Aziz v Police [2018] NZHC 2133 (17 August 2018)

Last Updated: 22 August 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2018-483-8 [2018] NZHC 2133

SHAH MOHAMMED AZIZ

v

NEW ZEALAND POLICE

Hearing:	6 August 2018
Appearances:	D M Goodlet for the Appellant M M Wilkinson-Smith for the Respondent
Judgment:	17 August 2018

JUDGMENT OF CULL J

[1] Mr Aziz appeals his sentence of three months’ imprisonment as being manifestly excessive,¹ after he pleaded guilty to one charge of breaching a protection order.² The grounds of his appeal are that he has no criminal history; his guilty plea was entered on the first available opportunity; and the Court had insufficient information before it to impose the sentence of imprisonment.

[2] At the commencement of the appeal hearing, I indicated to counsel that I was concerned about the way in which the sentence in this case was imposed, without regard to the Sentencing Act 2002 principles. As Mr Aziz had already served three weeks’ imprisonment, there were two options available to the Court: to allow the

¹ R v Aziz [2018] NZDC 14712.

2. Domestic Violence Act 1993, ss 19(2)(e), 49(1)(b) and 49(3). Maximum penalty three years’ imprisonment.

AZIZ v NEW ZEALAND POLICE [2018] NZHC 2133 [17 August 2018]

appeal and release Mr Aziz or direct the matter back to the District Court for resentencing. The matter was stood down for counsel to take instructions.

[3] Both counsel confirmed that the first option was the most appropriate. I delivered a results decision, quashing the three months’ imprisonment, and substituting one months’ imprisonment, with the immediate release of Mr Aziz. This decision contains my reasons.

Factual background

[4] On 20 June 2018, a temporary protection order was issued by the Whanganui District Court on behalf of the complainant and against Mr Aziz.

[5] On 15 July 2018 Mr Aziz contravened that protection order by sending 20 text messages and several voice messages to the complainant. He was at the Hikarangi Lodge in Whanganui at the time and convinced two managers of the Lodge to contact the victim. The managers told the complainant that Mr Aziz wanted her to give him money. The complainant subsequently found fake Instagram accounts about her, with statements about her being a prostitute and a nude photo of her, posted without her consent. Mr Aziz also contacted the complainant several times on WhatsApp, stating “ur getting done lol”; “ur life isdone”; and “I told u and warned u”.

[6] Mr Aziz is also currently liable for deportation under s 157 of the Immigration Act 2009. On 23 June 2018 he was served with a deportation liability notice.

[7] Mr Aziz has no previous convictions.

District Court decision

[8] The Judge observed that the complainant had advanced sufficient grounds to the Family Court about Mr Aziz’s conduct such that a protection order on “a without notice” basis was required.³ Mr Aziz was served with the order and within a couple of weeks, he committed this offending.

³ Aziz, above n 1, at [2].

[9] The Judge referred to the fact that Mr Aziz was being considered for deportation. The Judge was advised that Mr Aziz did not intend to pursue a review of his order to be deported and now just wanted to go home. The Judge observed this was “a sensible position on [his] part to now adopt”.⁴

[10] The Judge rejected the defence submission that the appropriate sentence was a conviction and an order to come up for sentence if called upon. The Judge observed that it seemed Mr Aziz “did not have any real regard to the protection order or, indeed, that this woman did not want any contact” with him.⁵ The Judge observed this conduct would have been very distressing for the victim. Although it did not impact on Mr Aziz’s sentence, the Judge observed from the police report, that the police have attended “seven family harm callouts” since 21 April 2018 involving Mr Aziz and the complainant.⁶

[11] The Judge imposed a sentence of three months’ imprisonment, which took into account Mr Aziz’s guilty plea, his conduct as set out in the summary of facts, the impact on the complainant and that it was “a pragmatic response to [his] current status in respect of sentencing options available to the Court.”⁷

Approach to appeal

[12] This appeal is brought under s 250 of the Criminal Procedure Act 2011 as an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.⁸ The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.⁹

Grounds of appeal

[13] Mr Aziz appeals his sentence on the basis that it is manifestly excessive because:

⁴ Aziz, above n 1, at [6].

⁵ At [5].

⁶ At [5].

⁷ At [7].

⁸ As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

⁹ Ripia v R [2011] NZCA 101 at [15].

(a) he has no criminal history;

(b) his guilty plea was entered on the first available opportunity; and

(c) the Court had insufficient information before it to impose a sentence of imprisonment.

The Crown’s position

[14] The Crown accepted that it was an error that a pre-sentence report was not available to the Judge before a sentence of imprisonment was imposed, and that this decision and the sentence imposed, has no precedent value. Although there was an error, the Crown submits that without a pre-sentence report, it is very difficult to address the critical question on appeal, namely, whether the sentence is manifestly excessive. The Crown says that the deportation issue cannot be ignored and referred to R v Hassan,¹⁰ where a home-detention sentence was considered inappropriate and submitted, that Mr Aziz, like Mr Hassan, is not entitled to be resident in New Zealand and will be subject to deportation upon completion of his sentence. If released by the Court on these matters, the Crown submits, Mr Aziz is liable to be arrested by immigration authorities.

