Shamim v Police - [2016] NZHC 2334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000267 [2016] NZHC 2334

BETWEEN
MOHAMMED SHAMIM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 September 2016

Appearances:

G E Minchin for Appellant
C Eason for Respondent

Judgment:

30 September 2016

ORAL JUDGMENT OF FOGARTY J

Solicitor/counsel:
G E Minchin, Auckland
Meredith Connell, Auckland

SHAMIM v NZ POLICE [2016] NZHC 2334 [30 September 2016]

[1] Mr Shamim, you have been sentenced in the District Court by Judge Collins to imprisonment for one month, to be subject to special release conditions for six months. Those special conditions are that you either undertake an assessment for alcohol and drug counselling as directed by a probation officer, and if found suitable, to attend and complete the required counselling treatment that the programme is recommending by the assessment. You are to undertake and complete a departmental rehabilitation programme, assessed and deemed appropriate and abide by the rules. You are to attend and complete any other assessment counselling programme. In addition, you were disqualified from driving for one year from today. You were convicted and discharged on a failing to stop matter.

[2] You have appealed this decision and you have heard the argument that has gone on today. You are a young man. You were found by the police on 23
December last year, driving a heavy goods vehicle in Glen Eden. The police had had information that you had been drinking. You became agitated when the police arrived and you refused initially to undergo a breath screening test. You in fact tried to drive away a little then you failed to stop when the police attempted to stop you with red and blue flashing lights and siren. You were only moving slowly at about
20 kilometres an hour in a carparking area. You did stop. You were breath tested and you recorded 494 micrograms per litre.

[3] You are a young man Mr Shamim. You have over a short period of time, dating from 2011, have two convictions for driving dangerously and two for driving with an excess alcohol level. Against that, you were remanded for sentencing and the Judge directed a pre-sentence report. You went to see a probation officer at about
10.30am in the morning and you essentially walked out from that meeting, shortly after it started, saying you had pleaded guilty, and that you could not see what the point of the process was. Your father tried to persuade you to go back to the probation officer and you refused. Your father was giving you very good advice and failure to follow your father’s advice, has led you in the position you are in now. The probation officer recommended in the circumstances, imprisonment, which was unusual. I think it is likely that if you had cooperated with the probation officer, if you had taken the second chance that your parents urged you to do, you would not be going to prison now. I am afraid that you displayed to the probation…

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.

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Details

Case: [2016] NZHC 2334
Decision Date: 30 September 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Mohammed Shamim, the appellant, appealed against his sentence imposed by the District Court, presided over by Judge Collins. Shamim was sentenced to one month in prison, subject to special release conditions for six months, including alcohol and drug counselling and completion of a rehabilitation programme. He was also disqualified from driving for one year and convicted and discharged for failing to stop for police. The appeal centred on the appropriateness of the sentence.

The central legal issue before the court was whether the sentence imposed by the District Court was in error and warranted interference by the High Court. The court had to consider the legal principles governing appellate review of sentencing decisions and assess whether the District Court's decision was within the permissible range of outcomes.

The court held that it could only interfere with the District Court's sentencing if it was in error. The High Court found that Judge Collins was entitled to take the views he did in light of the appellant's history, including multiple convictions for dangerous driving and driving with excess alcohol levels, and his failure to cooperate with the probation officer. The court concluded that the sentence was not in error and dismissed the appeal under section 250(3) of the Criminal Procedure Act 2011.

The final orders of the court were that the appeal was dismissed, and Shamim would serve one month in prison, with arrangements to be made for his transfer to prison on the following Monday. The judge urged Shamim to learn from his mistakes and avoid a life of alcoholism and drug addiction.

Orders