IN THE COURT OF APPEAL OF NEW ZEALAND CA200/2010 [2010] NZCA 603 BETWEEN SARKOT SABER Appellant AND THE QUEEN Respondent Hearing: 11 October 2010 Court: Chambers, Ronald Young and Keane JJ Counsel: H D M Lawry for Appellant S B Edwards for Respondent Judgment: 9 December 2010 at 11 am JUDGMENT OF THE COURT A The time for appealing is extended. B The application to adduce further evidence is refused. C The appeal is allowed. D The sentence of ten years’ imprisonment is quashed. In substitution therefor, a sentence of eight years’ imprisonment is passed. E The order that the appellant serve a minimum period of imprisonment of five years is quashed. In substitution therefor, the appellant is ordered to serve a minimum period of imprisonment of four years. SABER V R CA CA200/2010 9 December 2010 REASONS OF THE COURT (Given by Chambers J) A knife attack in broad daylight [1] At around 2 pm on 2 December 2006, Salah Ibrahim drove to the West City Shopping Centre in Henderson, Auckland, to bank takings from the store he owned. Just as he was about to get out of his car, Sarkot Saber, the appellant, and his partner, Tina Budamalese, drove up and parked near Mr Ibrahim’s distinctive American pickup truck. Mr Ibrahim, who like Mr Saber is Kurdish, heard his name being called in Kurdish. He looked up to see Mr Saber and Ms Budamalese walking towards him. [2] Mr Saber yelled out a challenge. Mr Ibrahim quickly concluded Mr Saber was coming to fight him. There had been tension between their respective families. Mr Ibrahim saw Mr Saber reach into his pocket and bring out what he (Mr Ibrahim) thought was a big bunch of keys. He punched Mr Saber once in the face: a preemptive strike. Mr Saber came at Mr Ibrahim. Almost immediately Mr Ibrahim felt pain in various parts of his body. He thought at first he had been cut with a key, but later discovered Mr Saber had a knife. Mr Ibrahim, despite, as a body builder, being extremely fit and strong, suddenly felt weak. He looked down to see significant stab wounds in his stomach, which caused part of his intestine to protrude. He slumped to the ground. A doctor who later examined Mr Ibrahim found he had suffered a 6 cm wound to his stomach, resulting in two holes to his small intestine which required surgical repair, an 8 cm laceration across his right chest wall, two stab wounds to his right shoulder (one 3 cm long and the other 2 cm), a 2 cm wound to his left shoulder, and a 1 cm wound to the left side of his head. [3] Members of the public intervened to stop Mr Saber’s attack. Mr Saber walked away. He rendered no assistance to Mr Ibrahim, notwithstanding the fact he was on the ground, bleeding profusely and holding part of his intestine in his hand. Later someone saw Mr Saber hiding his knife beneath a tree some distance from the shopping mall. [4] Mr Ibrahim was in hospital for six days. He then spent three months recuperating at home before he was able to walk and look after himself properly. He had been training as a body builder for nine years. At the time he was stabbed, he had just won a national title, which would have allowed him to pursue a professional body building career in the United States. As a result of permanent scarring and injuries to his muscles, he is no longer able to engage in competitive body building. [5] Mr Saber was charged under s 188(1) of the Crimes Act 1961 of wounding Mr Ibrahim with intent to cause him grievous bodily harm. A jury found him guilty. Judge Paul, the trial Judge, subsequently sentenced Mr Saber to ten years’ imprisonment. He also ordered him to serve a minimum period of imprisonment (MPI) of five years.1 [6] Mr Saber now appeals against that sentence on the basis that it was manifestly excessive. He originally appealed as well against his conviction, but subsequently he abandoned that part of the appeal. Issues on the appeal [7] There are five issues on this appeal. The first is whether the Judge made findings of fact contrary to the evidence. [8] The second, which is in part related to the first, is whether the Judge adopted too high a starting point (ten years). [9] The third issue is whether the Judge was wrong to find no personal mitigating circumstances. [10] Fourthly, it is submitted the Judge was wrong not to make any allowance for the time Mr Saber had spent on very restrictive bail conditions. 