Shihab v Police - [2018] NZHC 2243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000101

[2018] NZHC 2243

BETWEEN
MOUHAMMED GHAEIB SHIHAB

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 August 2018

Counsel:

JW Clearwater for Appellant TC Clark for Respondent

Judgment:

29 August 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 29 August 2018 at 1 pm.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland.
Clearwater & Associates, Auckland.

SHIHAB v POLICE [2018] NZHC 2243 [29 August 2018]

The case

[1] Mr Mouhammed Shihab pleaded guilty to two charges: wounding with intent to injure and common assault. Mr Shihab stabbed the victim and punched him to the face. Judge Treston imposed a sentence of two years and nine months’ imprisonment.1 Mr Shihab appeals. He contends the sentence is manifestly excessive.

A preliminary point

[2] Mr Shihab pleaded guilty on 25 January 2018. Earlier, in late 2017, he sought a sentence indication. Judge Bouchier gave one on 15 November 2017. But, Mr Shihab declined to accept it. Mr Shihab later sought a second indication from Judge Collins. Judge Collins declined to give one. On behalf of Mr Shihab, Mr Clearwater contends Judge Collins erred in not doing so, particularly as Judge Treston’s starting point was higher than Judge Bouchier’s.

[3] There is nothing in this point. Section 62(5) of the Criminal Procedure Act 2011 precludes a party from appealing a decision “to give or not give a sentence indication”. And, a second sentence indication may be given only if circumstances have materially changed since the first.2 They had not: only minor changes had been made to the summary of facts. Moreover, because Mr Shihab declined Judge Bouchier’s indication, it was open to Judge Treston to adopt a different starting point—which Mr Shihab challenges directly on appeal.

The starting point

[4] Judge Treston adopted a four-year starting point. Mr Clearwater contends this is too high, perhaps by as much as a year. The facts are important.

[5] The offending occurred on 5 July 2017 at Mr Shihab’s home. The victim was present. Mr Shihab and the victim knew each other through a mutual friend, albeit not well. The victim offered to supply Mr Shihab drugs, went elsewhere to get them, but returned empty-handed. The victim told Mr Shihab as much. Mr Shihab “became

1 R v Shihab [2018] NZDC 5102.
2 Criminal Procedure Act 2011, s 62(4).

enraged”.3 Mr Shihab punched the victim to the face. The victim attempted to run away. But, Mr Shihab stabbed the victim “with an unknown object causing a stab wound to the left side of his abdomen”. The victim again attempted to escape, but was “held back” by Mr Shihab. The victim made his escape when someone restrained Mr Shihab. Police were called.

[6] The victim required surgery. Approximately two litres of blood was drained from his stomach. The victim was hospitalised for five days. His liver was “affected”. On any view, his injury was serious. The victim…

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 Shihab v Police

Details

AGLC: Shihab v Police [2018] NZHC 2243
Case: [2018] NZHC 2243
Decision Date: 29 August 2018

CaseChat Overview and Summary

In Shihab v Police, the appellant Mouhammed Ghaeib Shihab appealed against the sentence imposed by Judge Treston following his guilty pleas to charges of wounding with intent to injure and common assault. Shihab had stabbed and punched the victim, causing serious physical and psychological harm. The appeal focused on the starting point of the sentence, the discount for mitigating factors, and the overall evaluation of the sentence.

The court examined whether Judge Treston erred in setting the starting point for the sentence at four years, rather than the three and a half years suggested by the appellant's counsel. The court considered the nature of the offending, the extent of the victim's injuries, and relevant precedents. It found that while the starting point was slightly higher than necessary due to a factual error, it was within an acceptable range given the seriousness of the injuries inflicted.

Regarding the discount for mitigating factors, the court found that the five-month deduction for mental health issues and electronically monitored bail was appropriate. However, the court noted that the Judge should have provided more explicit recognition of the appellant's guilty pleas, remorse, and efforts toward rehabilitation. The court concluded that the Judge's overall approach was benevolent but could have been more precise in its application.

The court concluded that the sentence should be reduced from 33 months to 28 months, reflecting the appropriate starting point, the discount for mitigating factors, and explicit recognition of remorse and rehabilitation. The appeal was allowed, and the original sentence was quashed, with a 28-month term of imprisonment substituted.

Orders