SAFI v POLICE [2022] NZHC 1967

SAFI v POLICE [2022] NZHC 1967 [10 August 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-174[2022] NZHC 1967BETWEEN MUSHTAQ SAFIAppellantAND NEW ZEALAND POLICERespondentHearing: 1 August 2022Appearances: I Jayanandan for AppellantL E Kenner for RespondentJudgment: 10 August 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 10 August 2022 at 3:30pmRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Mushtaq Ahmad Safi (the appellant) appeals against the sentence of28 months' imprisonment imposed by Judge Bonnar QC in the Auckland DistrictCourt on 6 May 2022.1 The appellant was sentenced having earlier pleaded guilty tothe following charges:(a) discharging a firearm with intent to intimidate people inside a dwelling-house;2(b) theft (over $1,000);3(c) driving while disqualified;4(d) breach of prison release conditions (x 3);5(e) possession of methamphetamine;6 and(f) possession of cannabis.7[2] The appellant appeals the sentence on the basis that it was manifestlyexcessive: the starting point adopted by the Judge for the firearms offending was toohigh; the uplift of six months to reflect the appellant's previous convictions and thefact that he was on bail and subject to release conditions at the time of the offendingwas too high; and the discount given for the appellant's personal circumstances wasinsufficient. He submits that the end sentence should have been a short term ofimprisonment with the possibility of home detention.1 New Zealand Police v Safi [2022] NZDC 8880 [District Court decision].2 Crimes Act 1961, s 308(b): carrying a maximum penalty of three years' imprisonment.3 Sections 219 and 223(b): carrying a maximum penalty of seven years' imprisonment.4 Land Transport Act 1998, s 32(1)(a) and (3): carrying a maximum penalty of three months'imprisonment or a $4,500 fine (in addition to mandatory disqualification for six months or more).5 Sentencing Act 2002, s 96(1): carrying a maximum penalty of one year's imprisonment or a $2,000fine.6 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a): carrying a maximum penalty of six months'imprisonment and/or a $1,000 fine.7 Section 7(1)(a) and (2)(b): carrying a maximum penalty of three months' imprisonment and/or a$500 fine.Background[3] The following is a summary of the offending.[4] On 3 July 2021 the appellant was in a vehicle with three co-defendants. At4.22 am the vehicle was stopped outside an address in Raetihi where four adults andtwo young children were sleeping. At 4.24 am, two shots were fired from a handgunby one of the occupants of the vehicle. One of the bullets went through a bedroomwindow and hit a robe that was hanging over the end of a bunk bed. The second bulletpassed through the front door of the house and hit the wall located inside the entranceof the house. The vehicle was driven away.[5] The driving while disqualified offending followed the appellant beingconvicted of reckless driving and disqualified from driving for six months.Approximately five months later he was stopped for driving in a bus only lane.[6] The theft and possession charges followed the appellant stealing a courier bagcontaining $1,940 worth of fuel vouchers, and on his subsequent arrest for an unrelatedmatter, being found in possession of 1.5 grams of methamphetamine and 4.8 grams ofcannabis.[7] The three charges of breaching prison release conditions related to theappellant having failed to report to his probation officer on 13 April 2021 (for whichhe was given a warning), 15 April 2021, 20 April 2021 and 27 April 2021;8 failing toreport to his probation officer on 22 June 2021; and moving to a new address on 20July 2021 without the prior written consent of a probation officer.District Court decision[8] Judge Bonnar commenced by determining a starting point for the firearmsoffending which he considered to be the lead charge. He noted that there were cleargang-related overtones to the offending, with evidence linking each of the defendantsto the Crips gang, although each of them denied having any active involvement with8 The appellant also failed to attend a scheduled alcohol and drug test on 9 April 2021.the gang. He noted that each of the defendants also denied being the person who firedthe shots. He accordingly treated them as equally culpable.9[9] The Judge noted that there is no guideline judgment for firearms offending. Heobserved that the aggravating features of the offending included that it was a groupattack; had gang-related overtones; was clearly planned and premeditated; had thepotential to cause serious harm or death; and involved vulnerable victims who wereasleep at the time the offending occurred. He referred to a number of cases in fixinga starting point of two years and four months' imprisonment for what he considered tobe near to the most serious offending of its type.10 An uplift of six months'imprisonment was applied in respect of the remaining charges.