AZIZ v NEW ZEALAND POLICE [2023] NZHC 3392

AZIZ v NEW ZEALAND POLICE [2023] NZHC 3392 [28 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000457CRI-2023-404-000458[2023] NZHC 3392BETWEEN ABDUL-SAMAD ABDUL AZIZAppellantAND NEW ZEALAND POLICERespondentHearing: 27 November 2023Appearances: Tony Beach for the AppellantDino Muratbegovic for the RespondentJudgment: 28 November 2023JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 28 November 2023 at 10:00 am.Registrar / Deputy RegistrarDate:Introduction[1] Abdul-Samad Abdul Aziz pleaded guilty to one charge of assault on a personin a family relationship1 and one of operating a motor vehicle in an unnecessaryexhibition of speed.2 He was sentenced by Judge K J Glubb on 9 August 2023 to fourmonths' home detention and 80 hours of community work.3 Mr Aziz appeals thatsentence on the basis it is manifestly excessive.Factual background[2] The following is drawn from the Police summary of facts which I assumeMr Aziz accepted for the purposes of sentencing. This records that the victim, A, inrespect of the assault charge was Mr Aziz's partner of three months. At the timeMr Aziz was aged 34 and A was aged 17.[3] On 8 August 2021, the couple were at Mr Aziz's address. Over the course ofthe afternoon Mr Aziz became increasingly aggressive towards A. This culminated inhim telling A to find her own way home.[4] A walked to a nearby park to clear her head. Shortly afterwards Mr Azizarrived at the park. A started to walk away from him but Mr Aziz caught up to her.He grabbed her by the elbow with force. A managed to escape his grip and run away.Mr Aziz chased her and put her in a headlock from behind. He applied pressure to herneck. A struggled to breathe. Mr Aziz maintained the pressure to A's neck for betweenten to 15 seconds. He then loosened his grip which allowed A to escape and run away.She sought help from a member of the public. She later reported a red mark on herneck and some associated tenderness.[5] The remaining unrelated driving charge arises from events eight months lateron 25 April 2022. Mr Aziz attempted to match the speed of and overtake another car;weaving between lanes, accelerating hard and blowing out smoke from his car'sexhaust in the process. Eventually he was stopped by Police and arrested. In1 Crimes Act 1961, s 194A; maximum penalty two years' imprisonment.2 Land Transport Act s 36A(1)(a); maximum penalty three months' imprisonment or a fine notexceeding $4,500, together with mandatory disqualification for a period of six months.3 Police v Abdul-Aziz [2023] NZDC 17095.explanation he said the other driver was "being cheeky and showing off", and that hewanted to show off, too.District Court decision[6] Addressing the aggravating factors of the offending first, the Judge noted theoffending was both planned and opportunistic; A left, Mr Aziz pursued and assaultedher. Additional aggravating factors included the domestic setting, the vulnerability ofthe victim (given the age differential) and the impact the offending had on her.[7] As to aggravating circumstances personal to the defendant, the Judge outlinedMr Aziz's previous convictions for drugs, violence, driving-related offences andbreaches of court-imposed sentences and orders. Personal mitigating factors includedthe completion of two rehabilitative courses completed after the offending and beforesentence.[8] A starting point of 12 months' imprisonment was adopted on the assault charge,uplifted by two months for the excess speed charge. The Judge stated that "appropriatecredits" would be applied for the "work" Mr Aziz has done, and that the end sentenceof imprisonment would in any event be a short-term one.4[9] Having regard to the purposes and principles of sentencing, the Judge wassatisfied it was appropriate to convert the sentence on the assault charge to one of fourmonths' home detention. He noted that the family harm report made for "chillingreading" and gave Mr Aziz a final warning, should he ever return to Court on furtherviolent charges.5[10] As for the charge of excess speed, the Judge was satisfied it was appropriate togrant the defence application pursuant to s 94 (not to impose a period ofdisqualification) and instead impose a sentence of 80 hours' community work. Thiswould enable Mr Aziz to retain employment and support his family.4 At [14] and [16].5 At [11].Approach on appeal[11] This Court must allow the appeal if it is satisfied that for any reason there wasan error in the sentence imposed on conviction and a different sentence should beimposed.6 The focus is on the sentence imposed, rather than the process by which itis reached.7 The Court will not interfere where the sentence is within the range thatcan properly be justified by accepted sentencing principles. To this end, the conceptof a "manifestly excessive" sentence is well-engrained and there is no reason not toapply it.8Grounds of appeal[12] Mr Beach, for Mr Aziz, submits the end sentence was manifestly excessivesentence as a result of the following two errors:(a) the Judge mischaracterised the culpability of the offending, leading tothe adoption of a starting point that was too high; and(b) insufficient credit was given for guilty pleas and the completion ofrehabilitative programmes prior to sentencing.DiscussionStarting point[13] There is no tariff case for assault on a person in a family relationship.9Mr Beach refers me to three cases by way of comparison which he says support theadoption of a lower starting point than 12 months' imprisonment. On my reading, atleast two of these involve offending that is substantially less serious than the present.They also did not involve any analysis of an appropriate standalone starting point foroffending of this nature.6 Criminal Procedure Act 2011, s 250(2).