NASSERY v R [2022] NZCA 213

NASSERY v R [2022] NZCA 213 [26 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA26/2022[2022] NZCA 213BETWEEN MOHAMMED OMAR NASSERYAppellantAND THE QUEENRespondentHearing: 9 May 2022Court: Clifford, Venning and Moore JJCounsel: N T C Batts for Appellant C P Paterson and M J Mortimer-Wang for RespondentJudgment: 26 May 2022 at 10.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Following a jury trial in the District Court at Auckland, Mohammed Nassery was convicted of two charges of aggravated robbery, a charge of theft of petrol, and a charge of receiving stolen registration plates. Judge C M Ryan sentenced Mr Nassery to two years, six months' imprisonment.1 She also remitted Mr Nassery's outstanding fines of $4,427.60.1 R v Nassery [2022] NZDC 868 [Judgment under appeal].[2] Mr Nassery appeals against the sentence of imprisonment. He says he should have received home detention which would have enabled him to attend a rehabilitative course.Background offending[3] On 27 November 2019, Mr Nassery went to a Mobil petrol station and filled his work van with fuel to the value of $50. Although Mr Nassery approached the counter he did not pay. He left the petrol station and drove away without paying. Mr Nassery paid the $50 shortly before trial.[4] On 29 November 2019, Mr Nassery went into a PK Superette in Point Chevalier at about 10.30 am. He was wearing a white Halloween mask. He demanded money from the sole attendant. While carrying out the robbery he held a thick stainless steel knife. Mr Nassery took between $300 and $400 in cash and eight to 10 packets of cigarettes. The licence plate on the van Mr Nassery used to leave the scene was covered to avoid identification.[5] The next day, on 30 November 2019, Mr Nassery went to the Taikata Dairy in Te Atatu. Again he was wearing a white mask and carrying a large knife. Mr Nassery threatened the store attendant. Mr Nassery took around $250 cash and an unspecified number of packets of cigarettes.[6] The final charge was receiving stolen property. Mr Nassery was found in possession of stolen registration plates on or about 1 December 2019.The District Court sentence[7] In her lengthy sentencing notes Judge Ryan identified the aggravated robbery of the PK Superette as the lead offence because slightly more cash had been taken in that robbery. Having regard to the guideline judgment in R v Mako she considered a starting point of four years, six months was appropriate.2 She then uplifted that by four months for the second offence which had taken place the next day and added2 R v Mako [2000] 2 NZLR 170 (CA).a further two months for the other offences, namely the theft from the petrol station and the receiving. The adjusted starting point was five years' imprisonment.3[8] Although Mr Nassery had prior convictions they were not relevant and the Judge did not uplift the starting point further.4[9] The Judge then considered Mr Nassery's personal circumstances, including those disclosed in the pre-sentence and cultural reports. The Judge applied a discount of 20 per cent for those matters, and a further 20 per cent for Mr Nassery's addiction issues.5 She then added a further five per cent to take account of any additional mental health issues that may have been separate or distinct from his addiction. Finally, the Judge applied an additional five per cent discount having regard to other more general factors, including the fact that Mr Nassery had spent time on EM bail (although he had not always been compliant).6[10] After deducting the 50 per cent for mitigating factors from the starting point, the Judge was left with an end sentence of two years, six months' imprisonment. The Judge rejected a submission that the sentence should be further reduced to a figure where she could consider home detention. She considered that would have been artificial. As noted, the Judge also remitted outstanding fines of $4,427.60.7Procedure on a sentence appeal[11] Section 250(2) of the Criminal Procedure Act 2011 (the CPA) provides that on a sentence appeal under s 244 such as this, the court must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, the court must dismiss the appeal.8[12] In Tutakangahau v R this Court confirmed that s 250 was not intended to change the approach formerly taken to sentence appeals.9 The focus remains on3 Judgment under appeal, above n 1, at [101].4 At [102].5 At [105] and [109].6 At [111].7 At [115]–[116].8 Criminal Procedure Act 2011, s 250.9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [28].whether the end sentence imposed is within range rather than the process by which the sentence was reached. 10 Further, while no express reference was made in the CPA to the concepts of a manifestly excessive or inadequate sentence, this Court accepted they were longstanding, were consistent with the statutory language and should continue to be utilised when considering s 250(2).11Submissions on appeal[13] For Mr Nassery, Mr Batts submitted:(a) the Judge was in error in fixing the end sentence at two years, six months' imprisonment as she had failed to address s 16(2) of the Sentencing Act 2002 (the Act) and had not explained why only a sentence of imprisonment would meet the applicable purposes and principles of sentencing; and(b) in failing to address s 16 of the Act, the Judge had failed to identify which of the purposes of sentencing in s 7 of the Act were applicable and had failed to address why it was appropriate to apply the guideline judgment of Mako and to give priority to the principle of consistency (in s 8(e) of the Act) over other considerations, particularly Mr Nassery's rehabilitation.