Solicitor-General v Mazahrih - [2017] NZHC 943

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 the
1      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…

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.

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Details

Case: [2017] NZHC 943
Decision Date: 10 May 2017

CaseChat Overview and Summary

The case of Solicitor-General v Mazahrih [2017] NZHC 943 involved an appeal by the Solicitor-General against the sentence imposed on Mr Mazahrih for sexual violation and indecent assault. Mr Mazahrih was sentenced to two years, two months’ imprisonment by the District Court. The appeal was based on the contention that the starting point of three years, three months’ imprisonment and the overall sentence were manifestly inadequate. The key legal issue before the court was whether the sentence imposed by the District Court was materially in error and should be altered.

The High Court considered the principles governing sentence appeals, emphasizing that an appeal would only be allowed if there was a material error such that the sentence could not be justified by accepted sentencing principles. The court analyzed the starting point for the offending, noting that while the District Court had correctly identified the offending as band one, the starting point adopted was too low. The court compared the present case with other Court of Appeal cases involving sexual offending by taxi drivers, finding that while there were differences, the disparity between the starting points was unjustified. The court concluded that a starting point of four years, three months (51 months) was appropriate.

In terms of discounts, the court found that the District Court had been generous in applying a 25 per cent discount for the guilty plea, considering the timing of the plea. However, the court determined that a greater discount for personal mitigating factors could have been applied, bringing the notional end sentence to 42 months. Applying the 25 per cent discount for the guilty plea reduced the end sentence to 31 months (two years and seven months) imprisonment. The difference between this and the original sentence suggested that the District Court sentence was manifestly inadequate.

Accordingly, the appeal was allowed, the original sentence of two years and two months’ imprisonment was quashed, and a new sentence of two years and seven months’ imprisonment was imposed.

Orders