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 At [35].9 Sweeney v R [2023] NZHC 1067 at [28].[14] The first, which is of limited assistance in the present case, is Stuart v Police.10There the defendant was sentenced for threatening to kill, assault and assault in afamily relationship. The last of these charges involved the defendant, on a separateoccasion to the other charges, pinching the complainant's skin and punching her handfive times. This was accounted for in a three-month uplift to the lead charge ofthreatening to kill. The sentence was upheld on appeal.[15] In the second, Chang v Police, the defendant grabbed his wife by the hair andslapped her face twice.11 The decision to decline a discharge without conviction andimpose a sentence of supervision was upheld on appeal.[16] The third, Whichman v Police, involved the defendant grabbing thecomplainant and throwing her to the ground, before pulling her through the loungeonto the veranda.12 This caused her to hit her head and ankle on the door on the wayout. A starting point of six months' imprisonment was described as within theavailable range on appeal, although the Court said it would have adopted five months.While undoubtedly more serious than the two cases I have just referred to, I do notconsider it reaches the level of seriousness evident in the present offending. This isreflected in the fact that Mr Whichman was sentenced on a lesser charge of commonassault, carrying a maximum penalty of just one years' imprisonment. It is alsoreflected in the incidental rather than deliberate nature of the complainant's injuries.[17] The present case, by way of contrast, involved more sustained and seriousoffending. Mr Aziz pursued A after she had left, grabbed her with force, deliberatelyplaced her head and neck in a headlock, and applied pressure to her neck for anextended period. Unsurprisingly, Mr Aziz was originally charged with impeding thecomplainant's breathing, a more serious offence carrying a maximum penalty of sevenyears' imprisonment.13 The charge was later amended to assault on a person in afamily relationship, with a maximum penalty of two years' imprisonment. It is thatcharge to which Mr Aziz pleaded guilty. Despite the reduced maximum penalty, I amstill required to sentence on the facts either proved or admitted.10 Stuart v Police [2023] NZHC 2867.11 Chang v Police [2019] NZHC 2051.12 Whichman v Police [2019] NZHC 3245.13 Crimes Act, s 189A.[18] Mr Muratbegovic, for the Crown, refers to four cases which he says may be ofassistance.14 These involve broadly comparable offending in the context of the sametwo-year maximum penalty. Starting points range from six to 18 months'imprisonment, though more frequently they tend to fall around the six-to-eight-monthrange. With reference to these authorities Mr Muratbegovic responsibly accepts thatthe Judge's starting point of 12 months' imprisonment might be seen as stern and thata figure in the region of eight months may have been more typical.[19] Having reviewed these cases, I agree it would have been open to the Judge tohave set a lower starting point, say one of nine- or ten-months' imprisonment.However, I consider 12 months to be nonetheless within the available range, albeit atthe upper limit. It is exactly half of the maximum penalty. It reflects not only theserious nature of the assault but the context in which the offending occurred. Mr Azizwas twice the victim's age. Therein lies an inherent power imbalance which was notnecessarily present to such a degree in the cases to which Mr Muratbegovic hasreferred. There was also an element of premeditation in that Mr Aziz pursued thevictim after he told her to go, and she retreated to the nearby park.[20] The importance of a strict approach to impeding breathing in the context ofdomestic violence is illustrated by the insightful comments of Katz J in Waitai v R,which I adopt with respect:15"I note that in risk assessment tools used by domestic violence workers andpolice, strangulation, short of causing death, is considered a "red flag" forfurther serious abuse and fatality. Both legal and medical studies in recentyears have begun to emphasise the importance of strangulation in the contextof responding to domestic violence.16 Strangulation is a relatively commoncause of domestic violence related homicide and is a very high risk activity ina domestic violence context. Although it may leave no visible signs of injury,and is therefore sometimes treated less seriously than other forms of domesticviolence such as punching or hitting, the risks associated with strangulationare very high."14 Moffat v Police [2021] NZHC 2761; Topia v Police [2019] NZHC 3235; Ryder v Police [2018]NZHC 2014; and Grace v Police ]2016] NZHC 3021.15 Waitai v R [2014] NZHC 2116 at [25].16 Heather Douglas and Robin Fitzgerald "Strangulation, domestic violence and the legal response"[2014] 36 Syd LR 231 at 232.[21] In these circumstances, I do not consider there is any error relating to theassessment of culpability or the starting point of 12 months' imprisonment.Discounts[22] Mr Beach identifies three rehabilitative courses Mr Aziz undertook prior tosentencing for which he says greater credit should have been afforded. These comprisea Stopping Violence Programme, a residential programme at the Bridge SalvationArmy, and an advanced defensive driving course.