The Queen v Mohamed [2007] NZCA 170 (2 May 2007)

Last Updated: 22 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA330/06
[2007] NZCA 170

THE QUEEN



v



NAJIB MOHAMED

Hearing: 12 March 2007

Court: Robertson, Baragwanath and Venning JJ

Counsel: A R Laurenson for Appellant
J M Jelas for Crown

Judgment: 2 May 2007 at 3 pm

JUDGMENT OF THE COURT

A Appeal allowed.

B Sentence of eight years’ imprisonment set aside and sentence of six years’ imprisonment substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1]	Mr Mohamed appeals against the sentence of eight years’ imprisonment imposed following his conviction by a jury on a count of wounding with intent to cause grievous bodily harm.
[2]	The appellant is a Somali refugee who at the time of the offending two years ago was just over 20 years of age.
[3]	The appellant was convicted by a District Court jury on a count of wounding the complainant with intent to cause grievous bodily harm. He appeals against the sentence of eight years’ imprisonment imposed by Judge Clark.
[4]	The complainant had invited some neighbours to a party and one of them obtained the complainant’s agreement for the appellant to join them. Tension arose between the appellant and female friends of the complainant who asked the appellant to leave. Before doing so the appellant threatened the complainant that he would return with a weapon. The appellant returned to the complainant’s flat carrying a knife and appearing agitated. The complainant told the appellant that he did not want any problems and tried to calm the appellant down. The appellant then attacked the complainant, stabbing him three times. The complainant sustained a wound to his thigh, which was medically assessed as being very deep, at least 10 cm and probably closer to 15 cm, as well as minor lacerations to his right calf and upper back. After the third blow the appellant went to a window and told the complainant that he had friends waiting in the car which the complainant construed as a threat. The appellant sat down in the complainant’s room and threatened to take the complainant’s phone when he spoke about calling for the police and an ambulance. The appellant then left the flat and was detained by a neighbour until the police arrived.
[5]	When interviewed by the police the appellant claimed that shortly before they arrived he had been riding past the complainant’s address and heard a lot of screaming from inside the flat. He said he did not know what was going on and suddenly the neighbour ran out of the house, chased him, knocked him off his bike and held him until the police arrived. He did not know why the neighbour had behaved like that.
[6]	He gave evidence at trial, recounting being at the complainant’s address and having a disagreement with a girlfriend of the complainant. He denied being asked to leave or leaving the address. He claimed that later in the evening the complainant suddenly attacked him with a knife. He said that the wounds sustained by the complainant were the result of the appellant trying to defend himself.
[7]	The complainant’s injuries required two blood transfusions and his being hospitalised for eight days. The victim impact statement recorded that this 38 year old had been accustomed to living an active life, spending a lot of time in his garden, cycling and going for long walks. Eight months after the wounding he was having trouble walking a great distance and was unable to work in the garden. The trauma caused him difficulties in sleeping and caused him problems in the relationship with his partner.
[8]	The sentencing Judge referred to the pre-sentence report. It recorded that the appellant had arrived in New Zealand from an African refugee camp at the age of ten. He had previously experienced considerable trauma in Somalia where several family members were killed. The report recorded:

Probation records show that he suffered from Post-Traumatic Stress Disorder as a child and had received psychological and psychiatric intervention.

[9]	The appellant told the probation officer that his health was good although he had some history of mental health problems involving depression and Post-Traumatic Stress Disorder. He had been convicted of possession of a knife in a public place in June 2003 and again in June 2004. The Judge referred to an episode in May 1999 as a result of which the appellant was admonished and discharged on an offence of possession of an offensive weapon. The Judge recounted the appellant’s suffering from Post-Traumatic Stress Disorder as a child.
[10]	In terms of R v Taueki [2005] 3 NZLR 372 (CA) the Judge found there to be an element of premeditation although he also recognised there was some impulsiveness on the appellant’s part. There was serious injury as a result of use of a knife and there was an element of home invasion although in circumstances somewhat different from the case of an unknown victim. The Judge selected a starting point of eight years’ imprisonment which he increased as a result of the appellant’s previous convictions and the effect on the victim to eight and a half years. Other relevant convictions were assaulting a person with a blunt instrument (November 1999) and assaulting a person with a blunt instrument and injuring with intent to injure (December 2000; sentence of nine months’ imprisonment plus supervision). He regarded the appellant’s age as a mitigating factor and the final sentence was of eight years imprisonment. A minimum non-parole term was not imposed.
[11]	Mr Laurenson submitted that the starting point of eight years was manifestly excessive and that a term between six and seven years would have been appropriate on the basis that the injuries were not serious, the appellant’s actions were impulsive and the case is different from a normal home invasion as the appellant simply re-entered a house to which he had been invited earlier.
[12]	The Crown submitted that as the Judge had identified there were four aggravating features:

