AZIZ v NEW ZEALAND POLICE [2018] NZHC 2133

AZIZ v NEW ZEALAND POLICE [2018] NZHC 2133 [17 August 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2018-483-8[2018] NZHC 2133SHAH MOHAMMED AZIZvNEW ZEALAND POLICEHearing: 6 August 2018Appearances: D M Goodlet for the AppellantM M Wilkinson-Smith for the RespondentJudgment: 17 August 2018JUDGMENT OF CULL J[1] Mr Aziz appeals his sentence of three months' imprisonment as beingmanifestly excessive,1 after he pleaded guilty to one charge of breaching a protectionorder.2 The grounds of his appeal are that he has no criminal history; his guilty pleawas entered on the first available opportunity; and the Court had insufficientinformation before it to impose the sentence of imprisonment.[2] At the commencement of the appeal hearing, I indicated to counsel that I wasconcerned about the way in which the sentence in this case was imposed, withoutregard to the Sentencing Act 2002 principles. As Mr Aziz had already served threeweeks' imprisonment, there were two options available to the Court: to allow the1 R v Aziz [2018] NZDC 14712.2 Domestic Violence Act 1993, ss 19(2)(e), 49(1)(b) and 49(3). Maximum penalty three years'imprisonment.appeal and release Mr Aziz or direct the matter back to the District Court forresentencing. The matter was stood down for counsel to take instructions.[3] Both counsel confirmed that the first option was the most appropriate. Idelivered a results decision, quashing the three months' imprisonment, andsubstituting one months' imprisonment, with the immediate release of Mr Aziz. Thisdecision contains my reasons.Factual background[4] On 20 June 2018, a temporary protection order was issued by the WhanganuiDistrict Court on behalf of the complainant and against Mr Aziz.[5] On 15 July 2018 Mr Aziz contravened that protection order by sending 20 textmessages and several voice messages to the complainant. He was at the HikarangiLodge in Whanganui at the time and convinced two managers of the Lodge to contactthe victim. The managers told the complainant that Mr Aziz wanted her to give himmoney. The complainant subsequently found fake Instagram accounts about her, withstatements about her being a prostitute and a nude photo of her, posted without herconsent. Mr Aziz also contacted the complainant several times on WhatsApp, stating"ur getting done lol"; "ur life isdone"; and "I told u and warned u".[6] Mr Aziz is also currently liable for deportation under s 157 of the ImmigrationAct 2009. On 23 June 2018 he was served with a deportation liability notice.[7] Mr Aziz has no previous convictions.District Court decision[8] The Judge observed that the complainant had advanced sufficient grounds tothe Family Court about Mr Aziz's conduct such that a protection order on "a withoutnotice" basis was required.3 Mr Aziz was served with the order and within a coupleof weeks, he committed this offending.3 Aziz, above n 1, at [2].[9] The Judge referred to the fact that Mr Aziz was being considered fordeportation. The Judge was advised that Mr Aziz did not intend to pursue a review ofhis order to be deported and now just wanted to go home. The Judge observed thiswas "a sensible position on [his] part to now adopt".4[10] The Judge rejected the defence submission that the appropriate sentence was aconviction and an order to come up for sentence if called upon. The Judge observedthat it seemed Mr Aziz "did not have any real regard to the protection order or, indeed,that this woman did not want any contact" with him.5 The Judge observed this conductwould have been very distressing for the victim. Although it did not impact on MrAziz's sentence, the Judge observed from the police report, that the police haveattended "seven family harm callouts" since 21 April 2018 involving Mr Aziz and thecomplainant.6[11] The Judge imposed a sentence of three months' imprisonment, which took intoaccount Mr Aziz's guilty plea, his conduct as set out in the summary of facts, theimpact on the complainant and that it was "a pragmatic response to [his] current statusin respect of sentencing options available to the Court."7Approach to appeal[12] This appeal is brought under s 250 of the Criminal Procedure Act 2011 as anappeal against a discretion. An appeal against sentence must be allowed if the Courtis satisfied that, for any reason, there is an error in the sentence imposed and a differentsentence should be imposed.8 The focus is on the final sentence and whether that wasin the available range, rather than the exact process by which it was reached.9Grounds of appeal[13] Mr Aziz appeals his sentence on the basis that it is manifestly excessivebecause:4 Aziz, above n 1, at [6].5 At [5].6 At [5].7 At [7].8 As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.9 Ripia v R [2011] NZCA 101 at [15].