Ahmed v Police [2014] NZHC 2370 (26 September 2014)

Last Updated: 14 October 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000324 [2014] NZHC 2370

BETWEEN	FAISAL AHMED Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 September 2014
Appearances:	Appellant in Person N M H Whittington and S R Jacobs for Respondent G R Kayes (counsel appointed to assist the Court)
Judgment:	26 September 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 26 September 2014 at 5.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date............................}

AHMED v NZ POLICE [2014] NZHC 2370 [26 September 2014]

Introduction

[1] Faisal Ahmed was born in Somalia in 1979 and came to New Zealand in

2000 as a refugee. His experience in New Zealand has been mixed and he has struggled with mental illness. He wishes to travel overseas to see his family, which would assist his mental health but he does not have appropriate travel documents. This is because he has not yet obtained New Zealand citizenship. That, in turn, is because in 2008 he was sentenced to a term of imprisonment and the Citizenship Act

1977 precludes an application for citizenship by a person who has been subject to a term of imprisonment within the seven years. Mr Ahmed is therefore unable to apply for citizenship until December 2016.

[2] Mr Ahmed has now applied for leave to appeal his conviction and sentence. The charges on which Mr Ahmed was convicted were one count of male assaults female¹ and one of resisting police.² The charge of male assaults female was serious; it involved an assault on a female police officer. Mr Ahmed pleaded guilty to the charges. Judge McNaughton imposed a term of 12 months’ imprisonment and made a hybrid order under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP).³ Mr Ahmed served his sentence and was released in

2010.

[3] The proposed grounds of appeal were stated in his notice of appeal to be that he pleaded guilty without adequate legal advice and that the sentence was manifestly excessive. As they were argued before me, the proposed grounds of appeal can be summarised as:

(a) Mr Ahmed was not fit to plead.

(b) When he entered the guilty plea he had not received full police disclosure;

¹ _{Crimes Act 1961, s 194(b).}

² _{Summary Offences Act 1981, s 23(a).}

³ Police v Ahmed DC Auckland CRI-2008-004-027207, 18 December 2008.

(c) He pleaded guilty in the hope or expectation, based on advice from his then counsel, that he would receive a discharge without conviction;

(d) Before sentencing he instructed his lawyer that he wanted to vacate the plea but his lawyer did not follow those instructions;

(e) The police had beaten him;

(f) the Judge did not properly consider the consequences of the conviction in determining his application for an order discharging him without conviction;

(g) The sentence was disproportionate to the offending.

Leave to extend time for appealing

[4] Under s 115 of the Summary Proceedings Act 1957⁴ Mr Ahmed had a general right of appeal to this Court but was required to file a notice of appeal within 28 days of sentence. There is, however, a power to extend the time for filing.⁵ In advancing an application for leave to appeal out of time an applicant must show that there exist or existed special circumstances why the decisions and sentences should not start, one such circumstance being the prospect of success in the event leave were granted.⁶ An applicant must also provide an explanation as to the delay.⁷

[5] Mr Ahmed explained that after his release from the Mason Clinic in 2010 he sought advice about an appeal. It was also apparent that there were other things going on in his life. In the circumstances I accept his explanation as reasonable.

_{Leave to bring the appeal is granted.}

⁴ _{Now repealed and replaced by s 397 of the Criminal Procedure Act 2011.}

⁵ _{Summary Proceedings Act 1957, s 123.}

⁶ _{Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.}

⁷ Virendra v Police HC Wellington CRI-2011-485-74, 27 September 2011.

The facts of the offences

[6] The convictions arose from an incident very early in the morning on 6

September 2007 at the public service counter at the Auckland Central Police watch house. It appears that Mr Ahmed’s presentation at the police station on the day of the assault was prompted by longstanding distress and frustration as a result of actual or perceived abuse of various kinds, including racial abuse. He expressed a belief that he had been under surveillance and unknown persons had inserted a microchip in his head.

