Sharifi v The King
[2024] NZHC 672
•22 March 2024
-
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-669-670
[2024] NZHC 672
BETWEEN SAJJAD AHMAD SHARIFI
Appellant
AND
THE KING
Respondent
Hearing: 12 March 2024 Counsel:
P K Hamlin and B Mugisho for Appellant D Becker for Respondent
Judgment:
22 March 2024
JUDGMENT OF BECROFT J
[Appeal against sentence]
This judgment was delivered by me on 22 March 2024 at 4.00 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors/counsel:
P Hamlin, Auckland
Meredith Connell, Auckland
SHARIFI v R [2024] NZHC 672 [22 March 2024]
This appeal
[1] Mr Sajjad Ahmad Sharifi, or Mr Sharifi, appeals against his sentence of three years’ imprisonment imposed by Judge BA Gibson in the Auckland District Court on 19 December 2023.1
[2] Mr Sharifi was sentenced in respect of eight charges arising out of five separate incidents that spanned the latter half of 2021. He pleaded guilty to all charges. The breadth of his offending is summarised, chronologically, as follows:
(a)On 17 June 2021, Mr Sharifi supplied one gram of methamphetamine to an undercover police officer.2
(b)In August 2021, Mr Sharifi crashed his vehicle on Mt Albert Road, Auckland, into a set of traffic lights. Three charges resulted:
(i)procuring cannabis;3
(ii)careless driving;4 and
(iii)driving with blood containing evidence of the use of a controlled drug.5
(c)In October 2021, Mr Sharifi admitted to the police he had attached a stolen number plate to his vehicle in order to do a “drive off” from a petrol station. He was charged with obtaining a document for pecuniary advantage.6
1 R v Sharifi [2023] NZDC 28860.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); maximum penalty life imprisonment.
3 Misuse of Drugs Act, s 7(1)(a) and (2); maximum penalty three months’ imprisonment or a $500 fine.
4 Land Transport Act 1998, s 379(1); maximum penalty $3,000 fine, and the Court may order disqualification for a period that it sees fit.
5 Land Transport Act, s 58(1)(b); maximum penalty three months’ imprisonment or a $4,500 fine, and a mandatory disqualification from driving for six months or more.
6 Crimes Act 1961, s 228(1)(a); maximum penalty seven years’ imprisonment.
(d)In November 2021, after an ongoing dispute with the victim, Mr Sharifi used an airgun to shoot the victim causing one pellet to penetrate the victim’s arm where, as I understand it, still remains. Mr Sharifi was charged with discharging an airgun with reckless disregard for the safety of others.7
(e)Finally, in November 2021, following the airgun incident, police executed a search warrant at an apartment being rented by Mr Sharifi’s on Waterloo Quadrant. Two charged resulted:
(i)possessing methamphetamine; and8
(ii)possessing a pipe.9
[3] Mr Sharifi submits that Judge Gibson erred in six ways, each of which, separately and together, produced a sentence that was manifestly excessive:
(a)in applying an excessive two-year uplift in respect of the remaining charges (after correctly setting a three-year starting point for the lead charge of discharging the airgun) and thereby breaching the totality principle;
(b)in erroneously applying a three-month uplift for offending on bail;
(c)in failing to apply discount for remorse;
(d)in determining that a 20 per cent, rather than a 25 per cent, discount for his guilty pleas was appropriate.
(e)in declining to give any discount for background factors raised in the s 27 report; and
7 Crimes Act, s 198(2); maximum penalty seven years’ imprisonment.
8 Misuse of Drugs Act, s 7(1)(a) and (2); maximum penalty is six months’ imprisonment or $1,000 fine.
9 Misuse of Drugs Act, s 13(1)(a) and (3); maximum penalty is one year imprisonment.
(f)in failing to consider the pre-sentence report.
