GANIS v R [2021] NZHC 393

GANIS v R [2021] NZHC 393 [5 March 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000112[2021] NZHC 393BETWEEN KARIM MONIR ABO GANISAppellantAND THE QUEENRespondentHearing: 17 February 2021Appearances: C D Bean for AppellantB B Harris for RespondentJudgment: 5 March 2021JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 5 March 2021 at 4:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Hamilton[1] On 26 November 2020, Judge Down, sitting in the District Court at Hamilton,sentenced Mr Karin Abo Ganis (the appellant) to two years' five months'imprisonment on thirteen charges related to violence, arms, and drugs.1 The appellanthad previously entered pleas of guilty to the charges on 18 September 2020 followinga sentence indication given by the Judge on 11 September 2020.2[2] The appellant now appeals against his sentence, saying that a term of homedetention ought to have instead been imposed. He says that if appropriate discountshad been afforded in respect of rehabilitative potential; addiction; personal; cultural,and family background; and remorse, that a sentence of home detention would havebeen available.[3] The appellant does not take issue with the four-year starting point adopted bythe Judge at sentencing, consistent with the starting point adopted in his sentenceindication. The focus of the appeal is therefore on the existence of mitigating factorspersonal to the appellant and what discounts, if any, are necessary to recognise the roleof these factors in reducing the appellant's moral culpability in respect of hisoffending.The offending[4] On 19 March 2020, the appellant and a co-offender met two of the victims at abar in Hamilton. The victims were a young man and a young woman (the male victimand the second victim) who had gone together to the bar. Another female teenagerwho was with them that night, was waiting for them, outside in the male victim's caras she was underage for admission to the bar (the third victim). While in the bar theappellant took three plastic point-bags from his satchel and showed them to the malevictim. 3 The plastic bags appeared to contain a white crystal substance that lookedlike methamphetamine. When the bar closed the appellant asked the male victim if hewould give him and his (male) friend a ride home in his car, if they paid for petrol andsome takeaway food on the way. The male victim agreed and the appellant and his1 R v Abo Ganis (Sentencing Notes of Judge Down) [2020] NZDC 24752.2 R v Abo Ganis (Sentencing Indication) DC Hamilton CRI-2020-019-2211, 11 September 2020.3 Possesses Methamphetamine: Misuse of Drugs Act 1975, s 7(1)(a). Maximum penalty six months'imprisonment.associate got into the car together with the three victims. During their journey theappellant showed the male victim two point-bags and offered him a gram ofmethamphetamine in exchange for letting the two women in the car perform sex actson him.4 The male victim declined, and continued driving to a takeaway restaurantwhere some food was purchased.[5] After leaving the takeaway restaurant, the male victim was instructed by theappellant and his associate to stop the car and wait while the appellant's associate wentinto a nearby address to collect a debt. While he was away the appellant repeated hisproposition of offering methamphetamine in exchange for sex from the two youngwomen. His proposal was again declined. The appellant then became angry and whilestill in the car backhanded one of the women (the second victim).5 She got out of thevehicle and began walking away. When the male victim confronted the appellant abouthis actions, the appellant responded saying, "do you want to get popped, I can killyou". The appellant's associate who by then had returned to the car, then reached overfrom the back seat and grabbed the male victim in a head-lock. While the male victimwas being held, the appellant exited the car, opened the driver's door and punchedhim,6 instructing him to take the keys out of the ignition and put them on the bonnetof the car. The male victim complied.[6] The third victim then exited the car and fled. The appellant followed her andpunched her on her cheek and jaw, causing her to fall to the ground. The appellant thenkicked her once on her thigh.7 The third victim got up and ran away to join the secondvictim. The two young women then went to a house and telephoned the police.