[14] Alternatively, Mr Batts submitted that in adopting a starting point by reference to the guideline judgment the Judge had failed to properly account for further discrete discounts that were available to Mr Nassery.[15] The focus of Mr Batts' submissions for Mr Nassery was on s 16 of the Act.[16] Section 16 provides:16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability10 At [36].11 At [33].of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—(a) a sentence is being imposed for all or any of the purposes insection 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other than imprisonment; and(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.(3) This section is subject to any provision in this or any other enactment that—(a) provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.[17] Mr Batts referred to the statutory history of sentencing provisions in New Zealand that preceded the existing s 16(2) and submitted that the current provisions of the Sentencing Act were more directive, for example:(a) the express reference in s 8(g) that the least restrictive outcome be imposed;(b) the hierarchy of sentences in s 10A;(c) the re-enactment of s 7 of the Criminal Justice Act 1985 as s 16(1) of the Sentencing Act and hence the relatively limited statement of the need to take into account the desirability of avoiding placement into prison; and(d) the enactment of s 16(2), which is expressed in mandatory terms and excludes imprisonment unless the criteria in that subsection are made out.[18] While acknowledging that guideline judgments could satisfy the general principle of consistency under s 8(e) of the Act, Mr Batts emphasised the limitations of guideline judgments which were recognised by this Court in Zhang v R, 12 and the Supreme Court in Hessell v R.13 He submitted that this Court had shown in Barnes v Rthat a more flexible approach could be taken.14[19] Mr Batts also emphasised that this Court had recognised that home detention was a real alternative to imprisonment.15[20] Mr Batts submitted the appeal raised pressing concerns of general importance in the context of sentencing practice in New Zealand and that Judge Ryan's failure to apply or even refer to s 16 of the Act was a significant error. He submitted the Judge had a choice to determine which purpose of sentencing should be prominent and whether or not to adopt the guideline judgment. Mr Batts submitted that a somewhat mechanistic application of the tariff judgment in Mako, combined with an apparent indifference for the effect of s 16 of the Act, had led in this case to a systematic error and a sentence which was manifestly excessive.Discussion[21] With respect to Mr Batts' submissions as to the application of s 16, we consider them to be misguided. Section 16 does not enable the court to approach the sentencing exercise in the way Mr Batts argued for.[22] We agree with the submission for the Crown that s 16 does not operate as the free-standing, first principle that Mr Batts argued for. Section 16 is not a dominant purpose section.[23] As a matter of interpretation informed by both its place in the Act, and the specific language of the section, s 16 is most obviously engaged where the court12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [48].13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.14 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.15 R v D (CA253/2008) [2008] NZCA 254 at [60].has, on a principled basis, an option whether to sentence the defendant to imprisonment or to a sentence less than imprisonment.[24] The scheme of the Act and the place of s 16 within it are particularly relevant. Sections 13, 15 and 16 are operative sections that direct and guide the courts' sentencing discretion. They assist the court to give effect to the hierarchy of sentences noted under s 10A(2) and the accepted principle under s 8(g) that a court must impose the least restrictive sentence appropriate in the circumstances.[25] However, s 16 cannot be applied to ignore or avoid what otherwise would be an appropriate end sentence of imprisonment or where a sentence less than imprisonment is not available to the court. The wording of s 16(1) expressly provides that the desirability of keeping offenders in the community is constrained to the extent that that objective must be practicable and consonant with the safety of the community. Section 16 is also expressly subject to any provision that provides for a presumption of imprisonment or requires the court to impose a sentence of imprisonment.16Section 16 cannot apply to enable the imposition of a sentence of home detention where it is otherwise precluded by, for instance, the operation of s 15A(1)(b).