SHAMIM v NZ POLICE [2016] NZHC 2334

SHAMIM v NZ POLICE [2016] NZHC 2334 [30 September 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000267[2016] NZHC 2334BETWEEN MOHAMMED SHAMIMAppellantAND NEW ZEALAND POLICERespondentHearing: 30 September 2016Appearances: G E Minchin for AppellantC Eason for RespondentJudgment: 30 September 2016ORAL JUDGMENT OF FOGARTY JSolicitor/counsel:G E Minchin, AucklandMeredith Connell, Auckland[1] Mr Shamim, you have been sentenced in the District Court by Judge Collins to imprisonment for one month, to be subject to special release conditions for six months. Those special conditions are that you either undertake an assessment for alcohol and drug counselling as directed by a probation officer, and if found suitable, to attend and complete the required counselling treatment that the programme is recommending by the assessment. You are to undertake and complete a departmental rehabilitation programme, assessed and deemed appropriate and abide by the rules. You are to attend and complete any other assessment counselling programme. In addition, you were disqualified from driving for one year from today. You were convicted and discharged on a failing to stop matter.[2] You have appealed this decision and you have heard the argument that has gone on today. You are a young man. You were found by the police on 23 December last year, driving a heavy goods vehicle in Glen Eden. The police had had information that you had been drinking. You became agitated when the police arrived and you refused initially to undergo a breath screening test. You in fact tried to drive away a little then you failed to stop when the police attempted to stop you with red and blue flashing lights and siren. You were only moving slowly at about 20 kilometres an hour in a carparking area. You did stop. You were breath tested and you recorded 494 micrograms per litre.[3] You are a young man Mr Shamim. You have over a short period of time, dating from 2011, have two convictions for driving dangerously and two for driving with an excess alcohol level. Against that, you were remanded for sentencing and the Judge directed a pre-sentence report. You went to see a probation officer at about 10.30am in the morning and you essentially walked out from that meeting, shortly after it started, saying you had pleaded guilty, and that you could not see what the point of the process was. Your father tried to persuade you to go back to the probation officer and you refused. Your father was giving you very good advice andfailure to follow your father's advice, has led you in the position you are in now.The probation officer recommended in the circumstances, imprisonment, which was unusual. I think it is likely that if you had cooperated with the probation officer, if you had taken the second chance that your parents urged you to do, you would not be going to prison now. I am afraid that you displayed to the probation officer that yousimply were not facing up to your behaviour. Your parents are concerned that not only are you drinking too much but you are also taking methamphetamine.[4] You are a young man with your life ahead of you and the Judge decided what you needed was a short, sharp shock of going to prison for a month. This is an unusual sentence. He could have put you on a variety of rehabilitative programmes.[5] You are entitled to appeal and you have now appealed and you have had very comprehensive submissions from a very experienced barrister, Mr Minchin.[6] I have been brought to the state where I might have given it one more go for you, to send you back to the probation officer, telling you to cooperate and given you a different sentence. But I am the appeal Judge and you have heard me discuss with counsel the law and adjourned this case to assess the law. The law is quite clear thatI can only interfere with Judge Collins' sentencing if I think it is in error, and it is not in error. Judge Collins was perfectly entitled to take the views he took in the light of the history of this case, and for that reason, under s 250(3) of the Criminal Procedure Act 2011, I must dismiss this appeal. That is the law and that is what I am doing – I am dismissing this appeal.[7] You are going to have to serve one month in prison. Today is Friday lunchtime. For a mixture of my concern for you and your relationship with your family and for practical purposes, we have agreed with counsel that you will go to prison on Monday. You will have the rest of today and the weekend with your family. Arrangements will be made with your counsel and Crown counsel as to whether the police come to pick you up and whether you go to report to the police.[8] Can I just say personally, that I really do think that you should learn fromthis. The rest of your life is ahead of you and in five year's time, that fact that youhave done one month imprisonment for drink driving offending, will not be a hopeless black mark against your career, if you have shown you have learned the lesson and turned a new page. Life is short, and do not ruin it by becoming an alcoholic or a drug addict. That is just the way ultimately to personal unhappiness and also to bring shame on your family. I urge you to do that one month – you won'tlike it. Do not look up to any other prison inmates. People who go to prison have failed in one sort of way. In your case it is one month and it is intended by the Judge to bring you back to reality and to make you a responsible 23 year old. For these reasons this appeal is dismissed and I now retire._____________________________Fogarty J