[7] The appellant however, went across the road from where the car was parkedand to a service station where he purchased and filled a five-litre petrol container. Hethen returned to the car and he and his associate told the male victim to get into it.8The male victim refused as he feared for his safety. The appellant then poured petrol4 Offers to Supply Methamphetamine: Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2). Maximumpenalty life imprisonment.5 Male Assaults Female: Crimes Act 1961, s 194(b). Maximum penalty two years' imprisonment.6 Common Assault: Crimes Act 1961, s 196. Maximum penalty one year's imprisonment.7 Male Assaults Female: Crimes Act 1961, s 194(b). Maximum penalty two years' imprisonment.8 Common Assault: Crimes Act 1961, s 196. Maximum penalty one year's imprisonment.over the car, set it ablaze,9 and fled before the police and fire service arrived at thescene. The fire caused significant damage to the vehicle. The interior of the car wascompletely gutted by the fire and beyond repair.[8] A search warrant was subsequently executed by Police at the appellant'sresidential address in Hamilton. The Police there located a fully loaded single barrelpump action shotgun,10 a hunting crossbow with an arrow notched against the drawstring ready to fire,11 and what the summary of facts describes as "an assortment ofammunition including shotgun shells and a large quantity of .22 calibre bullets".12Police also located 7.8 grams of methamphetamine,13 various quantities of precursorsubstances,14 items of laboratory equipment,15 and just under $26,000 in cash.District Court Sentencing[9] Consistent with his earlier sentence indication, Judge Down took the arson asthe lead charge. Fixing a starting point of two years' imprisonment in respect of thatoffence, he applied an uplift of 12 months for the drug offences on a totality basis,three months for the violent offences on a totality basis, and nine months for the armsoffences on a totality basis, to arrive at a starting point of four years' imprisonment.16[10] The Judge then addressed the mitigating features personal to the appellant,saying:17[] From that overall start point of four years I apply further discounts forother matters that have been brought to my attention since the sentenceindication. You have taken significant steps towards your rehabilitation andfor that I apply a five per cent discount. There are a number of factors relatingto your cultural background, your coming to this country and some of the9 Arson: Crimes Act 1961, s 267(1)(b). Maximum penalty fourteen years' imprisonment.10 Possesses a Prohibited Firearm: Arms Act 1983, s 50A. Maximum penalty five years'imprisonment.11 Possesses an Offensive Weapon: Crimes Act 1961, s 202A(4)(b). Maximum penalty three years'imprisonment.12 Carrying firearms: Arms Act 1983, s 45(1). Maximum penalty four years' imprisonment.13 Possesses Methamphetamine for Supply: Misuse of Drugs Act 1975, s 6(1)(f). Maximum penaltylife imprisonment.14 Possesses Precursor Substances: Misuse of Drugs Act 1975, s 12A(2)(b). Maximum penalty fiveyears' imprisonment.15 Possesses Equipment: Misuse of Drugs Act 1975, s 12A(2)(a). Maximum penalty five years'imprisonment.16 R v Abo Ganis (Sentencing Notes of Judge Down) [2020] NZDC 24752 at [9]-[13].17 At [14]-[15] and [20].difficulties that you faced in your education and development, recorded in thes 27 report, a discount of five per cent.Turning to your addiction; if your addiction was at the root of all of thisoffending and if it was causative of this offending, then perhaps a generousdiscount of 10 per cent might be justified. But, here it only really relates to thedrug offending. It has no causative link to the violence and arson which wereentirely over the top. Overall, I am only going to apply a discount of five percent for addiction, which relates primarily to the drugs offending. []I have not given you a discount for remorse. I do not consider that you havegiven any real consideration to the victims in this case. That is what remorsefocuses upon, not on remorse for what you have done to yourself or yourparents.[11] As to guilty plea, the Judge, in conformity with his sentencing indication,allowed a discount of 25 percent,18 and together with the discounts allowed on accountof the appellant's steps taken towards rehabilitation, his drug addiction and the s 27factors, arrived at an overall discount of 40 per-cent which equated to 19 monthsreduction from the four year starting point to result in a final sentence of 29 months'imprisonment."19[12] The Judge said that he could not accept the submission made on the appellant'sbehalf that he should impose a sentence other than imprisonment.20Submissions[13] Mr Bean for the appellant submits that:(a) a discount of 15 per cent rather than five per cent should have beenallowed in respect of the aspects of the appellant's personal, family, andcultural background detailed in the s 27 report and the causative role ofhis background in respect of his offending;(b) a further discount of five per cent should have been allowed on accountof the appellant's previous good character and remorse;18 R v Abo Ganis (Sentencing Notes of Judge Down) [2020] NZDC 24752 at [14] and [15].19 At [15].20 At [14].