[4] In relation to the second ground, the Crown concedes that Mr Sharifi did not offend while on bail. In this respect, the Judge was in error. The Crown accepts that the appeal should be allowed on this discreet point. The appropriate end sentence, according to the Crown, is two years and 11 months’ imprisonment.10
[5] The Crown’s position is that the appeal ought to be dismissed with respect to the remaining grounds.
[6] Mr Hamlin seeks leave to adduce further evidence on appeal, being a further letter from Mr Sharifi himself, and six letters from his parents and siblings. The Crown is not opposed. I give leave to do so, after having found that it is in the interests of justice for that evidence to be admitted. I also heard at length from Mr Sharifi’s father who attended the hearing with his wife and two younger sons. He made very balanced and impressive submissions about his son.
Facts
Supplying methamphetamine
[7] On 15 October 2019, the police commenced an operation targeting the sale of methamphetamine by the occupants of a house in Ellerslie. Undercover officers were deployed to purchase methamphetamine from that address.
[8] On 17 June 2021, undercover police officers went there to purchase a gram of methamphetamine from an occupier of the house whom they met in the outside garage. They waited for another person to bring the methamphetamine. Shortly afterwards, Mr Sharifi arrived at the address with a number of snaplock bags. He gave two bags to the occupant of the house containing methamphetamine, who sold them to the undercover officer for a total of $400 cash.
10 The calculations which result in this sentence are described later.
Careless driving, procuring cannabis, and driving with blood containing evidence of the use of a controlled drug
[9] At 1:20 am on 8 August 2021, Mr Sharifi was driving a Mitsubishi utility motor vehicle on Mt Albert Road, Sandringham. He crashed that vehicle into a set of traffic lights. Mr Sharifi was taken to hospital. A blood test returned a positive result for THC and methamphetamine. At the scene, the police smelled a strong odour of cannabis from Mr Sharifi’s vehicle and found a ziplock bag in the driver’s side door containing 30 grams of cannabis. Mr Sharifi said he lost control of the vehicle when he was checking on his unsettled dog. He was adamant that the cannabis was for his own personal use, which the police accepted.
Obtaining a document for pecuniary advantage
[10] On 1 October 2021, Mr Sharifi was located with a BMW vehicle parked on a forecourt of a BP petrol station in central Auckland. The vehicle was displaying registration plates for another vehicle. Mr Sharifi admitted he was the driver of the BMW vehicle. He admitted he had obtained the “false” plates to do a “drive off” from a petrol station—that is to fill up with fuel from a petrol station and drive off without paying.
Discharging an airgun with reckless disregard for the safety of others
[11] Mr Sharifi and the victim previously resided together for a short time in 2021. The pair’s relationship deteriorated, and a dispute began between them.
[12] Approximately five months later, just after midnight on 12 November 2021, the victim was walking near his home together with his two dogs on Barrack Road, Mt Wellington. He recognised Mr Sharifi’s Toyota vehicle driving by. He anticipated a fight. Mr Sharifi drove past the victim and after a U-turn came back to confront him. He extended an airgun out of the car window and discharged it in the direction of the victim pulling the trigger multiple times and discharging several pellets. One of the pellets struck the victim in the arm, lodging so deeply that it could not be removed by doctors. Mr Sharifi went up the road and came back again, and drove his vehicle, at speed, at the victim who had to jump out of the way more than once. At this point, Mr Sharifi did not realise he had hit the victim with a pellet.
[13] A couple of hours following the incident, the victim messaged Mr Sharifi saying “I’m gna blow u the fuck away. Lil bitch u gou wait”. Mr Sharifi responded “Anyway ur fucking luky I missed. [Dw] [don’t worry] I got something special for you”.
Possession of methamphetamine and utensils for methamphetamine use
[14] Two days later, on 14 November 2021, police searched a room Mr Sharif was renting at Waterloo Quadrant, Auckland City. The Police located 5.5 grams of methamphetamine and a pipe.
