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Umarji v The King

Umarji v The King

Case [2023] NZHC 3362 24 November 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-451

[2023] NZHC 3362

BETWEEN
AIYAZ MOHAMMED MUSA UMARJI

Appellant

AND

THE KING

Respondent

Hearing: 20 November 2023

Appearances:

D P H Jones KC for Appellant D Becker for Respondent

Judgment:

24 November 2023

JUDGMENT OF O’GORMAN J

(Appeal against sentence)

This judgment was delivered by me on 24 November 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
D P H Jones KC, Auckland Zhang Law Ltd, Auckland Meredith Connell, Auckland

UMARJI v R [2023] NZHC 3362 [24 November 2023]

Introduction

[1] Mr Umarji appeals against the sentence imposed on him after he pleaded guilty to three charges of importing the Class B controlled drug pseudoephedrine.

[2] On 9 August 2023, Judge D J Sharp imposed a sentence of four years’ imprisonment, following an accepted sentencing indication provided on 24 February 2023. Mr Umarji contends the Judge failed to give him adequate discounts, including for his cooperation in returning to New Zealand.

Legal principles

[3] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.2 The focus is on the end sentence imposed, rather than the process by which it is reached.3

[4] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of incorrect discounts or as to parity with co-offenders.4

[5] Appellate courts do not indulge in mere tinkering with a sentence.5 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

[6] An exception is where a mathematical error has resulted in a sentence more severe than the sentencing judge intended. Such an error must be corrected, giving effect to the judge’s intentions even if the sentence imposed was within the available

1      Criminal Procedure Act 2011, s 250.
2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
3 At [36].
4 At [32].
5      R v Boyd (2004) 21 CRNZ 169 at [38].

range.6 Conversely, an error favouring a defendant will not be corrected unless it has resulted in a sentence manifestly inadequate or inappropriate.7

[7] The practical effect of these general principles is that the appellate court does not just start afresh or substitute its own opinion. If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.8

[8] In terms of mitigating factors, cooperation is a separate and independent factor from good character.9 Cooperation includes the “utilitarian value of a voluntary return [to New Zealand] and the desirability of encouraging such returns”.10 However, it is subject to a countervailing consideration…

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 Umarji v The King

Details

AGLC: Umarji v The King [2023] NZHC 3362
Case: [2023] NZHC 3362
Decision Date: 24 November 2023

CaseChat Overview and Summary

Mr Umarji appeals against the sentence imposed on him after he pleaded guilty to three charges of importing the Class B controlled drug pseudoephedrine. He argues that the sentence is manifestly excessive because the judge did not give him adequate discounts for his cooperation, good character, and remorse. The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed. Generally, the sentence must be shown to be manifestly excessive or wrong in principle. The focus is on the end sentence imposed, rather than the process by which it is reached.

The court found that there was no mathematical error in the calculation of the sentence. However, it found that the discount given for cooperation was inadequate. Cooperation was not quantified as an independent discounting factor in the sentencing notes. The court found that Mr Umarji voluntarily submitted to the jurisdiction of the Court, which substantially reduced the length of proceedings and costs. The court found that a separate discount of approximately 10 per cent should have been provided for this mitigating factor on the facts, and failure to make such provision was a material error.

The appeal is allowed. The sentence of four years’ imprisonment imposed in the District Court is quashed. A sentence of three years and six months’ imprisonment is substituted.

Orders