(c) a discount of ten percent, rather than five per cent, should have beenallowed on account of the appellant's drug addiction and its causativerole in respect of the offending and for his recent rehabilitative effortsto address his addiction; and(d) the guilty plea discount of 25 per cent awarded by the Judge ought tohave been applied concurrently with the discounts afforded in respectof personal mitigating features, not subsequently to those discounts,which approach Mr Bean submits the Judge erroneously adopted.[14] Mr Bean notes that the appellant has on his own initiative undertaken a drugand alcohol rehabilitation programme at Care NZ comprising 24 sessions, and hasvoluntarily undergone a series of drug tests conducted by the Drug Detection Agencybetween June 2020 and November 2020 each of which resulted in negative tests forthe presence of drugs. Counsel further notes that the appellant has also attended theMen's Non Violence Education Programme run by the Hamilton Abuse InterventionProject (HAIP) which comprises ten weekly sessions. Counsel submits that therehabilitation initiatives shown by the appellant are unusual, and are a factor thatshould be recognised by way of a greater discount than the five per cent allowed bythe Judge. He accordingly submits that a ten per cent discount would be appropriate.[15] Mr Bean submits that applying the two-stage approach set out in Moses v R,21would produce a total discount, of 26.5 months and result in an end sentence of 21.5months. He submits that the resultant short term sentence of imprisonment,22 is suchthat the substitution of a sentence of home detention would be possible.23[16] Although the appellant's counsel does not expressly seek such an order, I inferthat for the same reasons he contends that greater sentencing discounts should havebeen afforded than were in fact allowed, he would also contend that leave should begranted to the appellant to apply to the District Court for cancellation of any reduced21 Moses v R [2020] NZCA 296.22 Sentencing Act 2002, s 4(1); Parole Act 2002, s 4(1).23 Sentencing Act 20002, s 15A.sentence of imprisonment and substitution of a sentence of home detention once asuitable residence can be identified.24[17] Mr Harris for the Crown submits that the discounts afforded by the Judge wereappropriate and the end sentence was not manifestly excessive. He submits that as thematter had already had a criminal call-over and with witness statements filed beforethe sentence indication was given and guilty pleas were entered, the 25 per centdiscount allowed by the Judge was generous. He submits that the five per cent discountfor the s 27 factors was appropriate recognition of those background factors havingregard to the lack of any clearer and direct nexus between the appellant's personal,family, and cultural background and addiction, and his arson and violent offending.He accepts that there is an apparent connection between the appellant's addiction andhis drug related offending, but says the discount allowed was appropriate in relationto that factor. He submits a good character discount is not available given theappellant's moderately extensive criminal history; and says that the Judge was correctin his assessment that the appellant was not remorseful as regards the victims, butrather for the effects of his offending on himself and his family.[18] Mr Harris says that as the discounts were applied across all the chargesnotwithstanding the different kinds of offending they were generous, and the finalsentence imposed was not manifestly excessive and clearly within the available range.Applicable Principles[19] This first appeal against sentence is brought as of right pursuant to s 244 of theCriminal Procedure Act 2011. Pursuant to s 250 of the Act, the Court must allow theappeal if satisfied that, for any reason, there is an error in the sentence imposed andthat a different sentence should be imposed.25 Otherwise, the appeal must bedismissed.2624 This Court, as the first appeal court, would have jurisdiction to make such an order: SentencingAct 2002, s 80I; Criminal Procedure Act 2011, ss 251(2)(b)-(c).25 Criminal Procedure Act 2011, s 250(2).26 Section 250(3).[20] The Court on appeal does not simply substitute its own evaluation of theappropriate sentence. Rather, it must be satisfied there was an error "whetherintrinsically, or as a result of additional material submitted"27 on appeal, in the sensethat the end sentence was manifestly excessive having regard to ordinary sentencingprinciples,28 and only then determining whether a different sentence should beimposed.29DiscussionPersonal circumstances of the offender[21] All of the personal mitigating factors relied on by the appellant are factuallyand logically interrelated. Accordingly, I shall address the mitigating factors together,starting with the material contained in the s 27 report.[22] It is not in dispute that a discount is available in respect of evidence of social,cultural, and economic deprivation in an offender's background where a"demonstrative nexus with the offending" is shown,30 and the Court is satisfied thatthe offender is less morally culpable than would be an offender who has not sufferedsuch deprivations, having had their choices bounded by these adverse circumstances.31This renders less appropriate emphasis being placed on accountability, denunciation,and specific and general deterrence, and greater emphasis on rehabilitation.32 TheCourt of Appeal has noted the appropriate extent of any such discount is "very muchfact-specific in each case",33 and has declined to offer guidelines as to the appropriaterange of discounts.[23] Nonetheless, given the requirement to treat like offenders and offences alike,34and the underlying rationale for the s 27 discount, it follows, at a high level of27 R v Shipton [2007] 2 NZLR 218 (CA) at [138], approved after the commencement of the CriminalProcedure Act 2011 in Tutakangahau v R [2014] NZCA 279 at [29].28 Tutakangahau v R [2014] NZCA 279 at [35]-[36].29 Tutakangahau v R [2014] NZCA 279 at [30]-[35].30 Zhang v R [2019] NZCA 507 at [162].31 See also Poi v R [2020] NZCA 312 at [32]-[39] and [40]-[51]; Solicitor-General v Heta [2018]NZHC 2453 at [40]-[41]. This can be seen to give expression to ss 8(a) and 8(i) of the SentencingAct 2002.32 Poi v R [2020] NZCA 312 at [24]-[27].33 Whittaker v R [2020] NZCA 241 at [51]; Carr v R [2020] NZCA 357 at [63].34 Sentencing Act 2002, s 8(e).generality, that the more adverse an offender's circumstances, and the greater thenexus between those circumstances and the offending, the greater the scope forallowing a larger discount.35 It is clear that, while an evidential foundation linking anoffender's background to their offending is required for a discount under this headingto be available, a sentencing Court is nevertheless entitled to draw a reasonableinference when deciding whether the necessary nexus exists.36 In Purua-King, JusticeWoolford described a connection of this type as an "inferential nexus".37[24] Here what is in dispute is the existence and strength of a nexus, and if so,whether a discount of more than five per cent was appropriate, having regard to notionsof consistency and the underlying rationale for these discounts.[25] The Judge noted the s 27 report prepared by Ms Raecheal Riddell (Kingi) dated23 November 2020. The report explains that the appellant experienced what is termed"horrible confusion" as a child as a result of his mixed European/Māori and Israeli-Palestinian heritage, with his father being deported when he was five. Following hisfather's deportation, the appellant and his mother "blended" into another family, thefather figure in that family becoming his father figure. However that father figure diedduring the appellant's first year of secondary school, which contributed to himfollowing a "wayward path" involving poor peer influences, truancy, and alcoholconsumption. The appellant was subsequently placed by Child Youth and Family in aseries of boys' homes and into a high school in another city where he says he wassubjected to violent discipline at the hands of security guards. That high school waslater closed by authorities in 2011 in response to serious management and governanceissues.[26] After returning home, following the closure of that school, the appellant thenaged around 14, became increasingly self-indulgent and had poorly controlledemotions. His substance consumption progressed from smoking cannabis and abusingalcohol, to consuming steroids and testosterone as an aid to physical activity, before35 See Carr v R [2020] NZCA 357 at [69]-[71]; Poi v R [2020] NZCA 312 at [32]-[39] and [40]-[51].36 Arona v R [2018] NZCA 427 at [59], approving Solicitor-General v Heta [2018] NZHC 2453;[2019] 2 NZLR 241 at [50].37 Purua-King v R [2019] NZHC 1698 at [45].moving to MDMA (ecstasy) and on to methamphetamine and developing an addictionto that substance.