District Court decision
[15] The District Court Judge held that the lead offence for the purposes of sentencing was the charge of discharging an air gun with reckless disregard. The Judge took a starting point of three years’ imprisonment to mark this offending.11 The aggravating features were the repeated returning to the scene in an attempt to intimate the victim, that the airgun pellet hit the victim and that the offending left the victim with serious medical consequences.12
[16] The District Court Judge considered that, “looking at matters in the round”, an uplift of two years’ imprisonment was appropriate for the remainder of the offending.13 This was in respect of the supply of methamphetamine charge, with the other offences “absorbed within the starting point”. The Judge considered that a cumulative approach was necessary given the two distinct sets of offending—being the airgun incident, and the drug related charges.14
[17] The Judge held that a five-year starting point reflected the totality of the offending.15
11 R v Sharifi, above n 1, at [7].
12 At [11].
13 At [10].
14 At [3].
15 At [11].
[18]In terms of uplifts for personal aggravating features, the Judge:
(a)declined to impose an uplift for Mr Sharifi’s previous convictions which included minor drugs offences; and
(b)uplifted the sentence by three months for the “clear offending on bail”.
[19]In terms of “discounts” for personal mitigating features, the Judge applied:
(a)a 10 per cent reduction to acknowledge Mr Sharifi’s rehabilitative steps and his efforts to try to overcome his addiction to methamphetamine;
(b)a five per cent reduction to recognise Mr Sharifi’s addiction to methamphetamine and the nexus to his offending;
(c)a 20 per cent reduction for guilty pleas entered at “various stages”; and
(d)a four month reduction to recognise the time Mr Sharifi spent on restrictive electronic monitoring bail conditions. This was agreed by all counsel at the sentencing;
[20] The Judge did not give a discount for previous good character (given Mr Sharifi’s previous convictions). No discount was awarded for cultural factors, as the Judge did not accept the material in the s 27 report provided the necessary nexus to Mr Sharifi’s offending.
[21] From the adjusted starting point of 63 months’ imprisonment (60 months plus the three-month uplift for offending on bail), the Judge applied a total reduction of 23 months. This led to a nominal end sentence of three years and one month imprisonment, from which the Judge rounded down to three years’ imprisonment.
[22] Mr Sharifi was also disqualified from driving for six months upon his release from prison and ordered to pay analyst and medical expenses.
Approach on appeal
[23] Section 250(2) of the Criminal Procedure Act 2011 states that a court must allow a sentence 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.
[24]In any other case, the Court must dismiss the appeal.16
[25] As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:17
[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.
[26] The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau:18
It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.
[27] Generally, there will be an error if the sentence is manifestly excessive, involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.
16 Criminal Procedure Act 2011, s 250(3).
17 Campbell v R [2022] NZCA 579 (footnotes omitted).
18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
[28] An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.19 I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.20
Preliminary issues
[29] It is accepted that Mr Sharifi was not on bail at the time of the offending. It follows that the District Court Judge erred in applying an uplift of three months’ imprisonment for this feature.
[30] That said, given the chronology of the offending, and in the context of a busy District Court sentencing list, it is understandable how the District Court Judge made this mistake. Mr Sharifi’s first appearances for the June, August and October 2021 offending were not until 1 December 2021. The first appearance for the 12 and 14 November 2021 (discharge of the airgun and subsequent search of Mr Sharifi’s house) was not until 15 November 2021. It follows, therefore, that when Mr Sharifi was first arrested on the November offending, he was not yet on bail for any other charges. The uplift to his sentence for “clear offending on bail” was incorrect.
[31] Ordinarily, the error in applying the three-month uplift for offending while on bail, would not be the end of the matter. On appeal, it is nevertheless appropriate to assess whether there were other personal aggravating factors that might justify an increase which had been overlooked by the Judge.
