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Soud v The Queen

Soud v The Queen

Case [2020] NZCA 149 7 May 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA676/2019
[2020] NZCA 149

BETWEEN	SAMMY AYOUN SOUD Appellant
AND	THE QUEEN Respondent

Court:	French, Mander and Dunningham JJ
Counsel:	M J Dyhrberg QC for Appellant M N Zarifeh and S R D D Bicknell Young for Respondent
Judgment: (On the papers)	7 May 2020 at 11 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of two and a half years’ imprisonment imposed by the District Court is quashed and substituted with a sentence of two years and one month’s imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Following guilty pleas in the District Court, Mr Soud was convicted of a charge of wounding with intent to injure and a representative charge of wounding with reckless disregard. He was sentenced by Judge Phillips to a term of imprisonment of two and a half years.[1]
[1]R v Soud [2019] NZDC 26349.
Mr Soud now appeals his sentence. His counsel Ms Dyhrberg QC contends the sentence was manifestly excessive because of errors made by the Judge in fixing and adjusting the starting point.
She urges the Court to quash the sentence and substitute a short term of imprisonment which having regard to time already spent in custody ought then to be commuted to a nominal term of community or home detention.
By consent the appeal was dealt with on the papers.

Facts of the offending

The offending took place in early August 2018 at a Dunedin bar where Mr Soud and the three victims (Mr Jones, Mr Raymond and Ms Richards) were drinking. Mr Soud and the victims were all university students. The victims did not know Mr Soud although they had mutual acquaintances.
There was an altercation involving pushing and shoving between Mr Soud and a friend of Mr Jones and Mr Raymond. The two men were pulled apart by other patrons.
A few seconds later, Mr Soud went over to Mr Jones and Mr Raymond. Mr Jones said to Mr Soud “are you all good?” Mr Soud replied aggressively, prompting Mr Jones to put up his hands in a submissive gesture and to back away. Despite this, Mr Soud raised his right hand and forcefully smashed his drinking glass into the left side of Mr Jones’s head near his temple causing the glass to smash. Mr Soud then threw the remainder of the broken glass into the direction of others in Mr Jones’s group. The glass was thrown at head height and in close range. It hit Mr Raymond in the face close to his eye. It then bounced off his face and a piece of glass hit Ms Richards in the chin causing a small but deep wound.
The three victims were left shocked and shaken. All required medical treatment and all have been left with permanent scarring on their face. In addition to their physical injuries, all also reported ongoing anxiety.
For Mr Jones the stress…

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 Soud v The Queen

Details

AGLC: Soud v The Queen [2020] NZCA 149
Case: [2020] NZCA 149
Decision Date: 7 May 2020 at 11 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Sammy Ayoub Soud, appeals his sentence imposed by the District Court. Soud was convicted of wounding with intent to injure and wounding with reckless disregard, following guilty pleas. The original sentence was two and a half years' imprisonment. The appellant contends the sentence was manifestly excessive because of errors made by the Judge in fixing and adjusting the starting point. The Court of Appeal agrees that there was error in fixing the starting point but does not agree that the discounts given by the Judge were inadequate. The starting point adopted by the Judge was too high, and a three-year starting point with an uplift of nine months for the representative charge, taking into account totality, would have been more appropriate. Applying the total adjustment of 45 per cent to the appropriate starting point results in an end sentence of two years and one month's imprisonment. The appeal is allowed, the original sentence is quashed, and a sentence of two years and one month’s imprisonment is substituted.

Orders