[27] As noted above, the personal circumstances of different offenders are difficultto compare, being an intensely factually specific combination of personal, family,cultural, and socioeconomic factors. A comparison to the circumstances of theappellant in Carr v R,38 to which counsel referred, is nevertheless informative. Mr Carrwas described by the Court of Appeal as having a "disadvantaged life commencingwhen he was young". Mr Carr's family experienced poverty, family violence, and anincident of sexual abuse by a family member, causing him to run away from home ata young age, and leading in turn to his early exit from the education system withoutany formal qualifications and thereafter to drug abuse, violence and gang affiliations.These events all took place in the context of his disconnection from Te Ao Māori. Inrespect of these factors, the Court allowed Mr Carr a discount of 15 per cent; notingthis would have been higher but for the extremely violent nature of his offending.[28] Compared to the defendant in Carr, the appellant had the advantage of afundamentally supportive home environment notwithstanding the disruptive effects ofthe deportation and consequent loss of his father. He explained to the report writerthat following his father's deportation his mother focused her life on the appellant andhis future. He reports that when he was young his mother ensured that he had positivemale role models around him. He also had a close relationship with his grandmother.He described himself as being well-loved and raised with good morals, and that hiscore values and beliefs were driven by mindfulness and thoughtfulness and he alwayshad "very healthy" role models. The appellant developed a close relationship with thefather of a family which was close to his family and he came to see that man as beinga father-figure. However his father-figure died during the appellant's first year atsecondary school. It was around that time that the appellant says he started "actingout" and getting into trouble. His behaviour deteriorated and he became involved withanti-social associates leading to truancy, consuming alcohol and smoking cannabis.After being caught smoking cannabis at school he was expelled. When his mothercould not cope with him she contacted Child Youth and Family Services (CYFS) for38 Carr v R [2020] NZCA 357 at [71].assistance. CYFS arranged for the appellant to attend Felix Donnelly College wherehe says he was subjected to violence at the hands of security guards who wereemployed at the College to control the students if they acted up in class. The Collegewas closed in 2011 and the appellant then went to Fairfield College, however he wasexpelled for repeatedly getting into trouble. He then commenced courses towards amechanic's trade qualification before changing to commence a buildingapprenticeship and thence to become a qualified builder. At age 17 he travelled toIsrael to meet his father and says that he learned about his father's culture anddeveloped a better understanding of his father. At around 20 years of age he met aCambodian woman and they had daughter who is now 13 years old. Around 2015 hecommenced another relationship and he and that partner together have a son who isthree years old. He and that partner are now separated but nevertheless maintain afriendship and share the responsibilities of caring for their son.[29] Despite experiencing what were clearly some adverse and traumaticcircumstances during his youth, the appellant enjoyed a generally loving andsupportive upbringing and although during his teenage years he became involved inalcohol and drug abuse and was expelled from school he nevertheless demonstratedhis ability to sufficiently overcome those destructive behaviours to go on to obtain atradesman qualification as a builder, and successfully complete a buildingapprenticeship. The letters of support tendered to the District Court confirm that overthe past ten years or so prior to his offending the appellant has worked competentlyand diligently for construction companies. He is described as a great asset and veryhard worker, patient with his apprentices, and has a good reputation in the industry.The authors of the letters all express their surprise on learning that the appellant had amethamphetamine addiction which they considered was out of character for him, andsay that that they would be willing to employ him again.