[15] In its written submissions, the Crown contends the sentence imposed was within the available range and the Judge did not err. The Crown submits the relevant aggravating factors of Mr Aziz’s offending are:

(a) Mr Aziz’s conduct, when taken as a whole, had a serious psychological impact on the complainant;

(b) the offending occurred shortly after the protection order was issued; and

(c) Mr Aziz involved third parties in his offending by getting them to contact the complainant.

¹⁰ R v Hassan [2008] NZCA 402 at [34].

[16] The Crown submits a starting point of four months’ imprisonment would have been within the available range to the Court. Less 25 per cent for his guilty plea, this would produce a sentence of three months’ imprisonment, which the Judge imposed.

Discussion

[17] Under s 26(1) of the Sentencing Act the Court may direct a probation officer to prepare a pre-sentence report if an offender is charged with an offence punishable by imprisonment.¹¹ The Court of Appeal has held that although there is a discretion, the well-established practice is that a sentence of imprisonment should not be imposed without such a report, except in very rare and exceptional cases.¹²

[18] Yet, where a Judge is considering a sentence of community detention or home detention the Court must direct that a pre-sentence report be prepared.¹³ It appears from the Judge’s remarks that he imposed a sentence of imprisonment without considering, or articulating, why he saw no alternative, less restrictive sentence, was available for Mr Aziz.¹⁴

[19] It appears that the Judge imposed a sentence of imprisonment without sufficient information before him, about Mr Aziz’s circumstances and history. This is an error. It is irrelevant whether Mr Aziz was likely to be detained in relation to his deportation. Although Mr Aziz’s offending was serious, this was his first conviction and he pleaded guilty. It would have been appropriate for the Judge to consider alternative sentences other than imprisonment and a pre-sentence report should have been obtained for this purpose.

[20] In R v Ondra, the Court of Appeal considered that, to maintain consistency in sentencing, immigration issues such as deportation were administrative matters that should not bear on sentencing matters.¹⁵ Liability for removal under the Immigration

¹¹ See also Rarere v Police [2015] NZHC 1799 at [34].

¹² R v Toki [2007] NZCA 335 at [5]; see also Rarere, above n 11, at [35].

¹³ Sentencing Act 2002, s 26A.

¹⁴ Section 8(g).

¹⁵ R v Ondra [2009] NZCA 489 at [6]–[11]. The Court confined the statement in Hassan, above n 10, that home detention was not appropriate, where deportation was immediate, to the specific facts of Hassan.

Act is neither conditional upon nor triggered by an offender’s convictions; it is dependent, upon unlawful immigration status.¹⁶

[21] It is unclear whether the Judge took into account Mr Aziz’s immigration issues in setting his end sentence. The Judge’s comment that a sentence of imprisonment was a “pragmatic response” to his current status is ambiguous.¹⁷ If the Judge did consider these matters, this would be an error.

[22] Mr Aziz was represented by the Duty Solicitor and entered his guilty plea at the first appearance. It appears that the summary of facts was not read out to Mr Aziz before he entered his guilty plea. Although no adverse criticism is to be made of the Duty Solicitor, who was dealing with a busy list on the day, further time and opportunity was needed to put further facts about Mr Aziz’s circumstances before the Court, a factor which was also considered by the Court in Hart v Police.¹⁸

[23] However, despite these errors, the key question on appeal is whether a different sentence should have been imposed.

Is the sentence manifestly excessive?

[24] There is no tariff authority for breaches of protection orders. The authorities involve offending, which varies enormously in culpability and the degree of the threat posed to the protected person.¹⁹

[25] Counsel provided the following cases to compare with Mr Aziz’s offending:

Case	Facts and charges	Sentence
Hart v Police20	Mr Hart sent text messages to the victim in breach of a protection order against him. He was charged with one charge of breach of a protection order.	On appeal, Mr Hart was sentenced to 40 hours community work. Whata J observed that this sentence better reflected the offending and the offender as well as the purposes of sentencing. His

¹⁶ Ondra, above n 15, at [12].

¹⁷ Aziz, above n 1, at [7].

¹⁸ Hart v Police [2014] NZHC 2741 at [6(b)], [10] and [20]–[21].

¹⁹ Iyer v New Zealand Police [2017] NZHC 353 at [11]; and Anderson v R [2016] NZCA 346 at [26].