(a) he has no criminal history;(b) his guilty plea was entered on the first available opportunity; and(c) the Court had insufficient information before it to impose a sentence ofimprisonment.The Crown's position[14] The Crown accepted that it was an error that a pre-sentence report was notavailable to the Judge before a sentence of imprisonment was imposed, and that thisdecision and the sentence imposed, has no precedent value. Although there was anerror, the Crown submits that without a pre-sentence report, it is very difficult toaddress the critical question on appeal, namely, whether the sentence is manifestlyexcessive. The Crown says that the deportation issue cannot be ignored and referredto R v Hassan,10 where a home-detention sentence was considered inappropriate andsubmitted, that Mr Aziz, like Mr Hassan, is not entitled to be resident in New Zealandand will be subject to deportation upon completion of his sentence. If released by theCourt on these matters, the Crown submits, Mr Aziz is liable to be arrested byimmigration authorities.[15] In its written submissions, the Crown contends the sentence imposed waswithin the available range and the Judge did not err. The Crown submits the relevantaggravating factors of Mr Aziz's offending are:(a) Mr Aziz's conduct, when taken as a whole, had a serious psychologicalimpact on the complainant;(b) the offending occurred shortly after the protection order was issued;and(c) Mr Aziz involved third parties in his offending by getting them tocontact the complainant.10 R v Hassan [2008] NZCA 402 at [34].[16] The Crown submits a starting point of four months' imprisonment would havebeen within the available range to the Court. Less 25 per cent for his guilty plea, thiswould produce a sentence of three months' imprisonment, which the Judge imposed.Discussion[17] Under s 26(1) of the Sentencing Act the Court may direct a probation officerto prepare a pre-sentence report if an offender is charged with an offence punishableby imprisonment.11 The Court of Appeal has held that although there is a discretion,the well-established practice is that a sentence of imprisonment should not be imposedwithout such a report, except in very rare and exceptional cases.12[18] Yet, where a Judge is considering a sentence of community detention or homedetention the Court must direct that a pre-sentence report be prepared.13 It appearsfrom the Judge's remarks that he imposed a sentence of imprisonment withoutconsidering, or articulating, why he saw no alternative, less restrictive sentence, wasavailable for Mr Aziz.14[19] It appears that the Judge imposed a sentence of imprisonment withoutsufficient information before him, about Mr Aziz's circumstances and history. This isan error. It is irrelevant whether Mr Aziz was likely to be detained in relation to hisdeportation. Although Mr Aziz's offending was serious, this was his first convictionand he pleaded guilty. It would have been appropriate for the Judge to consideralternative sentences other than imprisonment and a pre-sentence report should havebeen obtained for this purpose.[20] In R v Ondra, the Court of Appeal considered that, to maintain consistency insentencing, immigration issues such as deportation were administrative matters thatshould not bear on sentencing matters.15 Liability for removal under the Immigration11 See also Rarere v Police [2015] NZHC 1799 at [34].12 R v Toki [2007] NZCA 335 at [5]; see also Rarere, above n 11, at [35].13 Sentencing Act 2002, s 26A.14 Section 8(g).15 R v Ondra [2009] NZCA 489 at [6]–[11]. The Court confined the statement in Hassan, above n10, that home detention was not appropriate, where deportation was immediate, to the specificfacts of Hassan.Act is neither conditional upon nor triggered by an offender's convictions; it isdependent, upon unlawful immigration status.16[21] It is unclear whether the Judge took into account Mr Aziz's immigration issuesin setting his end sentence. The Judge's comment that a sentence of imprisonmentwas a "pragmatic response" to his current status is ambiguous.17 If the Judge didconsider these matters, this would be an error.