[32] One such factor here, is that the Judge did not uplift the sentence for Mr Sharifi’s previous convictions. There are 11 of them committed between 2015 and 2019 for driving-related and methamphetamine possession offences. However, the Judge specifically considered them, noting that Mr Sharifi had never received anything other than a sentence of community work or a fine in the past. He said:21
19 R v Shipton [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].
20 Polyanszky v R [2011] NZCA 4 at [17].
21 R v Sharifi, above n 1, at [13].
I do not propose to take your previous convictions into account in terms of imposing an uplift on you but, of course, the effect is you cannot have any discount for previous known good character.
[33] In the circumstances, given that the Judge explicitly rejected any basis for an uplift for previous convictions, it would be wrong for me to do so on appeal.
[34] One would have thought, given the Crown’s concession, that Mr Sharifi’s sentence should simply be reduced by three months’ imprisonment at the outset of this appeal. However, matters are not as straightforward as they seem. Technically, the Judge was wrong to subtract the 35 per cent discount from the 63 month (which was the result of adding together the 60 month nominal starting point and the three month uplift for offending while on bail). That approach resulted in a figure of 41 months, from which a further four months was deducted (recognising time spent on EM bail) resulting in a 37-month sentence of imprisonment or three years, one month imprisonment. The Judge then rounded it down to three years’ imprisonment.
[35] In fact, the Judge should have applied the 35 per cent reduction (for the total discounts) to the 60 months, not the 63-month figure. That would have meant a reduction of 21 months, resulting in a figure of 39 months (not 41 months). In turn, the further four-month deduction for time spent on EM bail would have resulted in an end sentence of 35 months not 37 months, being two years 11 months’ imprisonment.22
[36] The Crown concedes that the difference in the end result, if the correct methodology had been followed, is one month’s less imprisonment. The Crown accepts that should be corrected on appeal. This aspect of the appeal involved time checking and re-checking the calculations using a calculator. I cannot help but observe that while this result is, of course, fair to Mr Sharifi, and even the significance of one month’s less imprisonment on a prisoner should not be underestimated, the exercise that I have just set out suggests sentencing has become very mathematical.
22 This is in line with the approach directed in Moses v R [2020] NZCA 296, [2020] 3 NZLR 583, and Stuart v R [2021] NZCA 539. It is also the approach I discussed in Mo’unga v R [2023] NZHC 1967 and Tangi v R [2023] NZHC 1997.
[37] I remind myself that an overly mathematical approach can divert from the essential appeal question: is the end sentence appropriate and correct in principle, and can it be said to be “manifestly excessive”?
[38] From all the foregoing, it will be obvious that the second ground of Mr Sharifi’s appeal, set out above at [3](b), is successful and, therefore, the sentence needs to be reduced by one month.
[39]I now turn to the remaining five grounds of appeal.
Was the two-year uplift for the other charges in error?
[40] Mr Sharifi does not take issue with the three-year starting point imposed for the airgun charge. Neither was there any basis to do so. This was very serious offending, with the capacity to maim, and even in rare circumstances, kill. Several airgun pellets were fired at the victim and a significant injury resulted. Even though the offending occurred in the early hours of the morning, there was some potential risk to the public. There can be no quibble with the Judge’s comments as to the seriousness of this offence, given Mr Sharifi’s deliberate U-turn and that the “airgun actually fired pellets which hit” the victim, leaving the victim with “serious medical consequences” which, in the Judge’s view, “could have killed him”.
[41] However, Mr Hamlin, who presented the case for the appellant, attractively and carefully, argued that the uplift of two years’ imprisonment for the rest of Mr Sharifi’s offending was excessive and did not properly reflect the totality of the overall offending.
[42] The Crown’s view is that the two-year uplift was stern but that it was (just) within the upper limit of the range available to the Judge. To illustrate this point, Mr Becker for the Crown, was of the view that the charge of supplying methamphetamine to an undercover police officer, on its own, might attract a starting point in the region of 12 to 14 months’ imprisonment, involving as it did the sale of two snaplock bags containing a total of one gram of methamphetamine for $400 cash.
