The Queen v Gardiev

[2006] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 194/06

THE QUEEN

v

FARHAD GADIEV

Hearing:7 August 2006

Court:Hammond, Rodney Hansen and Ronald Young JJ

Counsel:P Butler for Appellant

P K Feltham for Crown

Judgment:14 August 2006 at 2.15 pm

JUDGMENT OF THE COURT

A        THE APPEAL IS ALLOWED.

BTHE SENTENCE OF 16 MONTHS IMPRISONMENT IS SET ASIDE AND A SENTENCE OF NINE MONTHS IMPRISONMENT IMPOSED.

REASONS OF THE COURT

(Given by Ronald Young J)

[1]       Mr Gadiev appeals against a sentence of 16 months imprisonment imposed after he pleaded guilty to a charge that he was armed with a weapon with intent to commit burglary (s 232(2) of the Crimes Act 1961, five years maximum imprisonment).  He says the sentence was manifestly excessive.

[2]       Judge Abbott, the sentencing Judge, summarised the facts as follows:

[4]The charge relates to an incident which occurred on 24 October 2005, when you went to an address in Mathesons Road, Christchurch, where your former wife was living at the time.

[5]The address in question is a house which is divided into two flats.  Your wife was living in one of the flats, while the victims of the present offence, Mr Vlasov and his wife, were living in the other flat.

[6]It appears that you went to your former wife’s address with a totally lawful purpose, namely to uplift the dog which had formerly been your and her joint property.  However, it appears that when you arrived there was a verbal altercation between you and Mr Vlasov, as a result of which he asked you to leave the property.

[7]You took exception to Mr Vlasov’s request, and there was then a physical altercation between him and you.  When the fight stopped, you went to your former wife’s flat, where you uplifted a large kitchen knife from the bench.  Armed with the knife, you then went to Mr Vlasov’s flat, where you waved it around.

[8]Although it is alleged that you in fact raised the knife above your head, motioning to stab Mr Vlasov, and that during that incident you made a threat to kill him, I propose to proceed on the basis of the facts as I have summarised them.

[3]       After summarising the respective submissions of Crown and defence, the Judge stressed the seriousness of the appellant arming himself with a knife and entering another person’s property.  He noted the appellant seemed to regard violence as an acceptable way of solving disputes and that the appellant was not motivated to address this propensity for violence.  The Judge rejected the probation officer’s suggestion that he impose a sentence of community service and said offending of this type almost inevitably resulted in imprisonment.  He considered a starting point of two years imprisonment was appropriate and reduced that by eight months for the appellant’s guilty plea and the absence of any previous criminal history. 

Imprisonment appropriate?

[4]       The appellant submitted before us that the Judge erred in imposing imprisonment and failed to consider s 16(1) and (2) and s 56 of the Sentencing Act 2002.

[5]       In particular, the appellant submitted that the Judge had overemphasised the seriousness of the offending when he said in his sentencing remarks:

In my view, offending of this general nature must invariably, save in exceptional circumstances, result in imprisonment.

[6]       The appellant said there was no authority to support this proposition.

[7]       Counsel submitted that the Judge did not adequately consider the alternatives to imprisonment but simply proceeded as if imprisonment was inevitable.  He said the Judge did not adequately consider the fact that there were proper alternative sentences to imprisonment in this case, given the mitigating features.  The appellant identified the mitigating features as:

(i)        The fact that the appellant was lawfully visiting the property.

(ii)The fact that there was no physical injury to the complainant.

(iii)That there were doubts surrounding the responsibility for the initial altercation which led to the appellant’s action. 

(iv)The appellant was a first offender aged 40 and of good character. 

(v)There was an early guilty plea.

[8]       Counsel submitted that for the “purposes of accountability, responsibility, denunciation and deterrence a sentence of community service could have been imposed here”.

[9]       As to whether a sentence of imprisonment was appropriate the Crown submitted that the facts of this case clearly justified a sentence of imprisonment.  Ms Feltham said that entering another’s property uninvited with a dangerous weapon such as a knife, in heated circumstances, required a sentence of imprisonment.  The Crown said that the Judge was mindful of s 16 of the Sentencing Act and, against the background of the serious offending, he properly concluded that the pre-sentence report recommendation of community service was inappropriate.

[10]     We are satisfied that a sentence of imprisonment was inevitable on the facts of this case.  While we would not go so far as the Judge in suggesting that a sentence of imprisonment invariably follows from “offending of this general nature” the facts of this case provide ample justification for imprisonment. 

[11]     It is not necessary in sentencing remarks for a Judge to mention every potentially relevant statutory provision.  Here, the Judge did not expressly mention s 16 of the Sentencing Act.  However, the Judge identified what he considered to be the primary purposes of sentencing Mr Gadiev when he said:

In my view the sentencing purposes of accountability, responsibility, denunciation and deterrence must be paramount in sentencing you today.

He considered that the seriousness of “entering the home of other people armed with a weapon, in particular a lethal weapon such as a knife” required a sentence of imprisonment.  The Judge acknowledged the factors identified by counsel as being in mitigation.

[12]     We agree with the Judge that this was a serious situation which required a sentence of imprisonment.  There was an element of premeditation in the offending and there was entry onto private property with a knife at least designed to intimidate the victim.  Whatever happened at the initial conflict between the victim and the appellant, it was over when the appellant chose to obtain a knife and confront the victims.

[13]     The Judge properly took into account the high risk of further offending identified in the pre-sentence report given the appellant’s lack of motivation to change and a risk of further violence if he was placed in a similar situation.

[14]     These factors in combination indicated a sentence of imprisonment was appropriate.

Term of imprisonment manifestly excessive?

[15]     In the alternative the appellant says the starting point of two years imprisonment was too high.  He submits that the offending was not the most serious of its type.  Given the appellant was a lawful visitor to the property, that it was not a surprise attack and no injury resulted, a lower starting point was justified.  The Crown identified unlawful entry into the house and possession of a dangerous weapon as seriously aggravating features.

[16]     We are satisfied that the starting point of two years imprisonment was too high resulting in the overall sentence being manifestly excessive.  The Judge approached sentencing on the basis that the appellant was originally lawfully on the property.  We accept that despite the dangers of the occasion in fact no injury occurred.  While there was some element of premeditation in the sense that the appellant went next-door to get the knife, this was a situation of high emotion where an angry confrontation had already occurred and to a degree the appellant’s actions were spontaneous.  We accept the Crown case that the two aggravating features were the entry onto private premises and the possession of a weapon which was dangerous.  We think that those facts justified a starting point of no more than 15 months imprisonment. 

[17]     There was also significant mitigation in the appellant’s personal circumstances.  At 40 years of age he was a first offender.  It is proper in such circumstances for the Courts to pay more than lip service to such a record.  Mr Gadiev had been employed for the past seven years as a mechanic.  He was, apart from this offending, a good citizen.  Secondly, there was his plea of guilty.  It came after depositions and after the victim and others had to give evidence.  However, it came after the Crown elected not to pursue charges of threatening to kill and assault.  We consider these factors require a reduction of six months from the starting point of 15 months imprisonment resulting in a sentence of nine months imprisonment. 

[18]     The appeal is therefore allowed.  The sentence of 16 months imprisonment is set aside and a sentence of nine months imprisonment imposed instead.  The Judge in the District Court allowed the appellant leave to apply for home detention.  That order is unaffected by this judgment.  We understand the appellant has commenced serving his sentence on home detention.

Solicitors:

Crown Law Office, Wellington