[22] Mr Aziz was represented by the Duty Solicitor and entered his guilty plea atthe first appearance. It appears that the summary of facts was not read out to Mr Azizbefore he entered his guilty plea. Although no adverse criticism is to be made of theDuty Solicitor, who was dealing with a busy list on the day, further time andopportunity was needed to put further facts about Mr Aziz's circumstances before theCourt, a factor which was also considered by the Court in Hart v Police.18[23] However, despite these errors, the key question on appeal is whether a differentsentence should have been imposed.Is the sentence manifestly excessive?[24] There is no tariff authority for breaches of protection orders. The authoritiesinvolve offending, which varies enormously in culpability and the degree of the threatposed to the protected person.19[25] Counsel provided the following cases to compare with Mr Aziz's offending:Case Facts and charges SentenceHart v Police20 Mr Hart sent text messages tothe victim in breach of aprotection order against him.He was charged with onecharge of breach of aprotection order.On appeal, Mr Hart wassentenced to 40 hourscommunity work. Whata Jobserved that this sentencebetter reflected the offendingand the offender as well as thepurposes of sentencing. His16 Ondra, above n 15, at [12].17 Aziz, above n 1, at [7].18 Hart v Police [2014] NZHC 2741 at [6(b)], [10] and [20]–[21].19 Iyer v New Zealand Police [2017] NZHC 353 at [11]; and Anderson v R [2016] NZCA 346 at [26].20 Hart, above n 18.conviction history andcharacter references did notsuggest that Mr Hart presenteda serious risk to the communityor those close to him.Potter vPolice21Mr Potter breached aprotection order in relation tohis former partner and threechildren by assaulting hisformer partner on oneoccasion and visiting hischildren, without incident, onthe second occasion. He wascharged with two charges ofbreaching a protection orderand a charge of breachingcommunity workrequirements.On appeal, Mr Potter wassentenced to 15 weekscommunity detention and ninemonths' supervision. While theassault was of moderateseriousness, Mr Potter had notbreached the order in theintervening three-year period.Imprisonment was notappropriate given the gravity ofthe offending and Mr Potter'spersonal position.Mitchell v R(2015convictions)22Ms Mitchell was charged withfour charges of breaching aprotection order by sendingthe victim four abusive andthreatening voicemailmessages.Ms Mitchell was sentenced tofour months' imprisonment.She had previously beenconvicted of several breachesof the same protection orderand this offending was part of acontinuum of ongoingbreaches.Mitchell v R(2016convictions)23Ms Mitchell had put anabusive and threatening letterin the prison mail system to besent to her former partner.The letter was intercepted andreferred to police. She wascharged with attempting tobreach a protection order.Ms Mitchell was sentenced totwo months' imprisonment.Given Ms Mitchell's history ofbreaching the same protectionorder and previous sentencesimposed the Court of Appealobserved the only likelysentence was one ofimprisonment.Anderson v R24 Mr Anderson breached aprotection order in relation toa former partner when hedrove his car up to thecomplainant's car and madecontact with her open carMr Anderson was sentenced to18 months' imprisonment andordered to pay $1,000reparation. The Court ofAppeal held the sentence wasnot manifestly excessive21 Potter v Police [2014] NZHC 1769.22 Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.23 Mitchell v R [2017] NZCA 184.24 Anderson v R [2016] NZCA 346.door; broke into the shed ather property and took alawnmower; and created aFacebook page with thecomplainant's contact detailsand an intimate profile photoof her. He was charged withthree charges of breaching aprotection order.because Mr Anderson had fourprevious convictions forbreaching the same order;creating the Facebook