Solicitor-General v Mazahrih
[2017] NZHC 943
•10 May 2017
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2016-419-000067
[2017] NZHC 943
IN THE MATTER OF an appeal against sentence BETWEEN
THE SOLICITOR-GENERAL
Appellant
AND
WAEL MAZAHRIH
Respondent
Hearing: 4 May 2017 Counsel:
J E L Carruthers for the Appellant T Sutcliffe for the Respondent
Judgment:
10 May 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 10 May 2017 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel: T Sutcliffe, Hamilton
Solicitors: Crown Law, Wellington
SOLICITOR-GENERAL v MAZAHRIH [2017] NZHC 943 [10 May 2017]
Introduction
[1] Following a sentencing indication given on 15 August 2016,1 Mr Mazahrih pleaded guilty to one charge of sexual violation by unlawful sexual connection (digital penetration),2 and one charge of indecent assault.3 He was sentenced to two years, two months’ imprisonment for that offending.4
[2] The Solicitor-General appeals Mr Mazahrih’s sentence on the grounds that the starting point of three years, three months’ imprisonment adopted by the Judge was too low, and the end sentence was manifestly inadequate.
The offending
[3] At about 1.15 am on Sunday, 10 January 2016, the 20 year old complainant was waiting for a taxi. She was intoxicated. Mr Mazahrih drove past, pulled over, and spoke to her. The complainant, thinking that it was her taxi, got into the front passenger seat of the vehicle.
[4] Mr Mazahrih drove the complainant towards the area where she lived, stopping to go through the McDonald’s drive-through as she had requested. Mr Mazahrih then continued driving but not in the direction of the complainant’s home, which is where she wanted to go.
[5] From time to time throughout the drive, Mr Mazahrih would rub the complainant’s inner right thigh beneath her skirt with his hand. The complainant told Mr Mazahrih not to do that.
[6]
At some stage Mr Mazahrih pulled over to the side of the road and rested his head on the complainant’s shoulder. He rubbed his beard against her face and neck. The complainant got out of the car, not knowing where she was. She started to walk away from the car. Mr Mazahrih got out of the car and forced the complainant back into the vehicle by grabbing her waist and her underwear. He then pushed the1 R v Mazahrih DC Hamilton CRI-2016-019-000258, 15 August 2016, Judge Clark [Sentencing Indication].
2 Crimes Act 1961, s 128B, maximum sentence 20 years’ imprisonment.
3 Crimes Act 1961, s 135, maximum sentence seven years’ imprisonment.
4 R v Mazahrih DC Hamilton [2016] NZDC 19152 [Sentencing Notes].
complainant up against the vehicle and lifted up her skirt, pulled down her underwear, and forcefully inserted his fingers into her vagina for approximately three seconds. The complainant told Mr Mazahrih that it hurt. Mr Mazahrih and the complainant got back into the car and he drove to an area nearby a primary school where he parked.
[7] At some stage the complainant began using her cellphone to video the conversation she was having with Mr Mazahrih. She then got out of the vehicle and fell over. Mr Mazahrih stood over her and removed one of her shoes. The complainant got up and began walking. Mr Mazahrih followed her in his car, stopping from time to time, getting out and approaching the complainant. On at least two of these occasions Mr Mazahrih approached the complainant outside his vehicle and pulled on her clothes, including her underwear. The complainant told Mr Mazahrih not to do that.
[8] Mr Mazahrih also grabbed the complainant’s backside on the outside of her skirt and pressed his body against her backside when they were standing at the front of the car. The complainant told Mr Mazahrih not to do that.
[9] The complainant continued to walk home. When Mr Mazahrih approached her again, she yelled at him to stay away from her and threatened to call the police. She then hid in some bushes and Mr Mazahrih returned to his vehicle and drove away at approximately 2.15 am.
[10] When initially spoken to by police, Mr Mazahrih stated that the complainant had threatened to call the police on him if he did not play with her vagina.
[11] In a victim impact statement, the complainant says the event has worried her mother more than her, and she likes to think of herself as a strong woman who will not let anything stop her from moving forward in life. She describes feeling self- conscious and dirty when she sees certain men looking at her. She says she will use what happened to her that evening to give her confidence that she can overcome bad occurrences in her life.
Personal circumstances
[12] Mr Mazahrih is 24 years old. He came to New Zealand in 2003. He lives with family members and is in a steady relationship. He has no previous convictions.
[13] The pre-sentence report records Mr Mazahrih’s risk of re-offending as being low, but given the nature of the charges, his risk of harm to others as being high. It also records Mr Mazahrih as being genuinely remorseful for his offending and willing to attend a restorative justice conference. Imprisonment was recommended as the appropriate sentence.