Both counsel accept that this places Mr Sharifi within band one of the Zhang v R23
sentencing framework.
[43] Mr Becker notes two relevant cases. If anything, they support the view that the uplift for the supply charge was outside the range imposed here.
(a)In R v Iakopo,24 a two year two month starting point was adopted for a street level dealer offering to supply a total of four grams of methamphetamine across five occasions. However, that is clearly more serious offending than here.
(b)In R v Cole,25 the High Court took a starting point of 10 months’ imprisonment for three representative charges of supplying unspecified amounts of methamphetamine, in one case identified as 0.5 grams of methamphetamine and GBL. Again, that is more serious than here.
[44] I accept in this case there is simply no reliable evidence to suggest Mr Sharifi was anything more than a “driver” or “runner” in providing a relatively small amount of methamphetamine to the occupant of the house for sale, in this case to an undercover police officer. I agree with Mr Hamlin that Mr Sharifi’s offending falls the lowest end of the spectrum for offending within band one of Zhang. It could have attracted a starting point of three to six months.
[45] In my view, the charge of driving under the influence of cannabis and methamphetamine—which carries a maximum penalty of three months’ imprisonment—simply could not have attracted a starting point of more than two months’ imprisonment.
[46] As to the attachment of a stolen number plate to Mr Sharifi’ vehicle, the Crown is right to say this is relatively minor offending and, indeed, Mr Sharifi had not carried out his plan of doing a “drive off”. Standing on its own, I disagree with the Crown’s submission that it would likely attract a penalty in the region of six months’
23 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
24 R v Iakopo [2022] NZHC 1915.
25 R v Cole [2022] NZHC 1064.
imprisonment. Whether imprisonment would even have been a starting point is doubtful, but even if it was, it could not have been more than three months or so.
[47] The remaining imprisonable charges, most of them carrying a maximum penalty of three months’ imprisonment, might have attracted a starting point of imprisonment in their own right but, again, that is doubtful.
[48] Judged in their own terms, and added together, the total sentence for the other offending standing alone would not have been more than about one year’s imprisonment.
[49] I accept Mr Hamlin’s submission that s 85 of the Sentencing Act 2002 provides a clear direction to sentencing judges to avoid a sentence of imprisonment which becomes disproportionately long because of the number of offences. A Judge must analyse the individual offences, but also carefully assess the totality of the offending.
[50] The Court of Appeal has held that the total sentence imposed for multiple offences must reflect the overall criminality of that offending.26 A crushing sentence which would deprive an offender of all hope should generally be avoided.27
[51] I accept that the Judge stepped back and assessed the five-year starting point as properly reflecting the totality of Mr Sharifi’s offending. With respect, the five- year starting point was excessive, and to that extent constitutes an error. In my view, in the circumstances of this case, a maximum one-year uplift would have been appropriate. That would have resulted in a total adjusted starting point of four years, imprisonment.
26 Harris v R [2018] NZCA 632 at [17]; R v Xie [2007] 2 NZLR 240 (CA) at [16]; Polaapau v R [2020] NZCA 227 at [44]; Haywood v R [2015] NZCA 551; and Ogden v R [2016] NZCA 214 at [64].
27 R v Johansen (1997) 15 CRNZ 111 (CA) at 121, and R v Kovaleski [2022] NZHC 2654. See also
Taylor v R [2018] NZCA 444 at [17].
Was the 20 per cent discount for the guilty pleas appropriate?
[52] The District Court Judge allowed a 20 per cent reduction for Mr Sharifi’s guilty pleas. Mr Hamlin submits that the full 25 per cent should have been given.
[53] The Crown’s position is that 20 per cent was generous, given the Court acknowledged the pleas were entered at “various stages”.