[23] The Judge expressly recognised two of these at sentencing:"[9] It is noted that you have completed the Salvation Army BridgeProgramme and that is to your credit and I factor that into the way I deal withthe matters. You have indicated you want to lead an offence and drug-freelife. It is also noted that you have done a Stopping Violence."[24] The credit given for this factor, however, is not immediately clear on the faceof the judgment. The relevant passage simply states:"[14] On the charge of assault on a family relationship the starting point Iwould have adopted was one of 12 months' imprisonment. I give youappropriate credits for the work that you have done. I would uplift by twomonths for the excess speed. In any event where I get to in the end is it is ashort-term imprisonment after discounts are applied."(Emphasis added)[25] I have viewed certificates confirming Mr Aziz's participation in these coursesand accept that some recognition of this factor was warranted. In my view, anappropriate discount would have been in the vicinity of five per cent. This strikes anappropriate balance between recognising Mr Aziz's rehabilitative efforts to date andnoting that there is still more work to be done — as for example shown by the familyharm call outs which the Judge described as "still ongoing".17[26] That brings me to guilty plea. The Judge did not expressly state the credit tobe given for this factor, even if the end sentence of four months' home detention tendsto suggest it was taken into account.17 Police v Abdul-Aziz, above n 3, at [6].[27] Mr Aziz was arrested on 8 October 2021 but did not plead guilty until22 September 2022, after the impeding breathing charge was amended to the lesserassault charge. In such circumstances, even if the plea was entered on the firstreasonable opportunity after the charge was amended, the Supreme Court has held thatthe full 25 per cent discount is not necessarily available.18 This is because of the riskof double benefit: the defendant first receives a benefit in the form of a lesser charge(in this case a two-year maximum penalty as opposed to seven years) and secondly thebenefit of full credit for guilty plea.19 Bearing in mind that the sentence must properlyreflect the offending, while recognising the savings associated with not having toproceed to trial, I consider a 20 per cent discount to be appropriate in Mr Aziz's case.Mr Muratbegovic suggested the same in oral submission.[28] This, when added to the five per cent discount for rehabilitation, would producea total discount of 25 per cent. From an uplifted starting point of 14 months, thiswould lead to an end sentence of 10 months' imprisonment (rounded down),commuted, as I accept was appropriate, to a sentence of five months' home detention.[29] It follows that I do not consider an end sentence of four months' homedetention can be described as manifestly excessive. Even if a lower starting point ofnine or 10 months' imprisonment was adopted on the assault charge, the discountsavailable to Mr Aziz would not bring the sentence below four months. I add that itwould have been open to the Judge to further uplift the starting point by a small marginto reflect Mr Aziz's relevant previous convictions.20 Mr Muratbegovic submitted thatsuch an uplift could have been in the vicinity of three months' imprisonment. That theJudge did not do so operated to Mr Aziz's benefit.[30] The reality is that, for a period of four months, Mr Aziz is confined to the homefor a maximum of four full days per week. The other three days of the week he iseffectively subject to a night-time curfew only, in light of a condition of his sentencethat allows him to attend his job at a panelbeaters between 7:30 am and 4:00 pm. To18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].19 Knight v R [2021] NZHC 2372 at [17]; and Stevens-Fraser v R [2022] NZHC 3470 at [13].20 These include two convictions in 2018 for male assaults female (family violence) for which MrAziz received a sentence of seven months' home detention. Mr Aziz also has a history of driving-related offences spanning 2007 to 2014, including a conviction in 2013 for operating a vehicle inan unnecessary exhibition of speed.compare this with eight months' imprisonment as Mr Beach did in oral submission is,with respect, to compare apples with oranges.[31] In addition, Mr Muratbegovic advises me that pursuant to s 343 of the CriminalProcedure Act 2011, Mr Aziz's sentence has not been suspended by virtue of the filingof the current appeal. As he was sentenced to four months' home detention on9 August 2023, Mr Aziz's sentence is due to expire on 8 December 2023 at whichpoint he will have relative freedom, subject to any post-detention conditions as maybe imposed.[32] In any event, I agree with Mr Muratbegovic's submission that home detentioncould be seen as a relatively generous outcome in the circumstances. Given Mr Aziz'sprevious convictions for assault in a family violence context, and his breaches of theresulting sentence of home detention in 2020, another Judge may well have imposeda sentence of imprisonment instead.[33] Mr Aziz does not appear to challenge the two-month uplift for the excess speedcharge, nor the end sentence of 80 hours community work on that charge and I see noreason to interfere with these aspects of the sentencing in any event. Community workwas the more lenient option in the circumstances, enabling Mr Aziz to maintainemployment and support his family.[34] There being no discernible error of principle in the sentencing but in any eventthe sentence being within the available range, the appeal against sentence must fail.Result[35] The appeal is dismissed.Moore JSolicitors:Mr Beach, AucklandCrown Solicitor, Auckland