[10] With regard to the appellant's personal circumstances, the Judge noted that theappellant had 38 previous convictions including for violence and aggravated robbery.He had 19 convictions for dishonesty offending and nine convictions for breachingsentences, court orders or bail, including three breaches of release conditions, onebreach of home detention, one breach of community detention, one breach ofcommunity work and two breaches of supervision. The appellant had been subject to21 previous sentences of imprisonment imposed on four separate occasions. He hadalso been sentenced to home detention in September 2018.[11] The Judge noted that the appellant had been subject to release conditions at thetime of the offending, had poor historical compliance with community-basedsentences and was assessed as posing a moderate risk of reoffending (which the Judgeconsidered "generous") and a high risk of causing harm to others.[12] The Judge also observed that the appellant had denied any involvement withthe firearms offending, despite having pleaded guilty. The Judge said thisdemonstrated a "complete lack of insight or remorse" on the appellant's part.9 District Court decision, above n 1, at [7].10 R v Smith [2016] NZHC 851; R v Potter (1994) 12 CRNZ 109 (CA); Torea v R [2011] NZCA 96;R v Challis [2008] NZCA 470; Wiringi v New Zealand Police [2017] NZHC 1734; and Enoka vPolice HC Hamilton, AP101/96, 12 December 1996.[13] The Judge expressed concerns over the accuracy of some of the mattersreferred to in the appellant's s 27 cultural report noting that it was entirely based onself-reported information. He accepted that the appellant was born in Afghanistan andthat the appellant's father was involved with the Taliban. The appellant came to NewZealand as a refugee at a young age, was exposed to drugs from an early age and ranaway from his family at 15 years old. He was disconnected from his culture andreligious background. Gangs had been a part of his life for some time. These andother matters were said to have causatively contributed to his offending history. Aletter of apology and remorse from the appellant was also provided to the Court.[14] The Judge applied an uplift of six months to take account of the appellant'sprevious convictions and the fact that he was on bail and subject to release conditionsat the time of the offending. He allowed discounts of 25 per cent for guilty pleas anda further five per cent for personal circumstances. This produced an end sentence of28 months' imprisonment.11 The Judge also observed that while this was not a short-term sentence of imprisonment, even if it was and he was required to considerimposing a sentence of home detention, given the appellant's background, previousconvictions and sentence history and lack of compliance with previous community-based sentences, he would not have considered the appellant to be suitable for homedetention.SubmissionsThe appellant[15] Ms Jayanandan, for the appellant, submits that the starting point adopted bythe Judge in respect of the firearms offending was too high. She submits that a startingpoint in the region of two years' imprisonment would have been more appropriate.12She notes that the appellant pleaded guilty to an amended charge of discharging afirearm with intent to intimidate, which represents a lesser level of criminal intent thanan intent to injure. Counsel submits that this lower level of culpability ought to havebeen reflected in the starting point.11 On each of the remaining charges the Judge imposed concurrent sentences of three months'imprisonment.12 By reference to Carrington v New Zealand Police [2016] NZHC 2351; and distinguishing the"much more serious" offending in Torea v R, above n 10.[16] In her written submissions, Ms Jayanandan submitted that the Judge had erredin considering that the appellant was as equally culpable as his co-defendants whennone of them took responsibility for personally discharging the firearm. She said thatthere was no evidence to show that the appellant was inside the car at the time thefirearm was discharged. This submission was plainly inconsistent with the appellant'sguilty plea, and also inconsistent with the summary of facts from which it was clearthat the appellant had been in the vehicle when the shots were fired into the house.Ms Jayanandan withdrew this submission at the hearing of the appeal.[17] Ms Jayanandan takes no issue with the six month uplift applied for theremainder of the offending, but she submits that the additional uplift of a further sixmonths to reflect the appellant's previous convictions and the fact that he was on bailand subject to release conditions at the time of the offending was excessive. This wasparticularly so in the context of a starting point of 28 months' imprisonment. Shesubmits that any uplift to recognise these factors ought to have been modest.