The Queen v Mohmand

[2008] NZCA 408

IN THE COURT OF APPEAL OF NEW ZEALAND

CA283/2008
[2008] NZCA 408

THE QUEEN

v

ENAYATULLAH MOHMAND

Hearing:23 September 2008

Court:O'Regan, Gendall and Fogarty JJ

Counsel:P J Kaye for Appellant

K Raftery for Crown

Judgment:8 October 2008 at 2.30 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

BSentence quashed and replaced with one of two years three months imprisonment.

REASONS OF THE COURT

(Given by Fogarty J)

[1]       On 10 April 2008 the appellant was sentenced in the District Court to two years nine months imprisonment, having pleaded guilty to a number of dishonesty offences using stolen credit cards and to procuring a false passport and breaching release conditions.  Judge Bouchier selected a starting point of three and a half years and gave a 20 per cent discount for the plea of guilty. 

[2]       In this Court counsel for the Crown agrees that the Judge should have given a further discount for assistance that the appellant has rendered to the police.  That assistance has been relatively minor.  It was not brought adequately to the attention of the sentencing Judge.  Mr Kaye, for the appellant, submitted that overall the discount should have been in the region of 40 to 45 per cent.  Included in that discount Mr Kaye argued for a more generous discount for the plea of guilty.  The informations were laid on 3 May 2007.  The plea of guilty was not entered until 19 February 2008.   We think there is no case for adjusting the sentencing Judge’s discount in this respect.  Mr Raftery, for the Crown submitted that an overall discount of 33 per cent to reflect both the guilty plea and the assistance rendered by the appellant to the police was appropriate.

[3]       Most of the difference between the level of discount suggested by Mr Kaye and that suggested by Mr Raftery can be attributed to Mr Kaye’s call for increased recognition of the guilty plea.  Having rejected that call, we are left with the task of determining the level of additional discount for the assistance.  Having considered the authorities put to us by counsel and the relatively limited assistance provided by the appellant, we are satisfied that an overall discount of 35 per cent is appropriate in this case.

[4]       Accordingly, the appeal is allowed.  The sentence is quashed and replaced with a sentence of two years three months.

Solicitors:
Crown Law Office, Wellington