pageinvolved a high level ofpsychological bullying; thepattern of his breachesdemonstrated an escalatinglevel of seriousness; and heshowed no remorse orappreciation of the seriousnessof his behaviour.Beck v Police25 Mr Beck sent 45 textmessages to the victim stating,amongst other things, "I'mgoing to put you in a coffin".The second protection orderbreach arose when he sent thevictim numerous textmessages and missed calls andthen unsuccessfully tried toget into the front door of herhouse. Mr Beck had a historyof domestic violence andprotection order breachesagainst the same victim. Hewas charged with two chargesof breaching a protectionorder in relation to his formerpartner and one charge ofbreaching release conditions.Mr Beck was sentenced to 15months' imprisonment.Mander J upheld the sentenceon appeal because of therepeated nature of Mr Beck'sbreaches of the order, hisobvious intent topsychologically abuse hisvictim, his persistence anddomestic violence convictionhistory.Smart vPolice26Mr Smart sent a stream ofabusive and threatening textmessages to the victim, over1,400, including threateningher with violence. He wascharged with a representativecharge of breaching aprotection order andthreatening to injure.Mr Smart was sentenced to 10months' imprisonment. Onappeal, Gendall J observed thebreaches were extensive, hisconduct would have had asevere psychological impactand that this was Mr Smart'sfirst conviction for this type ofoffending.[26] Mr Aziz does not have the same offending history as the offenders in Beck,Mitchell or Anderson. His offending is not as serious or extensive as that in Smart.25 Beck v Police [2014] NZHC 931.26 Smart v Police [2016] NZHC 3092.He was not physically abusive, although the psychological impact of his offendingshould not be underestimated. Some of his communications with the complainantwere abusive and threatening and the social media profile he created of her could alsobe described as abusive. The breaches did occur relatively soon after the protectionorder was imposed.[27] The factors favourable to Mr Aziz's are his immediate guilty plea, his lack ofprior convictions, and this was his first breach of a protection order. The other factorwhich I consider is important and is in Mr Aziz's favour is the fact that this is his firstcriminal offence. I have already identified that the Judge was in error in imposing asentence of imprisonment without sufficient information before him and that he tookinto account Mr Aziz's immigration issues in setting the end sentence.[28] On a transcript of the discussion between defence counsel and the Judge, theJudge reached his sentencing decision on the basis of being told by defence counselthat Mr Aziz wants to go home.[29] The sentence of imprisonment was imposed as a pragmatic response to MrAziz's "current status", without regard to s 8(g) the Sentencing Act and the hierarchyof sentences in s 10A of that Act.27 In other words, Mr Aziz was given a custodialsentence principally because he is likely to be deported.[30] At the time of hearing this appeal, Mr Aziz had served three weeks'imprisonment. That is equivalent to six weeks' imprisonment, as time served for ashort-term sentence of imprisonment.28[31] In light of Mr Aziz's personal circumstances, his lack of previous convictions,and the fact that no other option of sentencing was undertaken or considered, I amsatisfied there is an error in the sentence imposed.[32] The sentence of three months' imprisonment was manifestly excessive in thesecircumstances. The sentence is quashed and a sentence of one month's imprisonment27 Aziz, above n 1, at [7].28 Parole Act 2002, s 86.is substituted. In doing so, I wish to make it clear that this is not an indication that thistype of offending is to be lightly regarded by the Court. Nor should this case have anyprecedent value for a sentence of imprisonment to be imposed for a first breach of aprotection order. The sentence of one month's imprisonment is being substituted,because it is appropriate in Mr Aziz's circumstances.Result[33] Mr Aziz's appeal is allowed.[34] The sentence of three months' imprisonment is quashed and a sentence of onemonth's imprisonment is imposed.[35] Mr Aziz has more than served this sentence, and he is entitled to be releasedimmediately.Cull J