District Court decision
[14] The sentencing indication was given on 15 August 2016. The Judge spent some time reviewing the offending and Mr Mazahrih’s personal circumstances. The Judge also referred to the submissions made by both the Crown and defence counsel in some detail.
[15] The Judge considered there was little in the way of premeditation. She commented that if anything, there may have been premeditation in driving in a different direction but it was at a very low level.5
[16] She also considered that the behaviour was not the worst of its kind and that the events in question were of a very short duration and that the offending stopped when the complainant asked him to do so.
[17] Overall, the Judge considered the offending to be at the lower level, although not insignificant, and she placed the offending in band one of R v AM.6 She adopted a starting point of three years and three months’ imprisonment.
5 Sentencing Indication, above n 1, at [15].
6 R v AM [2010] NZCA 114.
[18] From this starting point, the Judge indicated a further discount of 25 per cent would be allowed for guilty pleas should they be entered, and left open the possibility of further discounts at sentencing.7
[19] The same starting point was adopted at the sentencing. A total discount of 33 per cent for guilty pleas, genuine remorse (including willingness to participate in a restorative justice conference), previous good character, and reparation was allowed.8
[20]The Judge sentenced Mr Mazahrih to two years, two months’ imprisonment
and he was ordered to pay $1,500 in reparation.
Approach on appeal
[21] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.9
[22] While s 250 makes no express reference to the concepts of “manifestly excessive” or “manifestly inadequate”, these concepts are consistent with the statutory language and well-engrained in the Court’s approach to sentence appeals.10
[23] An appeal court will not intervene unless there is a material error such that the sentence cannot be justified by accepted sentencing principles. This is to be examined in terms of the end sentence rather than the process by which the sentence is reached.11
7 Sentencing Indication, above n 1, at [22]–[23].
8 Sentencing Notes, above n 4, at [8]–[17].
9 Criminal Procedure Act 2011, s 250(3).
10 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
11 Ripia v R [2011] NZCA 101 at [15].
[24] These principles apply equally to Crown appeals. However, an appellate Court will only increase a sentence to the lowest end of the applicable range, not to the level it would have imposed if sentencing afresh.12
Starting point
[25] In R v AM, the Court of Appeal set out the relevant bands for unlawful sexual offending.13 Band one offending attracts a starting point of two to five years’ imprisonment. The Court of Appeal described band one as follows:
[114] This USC band will cover offending at the lower end of the spectrum. Where none of the factors referred to above which increase the seriousness of the offending is present a starting point at the bottom end of this band would be appropriate. Where one or more of these factors is present to a low or moderate degree, a starting point closer to the top of the band would be required.
[26] Band two offending attracts a starting point of four to 10 years’ imprisonment. Band two is for offending of relatively moderate seriousness and will encompass cases which involve two or three of the factors increasing culpability to a moderate degree.14
[27] The vulnerability of the complainant, given her state of intoxication, is clearly an aggravating feature of the offending in this case. There was also an element of detention given that Mr Mazahrih took the complainant away from her home address and into an area unknown to her. However, the extent of the detention is not clear from the summary of facts, and there is no separate charge of abduction or kidnapping. There was also force involved, although I accept that a degree of force is inherent in this kind of offending.15 To the extent that there was a breach of trust, it is reflected in the fact that Mr Mazahrih did not take the complainant home. That factor is already reflected in the detention element of the offending. Any premeditation is also reflected in the complainant’s detention and is not a separate aggravating factor.
12 Sipa v R (2006) 22 CRNZ 978 (SC) at [9]; R v Fidow [2013] NZCA 209 at [30].
13 R v AM, above n 6.
14 At [117].
15 At [38].
[28] Although there are a number of different aggravating factors, many of them overlap or are already reflected in the nature of the offence. Evaluated as a whole, I consider the presence of these aggravating factors would put the offending on the cusp of bands one and two in my view.
[29] Counsel for the defendant submits that the present offending is not as serious as the band one example cases set out in R v AM,16 and that this justifies the lower starting point adopted by the Judge. The circumstances of the offending in those cases are completely different to that in issue in this case. A comparison with the band one cases therefore provides little assistance in fixing a starting point.
[30] The Crown relies on two Court of Appeal cases involving sexual offending by taxi drivers. In Daradkeh v R, the Court of Appeal substituted a starting point of seven years’ imprisonment on appeal.17 The defendant in that case faced one charge of unlawful sexual offending, one charge of indecent assault, and one charge of abduction.
