies received applied to repay the debts.

[4] The net amount taken from the Trust came to $324,926, of which the amount outstanding after repayments is $6,417.79. In relation to a home loan fraudulently obtained from the ANZ bank, that has been repaid in full. In relation to a home loan sought from Kiwibank, the amount sought was $1,568,000 but the application was declined. The real loss lies in the BNZ home loan where the amount borrowed was
$814,250 and the amount outstanding is $266,113.15. It can therefore be said that

the net result of Mr Sahib’s frauds is that the amount of approximately $272,000 has been lost, most of which is a loss to…

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 Sahib v Police

Details

AGLC: Sahib v Police [2012] NZHC 3324
Case: [2012] NZHC 3324
Decision Date: 10 December 2012

CaseChat Overview and Summary

The case of Sahib v Police involves an appeal by Mohammed Rafiq Sahib against a sentence of three years and four months’ imprisonment imposed by the District Court. Sahib had pleaded guilty to six counts, including theft in a special relationship and altering documents with intent to deceive. The offending took place over three years, during which Sahib dishonestly obtained a total sum of $1,339,176 from the East Auckland Islamic Trust and various banks. The key legal issue was whether the starting point of five years’ imprisonment, as determined by the sentencing Judge, was appropriate. The High Court found that the starting point was too high and should have been no more than four years’ imprisonment, given the net loss and the comparable cases.

The reasoning of the High Court involved an analysis of the culpability of the offending, considering factors such as the nature of the offending, its magnitude, the number of victims, and the net loss. The Court compared the offending to cases such as R v Varjan, R v Davis, Mitha v Police, and Singh v Serious Fraud Office. The Court concluded that the starting point should have been four years, rather than five, due to the lower level of culpability compared to cases involving much larger net losses. The Court also considered mitigating factors such as the efforts of the offender to repay the money taken and the impact on his community and family. Ultimately, the appeal was allowed, and the sentence was reduced to two years and nine months’ imprisonment.

The final orders of the Court included allowing the appeal, quashing the original sentence, and imposing a new sentence of two years and nine months’ imprisonment. The Court noted that the original sentence had inadvertently applied a 29 per cent discount for the guilty plea, rather than the correct 25 per cent.

Orders