[26] The difficulty with Mr Batts' argument was highlighted by his inability to suggest at what stage of the sentencing exercise s 16, as he interpreted it, is to apply. The section will generally be engaged after the Court has arrived at a preliminary view of the sentence it considers appropriate, after taking a nominal starting point (having regard to any guideline judgment where relevant), and after taking account of the personal aggravating and mitigating features applying to the defendant. At that stage, before imposing a sentence of imprisonment the Court must take the considerations in s 16 into account.[27] Where a guideline judgment is applicable (as in this case) the court should apply it. In Hessell v R, the Supreme Court accepted that guideline judgments were appropriate and addressed the requirement for consistency.17 Further, the Court went16 Sentencing Act 2002, s 16(3).17 Hessell v R, above n 13.on to implicitly accept that orthodox approach to structuring the appropriate sentence, while emphasising the wide discretion available to the sentencing judge:[26] This focus on seeking consistency, in conjunction with a careful evaluation of the individual circumstances of the case, was also reflected in the Court's sentence guideline judgments during this period. In a judgment which increased to eight years' imprisonment the starting point for rape sentencing, the Court recognised that this would probably result in an increase in the average length of rape sentences but emphasised that it was not intended to fetter sentencing judges in assessing the gravity of particular cases:In the end, almost everything turns on the facts of the particular case. It is part of the judicial responsibility to weigh these.[27] The importance of consistency in sentencing was accordingly a well established principle in the administration of criminal justice when Parliament enacted the Sentencing Act in 2002. But, in giving that principle effect, the Court of Appeal continued to recognise that:It is only by allowing the sentencing authorities a wide discretion that they are enabled to take account of the innumerable factors affecting the nature of the offence, the circumstances of the offence, and the circumstances of the offender, all of which should ordinarily be weighed in determining the appropriate sentence in the particular case.(Footnotes omitted.)[28] The Supreme Court returned to the importance of the discretion, but confirmed that it is to be exercised in a principled way, in the following passages:[39] It should be borne in mind that the purposes, principles and factors listed in the 2002 Act were largely, although not entirely, recognised by the courts prior to its enactment. This was known to members of the House of Representatives. In reporting back the Sentencing Bill to the House, the Justice and Electoral Committee said of what became s 7:Most of us consider clause 7 provides judicial guidance by making it clear why the particular sentences are available and the purposes for which they are to be used. Clause 7 sets out in statute the sentencing purposes that are stated in case law from time to time but which have not previously been laid down in legislation in this country. Most of us believe it is a realistic approach and does not inhibit judges from taking account of the particular facts of individual cases. It also assists public understanding of the sentencing process.[40] As to the principles, in what became s 8, the Select Committee said:In providing explicit sentencing guidance to the courts, the sentencing process must reflect certain basic principles and take a common approach to sentencing. Principles have to beestablished to determine the relative amounts of punishment that can be justified in particular cases, and they need to be capable of being applied across cases. Many of the principles in clause 8 restate current sentencing rules from case law. They must be applied in every sentencing decision to achieve consistency and transparency.[41] While these passages indicate the legislature's desire for consistency, there is no suggestion that it is to be achieved by curtailing sentencing discretion in favour of a more structured approach than the courts were applying at common law. Rather, the Select Committee believed that a proper judicial evaluation of individual cases in applying the purposes and principles set out in the Act would lead to consistent sentencing.[42] Accordingly, in articulating the purposes and principles of sentencing, and circumstances which will aggravate or mitigate offending, Parliament has both clarified the factors to be addressed and given legislative force to the duty to take them into account. It has done so both for the benefit of judges and to foster greater awareness of the public concerning the complexity of what has to be considered in the sentencing task. That complexity, as the legislation makes apparent, arises both from the large number of principles and purposes of sentencing and the infinite variety of circumstances of criminal offending that will be relevant to the appropriate sentence. The impact of these various considerations, applicable in any case, may tend to aggravate or mitigate the offending. Often they will pull in different ways.[43] In this context the proper application of punishment for offending remains, as it was prior to the 2002 legislation, an evaluative task for sentencing judges and those judges who determine sentencing appeals. The task reflects the amalgam of sentencing discretion, on the one hand, which ensures the gravity of individual offending and circumstances of the offender are duly assessed, and sentencing consistency, on the other, which tempers sentencing judgment to ensure that sentencing outcomes reflect a policy of like treatment for similar circumstances.