²⁰ Hart, above n 18.

		conviction history and character references did not suggest that Mr Hart presented a serious risk to the community or those close to him.
Potter v Police21	Mr Potter breached a protection order in relation to his former partner and three children by assaulting his former partner on one occasion and visiting his children, without incident, on the second occasion. He was charged with two charges of breaching a protection order and a charge of breaching community work requirements.	On appeal, Mr Potter was sentenced to 15 weeks community detention and nine months’ supervision. While the assault was of moderate seriousness, Mr Potter had not breached the order in the intervening three-year period. Imprisonment was not appropriate given the gravity of the offending and Mr Potter’s personal position.
Mitchell v R (2015 convictions)22	Ms Mitchell was charged with four charges of breaching a protection order by sending the victim four abusive and threatening voicemail messages.	Ms Mitchell was sentenced to four months’ imprisonment. She had previously been convicted of several breaches of the same protection order and this offending was part of a continuum of ongoing breaches.
Mitchell v R (2016 convictions)23	Ms Mitchell had put an abusive and threatening letter in the prison mail system to be sent to her former partner. The letter was intercepted and referred to police. She was charged with attempting to breach a protection order.	Ms Mitchell was sentenced to two months’ imprisonment. Given Ms Mitchell’s history of breaching the same protection order and previous sentences imposed the Court of Appeal observed the only likely sentence was one of imprisonment.
Anderson v R24	Mr Anderson breached a protection order in relation to a former partner when he drove his car up to the complainant’s car and made contact with her open car	Mr Anderson was sentenced to 18 months’ imprisonment and ordered to pay $1,000 reparation. The Court of Appeal held the sentence was not manifestly excessive

²¹ Potter v Police [2014] NZHC 1769.

²² Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.

²³ Mitchell v R [2017] NZCA 184.

²⁴ Anderson v R [2016] NZCA 346.

	door; broke into the shed at her property and took a lawnmower; and created a Facebook page with the complainant’s contact details and an intimate profile photo of her. He was charged with three charges of breaching a protection order.	because Mr Anderson had four previous convictions for breaching the same order; creating the Facebook page involved a high level of psychological bullying; the pattern of his breaches demonstrated an escalating level of seriousness; and he showed no remorse or appreciation of the seriousness of his behaviour.
Beck v Police25	Mr Beck sent 45 text messages to the victim stating, amongst other things, “I’m going to put you in a coffin”. The second protection order breach arose when he sent the victim numerous text messages and missed calls and then unsuccessfully tried to get into the front door of her house. Mr Beck had a history of domestic violence and protection order breaches against the same victim. He was charged with two charges of breaching a protection order in relation to his former partner and one charge of breaching release conditions.	Mr Beck was sentenced to 15 months’ imprisonment. Mander J upheld the sentence on appeal because of the repeated nature of Mr Beck’s breaches of the order, his obvious intent to psychologically abuse his victim, his persistence and domestic violence conviction history.
Smart v Police26	Mr Smart sent a stream of abusive and threatening text messages to the victim, over 1,400, including threatening her with violence. He was charged with a representative charge of breaching a protection order and threatening to injure.	Mr Smart was sentenced to 10 months’ imprisonment. On appeal, Gendall J observed the breaches were extensive, his conduct would have had a severe psychological impact and that this was Mr Smart’s first conviction for this type of offending.

[26] Mr Aziz does not have the same offending history as the offenders in Beck, Mitchell or Anderson. His offending is not as serious or extensive as that in Smart.

²⁵ Beck v Police [2014] NZHC 931.

²⁶ Smart v Police [2016] NZHC 3092.

He was not physically abusive, although the psychological impact of his offending should not be underestimated. Some of his communications with the complainant were abusive and threatening and the social media profile he created of her could also be described as abusive. The breaches did occur relatively soon after the protection order was imposed.

[27] The factors favourable to Mr Aziz’s are his immediate guilty plea, his lack of prior convictions, and this was his first breach of a protection order. The other factor which I consider is important and is in Mr Aziz’s favour is the fact that this is his first criminal offence. I have already identified that the Judge was in error in imposing a sentence of imprisonment without sufficient information before him and that he took into account Mr Aziz’s immigration issues in setting the end sentence.

[28] On a transcript of the discussion between defence counsel and the Judge, the Judge reached his sentencing decision on the basis of being told by defence counsel that Mr Aziz wants to go home.

[29] The sentence of imprisonment was imposed as a pragmatic response to Mr Aziz’s “current status”, without regard to s 8(g) the Sentencing Act and the hierarchy of sentences in s 10A of that Act.²⁷ In other words, Mr Aziz was given a custodial sentence principally because he is likely to be deported.

[30] At the time of hearing this appeal, Mr Aziz had served three weeks’ imprisonment. That is equivalent to six weeks’ imprisonment, as time served for a short-term sentence of imprisonment.²⁸

[31] In light of Mr Aziz’s personal circumstances, his lack of previous convictions, and the fact that no other option of sentencing was undertaken or considered, I am satisfied there is an error in the sentence imposed.

[32] The sentence of three months’ imprisonment was manifestly excessive in these circumstances. The sentence is quashed and a sentence of one month’s imprisonment

²⁷ Aziz, above n 1, at [7].

²⁸ Parole Act 2002, s 86.

is substituted. In doing so, I wish to make it clear that this is not an indication that this type of offending is to be lightly regarded by the Court. Nor should this case have any precedent value for a sentence of imprisonment to be imposed for a first breach of a protection order. The sentence of one month’s imprisonment is being substituted, because it is appropriate in Mr Aziz’s circumstances.

Result

[33] Mr Aziz’s appeal is allowed.

[34] The sentence of three months’ imprisonment is quashed and a sentence of one month’s imprisonment is imposed.

[35] Mr Aziz has more than served this sentence, and he is entitled to be released immediately.

Cull J