Akbari v Police [2014] NZHC 2412 (29 September 2014)

Last Updated: 11 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-113 [2014] NZHC 2412

HADI AKBARI

v

_{NEW ZEALAND POLICE}

Hearing:	29 September 2014
Appearances:	P T Eastwood for the Appellant R Thompson for the Crown
Judgment:	29 September 2014

_{ORAL JUDGMENT OF THOMAS J}

Solicitors:

Meredith Crown, Auckland.

Counsel:

P T Eastwood, Auckland.

AKBARI v NEW ZEALAND POLICE [2014] NZHC 2412 [29 September 2014]

[1] The appellant, Mr Akbari, appeals against his sentence of two months’ imprisonment for assault of police and breach of intensive supervision on the grounds that the sentencing Judge took into account aggravating features of the offending not accepted by the appellant.

Background facts

[2] On 6 August 2013 the appellant appeared in the District Court and was remanded in custody. When the police officers escorted him to a holding cell, he became agitated and aggressive. He struggled against the officers, made threats and yelled abuse. The officers tried to handcuff him and the appellant physically resisted. While an officer was restraining him, he bit the officer twice. The second bite punctured the skin.

[3] As a result, on 19 December 2013, the appellant was sentenced to one year’s intensive supervision on a charge of assault on a police officer. One of the conditions of intensive supervision was that he was not to move to a new residential address without prior written consent from the probation office. On 4 February

2014, he moved address. An attempt was made to conduct a home visit at that address to ascertain whether it was suitable. That took place on 13 February 2014.

[4] The summary of facts on the breach of intensive supervision to which the appellant pleaded guilty, says as follows:

However, this was not successful as Hadi Akbari became aggressive towards the visiting probation officers and entry to the property could not be obtained. He further stated that no member of community probation is welcome at the address.

[5] The address has not been verified or approved since. Now, I will come back in a minute to address what the appellant says in terms of whether he accepted the full detail of the summary of facts or not.

District Court decision

[6] The appellant was sentenced on 7 May 2014. The matters before the Court for sentencing were the breach of intensive supervision and an application, which

was not opposed by the appellant, for him to be re-sentenced in respect of the sentence of intensive supervision. The Judge canvassed the background facts. He did make an error when describing the first offending of assault on police when he made a reference to the appellant urinating and spitting on the floor of the cell. That was not included in the summary of facts.

[7] The Judge said that the behaviour of the appellant had essentially made it impossible for probation officers to undertake their job and properly monitor any community based sentence.

[8] The Judge referred to the pre-sentence report which recommended a sentence of imprisonment. He noted the appellant was assessed as being at moderate to high risk of re-offending and that there was a risk of harm to any person in a position of authority. He concluded that imprisonment was the only sentencing option, noting that the appellant failed to provide an electronically monitored option to the Court.

[9] The Judge cancelled the sentence of one year intensive supervision which had been imposed on the charge of assault of police and sentenced the appellant to a term of imprisonment of two months. On the charge of breaching intensive supervision conditions, the appellant was sentenced to a concurrent two month term of imprisonment.

Appellant’s submissions

[10] I will start by referring to the affidavit which was handed up this morning. The affidavit is from the appellant and he addresses the two separate charges. So far as the original charge of assault on police is concerned, he says that he was in the cells because he was distressed and he says that the police wanted to remove all his clothes apart from his underwear but he had the flu and was very cold. He wanted to keep his jacket on. He says at no stage did he threaten seriously to assault the police. He says he did not resist being put in handcuffs. He was forced to the ground. One of the police officers sat on his head. He felt he was suffocating. He had a panic attack, he says. He does not recall the police officer having any injuries consistent with being bitten. He says he pleaded guilty because he was advised by his lawyer that he would receive a sentence of supervision if he pleaded guilty.

[11] Turning then to the charge of breach of supervision. The appellant does not accept that he was aggressive and that entry to his home could not be obtained. He says he offered the probation officers a cup of tea and said that, if they wanted to come into the house, they needed to take their shoes off. He says that at no stage was he aggressive towards them. He explained that he had moved to the address because, prior to that, he had been staying at a motel. In those circumstances, he said he did not have the opportunity to obtain the consent from the probation officer first.

[12] He says it would be too harsh, in his belief, for him to be sent to prison. He has practical skills and he could put them to some use in the community.