1 R v Saber DC Auckland CRI-2006-090-11078, 27 November 2009 (sentencing notes). [11] Finally, while Mr Lawry, for Mr Saber, accepted this was a case in which the Judge could properly fix an MPI, he submitted that an MPI of five years was too long. [12] We shall consider those issues in turn. Before doing so, we clear two other matters out of the way. First, the appeal was not filed within the statutory appeal period. Mr Lawry sought an extension of time for appealing, which Ms Edwards, for the Crown, opposed. Judge Paul sentenced Mr Saber on 27 November last year. That meant the appeal should have been filed, at the latest, by 19 January 2010.2 Mr Saber signed his notice of appeal on 31 January this year, but for some reason it was not filed until 13 April. Ms Edwards takes no issue with the brief delay in January, which is explained by Mr Saber’s changing lawyers and the Christmas vacation. But what of the delay from late January to mid-April? Mr Lawry frankly conceded that this delay must have been the fault of his office. It was certainly not Mr Saber’s fault. Given that explanation and given that this is now an appeal only against sentence, we see no prejudice arising from the delay. Accordingly, we grant an extension of time for appealing. [13] Secondly, Mr Lawry sought to file several further documents, including a further letter indicating remorse from Mr Saber. We decline to receive this further material. There was ample material of this kind before Judge Paul at sentencing. An appeal is not a fresh sentencing exercise; rather, it is, in normal circumstances (which are applicable to this case), a review of what the Judge did at sentencing, in light of the materials then available to him or her. Did the Judge make findings of fact contrary to the evidence? [14] Mr Lawry submitted the Judge’s sentence was based on two findings of fact which were unjustified on the evidence. 2 We did not hear from counsel as to the precise date: it is quite a tricky question of statutory interpretation potentially involving some or all of the Crimes Act, the Interpretation Act 1999, the Court of Appeal (Criminal) Rules 2001, the Court of Appeal (Civil) Rules 2005, and the High Court Rules! Nothing turns on the precise date. [15] First, he submitted that the Judge had wrongly found that Mr Ibrahim “had not even made it out of the cabin of his motor vehicle before [Mr Saber was] upon him”.3 Mr Lawry submitted that, on the contrary, Mr Ibrahim had got out of his car and had punched Mr Saber on the right side of his face before Mr Saber had done anything. With respect, we consider Mr Lawry has misinterpreted what the Judge meant. We think all the Judge meant was that Mr Saber had come across towards Mr Ibrahim’s car, exhibiting aggression, before Mr Ibrahim had even got out of his vehicle. Such a finding was certainly justified on the evidence. [16] Secondly, Mr Lawry submitted the Judge had been wrong to find premeditation. Mr Lawry said that the actions were “impulsive” and “a reaction [on Mr Saber’s part] to seeing his tormentor”. We do not accept that submission. [17] Mr Ibrahim had given evidence that, two weeks before the stabbing, there had been an incident at Long Bay, where a dispute developed between Mr Ibrahim’s family and Mr Saber’s wife’s family. Mr Ibrahim himself was not present when the dispute first arose. His sisters asked him to come. By the time he got there, the police were already in attendance. Despite that, Mr Saber threatened Mr Ibrahim and said to him, in Kurdish, that he would stab him and skin him alive. The Judge was certainly entitled to find that Mr Saber had gone from Albany, where he had been shopping, to the West City Mall in Henderson with a view to finding Mr Ibrahim, who he knew worked there. The explanation now given for Mr Saber’s travelling from Albany to Henderson, namely an intention to exercise access with his child from a former relationship at the Henderson office of Child, Youth & Family Services, was not mentioned by Mr Saber to the police at the time. Nor was there any evidence at trial to that effect. [18] We do not accept that the Judge proceeded to sentence on an incorrect factual basis. 