[54] Mr Sharifi’s offending occurred in 2021. I understand that he did not plead guilty to all the charges, until 5 September 2023. The airgun charge in the control of the Crown was reduced from its original form of wounding with intent to cause grievous bodily harm, a charge carrying with it a maximum penalty of 14 years’ imprisonment.
[55] I understand that, even on Mr Hamlin’s timeline, a resolution of that lead charge was not offered to the Crown until after trial callover—a year after the charge was laid. I accept that negotiations as to appropriate charges should not necessarily count against the defendant. But even given the reality of the negotiating process, I am not prepared to say that the Judge was in error in his assessment. Even leaving aside the lead charge, guilty pleas to the other charges were certainly not entered at the earliest possible opportunity.
[56] There are no strict rules regarding allowances for guilty pleas. I am not prepared to interfere with the Judge’s assessment in this case.
Should there have been an allowance for Mr Sharifi’s remorse?
[57]Both counsel highlighted the observations in Moses v R:28
… remorse is a personal mitigating factor that may justify a discount separately from any guilty plea discount. Remorse is a question of fact and judgment. The defendant has the onus of showing that it is genuine, meaning that it qualifies as remorse and he or she actually experiences it. Remorse need not be extraordinary to earn a discount but it does require something more than bare acceptance of responsibility inherent in the plea. Courts look for tangible evidence such as engagement in restorative justice processes. In
28 Moses v R, above n 32, at [24].
the end if remorse should be separately acknowledged is a question of judgment and an exercise of discretion by the Judge.
[58] I accept that the District Court Judge did not explicitly consider or allow a reduction for Mr Sharifi’s remorse. Mr Hamlin submits this was clearly an error.
[59] This matter is not so simple. I accept that Mr Sharifi penned an apology letter to the Court and accepted responsibility for his offending to the writers of the pre- sentence report. I also accept that he was keen to participate in a restorative justice process with the victim, but the appropriate facilitators were not able to get in touch with the victim.
[60] The letters from his family provided to the Court on appeal certainly emphasise what appears to be a change of heart and an appearance of regret, if not remorse, for his offending.
[61] The Crown accepts, viewing this issue in a vacuum, that a discount of no more than five per cent might have been available to mark Mr Sharifi’s remorse.
[62] Mr Becker emphasised that the Judge took a lenient and robust approach by not providing an uplift for Mr Sharifi’s relevant previous convictions and in “rounding down” the end sentence. This should be balanced against the decision not to make any express reduction for remorse. I am not prepared to interfere with the Judge’s assessment in this respect.
[63] There is also a wider consideration. A concentration on the disaggregated components of the sentence, particularly the mitigating factors, can become an artificial exercise and in itself can result in a sentence becoming out of kilter. In my view, this is such a case. The failure to recognise remorse has certainly not resulted in a “manifestly excessive” sentence. The most that could have been allowed was five per cent. In these circumstances the Judge must have been taken to have concluded that a separate and discreet allowance for remorse was not necessary and would have resulted in an end sentence that was clearly inappropriate.
Was the Judge wrong not to give any discount for the background factors raised in the s 27 report?
[64]In this respect Judge Gibson concluded:
[17] I am not prepared to allow you a discount for cultural reasons. It seems to me the cultural report does not provide the necessary nexus to your offending. You did arrive from Afghanistan when you were a young boy and you seemed to have been able to succeed at college, playing sport. You may have had some difficulties from time to time because of your background, but nothing that would suggest it provided a nexus to the offending. On the contrary, you went to university and obtained a degree in civil engineering which is a matter of considerable credit to you. You were well regarded by the employers and I note that you have been well brought up and none of your siblings seem to have committed similar offences, so there is nothing that I could point to in your background that I could say caused you to offend in the way that you have.