[13] In his submissions today, Mr Eastwood addressed the plea of guilty to the charge of assault on police. He says, first, the Judge made an error in referring to the appellant having urinated on the cell floor. Secondly, he said that pragmatic considerations surrounding a guilty plea should be borne in mind. Mr Akbari pleaded guilty because he was told he would receive a sentence of supervision. Had he known the end result would be a sentence of imprisonment, then he would not have pleaded guilty.

[14] Mr Eastwood then turned to the charge of breach of intensive supervision and said it was clear to the Judge that the aggravating factors referred to in the summary were not accepted.

[15] In his written submissions made at the time of sentence, Mr Eastwood said:

He [Mr Akbari] says that he was reasonably welcoming when corrections staff came there and invited them in and was hospitable in the way that Middle Eastern people are towards receiving guests.

[16] In his submissions, Mr Eastwood noted that the sentence of intensive supervision was causing Mr Akbari some distress, that he found correction staff confrontational towards him, and it was for that reason he did not oppose the application for re-sentencing. The submission therefore, was that any breach was at a low level, particularly given the explanation provided by Mr Akbari. The

submission was that community work would be an appropriate sentence in all the circumstances.

Respondent’s submissions

[17] The respondent submitted that it was open to Judge to sentence the appellant to two months’ imprisonment for the breach of intensive supervision, and that, in reality, imprisonment was the only option. As Mr Akbari pleaded guilty and did not seek a disputed facts hearing in relation to the breach of intensive supervision, it was open, in the respondent’s submission, to the Judge to sentence on the basis of the summary of facts.

[18] In that regard, the respondent notes that the Judge relied only on aggravating factors included in that summary of facts.

[19] The respondent noted that, pursuant to the Sentencing Act 2002, s 54K(3)(c), it was open to the Judge to cancel the sentence and substitute it with any other sentence that could have been imposed on the appellant at the time he was convicted. The Judge was entitled to rely on the summary of facts for the original charge of assault as Mr Akbari pleaded guilty to that summary and again the facts in it were not challenged.

Appeal against sentence

Approach to appeal

[20] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the an appeal if satisfied that:

a. for any reason, there is an error in the sentence imposed on conviction;

and

b. a different sentence should be imposed.

_{[21] In any other case, the Court must dismiss the appeal.}¹

¹ Criminal Procedure Act 2011, s 250(3).

[22] The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.² Further, despite s 250 making no express reference to “manifestly excessive”, that principle is “well-engrained” in the court’s approach to sentence appeals.³

[23] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁴

Analysis

Cancellation of period of intensive supervision

[24] An application was made under s 54K of the Sentencing Act and that application was not opposed. Section 54K(1) provides:

54K Variation or cancellation of sentence of intensive supervision

(1) An offender who is subject to a sentence of intensive supervision, or a probation officer, may apply, in accordance with section 72, for an order under subsection (3) of this section on the grounds that—

(a) the offender is unable to comply, or has failed to comply, with any of the conditions of the sentence:

[25] Once the application is made, the court may cancel the sentence and substitute any other sentence. I am satisfied that the ground under s 54K(1)(a) was established. Mr Akbari clearly failed to comply with his sentence of intensive supervision. Furthermore, the sentence was clearly not serving it purpose.

[26] I take note of the pre-sentence report and the other information available in terms of how the sentence was proceeding. The home visit reports referred to Mr Akbari being highly stressed and agitated, with anger and resentment against various

_{government departments.}

² _{Tutakangahau v R [2014] NZCA 279 at [26]- [27].}

³ _{At [33] and [35].}

⁴ Ripia v R [2011] NZCA 101 at [15].

[27] It follows that, given the information before the Court, it was open to the

Judge to cancel the sentence and indeed, that was not opposed.

Re-sentencing on original charge of assault on police

[28] This is not the opportunity for Mr Akbari to try and have his conviction set aside and there is no such application before the Court. Mr Akbari pleaded guilty to the charge and there was no challenge to summary of facts. Mr Eastwood made some reference to the Judge on re-sentencing being supplied with a copy of the summary of facts on a rather unorthodox basis. It seems that an iPad or some electronic device was handed up which contained the summary. But, as I say, the point is Mr Akbari had pleaded guilty and was sentenced on that charge with those facts. I note that the Judge in re-sentencing made an incorrect reference to Mr Akbari urinating on the floor but I am not satisfied that that had any material impact on the re-sentencing result.

