Jailane v Police

[2016] NZHC 2423

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000090 [2016] NZHC 2423

BETWEEN

ALI JAILANE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 October 2016
Appearances:	Appellant Appears in Person E Henderson and M Zarifeh for Respondent
Judgment:	12 October 2016

JUDGMENT OF GENDALL J

Introduction

[1]      Mr   Ali   Jailane   appeals   against   sentence   relating   to   a   decision   of Judge McMeeken in the District Court on 19 August 2016.  Mr Jailane had pleaded guilty to and was convicted of charges of:

(a)       Unlawfully getting into a motor vehicle

(b)      Assault on a police officer

(c)       Taking/ obtaining/ using document to obtain a pecuniary advantage;

and

(d)      Failing to answer District Court Bail.

[2]      On his conviction in the District Court on the breach of bail charge, the appellant  was  convicted  and  discharged.    For  all  the  other  convictions  he  was

JAILANE v NZ POLICE [2016] NZHC 2423 [12 October 2016]

sentenced to 12 months’ supervision (with a special condition that he undertake such counselling and treatment for alcohol abuse as is directed) and to 150 hours’ community work.

[3]      It is against that sentence that the appellant now brings this appeal.

Background

[4]      Turning now to the background facts here, in the evening of 26 April 2016, the respondent was at a BP Service Station where he got into the first victim’s car and began going through the victim’s belongings.  The victim observed the appellant in his vehicle and called the police.  The victim then approached the appellant and told him to get out of his car, however the appellant refused.

[5]      When the police arrived, the appellant, who was still inside the victim’s car, was arrested and placed in handcuffs.  The appellant was placed in a police car there and began yelling and screaming at the police officers.  Throughout his journey to the police station, the appellant continuously assaulted the police officer sitting next to him, including spitting on him and kicking him several times in the leg. Fortunately, no severe injuries were sustained.

[6]      Insofar  as  the  charge  of  taking/obtaining/using  a  document  to  obtain  a pecuniary advantage is concerned, on 28 June 2016 the appellant completed four betting forms and put those forms into the TAB terminal which produced four betting slips for a total of $279.  He then took the slips before staff noticed.  CCTV footage revealed the appellant placing the bets and taking the slips despite no money being paid.  When confronted, the appellant became abusive and had to be removed from the property.

[7]      And, turning to the failure to answer District Court bail charge, on 9 August

2016 the appellant failed without reasonable excuse to attend the District Court at

Hastings as specified in the Notice of Bail.

Jurisdiction

[8]      Mr Jailane bring this sentence appeal as of right.1  Pursuant to s 250 of the Criminal  Procedure Act  2011,  the appeal  must  only be  allowed  if  the  Court  is satisfied first, that for any reason there is an error in the sentence imposed and, secondly, that a different sentence should be imposed.   If either element is not satisfied, this Court must dismiss the appeal.

Discussion

[9]      Initially, the appellant appeared to allege before me that an arrangement was made whereby he said the police would drop the charge of unlawfully getting into a motor vehicle, if the appellant pleaded guilty to the assault charge.   The Crown submits that the appellant is mistaken in this.  They say that the plea arrangement was for the Crown to withdraw the charge of resisting arrest, if the appellant pleaded guilty to all other charges and that this is what happened.  According to the Police file records, a charge of resisting arrest had indeed been withdrawn.  The appellant was quite unable to put anything before this Court to substantiate his allegation that the charge of unlawfully getting into a motor vehicle was to be withdrawn.  Indeed, the District Court Judge noted also that he had pleaded guilty to this charge.

[10]     And, irrespective of what the plea arrangement was, it is not within the Court’s jurisdiction to question or enforce plea arrangements.  The discretion to lay and withdraw any charges remains solely with the Crown.   The response for the appellant is to either plead guilty to the charges that remain and proceed to sentencing, or plead not guilty to the charges and require the Crown to prove the offences beyond reasonable doubt.

[11]     Turning now to the appellant’s sentencing appeal, on this he submitted before me that the length of the intensive supervision and community work ordered was “too long for the offences”.  He contended too that this was having an effect on his current full-time employment that he was “unhappy with”.  No further explanation as to this was put before the Court however.

[12]     It needs to be noted here too that the maximum penalties for the offences of using a document for pecuniary advantage, unlawfully getting into a motor vehicle and assaulting a police officer are imprisonment terms of seven years, two years and six months respectively.   The appellant had also previously been convicted of aggravated robbery in 2014, behaving threateningly (x 3) in 2014 and 2011 and common assault (x 2) in 2013.

[13]     Taking into account all these factors, it could not be said that a sentence of

12 months’ supervision and 150 hours’ community service was manifestly excessive in all the circumstances of the two sets of separate offending here.  This end sentence in my view was clearly available to Judge McMeeken and arguably lenient in light of the appellant’s previous history of violent offending.

Result

[14]     The appeal is dismissed.

[15]     As your community-based sentence, Mr Jailane, resumes upon dismissal of this  appeal,  you  are to  present  yourself  to  the  Probation  Service by 4  p.m.  on Monday 17 October 2016 to commence your community work sentence.2

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to Appellant