[18] Finally, Ms Jayanandan submits that the discount of five per cent allowed forpersonal circumstances was inadequate. A discount of at least 20 per cent would havebeen appropriate to reflect the appellant's cultural and religious disconnection, hisexperience of persecution and living in a warzone and his early exposure to crime,drugs and gangs.The respondent[19] Ms Kenner, for the respondent, submits that the starting point adopted by theJudge was not too high. She submits that while the circumstances of firearmsoffending vary greatly, the decisions in R v Potter, Katene v R and Gathergood v Rprovide useful comparisons.13[20] The Court of Appeal in Potter considered there was force in the argument thatthe starting point of two and a half years was too low, and a starting point of threeyears could have been appropriate for offending in which the appellant intended to13 R v Potter, above n 10; Katene v R [2010] NZCA 394; and Gathergood v R [2010] NZCA 350.throw a stick of explosive into the yard of the victim's property but it exploded beforehe could do so.14[21] In Katene, a father and son drove to the victim's farm to confront him as partof a family feud.15 The father fired in the direction of the victim's property, then at thevictim himself. The son fired at the victim's vehicle, and the father continued to fireat two of the residents. The lead charge was discharging a firearm with intent to causegrievous bodily harm. The Court of Appeal upheld starting points of five years for thefather as "well within the range available" and three and a half years for the son asproperly reflecting the gravity of the offending in which he actively participated.16[22] In Gathergood, a starting point of three years' imprisonment was consideredappropriate for the lead charge of discharging a firearm with reckless disregard.17 Theoffending involved the appellant and his co-offender firing multiple shots from theirvehicle at another vehicle, following a verbal altercation with the occupants.[23] Ms Kenner submits that although the charges in Katene and Gathergood weremore serious than the offence to which the appellant pleaded guilty, the offendingshared similar features. The appellant's offending was, if anything, more serious thanthe offending in Gathergood given that the firearm was discharged into the bedroomof a family home while the occupants were asleep. Ms Kenner also distinguishes theappellant's "significantly more culpable" conduct from the offending in Carrington vNew Zealand Police which involved the accidental discharge of a firearm for whichthe offender apologised at the time.18[24] Ms Kenner submits the argument that the appellant was not responsible fordischarge of the firearm, and is therefore less culpable than his co-defendants, isinconsistent with his guilty plea. She submits that accepting a more favourableinterpretation of the facts would be contrary to s 24(1)(b) of the Sentencing Act 2002,which provides that a court "must accept as proven all facts, express or implied, that14 R v Potter, above n 10, at 113.15 Katene v R, above n 13, at [4].16 At [21] and [27].17 Gathergood v R, above n 13, at [28].18 See Carrington v New Zealand Police, above n 12.are essential to a plea of guilty".19 She submits that having regard to the gravity of theoffending and comparable authorities, the starting point of two years and four monthswas not too high and says that a starting point of three years' imprisonment could havebeen justified.[25] As to the remaining grounds, Ms Kenner submits that the uplift of six monthsto reflect the appellant's previous convictions and the fact that he was on bail andsubject to release conditions at the time of the offending was warranted. It represented17.6 per cent of the adjusted starting point of 34 months' imprisonment and wasappropriate in light of the appellant's extensive criminal history and pattern ofoffending while on bail. With respect to the appellant's personal circumstances,Ms Kenner submits that no greater discount than the five per cent allowed by JudgeBonnar is required. She also submits that no discount is necessary to reflect theappellant's rehabilitation or employment prospects.[26] Ms Kenner says that the ultimate focus must remain upon whether the endsentence is manifestly excessive. The starting point adopted by the Judge wasgenerous and the appellant received the full 25 per cent discount for his guilty pleas,entered after the lead charge was amended. She accordingly submits that the endsentence of 28 months' imprisonment was not manifestly excessive.Approach on appeal[27] Section 250(2) of the Criminal Procedure Act 2011 states that the court mustallow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[28] In any other case, the court must dismiss the appeal.2019 Gathergood, above n 13, at [17].20 Criminal Procedure Act 2011, s 250(3).[29] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was notintended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.21 Further, despite s 250 making no express reference to"manifestly excessive", this principle is "well-engrained" in the court's approach tosentence appeals.22[30] The approach taken under the former Summary Proceedings Act was set out inR v Shipton:23(a) There must be an error vitiating the lower court's original sentencingdiscretion: the appeal must proceed on an "error principle".(b) To establish an error in sentencing it must be shown that the Judge inthe lower court made an error whether intrinsically or as a result ofadditional material submitted to the appeal court.(c) It is only if an error of that character is involved that the appeal courtshould re-exercise the sentencing discretion.