Rafiee v R [2010] NZCA 180 (11 May 2010)

Last Updated: 19 May 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

[2010] NZCA [2010] NZCA 180

BETWEEN ALI REZA RAFIEE
Appellant

AND THE QUEEN
Respondent

Hearing: 3 May 2010

Court: Chambers, Potter and Miller JJ

Counsel: M S Gibson for Appellant
N P Chisnall for Respondent

Judgment: 11 May 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Potter J)

Introduction

[1] Following trial by jury Tuale Fuimaono, Ahmad Matlobyaygazwini and the appellant Ali Reza Rafiee were each found guilty of manslaughter in relation to the death of Bjorn Henderson on or about 9 March 2008.
[2] On 18 November 2009 Lang J, the trial Judge, sentenced Mr Fuimaono to eight years imprisonment, Mr Matlobyaygazwini to seven years imprisonment and Mr Rafiee to six years imprisonment.[1]
[3] Mr Rafiee appeals against his sentence on two grounds:

1. Insufficient distinction was drawn by the sentencing Judge between Mr Matlobyaygazwini and the appellant in relation to their respective involvement and degree of premeditation, to the extent that a reasonably minded and independent observer would conclude something had gone wrong.
2. The sentencing Judge placed a disproportionate emphasis on his finding that Mr Rafiee took a weapon to the address.

[4] The appellant submits that the appropriate sentence would be five years imprisonment.
[5] The Crown submits that the appellant has failed to demonstrate an error that necessitates the intervention of this Court on appeal.

Factual background

[6] Following the jury’s verdicts, at the request of counsel for the offenders, Lang J held a disputed facts hearing under s 24 of the Sentencing Act 2002. He set out his detailed factual findings in a minute dated 20 October 2009. He summarised those findings in his sentencing judgment as follows:

[3] ... the incident that led to you being charged had its genesis in an incident that occurred a few days earlier. During that earlier incident Mr Henderson had come to Mr Matlobyaygazwini’s motel unit in the early hours of the morning accompanied by some other men. There they assaulted Mr Matlobyaygazwini and stole money and drugs from him.

[4] This led to a series of events that occurred on the afternoon of 9 March 2008. Earlier that day Mr Matlobyaygazwini had learned that Mr Henderson was in the Auckland area. He made efforts to ensure that Mr Henderson came to an address on the Ellerslie-Panmure Highway where an associate of Mr Matlobyaygazwini’s was living. Mr Matlobyaygazwini then went round to collect Mr Rafiee from his home address. When Mr Rafiee got into the vehicle, I am satisfied that he was carrying a pistol and also another form of weapon, the precise nature of which I have never been able to determine.

[5] They went back to the address at Ellerslie-Panmure Highway and awaited the arrival of Mr Henderson. When Mr Henderson arrived, Mr Matlobyaygazwini immediately confronted him in his vehicle. Quite clearly he was terrified because he tried to reverse his vehicle in an effort to escape. He was unable to successfully accomplish that objective and collided with another vehicle owned by one of the occupants or visitors at the address. At about this time Mr Fuimaono’s vehicle arrived in the address and Mr Henderson’s vehicle collided with that as well.

[6] I have found that Mr Fuimaono’s attendance at the address arose following a telephone discussion between Mr Fuimaono and Mr Rafiee that occurred at 3.59 pm. Mr Fuimaono called Mr Rafiee and I am satisfied that Mr Rafiee must have told him what was about to occur. Mr Fuimaono then made the conscious decision to come to the address at Ellerslie-Panmure Highway in order to be part of the party that was going to confront Mr Henderson there.

[7] Mr Henderson eventually escaped by running through a hedge and into a neighbour’s property. He then ran across the Ellerslie-Panmure Highway. He was closely followed by Mr Matlobyaygazwini, and Mr Rafiee was also in pursuit. They followed Mr Henderson across the road and into a driveway of a property on the other side of the road. There Mr Matlobyaygazwini began punching Mr Henderson. It seems that Mr Rafiee remained in the area around the entrance to the driveway of that address.

[8] Mr Fuimaono in the meantime had got in his vehicle and left the address in Ellerslie-Panmure Highway. As he was driving down Ellerslie-Panmure Highway he saw what was happening in the driveway of the property over the road. He did a U-turn and brought his vehicle back to that driveway. He then got out of the vehicle and a short time later a confrontation occurred between himself and Mr Henderson. That ended when Mr Fuimaono used an instrument, such as a stick, to strike Mr Henderson on the head. It seems that he struck him on more than one occasion on his own admission.

[9] Once the incident ended, Mr Fuimaono and Mr Rafiee left the address. Mr Matlobyaygazwini remained in the vicinity. Unfortunately, those who were responsible for Mr Henderson’s welfare after that point did not take him to the hospital. He remained in their care for some hours before finally being taken to the hospital at about midnight. By that stage the injuries that he had received were too severe for him to be successfully treated and he died as a result of his injuries a short time later.

Sentencing

[7] In considering the starting point to be adopted Lang J noted that there was no “tariff” or guideline judgment from this Court dealing with manslaughter. He considered a number of authorities referred to him by the Crown and the defence and said he found of most assistance the case of R v Hughes and Shortland.[2] He noted that case involved a street attack and in that sense differed from the circumstances of this case. He considered the offending in this case to be slightly more serious than that in Hughes and Shortland because this offending involved elements of premeditation, the carriage of a lethal weapon to the scene and also the use of a weapon, an object like a stick, in the events that led to Mr Henderson’s death. He noted those factors were not present in Hughes and Shortland where a starting point of seven years imprisonment was adopted by the sentencing Judge.
[8] Lang J then considered the culpability of each of the offenders, reflecting findings he made about culpability at the conclusion of his factual findings issued on 20 October 2009. He found Mr Fuimaono to be the principal offender who actually struck the blow or blows that led to Mr Henderson’s death. For that reason he considered the sentence to be imposed on Mr Fuimaono should be greater than that imposed on Mr Rafiee and Mr Matlobyaygazwini. He considered an appropriate starting point to be eight years imprisonment.
[9] The Judge said that Mr Matlobyaygazwini was in a large sense “the prime architect” of what occurred. Mr Matlobyaygazwini was the person who immediately confronted Mr Henderson on his arrival and was extremely aggressive. He could see that Mr Henderson was terrified and trying to escape but Mr Matlobyaygazwini did not allow him to get away. He immediately chased him from the property and across the road where he began to punch him. The Judge was satisfied that Mr Matlobyaygazwini was not carrying a weapon but that he knew Mr Rafiee had a weapon and also that Mr Fuimaono was coming to lend assistance to his plan. He concluded that Mr Matlobyaygazwini was not as culpable as Mr Fuimaono because he did not inflict the fatal blows but he nevertheless created the circumstances in which that was likely to occur. He adopted a starting point of seven years imprisonment for Mr Matlobyaygazwini.
[10] In relation to Mr Rafiee, the Judge said:[3]

... your position has given me cause to reflect. In the earlier findings that I delivered on 29 (sic) October 2009, I said that I was satisfied that your culpability was less than that of Mr Fuimaono and roughly equal with that of Mr Matlobyaygazwini.

[11] He said that Mr Rafiee’s real culpability arose from his willingness to involve himself in a situation which would inevitably involve the infliction of violence on Mr Henderson. He noted that Mr Rafiee knew about the earlier incident (at Mr Matlobyaygazwini’s motel unit) because he made telephone calls to Mr Henderson immediately after that incident in which he made comments to Mr Henderson that could be taken as threats. Mr Rafiee was also willing to become involved as soon as Mr Matlobyaygazwini came to his house on the afternoon of 9 August. The Judge said the single aggravating factor about Mr Rafiee’s involvement was his being prepared to carry a firearm and another form of weapon to the address. He accepted the weapon was never used but he said the carriage of the weapon gave some indication about the level of violence that was possible. He said:[4]

Had it been used, Mr Rafiee, no doubt you would all be facing sentences on a charge of murder. The carriage of the firearm to that address was a significant aspect of your involvement and one that calls for recognition in the starting point that I adopt.

[12] The Judge accepted that Mr Rafiee played no part at all other than by his mere presence, in the events that actually led to Mr Henderson’s death. He concluded that a starting point of six years imprisonment was warranted.
[13] The Judge applied no increase for the previous offending of Mr Rafiee and Mr Matlobyaygazwini and in the case of Mr Fuimaono an increase of one year for aggravating factors was balanced by a discount of one year for the willingness of Mr Fuimaono to enter a plea of guilty to a charge of manslaughter had that been acceptable to the Crown.
[14] The Judge considered the Crown’s submission that a minimum period of imprisonment should be imposed but decided in all the circumstances, bad as they were, that the additional penalty involved in a minimum term of imprisonment should not be imposed.

Appellant’s submissions

[15] Mr Gibson made brief submissions about the starting point adopted, submitting that a starting point lower than that adopted in Hughes and Shortland was appropriate. He said he did not challenge the starting points adopted for Mr Fuimaono and Mr Matlobyaygazwini. The main focus of his submissions was on the level of Mr Rafiee’s culpability which, he submitted, was significantly less than that of Mr Matlobyaygazwini.
[16] Mr Gibson submitted that while Mr Rafiee made a call to Mr Henderson following Mr Matlobyaygazwini’s assault, he was not involved in the planning of the retribution against Mr Henderson until Mr Matlobyaygazwini arrived at his address at approximately 3.30 p.m. on 9 March. He emphasised that Mr Rafiee did not participate in the assault, but he accepted that by the jury’s verdict Mr Rafiee was found to be party to the common intention and encouraged the other offenders in the execution of the planned retribution. Counsel sought to minimise the carriage of the weapon by Mr Rafiee, noting that in all probability the weapon did not leave the car, that it was not observed by anyone at the house or by Mrs Giles, a passerby, and that it was not used in any way during the assault on Mr Henderson.
[17] Mr Gibson referred to the Judge’s statement in his sentencing judgment (refer [10] above) that he was satisfied the culpability of Mr Rafiee was roughly equal with that of Mr Matlobyaygazwini. However, counsel appears to have misconstrued the approach of the Judge on sentencing in comparing the culpability of Mr Matlobyaygazwini and Mr Rafiee. It seems clear from the Judge’s sentencing remarks that he resiled from that conclusion in his earlier factual findings. He said that Mr Rafiee’s position had given him pause to reflect and that “after considerable reflection” a starting point of six years imprisonment was warranted. Clearly the Judge differentiated on sentencing between the culpability of Mr Rafiee and that of Mr Matlobyaygazwini.

Crown’s submissions

[18] Mr Chisnall noted that at sentencing the Crown submitted that a common starting point in the range of eight to ten years imprisonment for each offender was appropriate because the jury’s verdict demonstrated acceptance that the offenders held a common intention to assault the deceased, combined with the knowledge of the presence of weapons at the time the common unlawful purpose was put into effect. Thus, the differences in the roles the respective offenders played required, at most, only an incremental adjustment in the starting points adopted, to reflect the respective culpability of each of them.

Discussion and conclusion

[19] In R v Lawson this Court said:[5]

The disparity argument is not infrequently raised in this Court. For that reason we reiterate that differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument.

... the test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice. A number of expressions have been used to capture this concept, namely “the disparity is so gross that a justifiable sense of injustice would persist”, that right-thinking members of the public are likely to say “there is something wrong here” – R v Potter [1977] Crim LR 122. But the test is objective; not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[20] Lang J undertook sentencing on the basis of detailed factual findings he made after hearing submissions from all parties. He carefully assessed the relative culpability of each of the offenders. In the case of Mr Rafiee, in the period between issuing his factual findings and sentence, he clearly softened his view that Mr Rafiee’s offending was roughly equal with that of Mr Matlobyaygazwini and adopted a starting point (which was also the end sentence), of a year less than that for Mr Matlobyaygazwini.
[21] The Judge regarded the carriage of the firearm by Mr Rafiee as an aspect lending significantly to his culpability, requiring recognition in the starting point adopted. Such a finding was clearly open to the Judge. We consider the significance of this aspect is appropriately reflected in the Judge’s remarks set out at [11] above.
[22] We agree with the Crown’s submission that it is taking too fine a point to suggest that five rather than six years was an appropriate sentence for Mr Rafiee’s part in this offending. Given the Judge’s detailed factual findings and careful assessment of the respective culpability of each of the offenders, this is certainly not a case where on an objective view the disparity in the sentences imposed could be said to be so gross that this Court should intervene on appeal. Indeed, we think the Judge’s weighing of the respective culpability of the three offenders was exemplary.

Result

[23] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1] R v Rafiee HC Auckland CRI-2008-014-6716, 18 November 2009.
[2] R v Hughes and Shortland HC Whangarei CRI-2005-088-4349, 11 May 2007.
[3] At [44].
[4] At [46].
[5] R v Lawson [1982] 2 NZLR 219 at 223.