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 has also suffered psychological harm, including depression and loss of appetite. He has suffered financially too.

[7]    Mr Shihab told the Police: “If I get charged I want to lay charges [against] him for home invasion”.

[8]    Mr Clearwater contends the starting point is too high because the Judge made a factual error—the Judge referred to two blows to the victim’s face, when there was only one—and because the aggravating features warranted an appreciably lower starting point. The Crown acknowledges the Judge wrongly referred to two blows, but contends the starting point was otherwise available. It observes Mr Shihab stabbed the victim and caused serious injury, all because the victim could not supply him drugs.

[9]    It is common ground Nuku v R applies.4 In that case, the Court of Appeal provided guidance on how its guideline judgment in relation to grievous bodily harm—R v Taueki—may be applied to lesser offences, including that here.5

[10]   Mr Shihab’s offending lies between bands two and three of Nuku, but is closer to band two than band three. The former attracts starting points of up to three years’ imprisonment when three or fewer Taueki aggravating factors are present. The latter attracts starting points up to the statutory maximum when three or more of the Taueki aggravating  factors  are  present  and   their   combination   particularly   serious.   Mr Shihab’s offending involved a weapon; serious harm (and the potential for worse); and an attack to the head, albeit of a less serious nature. The combination of the first

3      Agreed summary of facts.

4      Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39.

5      R v Taueki [2005] 3 NZLR 372 (CA).

and second aggravating features is particularly serious, but this assessment does not extend to the third. Hence, the closer orbit to band two. This implies the starting point should have been about three and a half years’ imprisonment, which also accounts for the Judge’s minor factual error.6

[11]   So too other case law. In R v Stent,7 the defendant took a knife from a knife block and stabbed the victim in the abdomen, scoring his bowel. The victim was hospitalised and required eight weeks off work. A three-year starting point was upheld on appeal. The injuries in Stent were more serious than those here, but the victim had unlawfully and violently entered the victim’s home.

[12]   In Tuwairua,8 the defendant and his father got into a drunken fight. The defendant grabbed a steak knife, using it to lunge and jab it at his father. The defendant stabbed his father in the back of the hand when the latter sought to protect his stomach. An artery was severed. The defendant immediately called an ambulance. A starting point of two years eight months’ imprisonment was held to be “well within the appropriate range”.9 The injury in Tuwairua was less serious than that here, so too the offending in that case.

[13]   In Mokomoko v Police,10 the defendant stabbed the victim in the groin. He required surgery and suffered ongoing harm. The attack was unprovoked, and committed in public. The defendant had been carrying a knife. A four-year starting point was considered “lenient”.11 Mokomoko presents as more serious than this case.

Discount for mitigating features

Mental health and electronically monitored bail

[14]   Judge Treston deducted five months from the starting point because Mr Shihab had been on electronically monitored bail for six months, and because of Mr Shihab’s

6      Coincidentally, Judge Bouchier would have adopted a starting point of three and a half years. But as noted, Mr Shihab declined Her Honour’s sentence indication.

7      R v Stent CA115/98, 4 August 1998.

8      R v Tuwairua [2009] NZCA 495.

9 At [7].

10     Mokomoko v Police HC Auckland CRI-2007-404-0375, 21 February 2008.

11 At [27].

“mental health issues”. The Judge did not identify the quantum for each, instead approaching the issue holistically. Mr Clearwater contends the discount was too little.

[15]   Dr Graham Collins is a psychiatrist. Dr Collins  prepared a brief report for  Mr Shihab’s general practitioner. In it, Dr Collins said Mr Shihab had a major depressive disorder, with “PTSD also present”. Dr Collins also said there was a risk Mr Shihab may harm himself, and that risk was high. The  report was given  to  Judge Treston.

[16]   Mr Clearwater contends Mr Shihab’s mental health should have attracted a greater discount. Mr Shihab is a refugee (from Iraq). He has witnessed violence. And, allegedly suffered violence within the family. Ms Amanda McFadden, a consultant clinical psychologist, has since examined Mr Shihab, and Ms McFadden considers there is a “possible” nexus between the offending  and  Mr Shihab’s  mental  state. Ms McFadden says Mr Shihab might have been in a state of cannabis withdrawal when the victim failed to supply Mr Shihab drugs which, in combination with other factors, could have triggered Mr Shihab’s post-traumatic stress disorder, “thereby exacerbating the risk of Mr Shihab experiencing reduced control of his emotions and behaviour”.

