RAFIQ v R [2017] NZCA 220

RAFIQ v R [2017] NZCA 220 [30 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA488/2016[2017] NZCA 220BETWEEN MOHAMMED SAHAD RAFIQAppellantAND THE QUEENRespondentHearing: 23 May 2017Court: Asher, Venning and Ellis JJCounsel: N P Chisnall and A A Rasheed for AppellantE J Hoskin for RespondentJudgment: 30 May 2017 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Following trial in the District Court at Manukau Mohammed Rafiq was convicted of injuring Jitendra Singh with intent to injure. Judge Andrée Wiltenssentenced Mr Rafiq to two and a half years' imprisonment.1 Mr Rafiq appeals against sentence.1 R v Rafiq [2016] NZDC 18695.Facts[2] Mr Rafiq and his wife were neighbours of Mr Singh, who lived alone in thesame apartment block. Mr Rafiq's wife occasionally provided meals to Mr Singh. They also exchanged Facebook messages. On the night preceding the assault Mr Singh had gone to the Rafiq home to return a container from one of the meals. Mr Rafiq was at work. When there was no answer at the front door Mr Singh went around to the rear of the apartment. Through a window at the back he was able tosee Mr Rafiq's wife showering. Mr Rafiq's wife realised that Mr Singh had seen herand was upset. Mr Singh also sent her some sexually suggestive texts after the incident. She complained to Mr Rafiq about Mr Singh's actions that night.[3] The following morning, as Mr Singh brought out his rubbish, Mr Rafiq, who had lain in wait, attacked him. Mr Rafiq struck Mr Singh several times with a piece of wood. The wood was broken in the attack. Mr Singh said he tripped and fell to the ground in the course of the attack. While on the ground Mr Rafiq punched him three to four times and also kicked him. Mr Rafiq was wearing work boots. As a result of the attack Mr Singh suffered swelling and bruising to his face, a black eye, and a split lip which required stitches. He also lost a tooth. Mr Singh sought refuge in his apartment. Mr Rafiq followed him in but Mr Singh locked himself in his bedroom.[4] Almost immediately after the incident Mr Rafiq telephoned the policealleging that his unit had been burgled by Mr Singh. Mr Rafiq's defence at trial wasthat he was acting in self-defence or had applied reasonable force in effecting acitizen's arrest of Mr Singh. The explanation was rejected by the jury in findingMr Rafiq guilty.Sentencing judgment[5] In his sentencing remarks the Judge noted four aggravating features:(a) pre-meditation;(b) use of a weapon;(c) attack to the head; and(d) vigilante action in that Mr Rafiq had taken matters into his own hands.[6] The Judge considered the attack was unnecessary. He took a starting point ofthree years' imprisonment, but reduced that by six months to take account of the incident between Mr Rafiq's wife and Mr Singh which had apparently promptedMr Rafiq to act in the way he did, and also that Mr Rafiq had no previous convictions. The Judge declined to take into account the fact the conviction may create issues for Mr Rafiq with the immigration authorities.[7] In support of the appeal Mr Chisnall submitted that the end sentence was manifestly excessive as:(a) the starting point of three years was too high;(b) the Judge should have taken account of Mr Rafiq's offer to makeamends; and(c) insufficient credit was given for the contributory conduct of the victim.[8] Counsel submitted the correct end sentence was two years' imprisonment.AnalysisStarting point[9] In Nuku v R this Court provided guidance for offending such as the present of injuring with intent to injure, particularly:2[38] (b) Band two: a starting point of up to three years' imprisonmentwill be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.(c) Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.[10] We agree with the Judge's assessment that in the present case there were four aggravating features of Mr Rafiq's attack: premeditation, use of a weapon, attackingthe head and vigilante action in the sense that Mr Rafiq took the law into his own hands.[11] Mr Chisnall is correct that it is not sufficient to just identify the aggravating features. It is also necessary to evaluate the seriousness of each of them. The Judge was in a good position to reach a view as to the seriousness of the attack having heard the evidence. It was open to him to take the view that Mr Rafiq planned the attack as revenge for the slights he perceived Mr Singh had inflicted on his wife. It was a serious and violent attack. Mr Rafiq lay in wait, armed himself with a block of wood and attacked Mr Singh to the head. We reject the suggestion in Mr Rafiq'swritten submissions that there is a difference between an attack to the face and an attack to the head. The injuries were serious. They were the subject of an agreed statement of facts. Further, on the evidence the attack continued while Mr Singh was on the ground. Mr Rafiq continued to punch and kick him.[12] Mr Chisnall noted that the Judge had not expressly referred to the judgment of this Court in Nuku. But both counsel addressed it in their sentencing submissions. The Judge would have been well aware of it and his sentencing approach is consistent with it.[13] Mr Chisnall supported his argument that the three year starting point was too high by referring to the cases of Walker v Police and Tai v Police.3 In each case starting points of three years were upheld on appeal to the High Court. He submitted the attacks in those cases were more serious than the present. While each case must3 Walker v Police [2016] NZHC 597; and Tai v Police [2016] NZHC 874.turn on its own facts in Walker the extent of the assault (although carried out bymultiple attackers) was not dissimilar to Mr Rafiq's attack on Mr Singh in this case.The injuries sustained were similar.[14] While the Judge's sentencing notes were brief, the four factors in this casesupport a starting point in band three of Nuku. We are satisfied three years was available as a starting point in this case.The offer of amends[15] Mr Chisnall submitted that further consideration should have been given toMr Rafiq's offer, through counsel, to make reparation of $400. But as this Court noted in R v Holt a mere offer of reparation will normally be accorded little weight for sentencing purposes, particularly where, as here, Mr Rafiq had demonstrated a lack of remorse.4 The pre-sentence report recorded that Mr Rafiq had said that he"does not wish to make amends with the victim".[16] Further, in taking account of any offer of amends the Court must consider whether or not it was genuine and capable of fulfilment, and whether it has been accepted by the victim as expiating or mitigating the wrong.5 In this case Mr Rafiq had a large number of traffic fines still outstanding at the time of sentencing. Theoffer came at the very last moment in counsel's submissions for sentence. The Judgewas entitled not to place any weight on the offer in this case.Other mitigating factors[17] The Judge reduced the starting point by six months for mitigating factors including a lack of previous convictions and the provocation. That was a reduction in excess of 16 per cent. Mr Chisnall accepted that six months was an appropriate reduction for the mitigating factors in this case. Mr Rafiq may consider himself fortunate to have received a reduction in sentence for the provocation in the circumstances of this case.4 R v Holt [2006] DCR 669 at [66].5 Sentencing Act 2002, s 10(2).Result[18] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent