The Queen v Ghabachi

[2009] NZCA 270

IN THE COURT OF APPEAL OF NEW ZEALAND

CA72/2009
[2009] NZCA 270

THE QUEEN

v

MOJTABA GHABACHI

Hearing:9 June 2009

Court:Arnold, Priestley and Winkelmann JJ

Counsel:P Eastwood for Appellant

J M Jelas for Crown

Judgment:25 June 2009 at 2.30 pm 

JUDGMENT OF THE COURT

The application for extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1]       In May 2006, following a jury trial, Mr Ghabachi was convicted of one charge of injuring with intent to injure.  In July 2006 Judge A E Kiernan sentenced him to nine months imprisonment and made a reparation order.  Mr Ghabachi has paid the reparation and served the sentence of imprisonment. 

[2]       In 2007, Mr Ghabachi appealed both his conviction and sentence, but at hearing proceeded only with his conviction appeal.  The appeal was dismissed.  The judgment of this Court issued on 11 July 2007 dealt with the dismissal of the conviction appeal only, but the notice of the result of the appeal recorded that both the conviction and sentence appeals were dismissed. 

[3]       Mr Ghabachi now seeks an extension of time to appeal against sentence.  There is an issue as to whether this Court has jurisdiction to hear the appeal, and in particular whether a sentence appeal has already been determined.  If jurisdiction exists an extension of time to appeal is required because the sentence appeal is approximately two and a half years outside the time limit for appeals provided in s 388 of the Crimes Act 1961.

[4]       Counsel for Mr Ghabachi, Mr Eastwood, explains that Mr Ghabachi’s motivation for seeking to appeal his sentence at this time is the impact of the sentence on his immigration and employment prospects.  Mr Eastwood’s submissions provide detail about Mr Ghabachi’s immigration status.  He has permanent residency, but has been told by the Department of Internal Affairs that unless he can show “exceptional circumstances”, the sentence of imprisonment precludes him from applying for citizenship during a seven year stand down period.  Mr Eastwood also submits that the sentence has prevented Mr Ghabachi from obtaining employment as a real estate agent. 

[5]       The details of the offending for which the sentence was imposed are as follows.  In March 2005 Mr Ghabachi was living at a rented address.  The victim had been instructed by the owner of the address to unload a small amount of building products there.  Mr Ghabachi had not been told of that, and became upset when he saw the victim unloading the materials onto the property.  He became aggressive and verbally abusive.  When the victim tried to leave the property in his vehicle, Mr Ghabachi opened the vehicle’s door and punched the victim with a closed fist several times, splitting the victim’s forehead open above the left eye.

[6]       In written submissions there were essentially two grounds of appeal advanced for Mr Ghabachi.  First, that the sentencing Judge erred because she failed to reduce the starting point for sentence in light of the conduct of the complainant that provoked the assault to some extent, and the substantial reparation paid by Mr Ghabachi.  Secondly, there is additional information not available to the sentencing Judge which justifies the substitution of a non-custodial sentence for the sentence of imprisonment.  The additional information is a report of Dr Rui Mendel dated 1 June 2007, in which Dr Mendel expresses the opinion that in May 2005, Mr Ghabachi may have been suffering from a traumatic stress disorder and possibly depression, which would have rendered him prone to over-reacting to the acts of provocation. 

[7]       The Crown opposes this appeal being heard.  It says that there is no jurisdiction to hear the appeal against sentence because it has already been determined and dismissed by the Court.  Alternatively, the Crown submits that an extension of time to appeal should be refused; there is no adequate explanation for the delay in prosecuting the appeal; no supporting affidavit has been filed setting out the reasons for the delay in filing the sentence appeal, and the appeal has no prospect of success.

[8]       While it is clear that the appellant did not pursue his appeal against sentence in March 2007, it is unclear exactly how the Court formally resolved it.  But we do not need to determine that issue as we are satisfied that even if jurisdiction exists to hear the appeal, an extension of time to appeal should be declined.  In R v Knight [1998] 1 NZLR 583 this Court identified the principles to be taken into account when considering an application for an extension of time to appeal. Amongst the relevant considerations are the strength of the proposed appeal, the length of any delay, the reasons for that delay and the practical utility of any remedy sought.

[9]       In Mr Ghabachi’s case the delay is lengthy.  The appeal could have been brought at an earlier time since the additional report relied on by Mr Ghabachi as new information was available by the time of the last appeal, and was referred to at some length in the judgment of 11 July: R v Ghabachi [2007] NZCA 285. Mr Ghabachi offers no explanation for the delay.

[10]     We also consider that the appeal against sentence is without merit. 

[11]     The additional material from Dr Mendel does not introduce anything not already weighed by the sentencing Judge.  The Judge considered notes from Mr Ghabachi’s doctor to the effect that Mr Ghabachi was suffering from depression at the time of the offending, and referred to a note from the doctor that Mr Ghabachi’s medical condition could have aggravated the situation.  While commenting on the absence of any evidence to substantiate that, she reduced the sentence by one month to recognise the stress Mr Ghabachi was under at the time of the offending and the circumstances of the offending. 

[12]     In her very detailed sentencing remarks, the Judge also considered the argument that there were acts of provocation by the victim which mitigated to some extent the seriousness of the offending, but made a factual finding that there was not provocation sufficient to be an operative cause of the violence.  As the trial Judge, she was well placed to make that determination.  Mr Eastwood did not advance any argument that the Judge erred in that factual finding.

[13]     As to the impact of the order for reparation upon the sentence, it is true that the Judge did not expressly say she took this into account in fixing the sentence of imprisonment.  But she would have had it in her mind since she dealt with the order for reparation at the same point in the sentence as she dealt with the appropriate sentence of imprisonment. 

[14]     Fundamentally however, the difficulty any appeal would face is that the final sentence imposed cannot be described as manifestly excessive.  Comparison with the sentences imposed in Wallace v Police HC HAM CRI 2008-419-000068 9 March 2009 Cooper J and R v Pou [2008] NZCA 456 make it clear that the sentence was well within the available range. In his oral submissions before us Mr Eastwood conceded that it was difficult to argue that the sentence was manifestly excessive, but asked us to consider that were Mr Ghabachi to be sentenced today, he might receive a community based sentence in light of recent amendments to the Sentencing Act 2002. The availability of alternative sentences after a sentence has been served cannot form the basis for a successful sentence appeal.

[15]     Alternatively, Mr Eastwood invited the Court to make some comment as to the circumstances of the offending, which might assist Mr Ghabachi with his immigration status.  That is not the role of this Court.  The significance (if any) of Mr Ghabachi’s offending for his immigration status is best left to those charged with the responsibility for making decisions. 

[16]     For these reasons, the application for extension of time to appeal is declined.

Solicitors:

Crown Law Office, Wellington