[44] The 2002 Act did not require a departure from this approach. It rather sought to clarify what judges had to take account of under it and to assist public understanding of the sentencing process.(Footnotes omitted.)[29] This Court's comments in Zhang v R are consistent with the approach endorsed by the Supreme Court.18 Importantly, the consideration of the appropriate band (or whether to go outside the band), must be a preliminary step in the evaluative exercise when the court is considering the culpability of the particular offender given their role in the particular offending. Considerations such as rehabilitation are considered at a later stage of the evaluative process.18 Zhang v R, above n 12, at [48].[30] The staged approach to sentencing was also implicitly confirmed and adopted by this Court in Moses v R. 19[31] Mr Batts referred to this Court's decision in R v Rawiri where this Court discussed the Solicitor-General's appeal against the imposition of community-based sentences for drug dealing.20 He submitted the case was an example of where the application of s 16 had led to the Court's approval of a sentence less than imprisonment.[32] We agree that in an appropriate case, consideration of s 16 will support the imposition of a sentence less than imprisonment. Reference can also be made to the cases of R v Thomas, 21 and R v Norman,22 and the commentary in Adams that:23However, where there is dispute or doubt about whether imprisonment or some other sentence ought to be imposed, it is incumbent on the sentencing Judge to consider, and to expressly articulate, whether a sentence short of imprisonment could achieve the relevant purposes of sentencing in the particular case: R v Thomas CA138/05, 6 July 2005; R v Norman [2007] NZCA 351. This obligation remains even in relation to serious offences where the courts have recognised that principles of deterrence and denunciation generally predominate (such as in methamphetamine dealing cases):R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [20].[33] However, in each of the above cases, the Court had already carried out an orthodox staged sentencing exercise and the end sentence (if imprisonment was to be imposed) was less than two years. In Rawiri, the District Court Judge would have imposed home detention if it had been technically available.24 As it was not, this Court approved the Judge's decision to impose intensive supervision and community work rather than imprisonment.25[34] Mr Mortimer-Wang, who argued the appeal for the Crown, was prepared to accept that, in theory, it is possible that while a sentence of home detention might be excluded by s 15A(1)(b), a lesser sentence such as community detention or intensive19 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].20 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254.21 R v Thomas CA138/05, 6 July 2005.22 R v Norman [2007] NZCA 351.23 Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA16.01].24 R v Rawiri, above n 20, at [6]–[7].25 At [26].supervision, might, in some cases, still be applicable given the wording of s 16. However if, at the conclusion of what we have described as the orthodox sentencing exercise, the court has arrived at an end sentence of more than a short term sentence of imprisonment a non-custodial sentence is unlikely to be consistent with the application of the remaining purposes and principles of the Act.[35] The case of Barnes that Mr Batts referred to does not assist his argument.26The comments in that case were made in the context of the three strikes regime under s 86I of the Act. Mr Batts relied in particular on [77] of that judgment which emphasised the importance of rehabilitation:[77] In most cases sentencing will take place without consideration of parole eligibility. However, if a court forms the view that a sentence emphasising rehabilitation is appropriate and rehabilitation might be better achieved by earlier eligibility for parole than would otherwise be the case, we consider it will be legitimate to sentence on that basis having regard to the relevant principles set out in s 8(g), (h) and (i) of the Act, notwithstanding s 84C(4). In an appropriate case, the result could be imposition of a sentence of imprisonment of two years or less, thereby enabling imposition of the standard and any relevant special conditions of release.However, in the immediately following paragraphs, this Court made it clear that its decision was limited to exceptional cases where application of the three strikes regime might lead to a manifest injustice:[78] We emphasise that course could only be taken for a genuine purpose under the Sentencing Act; it would be quite wrong simply to adopt that approach for the purpose of avoiding the effect of s 86C. But taking parole eligibility into account in this way might be particularly appropriate to avoid manifest injustice in a case such as the present where the stage-1 offence was only a "serious violent offence" by virtue of the definition in the statute and in reality was not violent offending at all. The same reasoning would apply if the stage-2 offending fell outside the intended target of the legislation.