[65] The discounts allowed to Mr Sharifi specifically reflected his rehabilitative efforts and his problems with methamphetamine addiction—not any background or cultural factors. In the Judge’s view, “… what has caused you to offend at various times is your issues with addiction, which probably has led you to associating with others of similar ilk and who you did not need to associate with given your good education and good work habits, but you obviously chose to do so.”29
[66] It can thus be seen that the Judge rejected the usefulness of the s 27 report in fairly robust terms.
[67] I find this a difficult matter. Both Mr Sharifi’s parents were in Court. As I previously mentioned, Mr Sharifi’s father addressed me. It became clear during submissions, that Mr Sharifi was their eldest child, and he was about nine years old when the family arrived in New Zealand. Only one other child was born in Afghanistan, a brother who was aged five when the family left for New Zealand. All the other children were born in New Zealand.
[68] For the Judge to suggest that none of the appellant’s siblings had committed similar offences and then to draw conclusions from that, is, with the benefit of the new information I have received in Court, a little unsatisfactory. Most of the other children
29 R v Sharifi, above n 1, at
were not born in Afghanistan so the comparison is unfair. In this situation, the s 27 report provides helpful insight into the lasting effect of Mr Sharifi’s childhood.
[69] It is clear from the report that Mr Sharifi found it difficult to fit in, felt isolated, and while people were not racist to his face, he notes that they were racist behind his back, and made cruel comments about his ethnicity and religion.
[70] While it is true that he did well at school academically and played sport, particularly during middle adolescence, Mr Sharifi found navigating a new country difficult coupled with an obviously strict parental regime which was not necessarily the same parenting style experienced by Mr Sharifi’s New Zealand born peers.
[71] The cultural report identifies Mr Sharifi’s self-reported depression leading to use of alcohol and drugs and a gradual spiral into methamphetamine addiction.
[72] In other words, the report does provide at least an insight into the complexities of children and teenagers fitting into a vastly different culture, bringing with them the trauma of having been a refugee, while experiencing language barriers and cultural shock.
[73]The report notes:
Amidst the turmoil, his emotional, physical and cultural needs were not given priority. Sharifi has not had a sense of belonging or community for most of his life. From a young age he has battled depression driving him to find comfort in drugs and used it as an escape route, which ultimately led to him hitting “rock bottom”.
[74]The report further concludes:
Having considered Sharifi’s narrative, it is my opinion that a combination of background factors are causatively linked to his offending. Sharifi’s life has been traumatic, and his wellbeing has been severely diminished, impacting on his transition to adulthood and his ability to make good choices and the right decisions. Accordingly, Sharifi’s background may be relied upon to mitigate his moral culpability and to assist with a plea of mitigation for personal circumstances. Ultimately, that is a matter for the Court to decide.
This report does not serve to condone Sharifi’s offending. This report serves to provide an understanding of Sharif’s [sic] background and how that background may be linked to his offending.
[75] I have set these matters out in some detail as they were the subject of considerable submissions by counsel. Both counsel were at odds as to the relevance of the report.
[76] For my part, I regard it as having been carefully and thoughtfully written. It avoids hyperbole, and it at least raises the real possibility that Mr Sharifi’s documented background has had a causative link to his offending. I would not be prepared to refuse to allow a reduction for it. It follows, therefore, that in my view the Judge was in error to do so.
[77] That said, the Judge applied generous discounts for Mr Sharifi’s drug addiction (five per cent) and his commitment to rehabilitation (10 per cent). The drug addiction is the very matter which the report suggests may have been triggered by his profoundly complex background.
[78] Given those allowances already made by the Judge, it is fair to provide a further allowance of five per cent to take into account the very insightful s 27 report which provides a clear and well-reasoned insight into the difficulties of refugee children arriving in New Zealand. I uphold Mr Hamlin’s submission on this point.
Did the Judge fail to consider the pre-sentence report?
