Solicitor-General v Ahmed - [2009] NZCA 459

IN THE COURT OF APPEAL OF NEW ZEALAND
CA220/2009
[2009] NZCA 459
SOLICITOR-GENERAL
v
AHMED AHMED
Hearing:21 September 2009

Court:O'Regan, Venning and Winkelmann JJ
Counsel:H A Wrigley and M I Inwood for Solicitor-General

K I Jefferies for Respondent

Judgment:7 October 2009 9.30 am

JUDGMENT OF THE COURT

A Leave to appeal is granted.
BThe appeal is allowed. The sentence imposed in the District Court for the count of sexual violation by rape is quashed and replaced with a sentence of seven years imprisonment. The sentence of three years imprisonment for the count of sexual violation by unlawful sexual connection remains unchanged. These sentences are to be served concurrently.

REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] This is an application by the Solicitor-General for leave to appeal against the sentence of four years imprisonment imposed on the respondent after his convictions for sexual violation by unlawful sexual connection and rape.
[2] The respondent was a party to the rape, rather than the principal offender. The Solicitor-General argues that the sentence imposed was manifestly inadequate because:
(a)The starting point for a contested rape set out in R v A [1994] 2 NZLR 129 (CA) was not adopted;
(b)The Judge failed to assess adequately the respondent’s culpability for the totality of his offending;
(c)The Judge gave an overly generous discount for the respondent’s personal circumstances.

[3]        Before considering these grounds of appeal, we will set out the background to the offending.
Background
[4]        As noted earlier, the respondent was charged along with a co-offender, Mr Abdulah. Mr Abdulah was convicted as the principal party to the rape and was sentenced to seven years imprisonment. It had been hoped that Mr Abdulah’s appeal against conviction and sentence would be heard jointly with the present application, but it became necessary to adjourn Mr Abdulah’s appeal and the present application was heard separately.
Facts
[5]        The factual background was summarised by the sentencing Judge, Judge Behrens QC, in his sentencing notes as follows:
[4]         The facts are that the victim, a drunk woman, was walking home…. She needed to use a toilet and approached your workplace. You, Mr Ahmed, led her inside to a toilet. You told her to sit on the toilet seat and to remove her tights and underpants. She did so and you took part in that too. You then told her to get on her knees and perform oral sex on you. She had your penis in her mouth for a short time before she stood up.
[5]         At around this time, you, Mr Abdulah, came into the toilet. There was a discussion between the two of you in, I presume, Oromo language. The victim then turned around so that her back was to the two of you. The evidence is not clear, but it seems that she was guided by the shoulders to turn around by one of you and also made a decision to turn around herself. She bent forward, or was bent forward by one of…

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 Solicitor-General v Ahmed

Details

AGLC: Solicitor-General v Ahmed [2009] NZCA 459
Case: [2009] NZCA 459
Decision Date: 7 October 2009

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the Solicitor-General sought leave to appeal against the sentence imposed on Ahmed Ahmed after his convictions for sexual violation by unlawful sexual connection and rape. Ahmed, who was not the principal offender but a party to the crime, was sentenced to four years imprisonment, with one year for the rape and three years for the unlawful sexual connection, to be served cumulatively. The Solicitor-General argued that the sentence was manifestly inadequate as it did not adopt the starting point for a contested rape, did not adequately assess Ahmed's culpability for the totality of his offending, and gave an overly generous discount for his personal circumstances.

The Court of Appeal granted leave to appeal and allowed the appeal. The Court found that the sentencing approach adopted by the District Court understated the seriousness of Ahmed's role in the overall offending. The Court agreed that the appropriate sentencing approach was to treat the rape as the lead offence and to sentence on a totality basis. The starting point for the rape should have been eight years, with an uplift for the fact that there were two offenders and the vulnerability of the victim, and a further uplift to reflect the oral sexual violation. However, a substantial reduction was required to reflect that Ahmed was not the rapist, but a party to the rape. After taking all these factors into account, the Court found that a starting point in the region of nine years was required. Considering the mitigating factors, the appropriate sentence on appeal was seven years imprisonment, to be served concurrently with the sentence for the oral violation charge. The Court quashed the sentence of imprisonment for one year imposed in the District Court on the count of sexual violation by rape and substituted a sentence of seven years imprisonment.

The final orders were that the sentence imposed by the District Court was quashed and replaced with a sentence of seven years imprisonment, with the sentences for the counts of sexual violation by rape and unlawful sexual connection to be served concurrently.

Orders