[79] We anticipate that it will only be in exceptional cases that sentencing judges will be able to take this approach while ensuring that the purposes of both the Sentencing Act and the Sentencing and Parole Reform Act are served. An example might be where the stage-1 offence has been overcharged and only falls within the three strikes regime as a consequence. In this case, our reasoning turns on the fact that Mr Barnes is a young man whose stage-1 offence did not in fact involve serious violence, although it was within the statutory definition.26 Barnes v R, above n 14.[36] The approach that Mr Batts argues for on behalf of Mr Nassery in this case would also undermine the principle confirmed by this Court on a number of occasions that sentences should not be artificially tailored to enable offenders to have the benefit of the home detention option.27[37] The short answer to the present appeal is that, given the sentence under consideration was of two years, six months' imprisonment, home detention was not an available sentence. Section 15A(1)(b) of the Act applies. Mr Nassery was not eligible for a short term sentence of imprisonment.[38] As this Court noted when it addressed the application of s 16 inFairbrother v R:28[27] Where a sentence of imprisonment is presumptive or mandatory, or where the term required plainly exceeds a short-term period of imprisonment, 24 months or less, that is the sentence that must be imposed. But where the sentence proper is a short-term period of imprisonment, the judge must decide whether to commute that sentence to a sentence of home detention.[39] In the circumstances of this case it was unnecessary for Judge Ryan to refer to s 16. Her approach to sentencing was orthodox. Her task was to first fix the starting point which she did by reference to the tariff decision of Mako. The starting point of four years, six months was unexceptional. This was an aggravated robbery of a superette involving a disguise and the use of a knife. The first robbery also clearly involved a degree of planning and premeditation to the extent that Mr Nassery had a disguise, had armed himself and had covered the registration plates on his vehicle to avoid identification. The uplift of four months for the second aggravated robbery was modest. The starting point of five years for the totality of all offending for which he was found guilty cannot be criticised. We note that Mr Batts accepted that he could not challenge the starting point of five years if the Judge was to apply the guideline judgment in Mako.[40] After applying a discount of 50 per cent the end result of two years, six months also was unexceptional.27 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [36], citing R v Edwards [2006] 3 NZLR 180 at [24]. See also McMillan v R [2022] NZCA 128; and R v Vhavha [2009] NZCA 588.28 Fairbrother v R [2013] NZCA 340 (footnotes omitted).[41] Mr Batts' alternative argument was that the Judge had erred by failing to provide a sufficient credit for mitigating factors, in particular, in only allowing five per cent for Mr Nassery's mental health when a further discount of at least 10 per cent was justified and by failing to provide an adequate reduction for the time Mr Nassery had spent on EM bail. On his calculations Mr Nassery had spent eight weeks subject to a 24-hour (non-EM and EM, but mostly EM) curfew and over 14.5 months subject to a night-time (approximately half of which was electronically monitored) curfew.29[42] As this Court has emphasised on a number of occasions the focus of an appeal should be on the end sentence and whether it is manifestly excessive. In this case, while the Judge did not expressly refer to a number of the provisions of ss 7 and 8, shenevertheless thoroughly considered Mr Nassery's personal circumstances. She was well aware that rehabilitation through the Bridge programme was available to Mr Nassery and was aware of his mental health issues. The Judge made numerous references to the need for Mr Nassery's rehabilitation, and noted the author of the pre-sentence report had recommended home detention.[43] We are not persuaded that the overall discounts of 50 per cent for personal mitigating factors could be regarded as insufficient to take account of all mitigating features on Mr Nassery's behalf. Indeed they might be regarded as generous.[44] The Judge could have justifiably applied a lesser reduction for the factors identified in the pre-sentence and s 27 reports than 20 per cent. Further, the additional 25 per cent reduction for the combined effect of addiction and mental health issues, cannot reasonably be suggested to be inadequate, and the further five per cent for other factors, including electronically monitored bail, was generous given Mr Nassery's breaches of bail.[45] Standing back and looking at the matter overall, the two-and-a-half years' sentence of imprisonment cannot be said to be manifestly excessive.29 Mr Batts also referred to a period of approximately eight-and-a-half weeks Mr Nassery had spent in custody on remand but that of course is taken into account under the provisions of the Parole Act 2002.Result[46] The appeal against sentence is dismissed.Solicitors:Meredith Connell, Auckland for Respondent