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…

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 The Queen v Ghabachi

Details

AGLC: The Queen v Ghabachi [2009] NZCA 270
Case: [2009] NZCA 270
Decision Date: 25 June 2009

CaseChat Overview and Summary

In The Queen v Ghabachi, the appellant, Mr. Ghabachi, sought an extension of time to appeal his sentence for injuring with intent to injure. Mr. Ghabachi had previously been convicted and sentenced to nine months imprisonment, which he had served, and paid the reparation ordered by the sentencing judge. He now sought to appeal his sentence on the basis of new information, which he claimed justified a non-custodial sentence. The Crown opposed the appeal on the grounds that the Court did not have jurisdiction as the sentence appeal had already been dismissed, and that an extension of time should be refused due to the length of the delay and the lack of merit in the appeal. The appeal was dismissed by the Court of Appeal of New Zealand.

The legal issues before the Court were whether the Court had jurisdiction to hear the appeal against the sentence, and if so, whether an extension of time to appeal should be granted. The Court noted that the appeal against sentence had been previously dismissed, but did not need to determine whether jurisdiction existed as it was satisfied that an extension of time to appeal should be declined. The Court considered the principles for granting an extension of time to appeal, including the strength of the proposed appeal, the length of any delay, the reasons for that delay, and the practical utility of any remedy sought. The Court found that the appeal was lengthy, the delay was unexplained, and the appeal was without merit. The Court also found that the final sentence imposed could not be described as manifestly excessive and that the availability of alternative sentences after a sentence has been served could not form the basis for a successful sentence appeal.

The Court held that the application for extension of time to appeal was declined. The Court considered the additional material from Dr. Mendel, which did not introduce anything not already weighed by the sentencing judge. The Court also noted that the sentencing judge had 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. The Court found that the appeal was without merit and that the final sentence imposed was well within the available range. The Court also found that the significance (if any) of Mr. Ghabachi's offending for his immigration status was best left to those charged with the responsibility for making decisions.

No orders were made in relation to the appeal.

Orders