[17]   The Crown offers no opposition to receipt of Ms McFadden’s report as fresh evidence, but contends her opinion  merely  makes  explicit  what  was  implicit in Dr Collins’ report, particularly as a nexus is required for a discount in this context.12

[18]I am not persuaded the Judge’s global five-month discount is inadequate.

[19]   First, the reports of Dr Collins and Ms McFadden sit at best awkwardly with that prepared by Dr Kyros Karayiannis, a  consultant  psychiatrist  who  examined Mr Shihab’s trial fitness.13 Dr Karayiannis said “Mr Shihab denied any history of intrafamilial childhood trauma”; told him he was only “a very occasional smoker of cannabis”; and Mr Shihab did not express any ideas of suicide or self-harm. The doctor concluded Mr Shihab “did not demonstrate any significant impairment in

12     R v M [2008] NZCA 148 and R v Sabuncuoglu [2008] NZCA 448.

13     The parties declined the prospect of an adjournment for cross-examination; see my Minute (No 2) of 23 August 2018.

cognitive or mental functioning”  and  beyond  anxiety,  “there  was  no  evidence  Mr Shihab was subject to a serious and enduring mental health disorder”. In short, Dr Karayiannis’ report calls into doubt whether there was any basis for a discount in relation to mental health, which may explain why the Judge approached this issue broadly.14

[20]    Second, it is not clear how post-traumatic stress disorder could be a significant factor in the offending when on the agreed summary of facts, the victim had neither attacked nor threatened to attack Mr Shihab, and on the same summary, Mr Shihab became “enraged”. On any view, this case does not involve a paradigmatic instance of post-traumatic stress disorder influencing the commission of a serious act of violence. Ms McFadden appears to acknowledge as much. As observed, she refers to “possible” linkage between post-traumatic stress disorder and the offence.

[21]   Third, the Courts have declined to identify a formula for discount for electronically monitored bail.

Guilty plea and remorse

[22]   Mr Clearwater contends the Judge ought to have discounted the sentence by 25 percent for Mr Shihab’s guilty pleas, and given additional discounts for remorse and rehabilitation.

[23]   The first contention can be quickly dealt with as while the Judge said the discount would be 20 percent, in fact, it was 23 percent. Mr Shihab’s pleas were not early. He was charged on 10 July 2017 and pleaded guilty on 25 January 2018.15 It appears the evidence was strong. The victim knew Mr Shihab. Police were promptly on the scene. A knife or other bladed object was clearly used. Criminal intent could be readily inferred. It follows the discount for remorse was generous. Fifteen percent was open to the Judge.

14 Mr Clearwater said Mr Shihab was less than candid with Dr Karayiannis, as Mr Shihab did not  want to appear “crazy”. The point is unsupported by evidence, but in any event, the reports cannot be reconciled.

15 The prosecution reduced the charge to wounding with intent to injure; it had been wounding with intent to cause grievous bodily harm.

[24]   Mr Shihab prepared letters of apology to the victim in court, and offered reparation. He undertook counselling, both in relation to his mental health problems, and in relation to drugs and alcohol. Ms McFadden says Mr Shihab “impressed as being remorseful in respect of the offending”. His pre-sentence report was positive.

[25]   Mr Shihab offered to participate in a restorative justice conference, but for reasons beyond his control, this did not occur. Mr Shihab also contacted anti-violence programme providers, but was told these were available only to those facing domestic violence charges. It follows there was evidence of remorse and rehabilitative attempts.16

[26]   All this implies the Judge should have provided discrete recognition for remorse and rehabilitation, albeit his benevolent approach to guilty pleas largely captured the otherwise appropriate discount for these features.

Evaluation

[27]As observed:

(a)The starting point ought to have been three and a half years’ imprisonment.

(b)The five-month deduction for “mental issues and electronically monitored bail” is unimpeachable.

(c)Guilty-plea discount was generous, but remorse and rehabilitation should have been explicitly recognised.

[28]   Correction entails (a) less (b), then discrete recognition of 10 percent for remorse and rehabilitation, and guilty-plea discount of 15 percent across the balance. The result: a sentence of 28 months’ imprisonment as against the 33-month term imposed.

16     Mr Shihab has since completed two courses in prison, including an anger management course.

[29]   Mr Clearwater contended home detention should be imposed, particularly given Mr Shihab’s progress in prison. However, the revised sentence remains well above the jurisdictional threshold for home detention and the offending was serious. Use of a knife or a bladed weapon to inflict injury must be emphatically denounced.

Result

[30]   The appeal is allowed and the sentence quashed. A 28-month term of imprisonment is substituted.

……………………………..

Downs J