Zafar v Police - [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…

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 Zafar v Police

Details

AGLC: Zafar v Police [2014] NZHC 3084
Case: [2014] NZHC 3084
Decision Date: 4 December 2014

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