R v ABDUL SHAHEED [2003] NZCA 261 (12 November 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA202/02

THE QUEEN

v

ABDUL SHAHEED

Hearing: 6 November 2003

Coram: Gault P

Blanchard J

Tipping J

Appearances: P J Kaye for Appellant

L M B Lamprati SC for Crown

Judgment: 12 November 2003

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] This case is a sequel to R v Shaheed [2002] 2 NZLR 377, to which reference can be made for a more detailed statement of the background.The appellant, Abdul Shaheed, was found guilty by a jury in the High Court at Auckland on counts of sexual violation by rape and abduction with intent to have sexual intercourse with a girl under 16 years.The complainant was a 14 year old schoolgirl who was on her way to school when she was forcibly seized by Mr Shaheed and put into the back seat of his car.He subsequently took her against her will to a house where the sexual offending took place.She managed ultimately to escape and report the matter to the authorities.He appeals against his convictions and the sentence of ten years imprisonment which was imposed on him in the High Court.

[2] The appeal against the convictions is based on the proposition that trial counsel (not Mr Kaye) did not prepare adequately for trial.Mr Shaheed contends that a miscarriage of justice has resulted.

[3] In his supporting affidavit Mr Shaheed traversed a number of background matters including several pre-trial applications, one of which resulted in the earlier decision of this Court.He then said:

I believe that my counsel was so confident of the success of these applications before the High Court and the Court of Appeal that he did not adequately prepare for the trial on 9 April 2002 in the event that they were unsuccessful.

[4] This complaint is coupled with an assertion by Mr Shaheed that he was told by his trial counsel of the commencement date for his trial only the previous day.

[5] There is a fundamental difficulty with Mr Shaheed’s complaints.He does not state in his affidavit how he claims to have been prejudiced, either personally or through the allegedly inadequate preparation of counsel.The broad statement in his affidavit noted above amounts to no more than an assertion and is not supported by any objective facts.There can be no suggestion from a perusal of the record of the proceedings that Mr Shaheed was inadequately represented by his trial counsel.In the absence of any evidence of specific complaint and resulting prejudice, we are not persuaded Mr Shaheed has demonstrated any real risk of a miscarriage of justice.

[6] Mr Shaheed raises a further point both in relation to the convictions and the length of the ten year sentence.He claims that he was not given a proper opportunity to consider whether to plead guilty, and thereby achieve a reduced sentence.He says that the possibility of pleading guilty was put to him only on the evening before the trial was due to commence.He says further that he was not advised of the likely sentence if he was convicted at trial.We are satisfied from the evidence that there was very little, if any, prospect that Mr Shaheed would have pleaded guilty, even if his contentions are correct and he had been given more time to consider the matter.His trial counsel’s evidence demonstrates that, at an earlier stage, he had had a discussion with Mr Shaheed about the possibility that the Crown might accept a plea of guilty to a reduced charge of indecent assault.Trial counsel told Mr Shaheed that in that event he could expect a sentence in the region of three years imprisonment, whereas if he was convicted of abduction and rape after trial, he could expect a sentence in the vicinity of ten years.

[7] Mr Shaheed told trial counsel he had had nothing to do with the complainant.He indicated that he was not willing to plead guilty to any charge of indecent assault or having sexual intercourse with a minor because he had had nothing to do with the complainant.That being the case we consider that had the question of a plea of guilty to the much more serious charge of sexual violation been raised with Mr Shaheed at an earlier stage, it is highly improbable that he would have been willing to plead guilty.Indeed in his own affidavit in support of his appeal he does not suggest that had he been given further time to consider the matter, he would or even might have pleaded guilty.

[8] In the light of his earlier forthright stance, maintained at trial, that he had had nothing to do with the complainant, that is hardly surprising.We do not consider the point Mr Shaheed raises can properly be regarded as one affecting the appropriateness of his sentence.Nor can it possibly amount to a miscarriage of justice in relation to the conviction.By appealing against his conviction he is claiming to be not guilty; but at the same time he is implicitly suggesting, without expressly saying so, that he would or might have pleaded guilty if his counsel had given him appropriate and timely advice.While we accept Mr Kaye’s point that sometimes pleas of guilty are entered on a purely pragmatic basis, Mr Shaheed’s attempt, at this stage of the proceedings, to have it both ways is entirely unconvincing.

[9] The sentence of ten years was also challenged on the basis that it was manifestly excessive.That proposition is untenable.Following trial a sentence at this level was well within the Judge’s discretion.

[10] For the reasons given, the appeals against both conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington