R v ALI [2017] NZHC 2973

R v ALI [2017] NZHC 2973 [1 December 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2016-019-006663[2017] NZHC 2973THE QUEENvSAMEH KHALIL SALEM ALIHearing: 1 December 2017Counsel: RG Douch for CrownT Sutcliffe for DefendantJudgment: 1 December 2017SENTENCING NOTES OF DOWNS JSolicitors/Counsel:Crown Solicitor, Hamilton.T Sutcliffe, Hamilton.Introduction[1] Mr Ali, you appear for sentence in relation to a charge of attempted murder. Itis common ground a substantial term of imprisonment is required. The primaryquestion is: how long should the sentence be?The facts in brief[2] On the evening of 20 October 2016 you were at your ex-partner's home. Youand she continued to enjoy a cordial relationship. You were living there temporarily.Also present was the male victim. Everyone was drinking.[3] Later that evening the victim and your ex-partner went into her bedroom. Youbelieved they were becoming, had, or were about to become, intimate. You snuck intothe darkened room with a knife or similarly sharp object. You jumped on the victimand cut him to the right side of his neck.[4] You inflicted a large and deep wound, 12–15 centimetres long. Fortunately, nomajor vessels were cut. But this was a significant injury. The trial photographs madethat clear. The victim was hospitalised for a night.[5] You fled the scene. You threw away the weapon. You went to the home ofextended family members. You told them you had killed the victim. You said you hadslashed his throat. You gestured to that effect with your hand. You said you had seenthe victim touching your former partner's bottom.[6] Police arrested you shortly thereafter. You said little to them other than "whatelse would you do if you found him with your missus?".[7] You went to trial. You testified. You denied attacking the victim and impliedsomeone else was responsible. Unsurprisingly, the jury rejected your account. Thecase against you was very strong.Starting point[8] Your offending has four aggravating features; things that make it more serious.First, you used a sharp weapon of some sort. I say "some sort" because whatever youused, you threw it away. It was not found. But whatever you used was sharp: theedges of the wound were clean rather than jagged.[9] Second, you attacked the victim to a particularly vulnerable part of his body. Ihave no doubt you were trying to cut his throat. Indeed, you believed you had. Yousaid just that in the immediate aftermath. And as I explained earlier, you gestured withyour hand to demonstrate a throat slashing motion to a member of your extendedfamily. If you had cut the front and side of the victim's throat, which is what youintended to do, the victim might well have died.[10] Third, your offending has caused both physical and psychological harm. Thevictim suffered a substantial wound to his neck. He will be scarred permanently. Thevictim says he has suffered significant emotional harm—what you did still makes himvery angry. Unsurprisingly, his wife and children were very frightened for his safety.[11] Fourth, there was an element of premeditation to this act. I use the word"element" because you gave it no great thought. Rather, it was a reaction to events onthe evening. That said, you snuck into the room with a knife or sharpened object,intending to carry out this attack.[12] This mix places your offending firmly within what is known as band two of adecision of the Court of Appeal called R v Taueki.1 I appreciate this detail may be oflittle concern to you—you have repeatedly shaken your head and spoken aloud duringmy sentencing remarks that none of this is true. However, the victim, public andhigher Courts are entitled to my workings. And so are you.[13] The parties disagree on exactly where your case sits. The Crown contends astarting point at the top of the band is appropriate, and so approximately nine or 101 R v Taueki [2005] 3 NZLR 372 (CA).years' imprisonment. Mr Sutcliffe, who was instructed to act for you after trial,contends a starting point of eight years' imprisonment is warranted.[14] He and Mr Douch have referred me to many cases in this area. I thank themfor their industry. However, no cited case is that similar to yours. Many involveattacks upon a female victim by their male partner or estranged male partner. Someinvolved frenzied attacks. None is on all fours.2[15] I consider a nine-year starting point apt because of the aggravating features Ihave described. Your attack was not frenzied, but that is because you rather clinicallyattempted to take another man's life. The existence of a murderous intent calls for alonger sentence than would otherwise be imposed for an offence involving an intentionto cause grievous bodily harm.3Mitigating features?[16] You are 42. You came to New Zealand from Egypt in 2006. You were there atour guide. You speak English, albeit as a second language. You had the benefit of aninterpreter at trial to provide assistance when you required it. You have one today.[17] I gather you are single and without children. You have only modest experienceof the criminal justice system. You have two convictions for alcohol-related offendingunder the Land Transport Act 1998. Obviously, neither is particularly relevant totoday's exercise.[18] However, you continue to deny the offending. You have made that plain againtoday by your conduct in court. You also told the person who wrote the pre-sentencereport you are not guilty of this offence. She assesses you as posing a medium risk ofre-offending, with the risk of harm to others being high.2 R v Tuuta CA296/00, 21 September 2000; R v Nelson HC Rotorua CRI-2004-077-15577,16 August 2005; R v O'Kane HC Dunedin CRI-2009-002-190, 2 April 2009; R v Kamal[2014] NZHC 698; R v Mullen [2014] NZHC 917; R v Owens [2016] NZHC 2236; R v Ae [2016]NZHC 965; R v Fotuaika HC Wanganui CRI-2008-083-73, 22 October 2008.3 Taylor v R [2017] NZCA 53 at [21].[19] You are something of a paradox. Five references from previous employershave been placed before me. They all speak highly of you. Clearly this offendingconstitutes an aberration. It is, however, a particularly serious one.[20] There are no great mitigating features, but some modest allowance should bemade for the fact that up until this offence you had led a largely blameless and lawabiding life. A three-month deduction from the nine-year starting point is proper.Minimum period of imprisonment?[21] The Crown seeks a minimum period of imprisonment of 50 percent.Mr Sutcliffe contends no such period is required. He notes some of the cases citedhave resulted in minimum periods, but not all. That submission is accurate. However,what matters is whether the facts of your case meet the legal test: whether the Court issatisfied parole eligibility after one-third of the sentence is insufficient in terms ofaccountability, denunciation, deterrence and protection of the public.[22] I conclude a minimum period is required. Your attack was not frenzied, butthat is, as I have said, because you rather clinically attempted to take another man'slife by cutting his throat with a weapon chosen for that purpose. And, you believedyou had. Offending of this type still shocks the community, even though New Zealandis no longer a gentle place, if indeed it ever was. Half of the term is the least I canimpose in these circumstances.[23] Mr Ali please stand. On the charge of attempted murder, I sentence you to aterm of eight years and nine months' imprisonment. I impose also a minimum periodof imprisonment of four years and four months. You may stand down...Downs J