[7] The summary of facts, on which Mr Ahmed pleaded guilty, records the following:

The defendant had attended the watch house earlier the same day but was asked to leave by police due to his behaviour.

He returned but this time carrying a suitcase and other personal items, demanding to be arrested and put in prison.

The defendant remained in the waiting area for an extended period of time before being approached by Senior Sergeant Dianne Kay CAPPER, the complainant in this matter.

After a short discussion the defendant was asked several times to remove himself and his property from the Police Station.

When he refused, the complainant has picked up the defendant’s bag with

the intention of moving it outside.

The defendant has immediately stood up and without warning has swung two heavy punches at the complainant, striking her on the mouth and face area.

Being nearly half the defendant’s size, the complainant has stumbled

backwards.

As the defendant has moved towards the complainant to continue his attack the complainant has managed to grab him around the waist with both arms.

Unable to continue punching the complainant the defendant has raised his knee several times striking the complainant in the face and head.

Several other police officers have intervened and managed to take the defendant to the ground where he continued to struggled and attempt to fight police.

As a result of the attack the complainant has received two cuts to the inside of her mouth that required stitches. She also received damage to her teeth,

bruising, swelling and soreness to her jaw and head and pain and stiffness to her neck. Medical treatment was required.

Mr Ahmed’s guilty plea and sentencing

[8] Between his arrest and sentencing, Mr Ahmed was represented by a number of barristers; Mr Deliu in October 2007, Mr Rasheed between December 2007 and February 2008, Mr Speed in February 2008 and Mr Chambers from March 2008 onwards. Mr Deliu requested and obtained police disclosure in November 2007. This included CCTV footage of the incident.

[9] Initially Mr Ahmed intended to proceed to trial. He wrote to the District Court on 19 December 2007 recording that fact. The following year, however, he changed his mind, writing to Mr Chambers advising that:

I’d like to want to [sic] withdrew [sic] my not guilty plea due to the following reasons.

1. There’s no guarantee for restoration of justice and this all depends on the judge ...

I did not fully understand the process of the court and after proper advise and research I believe the choices I made were the wrong ones.

Due to the above and other reasons I would like to have a recall on my case as soon as possible.

[10] On 15 July 2008 Mr Ahmed was given leave to vacate his not guilty plea and he entered a plea of guilty.

[11] A pre-sentence report and a report from Waitemata District Health Board regarding Mr Ahmed’s mental health were obtained prior to sentence. The psychiatric report recorded Mr Ahmed’s belief (which he denied on other occasions) of having a microchip in his head and the fact that he did not believe he suffered from any psychiatric disorder. The report touched on Mr Ahmed’s criminal history which contained convictions for wilful trespass, wilful damage, common assault and male assaults female. It also referred to other events recorded but which had not resulted in convictions. These related to various kinds of allegedly threatening behaviour.

[12] The consultant psychiatrist who authored the report, Dr Wyness, concluded that Mr Ahmed probably suffered from a delusional disorder, paranoid type or paranoid schizophrenia and that his paranoid thinking resulted in him presenting a serious risk to the safety of others and to himself at times. It was Dr Wyness who recommended that, in the event of a custodial order being imposed, consideration be given to a hybrid order under the CPMIP Act, to ensure that Mr Ahmed could receive appropriate psychiatric care.

Appeal against conviction

Appeal against conviction following a guilty plea

[13] An appeal against a conviction entered on a guilty plea will be allowed only in exceptional circumstances.⁸ In Udy v Police the circumstances in which such an appeal might succeed were identified as being where there was, in fact, no plea at all, where the plea was entered under some obvious mistake, misunderstanding or misapprehension and where the defendant may not have appreciated the nature of the charge or intended to admit his guilt.⁹ However, these circumstances are not exhaustive. The fundamental question is whether there has been a miscarriage of justice; in R v Stretch, Cooke J observed that:¹⁰

The result in New Zealand is that, if the conviction has followed a plea of guilty, and if it cannot be sufficiently linked with a wrong decision of the Court on a question of law (see R v Barrie [1978] 2 NZLR 78) the appellant cannot succeed unless he can show within s 385(1)(c) “that on any ground there was a miscarriage of justice”.

Fitness to plead

[14] At sentencing the Judge had a report from consultant psychiatrist Dr Goodwin provided a report dated 18 September 2007 specifically addressing Mr Ahmed’s fitness to stand trial. Dr Goodwin considered that, notwithstanding his mental health issues, Mr Ahmed had a good awareness of the court process, the pleas

_{available to him and the likely consequences of the pleas. There was no impaired}

⁸ _{Church v Police CA364/01, 15 July 2002 at [3].}

⁹ _{Udy v Police [1963] NZPoliceLawRp 17; [1964] NZLR 235 (SC) at 237 – 238.}

¹⁰ R v Stretch [1982] 1 NZLR 225 at 229 (CA).

concentration or cognitive deficits that would impair his ability to participate in the court process. Dr Goodwin concluded that Mr Ahmed was fit to stand trial:

Mr Ahmed was able to indicate spontaneously to me the need to further discuss the situation with counsel before entering any plea. His decision making around any plea he might wish to enter did not appear to be driven by delusional beliefs regarding the courts or the Police. Mr Ahmed demonstrated an awareness of the likely consequences of any plea he might wish to enter. As stated above he was particularly concerned around his future immigration status if convicted.

[15] In light of this report there is no basis on which Mr Ahmed could now assert that he was not fit to plead at the relevant time.

Errors by lawyer

[16] Mr Ahmed had a number of complaints regarding his previous counsel, Mr Chambers. In particular, he asserted that after he had entered the guilty pleas he instructed Mr Chambers that he wished to vacate those pleas but that was not done.

[17] Mr Ahmed disclosed some correspondence between him and Mr Chambers. This included a letter that he received from Mr Chambers dated 22 January 2009, evidently in response to Mr Ahmed’s expressed wish to appeal the sentence that had been imposed. Mr Chambers’ advice in that letter was that Mr Ahmed’s suggestion of home detention was impossible because of difficulties over him taking medication and Mr Chambers’ advice was to accept the sentence that had been imposed.

[18] However, Mr Ahmed did not waive privilege in relation to any material relating to his plea and sentencing. Mr Chambers was not called to give evidence. The need for a waiver was raised in a minute by Lang J dated 17 September 2014. Mr Ahmed claimed that he did not receive a copy of that minute. I took some time before the hearing got underway to explain to Mr Ahmed what a waiver was and the difficulties he would face in advancing an appeal based on errors by his counsel without a waiver. Mr Ahmed was very clear that he did not wish to waive privilege. Nor did he wish to take up the opportunity I offered to stand the matter down so that he could discuss the issue with Mr Kayes.

[19] In these circumstances, as I made clear to Mr Ahmed, I cannot reach any conclusion regarding when and what instructions Mr Chambers received or what advice he gave. This ground of appeal must fail.

Police disclosure

[20] Mr Ahmed’s next ground of appeal was inadequate disclosure by the police. The police provided disclosure to Mr Deliu in November 2007. This included CCTV footage of the assault on Constable Capper. It was not clear what further disclosure Mr Ahmed expected to obtain. To the extent that there may have been CCTV footage of what happened after he assaulted Constable Capper, it could not be relevant to the proposed appeal.

[21] In any event, Mr Ahmed proceeded to enter his guilty plea, with the benefit of counsel and without any apparent concern over this issue. There is nothing to suggest that proper disclosure was not given or, if it was not, any miscarriage of justice could have resulted.

Allegations of Police misconduct

[22] Mr Ahmed made allegations that the police had beaten him. His complaint related occasions before and after the incident on 6 September 2007. It appears that on that occasion the alleged assaults by the police occurred after Mr Ahmed’s assault on Constable Capper. He seemed to view this as a possible defence, which might have been advanced had he not pleaded guilty.

[23] Mr Kayes referred to Mr Ahmed’s complaint to the Police Complaints Authority in September 2007 and a subsequent report by the Police Complaints Authority that did not find evidence of police misconduct. Clearly, this is an aspect which cannot form the basis of the proposed appeal. It would not have been available as a basis for a defence and cannot be viewed as relevant at this point.

Appeal against sentence/ the s 106 application

[24] Mr Ahmed considers the sentence to be disproportionate to the offending and that the Judge was wrong not to grant a discharge without conviction.

[25] Mr Ahmed referred to a number of documents in relation to this aspect of the appeal, some of which were available but apparently not placed before the Court at the time of sentencing and some which post-date the sentencing. Leave is granted for him to rely on this material.

Was the sentence manifestly excessive?

[26] I start by considering the sentence. The Judge fixed the sentence, taking a starting point of 12 months and imposing a four month uplift for previous conduct and a reduction of two months to reflect the guilty plea:

[22] In my view, notwithstanding the reduction of the charge from assault with intent to injure, which carries a maximum penalty of three years’ imprisonment, down to male assaults female, which carries a maximum penalty of two years’ imprisonment, notwithstanding that reduction, in my view an appropriate starting point for this offence is 12 months’ imprisonment.

[23] The defendant’s previous convictions are an aggravating factor, so is his history of assaultive behaviour and possession of weapons. That factor increases the appropriate starting point to 16 months.

[24] Then I turn to mitigating features. The defendant has pleaded guilty. I can give some limited credit for the plea of guilty but I note that it was entered a considerable distance down the track, some nine months after the defendant’s initial appearance. On that basis I am prepared to reduce the end sentence by two months to 14 months. There was no real remorse shown by the defendant. There is a high risk of re-offending.

[25] Turning to other mitigating factors. The defendant’s psychiatric condition and non-compliance with medication are also mitigating factors but it difficult to give them substantial weight against this background of assaults, non-compliance with treatment and blame on the victims and authorities. The maximum reduction that I can make from the starting point of 16 months, based on guilty pleas and psychiatric factors is 25%. That reduces the end sentence to 12 months’ imprisonment. That is the sentence that I will impose on the charge of male assaults female.

[27] The Judge then proceeded to make a hybrid order under s 34(1)(a)(i) of CPMIP Act committing Mr Ahmed to a hospital upon conviction and an order that he be detained as a special patient.

[28] The 12 month starting point taken could not be objectionable; this was a serious assault on a police officer going about her duties. However, the Judge’s treatment of the aggravating factors require closer consideration.

[29] In imposing the uplift the Judge referred both to Mr Ahmed’s previous convictions and reported events that had not resulted in convictions. The reported events which had not resulted in conviction were simply described by the Judge as “assaultive behaviour and possession of weapons”. These were serious allegations for which there was no evidence before the court. It was an error to take them into account in imposing an uplift.

[30] Nor did the previous convictions justify the uplift. Mr Ahmed had five previous convictions. These were for wilful damage, wilful trespass, common assault and male assaults female. None had attracted a penalty. On the wilful trespass charge in 2003 Mr Ahmed was convicted and discharged. On the male assaults female, wilful trespass, common assault and wilful damage charges between

2003 and 2005 he was, in respect of each, convicted and ordered to come up for sentence if called upon. Given the relatively low-level nature of the previous offending an increase of four months, which represented an uplift of 33% was not justified.

[31] A limited discount for the guilty plea of two months (13%) was given on the basis that it was entered nine months after the initial appearance. In other circumstances that would be unobjectionable. However, Mr Ahmed had had several changes of counsel over that period and was plainly labouring under the disability of a mental illness, notwithstanding that he was fit to plead; for example, I note from Mr Chambers’ letter to the District Court of 24 November 2008 that Mr Chambers had been unable to complete necessary documentation because Mr Ahmed had been under the care of the Auckland City mental health unit. In those circumstances a higher discount would have been justified. However, the Judge did go on to make a further discount of 25% in recognition of Mr Ahmed’s psychiatric condition so that an overall discount of 38% was allowed. Another judge may have allowed a greater discount but it could not be said that this level of discount was wrong.

[32] As a result of the uplift wrongly imposed the end sentence would have been only eight months which, in the circumstances, would have been appropriate. I consider that the end sentence of 12 months, one-third higher than what was appropriate, was manifestly excessive.

The s 106 application

[33] The power to grant a discharge without conviction under s 106 of the

Sentencing Act is subject to s 107 which provides that:

The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[34] In considering an application under s 106 those three elements, the gravity of the offence, the direct and indirect consequences of a conviction and whether those consequences would be out of all proportion to the gravity of the offence must each be considered.

[35] Prior to sentencing Mr Chambers filed an application indicating his intention to apply for a discharge without conviction under s 106 of the Sentencing Act 2002. In his memorandum supporting the application Mr Chambers outlined Mr Ahmed’s background and current circumstances. He said:

The applicant [Mr Ahmed] has indicated that he has found it difficult to sleep, is bombarded with thoughts, feels very isolated and is in great need of family support. There has been correspondence with the Minister of Internal Affairs about his citizenship to enable him to travel to Kenya and, hopefully, the United States to resume his family associations.

The entry of convictions will simply delay the whole process and he says that he is slowly losing his mind over the whole affair.

[36] Mr Chambers did not, however, file an affidavit to support these assertions. It is therefore not clear exactly what information was before the Judge.

[37] The Judge dealt with the application as follows:

[19] In terms of the effective conviction, Mr Chambers submits that a conviction on the two charges will delay the process of obtaining citizenship. Mr Ahmed wishes to travel to Kenya to visit family, on the basis that remaining in New Zealand is detrimental to his mental health, and that conviction on these charges will impede him in obtaining a travel document to leave the country. On that basis, it is submitted that the consequences of conviction are out of all proportion to the gravity of the offending and that he should be discharged without conviction.

[20] I have to say at the outset, I am not at all satisfied that the gravity of the offending is minimal. I accept the submissions made by Ms Royal on

behalf of the Police, that this is serious offending in terms of the assault itself, the circumstances in which it was committed and the injuries that were inflicted. It was an assault on a woman which is an additional aggravating factor; and it was an assault on a policewoman acting in the execution of her duty, which is a further major aggravating factor. So I do not regard this as an assault at the lower end. This was a serious offence. As to consequences of conviction, there was no evidence before the Court in relation to that. Even if there were, I am not satisfied that the consequences of conviction are out of all proportion to the gravity of the offending. That application is declined. The defendant will be convicted in relation to both charges.

[38] As can be seen, the Judge did consider the gravity of the offence and his view of the offence as a serious assault was clearly justified. However, when it came to considering the consequences of the conviction the Judge recorded that there was no evidence before the Court and then went on to say that even if there was such evidence, he was not satisfied the consequences were out of all proportion to the gravity of the offending. That conclusion does not follow. But in any event it is clear that there was information about the consequences available; what is not clear is whether the information was not placed before the Judge or whether it was placed before the Judge and overlooked.

[39] The consequences of conviction for Mr Ahmed were outlined in a letter from his immigration lawyer, Mr Orlov, to the Department of Internal Affairs 1 September

2008. Although Mr Ahmed had been granted a travel document valid for two years, his New Zealand returning resident visa was valid for only 14 days. This was not enough time for Mr Ahmed to leave New Zealand to visit his family; the letter refers to Mr Ahmed’s mother living in the United States. Mr Ahmed’s previous application for New Zealand citizenship had been refused due to his convictions between

4 December 2003 and 15 August 2005.

[40] Section 9A of the Citizenship Act 1977 provides that if a person is convicted of an offence but does not serve a sentence of imprisonment the Minister must not authorise a grant of citizenship for three years. However, s 9A precludes a grant of citizenship to a person who has been subject to a sentence of imprisonment within

the last seven years unless there are exceptional circumstances.¹¹ The effect of these

_{provisions meant that if Mr Ahmed was convicted and sentenced to a term of}

¹¹ Mr Ahmed’s application on the ground of exceptional circumstances was refused earlier this

year.

imprisonment for the male assaults female charge the earliest he could apply for citizenship was 18 December 2016.

[41] Further, Mental Health Services wrote a letter dated 5 August 2008 to the Minister of Immigration advising of the psychological importance of citizenship for Mr Ahmed and the adverse impact on his mental health if that is denied. Ms Jacobs, for the Crown, advised me that this letter was on the District Court file and must therefore have been available to the sentencing Judge.

[42] It is clear from [19] of the sentencing notes that Mr Chambers did in a general way draw to the Judge’s attention the effect on Mr Ahmed’s mental health of not being able to obtain citizenship and travel to see his family. It is not, however, clear that he conveyed the bind that Mr Ahmed was in. In order to do that the Judge’s attention had to be drawn to the available evidence such as the correspondence I have referred to. As I have said already, however, I cannot tell whether this information was not adequately drawn to the Judge’s attention or whether it was and the Judge overlooked it or place insufficient weight on it.

[43] The assault on Constable Capper was serious. But the level of culpability was not as great as it would have been had the assault been committed by a person without Mr Ahmed’s mental illness; it is evident from the circumstances of the assault that his mental state contributed significantly to the events of that day. Further the consequences of imprisonment were to be viewed against Mr Ahmed’s circumstances, which the Judge did not fully express. This may be because he did not have the complete picture.

[44] I think it is important to recognise that being able to apply for citizenship and, consequently to travel, represented the only opportunity for Mr Ahmed to see his immediate family. For a person who has significant mental health problems and has lived in increasingly isolated circumstances for many years this prospect was significant. The effect of the sentence of imprisonment was to put out of reach the prospect of applying for citizenship for a further seven year; had no term of imprisonment been imposed he could have applied for citizenship three years after his conviction.

[45] In all the circumstances, I consider that there was an error in the Judge’s assessment of the situation. However, I do not think that the error was in refusing the s 106 application; the seriousness of the assault means that conviction was appropriate and the fact of conviction was not the barrier to applying for citizenship; that barrier was the term of imprisonment. Although Mr Ahmed suggested that the conviction had affected his training and employment prospects, I was not satisfied that the extent of those consequences were out of all proportion to the offence.

[46] I consider that the error was not approaching the sentencing exercise mindful of the relevant principles of the Sentencing Act, which required the Judge to impose the least restrictive outcome appropriate in the circumstances¹² and taking into

account the particular circumstances of the offender.¹³ It is apparent that the Judge

was strongly, and justifiably, influenced by the need for compulsory treatment to ensure the safety of the public and elected to follow Dr Wyness’ recommendation of a hybrid order. However, Dr Wyness had not limited his recommendation to a hybrid order; he made the alternative recommendation that, in the event a non-custodial sentence was contemplated, a Compulsory Treatment Order be made under the Mental Health Act. Given all the circumstances this was the appropriate response. A sentence that recognised the offence, provided for the protection of the community, ensured medical care for Mr Ahmed and preserved his right to apply for citizenship could all have been accommodated in this way.

Next step

[47] It is of course impossible to substitute the correct sentence; Mr Ahmed has already served the sentence that was imposed and cannot be required to serve a different sentence now. However, the sentence was manifestly excessive and that fact should be recognised. Under s 108 of the Sentencing Act a person may be convicted and discharged unless a minimum sentence is required, which it is not in this case. Under 109 the court must not convict and discharge unless satisfied that a

_{conviction is sufficient penalty in itself, which I consider to be the case here. I}

¹² _{Sentencing Act 2002, s 8(g).}

¹³ Section 8(h).

consider the appropriate course is to allow the sentence appeal but discharge

Mr Ahmed from serving any further sentence.

Result

[48] The appeal against conviction is dismissed.

[49] The appeal against sentence is allowed. The result is that Mr Ahmed is convicted and discharged.

P Courtney J