ARAMIZ v R [2020] NZHC 78

ARAMIZ v R [2020] NZHC 78 [4 February 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-36[2020] NZHC 78ABDU ALI ARAMIZvTHE QUEENHearing: 4 February 2020Appearances: Mr Aramiz self-representedF A M Manning for the CrownJudgment: 4 February 2020JUDGMENT OF COOKE J[1] On 29 May 2019 Mr Aramiz was sentenced to two years three months'imprisonment for the following charges:(a) One charge of threatening to kill;1(b) One charge of aggravated burglary;2(c) Two charges of assault with intent to injure;31 Crimes Act 1961, s 306, maximum penalty seven years' imprisonment.2 Section 232(2), maximum penalty 14 years' imprisonment.3 Section 193, maximum penalty three years' imprisonment. In March 2019 a charge of assault witha weapon was amended to assault with intent to injure.(d) Two charges of male assaults female;4(e) Two charges of driving while disqualified;5 and(f) Two charges of breach of release conditions.6[2] The sentence was imposed by Judge Barry in the Wellington District Court.7Mr Aramiz now appeals his sentence on the grounds the end sentence was significantlyhigher than the sentence indication. The notice of appeal indicates an appeal againstboth conviction and sentence, but Mr Aramiz in his written submissions explained thathe did not wish to appeal against conviction.The offendingBreach of release conditions[3] Mr Aramiz was released from Rimutaka Prison on 20 March 2018. He wasinducted into the requirements of his release conditions on 23 March 2018. He alsosigned a written instruction to report to Wellington Community Corrections on 4 April2018 at 1 pm and every week thereafter at the same time until advised otherwise. Afterfailing to comply with this condition in May he was issued with a final warning forfailure to report. On 18 and 25 July 2018 Mr Aramiz again failed to report toWellington Community Corrections in breach of his release conditions. He did notoffer an explanation for this non-compliance. The charging document also recordsMr Aramiz breached his release conditions again on 20 December 2018.Driving while disqualified (third or subsequent)[4] Mr Aramiz has six previous convictions for driving whilst disqualified. InAugust 2014 Mr Aramiz was disqualified from driving for an indefinite period. Atabout 6 pm on Sunday 22 July 2018 he drove a car on Jervois Quay, Wellington. Inexplanation he stated he had just bought the car and wanted to drive his family back4 Section 194, maximum penalty two years' imprisonment.5 Land Transport Act 1998, s 23(1)(a) and (4), maximum penalty two years' imprisonment or $6,000fine.6 Sentencing Act 2002, s 96, maximum penalty one year's imprisonment or $2,000 fine.7 New Zealand Police v Aramiz [2019] NZDC 10356.home. At about 8.30 pm on 16 August 2018 Mr Aramiz drove a car on State Highway1, Wellington. He was stopped by Police for a routine traffic stop. In explanation hestated he was test driving the vehicle as he planned on purchasing it for his partner.Assault charges[5] Mr Aramiz has been in an on and off relationship with the victim for 16 years.There have been eight recorded family harm incidents between them. They have nobiological children but are the legal guardians for one child.[6] At about 7 am on Saturday 1 September 2018 Mr Aramiz was at the victim'saddress in Johnsonville. Mr Aramiz accused the victim of speaking with another malethe night before. An argument ensued. Mr Aramiz was verbally aggressive. He thenkicked holes in the walls of the house. The victim told him to leave.[7] Mr Aramiz then punched the victim several times, knocking her to the ground.He began to punch and kick her about the body and face. Due to the length of theattack the victim was unable to confirm the amount of times she was struck byMr Aramiz. That attack gave rise to the charge of male assaults female. Mr Aramizthen reached for a metal pole and used it to strike the victim several times about thearms, back and body. That gave rise to the charge of assault with intent to injure. Oncethe victim was no longer able to defend herself, Mr Aramiz left the address. The wholeattack lasted for about an hour.[8] Mr Aramiz returned to the victim's address later that evening. She let himinside the house and he remained there for the night. The following morning the twobegan to argue once more. Mr Aramiz became verbally aggressive and the victimasked him to leave the address. He refused and punched her several times about thehead and body while she tried to defend herself. That gave rise to a further charge ofmale assaults female.[9] During the assault Mr Aramiz took a cricket wicket and used it to strike thevictim about the arms and body several times. Mr Aramiz continued the attack on thevictim for about an hour until her 11 year old son intervened. Mr Aramiz then left theaddress. That assault gave rise to a charge of assault with intent to injure.