[31] The High Court will not intervene where the sentence is within the range whichcan properly be justified by accepted sentencing principles. Whether a sentence ismanifestly excessive is to be examined in terms of the sentence given, rather than theprocess by which that sentence is reached.24Discussion[32] I am satisfied that the starting point of 28 months' imprisonment adopted bythe Judge was within the available range. The cases which the parties have referredto in most instances involved offending that is readily distinguishable from the present.For example, cases in which a firearm was pointed at and fired directly towardsanother person and where the risk of serious injury would have been obvious,25 or21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].22 At [33] and [35].23 R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].24 Ripia v R [2011] NZCA 101 at [15].25 See, for example, Katene and Gathergood, above n 13.cases where a firearm was accidentally discharged.26 Neither of those situations isdirectly comparable to the appellant's offending. However, like many of the casescited, the appellant's offending was undoubtedly serious and carried a risk of seriousinjury or death, in this instance to the sleeping occupants of the house. There is a clearneed for denunciation and deterrence in these circumstances.27 I find that the startingpoint adopted by the Judge in this case was well within range having regard to thepremeditation of the defendants and the risk of serious harm inherent in offending ofthis kind. I also agree with the Judge that the circumstances in a case like R v Challisdemonstrate how severe the consequences here could have been.28[33] I find that the uplift of six months for the balance of the charges was also withinrange and appropriate. However I consider that the uplift applied to reflect theappellant's previous convictions and the fact that he was on bail and subject to releaseconditions at the time of the offending was excessive. The appellant's criminal historyincludes a number of convictions for non-compliance and property related offending,but does not include any firearms offending and only a limited number of convictionsfor violent offending. As a proportion of the adjusted starting point, I consider anuplift of three months would have sufficiently taken account of the appellant's criminalhistory, and the fact that he was on bail and subject to release conditions at the time ofthe offending.[34] However I consider that a greater discount is warranted for the appellant'spersonal circumstances than the five per cent allowed by the Judge. Having regard tothe appellant's background, the self-reported nature of the information provided to theauthor of the s 27 report is to be expected. I agree with the Judge that it is appropriateto treat the accuracy of such information with a measure of caution. However there isnothing to indicate that the appellant has fabricated his personal history. He was bornin Kunar, Afghanistan at the height of the Afghan Civil War, and he says that his fatherwas a member of the Taliban. Whether or not what he has said about his father isaccurate or not, the key features of his personal background as he has described themappear to be reliable. The appellant came to New Zealand as a refugee at a young age.26 Carrington v New Zealand Police, above n 12.27 See R v Richardson CA450/02, 25 March 2003 at [33].28 District Court decision, above n 1, at [22], citing R v Challis [2008] NZCA 470.The associated disengagement and marginalisation he experienced growing up as anAfghan refugee in New Zealand appears to have led to him becoming involved withgangs and criminal activities from a young age. These associations and hisbackground have contributed to him having adopted an anti-social lifestyle and hiswillingness to become involved in the sort of offending which occurred in this case.I consider that a discount of 10 per cent is warranted to reflect these factors in additionto the 25 per cent allowed for the appellant's guilty pleas.[35] From a starting point of 28 months, these uplifts and discounts would producean end sentence of two years and one month's imprisonment. While a sentence of thislength may be commuted to a sentence of home detention, I consider that homedetention would not be appropriate in the circumstances of this case. The seriousnessof the offending and the risk of harm or death inherent in that offending, its profoundeffect on the victims, and the particular need for denunciation and deterrence in thecase of firearms offending all militate against a sentence of home detention.29 Theappellant's history of poor compliance with court orders reinforces the need for thesentence imposed to clearly denounce this offending and deter him from futureoffending. A sentence of imprisonment is the least restrictive outcome appropriate inthis case.30Result[36] The appeal is allowed.[37] The sentence of two years and four months' imprisonment is quashed andsubstituted with a sentence of two years and one month's imprisonment._____________Paul Davison J29 I acknowledge, of course, that a sentence of home detention also serves the purposes ofdenunciation and deterrence, albeit to a lesser extent. See Fairbrother v R [2013] NZCA 340 at[30].30 Sentencing Act, s 8(g).