(a) premeditation;

(b) serious injury;

(c) use of a weapon, namely a knife; and

(d) home invasion.

[13]	We consider the appellant’s threat before he left the flat the first time and his returning with a large knife coupled with his return to premises from which he had been ordered to leave satisfy the Taueki criteria and require the case to be assessed as within band 2 so an eight year starting point was within a permissible range.
[14]	Ms Jelas fairly described as stern the additional six months’ imprisonment for the appellant’s criminal history and the impact on the victim. In increasing the starting point to eight and a half years, there is concern of double counting since the effects of the offending on the victim are part of the assessment of the seriousness of injuries sustained.
[15]	But we accept the Crown's submission that a term towards the upper end of band 2 (five to ten years) and below band 3 (nine to fourteen years) was available and so an eight and a half year term was available. The Crown submitted that the credit of six months given for the appellant’s youth was generous given his criminal history and age. There is force in the submission.
[16]	In oral argument a new point was raised on which we received both a further report from a consultant psychiatrist, Dr Dean, and further submissions. Should there have been regard to the Post-Traumatic Stress Disorder resulting from the appellant’s experiences as a seven year old child in assessing culpability? The Judge referred to that history but did not see it as more than background which did not affect the sentence. We are of a different opinion.
[17]	Dr Dean reported the traumatic events experienced by the appellant, the most significant being to witness his mother’s death and himself being shot at through a car window. His history of treatment for Post Traumatic Stress Disorder started in 1997. While his symptoms have improved he suffers flashbacks, often wakes with panic attacks, feels breathless and suffers palpitations. The appellant experiences homicidal fantasies, such as killing people with a bazooka or an automatic rifle. Dr Dean reported "He knows he would not do this, but it does tend to frighten him".
[18]	Dr Dean confirmed the diagnosis of Post Traumatic Stress Disorder related to the appellant’s experiences in Somalia. Importantly, he advised that it is likely that those experiences are not simply historical but have contributed to his offending behaviour. He did not recommend psychotherapeutic interventions through a psychiatrist but considered that psychological treatment would clearly be of value. He advises that the appellant is very preoccupied by violent thoughts and is suspicious of the world around him.
[19]	The combination of the homicidal fantasies with the evidence of the appellant’s actual conduct with the knife is troubling. But as this Court stated in R v Bridger [2003] 1 NZLR 636 at [42]:

...a just balance has to be struck between denunciation of violence, acknowledgment of the grievous effects on the victim, recognition of reduced culpability of the appellant and the public interest, in terms of safety, of the appellant’s being helped ... [by medical procedures]. In [R v Tuia CA312/02 27 November 2002] at para [22] the Court observed that reduced culpability is a factor which ought to receive specific acknowledgement; that the law must give full weight to the principle that criminal punishment has an essentially moral base and lesser moral fault requires to be recognised.

Since the sentencing Court did not recognise these factors we must do so.

[20]	Dr Dean advises that if the appellant is able to address his psychological issues, then his risk of re-offending would be reduced. In that sense his offending is related to his Post-Traumatic Stress Disorder.
[21]	The public interest in minimising risk of further offending upon release is of pivotal importance. Such interest substantially coincides with signalling to the appellant an acknowledgement of the influence on his conduct of Post-Traumatic Stress Disorder. This may be expected to assist the process of psychological treatment recommended by Dr Dean and which is undoubtedly a fundamental priority while Mr Mohamed is incarcerated. Sensibly dealing with the issue is the best means of long-term public protection.
[22]	We allow the appeal, set aside the sentence of eight years’ imprisonment and substitute a sentence of six years’ imprisonment.

Solicitors:
Govett Quilliam, New Plymouth for Appellant
Crown Law Office, Wellington