[10] The victim received bruising and grazes on her arms, back and face. The fullextent of her injuries is unknown as medical intervention was declined.Aggravated burglary and threatening to kill[11] At 5.40 am on 20 December 2018 Mr Aramiz went to the victim's homeaddress in Johnsonville. The victim was asleep at the time but woke to the sound ofMr Aramiz knocking on the front door. The victim looked through the securitypeephole and recognised Mr Aramiz and refused to open the door. Mr Aramizsmashed the outer pane of the glass door with a hammer. Fearing for his safety, thevictim opened the door and attempted to leave the flat. As he tried to leave, Mr Aramizpushed him to the floor, saying "Motherfucker I have come to kill you". Mr Aramizthen attempted to drag the victim back inside. The victim managed to get to his feetand ran to a neighbouring address where he contacted Police and remained for the nexthour.[12] The victim suffered minor scratches to his arms.Decision under appeal[13] An indicative sentence of 15 months' imprisonment was given in April 2019in respect of the aggravated burglary, threatening to kill and some of the driving andrelease condition charges. At the sentencing indication the Judge recorded that froma reference point of 15 months' imprisonment, a sentence of electronic monitoring wasa possibility. The Judge then went on to note that indication was "possibly underminedcompletely if the pending sentencing on the unrelated assaults pulls the ground outfrom underneath that".[14] The sentencing in May 2019 included the further assault charges and chargesof driving while disqualified and breach of release conditions. Mr Aramiz wassentenced to two years, three months' imprisonment. After outlining the charges andfacts the Judge considered the probation report. Mr Aramiz had a history ofmethamphetamine and cannabis use. The report recorded Mr Aramiz had beenaccepted into Odyssey House, a residential programme offering addiction treatmentservices. The report also recorded Mr Aramiz's stated motivation to address the rootcauses of his offending. The pre-sentence report, however, noted Mr Aramiz had ahistory of demonstrating pre-sentence motivation which lapsed after sentences. Thepre-sentence report recommended imprisonment rather than home detention, notingMr Aramiz's history of non-compliance with community based sentences.[15] The Judge identified a starting point of 15 months' imprisonment for thecharges outlined in the sentence indication. That starting point was based onaggravating factors related to the degree of premeditation indicated by bringing ahammer to the scene and the minor violence accompanying the burglary. The Judgethen uplifted by four months to reflect the breach of release conditions and drivingwhile disqualified charges. He then uplifted a further month to reflect the prior historyof criminal offending. That resulted in an overall starting point for that set of offendingof 20 months' imprisonment. After a 25 per cent discount for guilty plea that broughtthe sentence back down to 15 months.[16] Turning to the second set of offending involving the assault againstMr Aramiz's partner, the Judge considered the offending warranted "a significantperiod of imprisonment". The assaults were serious, of extended duration and with aweapon. The assaults were also in the presence of the victim's 11 year old son. TheJudge noted the victim was "totally overpowered" and sustained painful anddisfiguring injuries. A starting point of one year, four months' imprisonment wasadopted. The Judge then uplifted by two months for the prior history of violence,including violence against the same victim. A discount of four months for totality wasgiven, resulting in a sentence of 14 months' imprisonment.[17] The Judge then noted that left two discrete reference points of 15 and 14months' imprisonment. He discounted a further two months overall to recognise theexpressed remorse and commitment to rehabilitation, leaving an overall sentence of27 months, or two years and three months imprisonment. To that the Judge added aconcurrent sentence of one month for the charge of threatening to kill, one monthconcurrently for the two charges of driving while disqualified and one monthconcurrently for the breach of release conditions.[18] Finally the Judge ordered a final protection order in respect of the femalevictim and a two year disqualification from driving.Relevant law[19] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the appeal court must allow the appeal if satisfied that thereis an error in the sentence imposed on conviction and a different sentence should beimposed. A sentence appeal is an appeal against a discretion and only if there is anerror of principle should the appellate court re-exercise the discretion. The focus is onthe final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.8Conviction appeal[20] At the hearing Mr Aramiz argued that he only pleaded guilty to the charges asa consequence of erroneous advice his then counsel provided him. The essence of thatadvice was that the most that the District Court would sentence him on all the chargeswas 21 months' imprisonment, and that it might be less given time served on remand.That was a level under two years' which would open up home detention and therehabilitation programmes Mr Aramiz emphasised.