[29] Mr Eastwood emphasised the fact that Mr Akbari thought he was going to receive a sentence of supervision and indeed, he did. He received a sentence of intensive supervision. I have before me the notes of Judge Winter on sentencing on

19 December 2013. He addressed Mr Akbari and said:

Your behaviour on the day of question resulting on the aggravated assault of Court Security Officers involving kicks and bites to them that is unacceptable behaviour. If it were not for the fact that your pre-sentence report kindly describes the words, the needs that you have and the fact that they need to be met by a sentence predominately rehabilitative I would have considered that for this sort of violent offending a sentence of imprisonment was required. I am satisfied that rehabilitation can predominate. You have acknowledged your poor compliance and you have claimed now a greater awareness of the assistance that you can get from the community probation service.

[30] I accept the respondent’s submissions, therefore, that Mr Akbari was absolutely on notice that a sentence of imprisonment would have been available on the charge.

[31] The fact that Mr Akbari ultimately received a sentence of imprisonment is something that would have been open only if Mr Akbari did not comply with the

sentence of intensive supervision. That was the indication he received and that is the result.

[32] I also note the entries on Mr Akbari’s criminal history. On 6 August 2013 he had been convicted and discharged on a charge of assault on police. On the same day, he received a sentence of one month’s imprisonment on two charges of threatening to kill. He was convicted and discharged on two breaches of intensive supervision.

[33] The pre-sentence report recommended imprisonment. It noted Mr Akbari’s offending history began in 2001 and has progressively increased since 2007. The pre-sentence report notes that Mr Akbari has convictions consisting of violence, threatening behaviour, non compliance with community based sentences and petty theft. The pre-sentence report states:

While serving his community based sentences Mr Akbari has chosen to use aggression, intimidation and threatening behaviour to support his claims of mistreatment and distrust of all government departments. Mr Akbari is considered as high risk of assaulting any member of the Police or any individual holding an authoritative position due to his perceived experiences with government departments.

[34] The report did address the possibility of electronic monitoring. It says that Mr Akbari refused to acknowledge whether he would or would not consent to that. Furthermore, the writer noted Mr Akbari’s previous poor compliance record and aggressive behaviour towards community probation staff. For that reason a sentence of imprisonment with no release conditions was recommended.

[35] The writer assessed Mr Akbari as being a risk of harm to any person in an authoritative position. He is described as having a documented history of being difficult and aggressive towards community probation staff who attempt to manage him. The writer of the pre-sentence report noted that Mr Akbari often presents as disrespectful, intimidating and demanding with respect to when and how he will serve his sentence and what conditions he will and won’t comply with. The Community Probation Service treats him with caution and interactions with him are considered to be at the risk of Community Probation staff welfare.

[36] Given those considerations, it seems to me inevitable that the sentencing Judge on re-sentencing Mr Akbari came to the conclusion that there was no alternative other than a short sentence of imprisonment. Put simply, Mr Akbari has behaved in such a way that a sentence in the community is not available to him. A sentence of two months’ imprisonment is not manifestly excessive and I say that even taking account of the error in the Judge’s sentencing remarks as to urinating in the cell.

[37] It follows from that, the sentence on the breach of intensive supervision was inevitable. Given that the sentence was two months’ imprisonment to be served concurrently, the sentence can, in many ways, be considered a lenient one. A disputed facts hearing was not requested. The Judge was entitled to take into account Mr Akbari’s behaviour in connection with the breach and of course that information was supplemented by the information before the Court in respect of the pre-sentence report. That meant that Mr Akbari was clearly not suitable for a sentence in the community. A sentence of community work would also require significant interaction with the Community Probation Service and they are considered to be at risk.

[38] Mr Akbari has received the benefit of sentences in the community in the past and I note that as long ago as 2008 he received a sentence of supervision. He received a sentence of intensive supervision in 2011. He cannot, therefore, complain that he has not been giving the opportunity to have his rehabilitative needs addressed. Clearly, Mr Akbari does not want to take advantage of that and thereby continues to present a risk of offending.

[39] For the reasons given the appeal is dismissed. The sentence is not manifestly excessive.

Thomas J