[79] This appeal point can be shortly dispensed with. The Judge did not explicitly refer to the pre-sentence report. Neither was he obliged to do so. In a busy sentencing list in the District Court, it will simply be impracticable in every case to recite every document available to a judge. It is more than best practice that pre-sentence reports are read in advance. It is vital. But there is no reason to suggest that the Judge did not do so here. It is perfectly reasonable for me to assume that he did.
[80] All that Mr Hamlin could perhaps point to is that the Judge did not refer to the conclusion in what was a relatively brief report—that home detention was recommended with options for community detention, intensive supervision or community work.
[81] I agree with the Crown that with the starting point adopted and the discounts allowed, a non-custodial sentence would not have been available in any event.
[82] With respect, there is nothing in Mr Hamlin’s point in this respect and it cannot succeed.
Conclusion
[83] I conclude that when the totality of Mr Sharifi’s offending is considered, the “starting point” should have been four years, not five years’ imprisonment. In passing, I observe the words “starting point” are apt to mislead the public. The words suggest that should be the sentence that Mr Sharifi would otherwise receive. In fact it is only the end of the first phase of the sentencing process. The Sentencing Act also requires consideration of personal mitigating factors and only when those are considered, is the sentencing process concluded.
[84] Use of the word “discounts” can also cheapen the process and perhaps suggests to the public something akin to discounts available at supermarkets with special deals on offer. This fails to reflect the importance of the statutory mitigating factors and the sentencing process of balancing and assessing the relevant aggravating and mitigating factors in the context of the purposes and principles of sentencing. The sentencing process is not complete until all those relevant factors have been considered. This second phase of the sentencing process (in which the phrase “discounts” is often used) is a legitimate and important part of sentencing.
Result
[85]The total starting point should have been four years’ imprisonment.
[86] The allowance given for the guilty pleas of 20 per cent was appropriate and within range.
[87] The allowances for addiction to methamphetamine and the commitment rehabilitation were also appropriate. In my view they also fairly, and properly reflect,
Mr Sharifi’s remorse. There is no need for any separate allowance for remorse in this case.
[88] The factors set out in the s 27 report are important and deserve an allowance of five per cent for the reasons I have set out.
[89] In the ways I have outlined, and with respect, the Judge was in error. The allowances for the statutory factors in the Sentencing Act should have been no less than 40 per cent. Applied to a four-year imprisonment term which reflects the totality of all the offending, and when four months is also subtracted to reflect time spent on EM bail, the proper end sentence is two years one month’s imprisonment.
[90] I accept that is “tantalisingly” close to the threshold at which home detention may be applied for. I make clear that respective of whether the end sentence was two years or under, I am firmly of the view that home detention would not have been appropriate in this case.
[91] The lead offence involved deliberate use of an airgun with many pellets fired directly at the victim. Significant injury was caused. There was the potential to maim, and the outside risk of loss of life. There was also some risk to the community. There is legitimate and profound public concern with the use of guns in New Zealand. A clear deterrent message is required. The indiscriminate use of guns must be denounced, and the community protected. I am quite satisfied that these sentences weigh decisively against home detention being granted. Imprisonment is the least restrictive sentence in these circumstances.
[92]Mr Sharifi’s appeal is successful to the extent that I have outlined.
[93] The sentence of three years’ imprisonment in respect of the discharge of the airgun is quashed. The sentence is two years’ and one month imprisonment.
[94] In respect of supplying methamphetamine charge, the sentence is six months’ concurrent imprisonment.
[95] On the charge of attempting to obtain a pecuniary advantage by use of the registration plate, the sentence of six months’ imprisonment is quashed and replaced by three months’ imprisonment.
[96] The other sentences imposed by the Judge remain undisturbed. All the prison sentences are concurrent.30
Becroft J
30 In the final paragraph of the Judge’s Sentencing Notes, above n 1, he records that on the Crown charge of three years’ imprisonment, the supplying methamphetamine charge of two years’ imprisonment is cumulative on the three years’ imprisonment. That is a slip by the Judge and clearly not what he intended.
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