[21] This argument was not raised in Mr Aramiz's written submissions for hisappeal, and in his written submissions he advised he was not pursuing a convictionappeal. The circumstances in which an appeal may be allowed against a convictionwhen a guilty plea has been entered are very limited.9 In terms of suggested error bycounsel in the advice they have given in relation to a prospective sentence there aretightly prescribed requirements. They were described by the Court of Appeal inWhichman v R in the following terms:10[41] An appeal based on trial counsel error in advising as to sentence raisesa number of distinct thresholds, all of which must be crossed before a guiltyplea should be vacated and the consequent conviction quashed. Thosethresholds are these:8 Ripia v R [2011] NZCA 101 at [15].9 R v LePage [2005] 2 NZLR 845 (CA) at [17]–[19].10 Whichman v R [2018] NZCA 519 (footnote omitted).(a) first, the advice given was erroneous;(b) secondly, there is or was a genuine prospect of acquittal attrial had the plea not been entered; and(c) thirdly, there is credible evidence that but for the erroneousadvice, the guilty plea would not have been entered.We think the second element is best described in this way. If the first thresholdhas been crossed, we do not think an appellate court should overanalyse themerits of available defences. To do so risks eroding the essential responsibilityof a first appeal court under s 232(4) to concern itself with whether the error"created a real risk that the outcome of the trial was affected". What mattersis whether a genuine prospect of acquittal has been lost as the result of aprocess failure in the criminal justice system. As T (CA662/2012) v Rdemonstrates, it is very much a matter of impression as to whether justice hasor has not been done in the particular case.[22] In the present case Mr Aramiz's arguments are well short of the requirements.He has given no forewarning of his criticism of counsel's advice forming a basis of aconviction appeal, and no materials that would meet the other requirements. Anyadvice as to prospective sentences could never be absolutely certain, and here thesuggested maximum penalty of 21 months remains reasonably close to the ultimatesentence of 27 months that was imposed.[23] For that reason I reject this argument and turn to the matter that is moreproperly the focus on the appeal, which is whether Mr Aramiz's sentence wasmanifestly excessive.Sentence appeal[24] Mr Aramiz argues a lesser sentence ought to have been imposed. He says hehas acknowledged his behaviour was wrong and again expresses his desire to completerehabilitation at Odyssey House with his family's support. He notes the end sentencewas higher than the 15 months' sentence indication. Ms Manning for the Crownsubmits the end sentence is within range and not manifestly excessive.[25] There can be no issue regarding the disparity between the sentence indicationand the final end sentence given as further charges were added at sentencing. TheJudge warned Mr Aramiz of this potential in the initial sentence indication.[26] The process adopted by the Judge for determining the sentence was complexand can be subject to criticism. For example it might be said that the Judge did notdiscount for guilty plea on the second set of charges. He could also be said to haveerred in discounting a further two months for rehabilitation potential after accountingfor a 25 per cent discount for guilty plea on the first set of charges. But the ultimatequestion is whether there is a manifestly excessive end sentence.[27] There is no tariff decision for aggravated burglary. Ms Manning providedcases with comparable facts. I consider the facts of the aggravated burglary to be moreserious than both R v Henare and R v Gadiev so identified.11 There was a higher degreeof premeditation as Mr Aramiz brought a hammer with him to the address. In my viewan uplift of around two months for the accompanying threat to kill would have beenappropriate also. In light of those considerations the 15 month starting point adoptedby the Judge was within range.