Zafar v Police

Case [2014] NZHC 3084


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-249
CRI-2014-404-282
CRI-2014-404-284

CRI-2014-404-283 [2014] NZHC 3084

BETWEEN

AHMAD ZAFAR

LENEUOTI AUVA'A JUNIOR KALOLO TANE EGGLESTONE Appellants

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 December 2014

Appearances:

M Pecotic for Zafar and Kalolo
J Mackey for Auva'a
M Hislop for Egglestone
R Thomson for Respondent

Judgment:

4 December 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Thursday 4 December 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

M Pecotic, Barrister, Auckland

J Mackey, Barrister, Auckland
M Hislop, Barrister, Auckland

R Thomson, Meredith Connell, Auckland

ZAFAR, AUVA'A, KALOLO, EGGLESTONE v NEW ZEALAND POLICE [2014] NZHC 3084 [4 December

2014]

[1]      In  June  2013  the  four  appellants  (Messrs  Zafar,  Kalolo,  Auva’a  and Eggleston) along with others, broke into a house in Mt Roskill. Their object in doing so  was  to  retrieve  a  King  Cobras’ gang  patch,  and  to  “tax”  the  occupants  for (allegedly) dealing in drugs using the King Cobras’ name.  The patch, some rings, and two televisions were taken.   The majority of the occupants fled the property before  the  break-in  occurred,  but  one  remained  and  was  roughed  up  by  the appellants’ associates.

[2]      Although the appellants each originally faced an aggravated robbery charge the  charge  was  subsequently reduced  to  one  of  burglary and  guilty pleas  were entered.   The final sentences imposed by the learned District Court Judge ranged from 3 years 5 months’ imprisonment to 2 years 5 months’ imprisonment.1

[3]      Each now appeals his sentence on the grounds that it is manifestly excessive.

Background

[4]      Mr Zafar was a prospect for the King Cobra gang.   On 27 June 2013 he observed a man outside the Mt Roskill address wearing a King Cobra shirt.   He subsequently established that this man was not a member of the King Cobra gang.

[5]      On 30 June 2013, Mr Zafar and other of the appellants met to discuss the use of a King Cobra shirt by a non-member.   It was agreed that they would go to the address retrieve the shirt and ‘tax’ the occupants, whom they believed to be drug dealers.2

[6]      At  approximately  5.40  pm  the  appellants  arrived  at  the  address  and approached a number of the occupants who were outside.  Those occupants fled the

address, fearing for their safety.  Mr Auva’a chased one of them.

1      Police v Kalolo & Ors DC Auckland CRI-2013-044-007378, 17 July 2014; Police v Auva’a DC Auckland CRI-2013-044-007378, 25 July 2014.

2      “Taxing” is a term used to describe the demanding of payment of fictitious debts in order to impose control over others.

[7]      Mr  Zafar  punched  the  glass  window  of  the  front  door,  smashing  it  and allowing him to reach through and open the door.   At that time another of the occupants was in his room inside the house.

[8]      Unknown associates of the appellants forcefully entered the room where the remaining occupant was and demanded to know where the tinnies were.  A struggle…

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Zafar v Police [2014] NZHC 3084
Case
[2014] NZHC 3084
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CaseChat Overview and Summary

The four appellants, Zafar, Kalolo, Auva’a, and Egglestone, appeal against the sentences they received for their involvement in a burglary in Mt Roskill. The appellants, along with others, broke into a house intending to retrieve a gang patch and to tax the occupants for allegedly dealing drugs under the gang’s name. The majority of the occupants fled before the break-in, but one was roughed up by the appellants’ associates. The appellants originally faced aggravated robbery charges, but the charges were reduced to burglary and they all pleaded guilty. The District Court Judge imposed sentences ranging from 3 years 5 months to 2 years 5 months' imprisonment. The appellants now appeal their sentences on the grounds that they are manifestly excessive.

The primary legal issue before the court was whether the starting points adopted by the District Court Judge for the appellants' sentences were within the appropriate range. The appellants argued that the starting points were excessively high when compared to sentences imposed in other burglary cases. The court examined various cases to determine whether the starting points were appropriate, considering the nature of the appellants' involvement in the offence and the aggravating features of their offending. The court found that the critical aggravating feature was the appellants' intent to confront and intimidate the occupants to impose their illegal gang law, which warranted a strongly deterrent sentencing message.

The court concluded that the starting points adopted by the District Court Judge were within the appropriate range. The court noted that the appellants' involvement in the offence had a particularly pernicious intent and that their sentences reflected this. The court also rejected the argument that there was a parity issue between the appellants and their co-offenders who were discharged without conviction. The court found that the co-offenders had a significantly more minor role in the offending and were not involved in the planning or the actual entry into the house. Therefore, the appeals were dismissed.

The final orders of the court were that the appeals were dismissed, and the sentences imposed by the District Court Judge were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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