[31] The complainant in that case was severely intoxicated at a bar, and was put into a taxi by a security guard at about 3.15 am in the morning. She fell asleep during the ride. It appears that at some point the surveillance camera in the taxi was turned off. The complainant awoke to find someone’s hands down the front of her tights, her outer shorts having been removed. She felt that someone had touched her roughly in her vagina. She was in an area she did not know outside of Christchurch. She got out of the taxi and made a 111 call to police. When questioned by police, the defendant initially denied there had been any sexual contact, but after DNA material matching his was found inside the complainant’s vagina, and on her breast area, he contended that there was consensual sexual behaviour. A jury found him guilty of all charges.
[32] The Court of Appeal agreed with the sentencing Judge that the vulnerability of the complainant, the breach of trust, abduction and the significant psychological damage revealed by the complainant in her victim impact statement were all
16 R v AM, above n 6, at [114] and [115].
17 Daradkeh v R [2016] NZCA 172.
aggravating factors to take into account.18 Referring to R v AM, the Court of Appeal considered the offending to fall within band two.19
[33] In R v Ali, a six year starting point was substituted on appeal.20 That case also involved a taxi driver who was found guilty following a jury trial of charges of sexual violation, kidnapping and indecent assault. The complainant left a nightclub at 2.00 am in the morning. She had been drinking but was not intoxicated. The driver made comments which the complainant construed as “sleazy” and at one stage placed his hand on the complainant’s right thigh. She demanded that the driver drop her off by her flat, but instead, he drove away and during the drive grabbed and fondled her breasts under her singlet top. After some time, the complainant was returned to her flat. While she was still in the car, he attempted to kiss her on the mouth. He then forced her down on the seat and with a “significant degree of force thrust two fingers into her vagina”.21 The complainant was finally able to escape to her flat.
[34] The Court of Appeal found that a starting point of six years was “very much at the upper end of the scale”, but that it reflected the severity of the offending including the breach of trust and the impact of the offending on the complainant, who suffered ongoing emotional harm.22
[35] Both these cases are distinguishable. The starting points adopted were for an additional charge of abduction or kidnapping. Both defendants were also professional taxi drivers and in that respect, the offending involved a breach of trust.
[36] The assault itself was more serious in Daradkeh v R and the complainant more vulnerable, having fallen asleep. The nature of the offending in R v Ali is more directly comparable, but the extent of the detention in R v Ali appears to have been greater than in the current case.
18 Daradkeh v R, above n 17, at [48].
19 At [51].
20 R v Ali [2007] NZCA 322.
21 At [3].
22 At [40].
[37] In both cases, the serious impact of the offending on the complainant is explicitly identified as an aggravating factor, and the starting points reflect this.23 The degree of impact is less obvious from the victim impact statement filed in this case, although I do not consider that reduces Mr Mazahrih’s overall culpability.
[38] These differences justify a lower starting point than those adopted in either of these cases. But I agree with the Crown that the differences do not justify the disparity between the three years, three months adopted by the Judge, and the starting points fixed in those other two cases.
[39] The Crown submits that a starting point between five years, six months and six years, six months would be appropriate. I consider an even lower starting point could be justified. Bearing in mind that this is a Crown appeal, the lowest starting point which is within range for this type of offending is four years, three months (51 months) in my view.
Discounts
[40] The Judge applied a discount of approximately 13 per cent for personal mitigating factors including genuine remorse, previous good character, reparation and other personal circumstances.
[41] Counsel for Mr Mazahrih submits that a greater discount for personal mitigating factors could have been granted. In particular, he submits that the Judge could have applied a six month discount solely for previous good character and in addition to the other factors.
[42] A discount of approximately nine months to reflect personal mitigating factors would have been available in my view. That represents approximately 18 per cent for previous good character, genuine remorse, reparation and pro-social support. That brings the notional end sentence to 42 months.
[43]
The Judge applied a 25 per cent discount for the guilty plea. That was generous given the plea came several months after arrest. However, as counsel for23 R v Ali, above n 20, at [36]; Daradkeh v R, above n 17, at [48].
Mr Mazahrih explained, the plea came immediately after a change of counsel, and on receipt of a sentencing indication. In those circumstances, it was within the sentencing Judge’s discretion to apply the full 25 per cent discount for the guilty plea.
[44]Applying the guilty plea discount reduces the end sentence to 31 months’
(two years and seven months’) imprisonment.
[45] The difference between two years and seven months’ imprisonment and two years and two months’ imprisonment suggests the sentence in the lower Court was manifestly inadequate.
[46] The appeal is accordingly allowed with the sentence of two years and two months’ imprisonment quashed and replaced with a sentence of two years and seven months’ imprisonment.
Edwards J
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