[28] There is also no tariff decision for assault with intent to injure but R v Nukucan provide guidance as to the application of R v Taueki to lesser charges involving anintent to injure.12 The circumstances of this offending involved a high level ofculpability ordinarily reflected in a more serious charge. It is possible the lack ofknowledge as to the extent of the victim's injury resulted in lesser charges as medicalintervention was declined. The offending in this case involved a number ofaggravating factors as identified by the District Court Judge. The assaults were ontwo separate occasions and each was prolonged, involving the use of opportunisticweapons. An 11-year-old child witnessed the second assault and Mr Aramiz onlystopped his attack when the child intervened. The attack took place in the family homeand the victim was especially vulnerable given the history of family violence betweenthe two. I consider the offending is near to the most serious of cases for which thatpenalty is prescribed and a starting point close to the maximum penalty could havebeen appropriate.11 R v Henare HC Tauranga CRI-2007-270-125, 20/5/2008; and R v Gadiev CA194/06, 14 October2006.12 Nuku v R [2012] NZCA 584, [2013] NZFLR 39 at [37]; and R v Taueki [2005] NZCA 174, [2005]3 NZLR 372.[29] Again Ms Manning has also provided comparable cases.13 I consider theoffending is most similar to Paikea v New Zealand Police although slightly moreserious as it was prolonged and over two separate occasions. Overall I consider thestarting point of one year, four months imprisonment appropriate in the circumstances.[30] I see no issue with the uplifts for previous offending given Mr Aramiz'slengthy criminal history and in particular the history of family violence between MrAramiz and the victim. The uplift of four months for the breach of release conditionsand disqualified driving was appropriate, as was the four month discount for totality.The discount of two months for remorse and commitment to rehabilitation wasgenerous given the factors outlined in the pre-sentence report.[31] As I noted earlier the only cause for concern is the calculation errors,particularly in failing to discount 25 per cent for guilty plea on the second set ofoffending. Despite the existence of that error preventing the possibility of homedetention, in my view the end sentence of two years, three months' imprisonment iswithin range. A sentence of home detention was plainly inappropriate. This wasserious violent offending and Mr Aramiz has a history of non-compliance withelectronically-monitored sentences.[32] As has been emphasised, the focus is on end sentence, rather than the particularsteps taken in calculating it. Here the end sentence was clearly within range. Thesentencing exercise here has become complicated by reason of the Judge treating theoffending as two separate sets of offending for sentencing purposes, which were thenadded together for the purposes of determining the ultimate sentence. But theoffending involved interrelated domestic violence against the same victim. The morestraightforward approach would have been to identify the most serious charges as thelead charge, with the other offending then resulting in uplifts on the starting point. Iappreciate that this process became complicated because a sentencing indication wasgiven on only one set of charges, but the overall sentencing exercise has becomecomplex for this reason.13 Nortje v New Zealand Police [2019] NZHC 334; Hunter v R [2019] NZCA 363; and Paikea v NewZealand Police HC Whangarei CRI-2010-488-53, 29 October 2010.[33] I nevertheless agree with Ms Manning's reliance on R v Xie in this respectwhere the Court of Appeal held:14[16] The fundamental tenet of the totality principle is that the final sentencemust reflect "the totality of the offending". How the total sentence is made uphas never been important. We cite what this court said in R v WilliamsCA91/00 31 May 2000:"[11] We reject the argument that there is a particular way in whichtotal sentences must be put together in respect of multiple offending.The issue is what is an appropriate total sentence for the variouscharges which have been admitted or proved. How that is constructedin the particular circumstances is a matter of individual discretion andassessment. Sometimes there is advantage in imposing cumulativesentences on some or all of the charges, whereas others are moreappropriately dealt with by one major sentence which subsumes allmatters, with concurrent sentences imposed."[17] That passage from Williams was cited with approval in R v BarkerCA57 /0130 July 2001. In that case, this court, at [10] reiterated the keyprinciples when sentencing for multiple offending:(a) With multiple offences the sentence must reflect the totality ofthe offending;(b) In respect of multiple offences, this court will not insist that thetotal sentence be arrived at in any particular way; and(c) The total sentence must represent the overall criminality of theoffending and the offender.[34] The end sentence was appropriate. For these reasons the appeal is dismissed.Cooke J14 R v Xie (2006) 22 CRNZ 949 at [16] and [17].