[30] Notwithstanding the appellant's difficult childhood and youth as described indetail in the s 27 report, I do not consider that the Judge erred in allowing a five percent discount to recognise the extent to which that background related to thecommission of the offending for which he was sentenced. The appellant's backgroundand the matters set out in the s 27 report are well removed from the circumstances inPoi and Carr where the Court of Appeal found the offender's culpability to have beensignificantly diminished by reason of the matters detailed in their s 27 reports.[31] Here the lead offending of arson was not committed by the appellant while hewas effected by methamphetamine or for the purpose of obtaining money to satisfyhis drug addiction. The arson was committed in circumstances where the appellant'sproposal for the young women in the car to perform sexual acts upon him, had beendeclined. The appellant's request to be driven home appears to have been motivatedby an intention to engage in sexual activities with the young woman who he had metwith the male victim in the bar in exchange for some methamphetamine. The violencehe directed at all three victims in the course of the events that unfolded has no apparentcausal connection with his cultural, personal and family background, and appears tohave arisen as a violent reaction by the appellant following the rejection of his proposalto exchange drugs for sex.[32] The appellant's methamphetamine addiction clearly motivated and contributedto his drug related offending. The steps he has taken by undertaking the drug andalcohol rehabilitation and anti-violence programmes are to his credit, however, I donot consider that the initiative he has taken and the rehabilitation progress he has made,warrant a larger discount than the ten per cent allowed by the Judge; accounting forhis addiction (five per cent) and his rehabilitative initiatives and progress (five percent). In my view the combination of those discounts appropriately and sufficientlyrecognises mitigation of the appellant's culpability on account of those factors.[33] Finally, I find that the Judge did not err by deciding not to give the appellantseparate and further discounts on account of remorse and good character. The appellanthas previous convictions for wilful damage and unlawfully interfering with a motorvehicle as well as a number of breath/alcohol and driving convictions. I agree withMr Harris that, in these circumstances, the presumption of good character arising froman absence of previous convictions must be displaced.3939 See R v Howe [1982] 1 NZLR 618 at 629 (CA).[34] I am reluctant to depart from Judge Down's assessment of fact and exercise ofjudgment as to whether the appellant has shown genuine remorse,40 given the viewarrived at by the Judge was plainly available. I agree with the Judge that theappellant's expressions of remorse are related to the consequences of his offending onhis family members and himself, rather than being focussed on the harm he caused thevictims. Concern for his victims, as Mr Harris notes, is not clearly evident from theappellant's letter of remorse, or his pre-sentence interview, even though shame at hisactions, motivation to reform, and a degree of insight do clearly emerge. Accordingly,I do not consider that the Judge erred in not applying a separate discount for remorse.Stepping back, I find that the discounts allowed by the Judge were discretely, and incombination appropriate, and within the range available to the Judge.[35] The appellant's offending against the three victims was aptly described by theJudge as being "extremely nasty and very dangerous". The appellant and his associateacted in a violent and intimidating manner towards the three victims and effectivelystood over the male victim while the appellant went and obtained some petrol withwhich to set his car alight, and proceeded to do so, having earlier instructed him to getinto it – which the male victim refused to do.[36] The end sentence of 29 months' imprisonment is not manifestly excessivehaving regard to the gravity of the arson and related violent offending coupled withthe moderately serious drug dealing offending and the appellant's possession of loadedfirearms, notwithstanding that none of the victims of the violence were injured as aresult.[37] In accordance with the methodology described in Moses, the Judge correctlycalculated the discounts which totalled 40 per cent and which represented a reductionof 19 months from the starting point of four years, and resulted in an end sentence of29 months.[38] For these reasons the appellant has failed to show that the Judge erred in thesentence he imposed and that a different sentence ought to have been imposed, and theappeal will be dismissed.40 See Hessell v R [2010] NZSC 135 at [28].Result[39] The appeal is dismissed._____________Paul Davison J