ASHQAR v POLICE [2019] NZHC 1184

ASHQAR v POLICE [2019] NZHC 1184 [28 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-176[2019] NZHC 1184BETWEEN ABADI ALQRANI ASHQARAppellantAND NEW ZEALAND POLICERespondentHearing: 28 May 2019Appearances: D Becker for the AppellantM J Mortimer for the RespondentJudgment: 28 May 2019ORAL JUDGMENT OF PALMER JSolicitors: Crown Solicitor, AucklandPublic Defence Service, AucklandWhat happened?[1] Around 7.30 pm on 23 December 2017, Mr Abadi Alqrani Ashqar stoodoutside a house in Harbour View Road in Pt Chevalier, Auckland, with his penisexposed. When two women approached him, he began to masturbate "profusely",according to the agreed summary of facts. He followed them to the end of the road,continuing to masturbate, as they walked away from him. In her victim impactstatement one of the women said she had never felt so unpleasant and had to run to getaway from him. The other, her sister, said she still feels unsafe walking to the beachand felt violated and sickened by his actions.[2] Mr Ashqar was granted, but failed to answer, District Court bail in March 2018and was remanded. He also failed to appear in the District Court in June and August2018 and breached bail again in February 2019. He eventually pleaded guilty to thesecharges. The Department of Corrections assesses his risk of re-offending as moderateto high and his risk of harm to others as moderate. Mr Ashqar has previous convictionsfor breaches of bail and two for wilful trespass. One of those involved escalatingobsessive behaviour regarding a young woman employee of a travel agent. He alsofaces a charge of threatening to kill.[3] The maximum sentence for doing an indecent act in a public place, unders 125(1) of the Crimes Act 1961, is two years' imprisonment. In May 2019, in theAuckland District Court, Judge R G Ronayne set a starting point of six months'imprisonment for the indecency charge and uplifted it by two months for the previousconvictions. He discounted the sentence by 15 per cent, rounded up to two months, toreflect the guilty plea. On top of that he imposed a sentence of one month'simprisonment for one of the breaches of bail. The total sentence was seven months'imprisonment. Mr Ashqar did not have an address suitable for home detention and didnot seek that. But he appeals the length of the sentence.Law[4] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if Iam satisfied there is a material error in the sentence and a different sentence should beimposed. Otherwise it must be dismissed. My focus is on whether the end sentenceis within the range available.[5] In R v Tavo, the offender drove a 13-year-old girl, his partner's sister, to asecluded location and masturbated near her face.1 He was sentenced to six months'imprisonment. In R v Taipari, a caregiver in a home for the intellectually disabledmasturbated next to a resident on two occasions.2 He was also sentenced to sixmonths' imprisonment. In Marszolek v Police, the offender shook his genitals atpassers-by in a public park and a $450 fine was upheld on appeal.3 In Hosking v R,the offender exposed himself to school children, and an adult, on a number ofoccasions, and masturbated on school grounds. A starting point of 12 months'imprisonment was adopted there.4Submissions[6] Mr Becker, for Mr Ashqar, submits the starting point was manifestly excessivehaving regard to Marszolek, Tavo and Taipari. He submits the Judge erred in makingan excessive uplift for previous convictions for wilful trespass because they were notsufficiently similar to this offending and the amount of uplift was too great. He alsosubmits the Judge should have considered the totality of the sentence. He submits anappropriate sentence would have been a shorter term of imprisonment or a community-based sentence.[7] Mr Mortimer, for the Crown, acknowledges six months' imprisonment is nearthe top of, but within, the appropriate range, pointing to Hosking. He accepts the two-month uplift for previous convictions was too high and risks disproportionality. Hesubmits the end sentence should be six months' imprisonment, reflecting a six-monthstarting point, a one-month uplift for the bail offending and a 15 per cent discountrounded up to one month.1 R v Tavo CA500/05, 11 May 2006.2 R v Taipari HC Auckland T991795, 28 January 2000.3 Marszolek v New Zealand Police [2015] NZHC 2858.4 Hosking v R [2012] NZCA 470.Should the sentence be overturned?[8] There is no prescribed range for these lower order sexual offences. There issomething in Mr Becker's point that the offending in Taipari and Tavo was moreserious that Mr Ashqar's. But in both cases six months' imprisonment was the endpoint, not the starting point of the sentences. Despite Mr Becker's valiant efforts, I donot consider Mr Ashqar's offending is significantly less serious than those, but it ismore serious than the offending in Marszolek. I agree with Judge Ronayne'sassessment that a term of imprisonment, rather than a community-based sentence, wasappropriate. Mr Ashqar pursued two women, masturbating, in a residentialneighbourhood on an early summer evening. The effect of that has, understandably,stayed with them. Hosking is more serious but involved a starting point of twice thathere. I do not consider there is an error in the starting point.[9] The one-month effective uplift for the two bail offences (or one-monthcumulative sentence for one of them) was on the high side. Some uplift was available.Mr Ashqar repeatedly failed to follow Court orders and this was separate offendingfrom the indecency offence. And I do agree with both counsel that the two-monthuplift for prior trespass charges, at 33 per cent of the starting point, wasdisproportionate. Again, some uplift is available. The facts of one of those offencesindicate Mr Ashqar's behaviour can negatively affect women which is also at issuehere. But the penalty for those offences in themselves was only one month'simprisonment. Even another month's uplift would be disproportionate. I consider atotal uplift of only one month was warranted for the bail offences and the prioroffences. With a 15 per cent discount, rounded down to one month, I consider theresulting total sentence of six months' imprisonment is consistent with the totality ofthe offending.[10] Accordingly, I consider there was an error in the sentencing, in relation to theuplifts for prior offending and for the bail offences. I consider a different sentence, ofsix months' imprisonment, should be imposed. I uphold the appeal and substitute thatsentence.Palmer J