3 Sentencing notes at [10]. Did the Judge adopt too high a starting point? [19] Both Mr Lawry and Ms Edwards, for the Crown, agree that the Judge was justified in placing this offending within band 2 of R v Taueki,4 the controlling authority. The band 2 range is five to ten years. The Judge picked a starting point at the top of the range. Mr Lawry submitted the starting point should not have exceeded six years’ imprisonment. In particular, Mr Lawry relied on what he submitted was Mr Ibrahim’s “provocation”. [20] In Taueki this Court had referred to provocation as being a matter which might lead to a lower starting point.5 But the Court went on to caution: It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative course of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence. [21] Judge Paul, as the trial judge, was in an excellent position to assess whether this was a case of provocation. He was adamant it was not.6 The Judge was equally emphatic that this was not a case of excessive self-defence.7 Having reviewed the evidence, we agree entirely with the Judge’s conclusion on that topic. [22] Even though we reject provocation as factor, we are nonetheless concerned that the starting point was too high compared with other post-Taueki authorities. In particular, we have considered the facts and sentences in R v Stewart,8 R v DSW,9 R v Connelly,10 and R v Konui.11 The approved starting points in those cases ranged from nine years to eleven years. In all of them, the offending was more serious than here, although, in the case of the last two, not by much. In particular, Konui involved very similar offending with a knife. There was perhaps a suggestion in this 4 5 6 7 8 9 10 11 R v Taueki [2005] 3 NZLR 372 (CA). At [32]. Sentencing notes at [10]. Sentencing notes at [11]. R v Stewart CA21/06, 31 August 2006. R v DSW CA334/05, 31 July 2006. R v Connelly [2008] NZCA 550. R v Konui [2008] NZCA 401. Court’s judgment that the starting point of nine years adopted by the sentencing Judge was near the top of the permissible range.12 [23] Other similar cases are R v Mohamed,13 Likio v R14 and Wi v R,15 in which this Court approved starting points of eight and a half years, eight years and eight years respectively. [24] Sentencing is not, of course, an exact science. We recognise the advantage Judge Paul had, having sat through the trial. While it was principally for him to weigh the principles of sentencing and the aggravating and mitigating factors of the offending, consistency in sentencing is very important, though not all-dominant.16 These other authorities, which were not cited to Judge Paul, would suggest a starting point in the range of eight to nine years. In the circumstances, we adopt a starting point of eight and a half years’ imprisonment. Was the Judge wrong to find no mitigating circumstances? [25] Mr Lawry submitted that the Judge had erred in allowing no reduction for mitigation. The mitigating factors were said to be Mr Saber’s remorse, his apology, and his family support. [26] Ms Edwards submitted it was open to the Judge to conclude there were no personal mitigating features. We agree with Ms Edwards and Judge Paul. There was no satisfactory evidence to support an assertion of remorse. Mr Saber’s counsel at sentencing adhered to Mr Saber’s line that he had been acting in self-defence, a submission the Judge had roundly rejected. As well, the writer of the pre-sentence report had noted that Mr Saber continued to assert that Mr Ibrahim had had the knife and had been threatening him. In addition, she noted that Mr Saber had tried to shift responsibility for his offending to his now ex-wife, blaming her for provoking the whole situation. 12 13 14 15 16 A number of the letters submitted to the Judge on behalf of At [14]. R v Mohamed [2007] NZCA 170. Likio v R [2010] NZCA 284. Wi v R [2009] NZCA 81. Hessell v R [2010] NZSC 135 at [37]-[38]. Mr Saber at his sentencing, nearly three years after the offending, continued to assert his stance of self-defence and attempted to besmirch Mr Ibrahim’s character. [27] This ground of appeal must fail. Was the Judge wrong not to make allowance for time spent on restrictive bail? [28] Finally, Mr Lawry referred to a passage from the Supreme Court’s decision in R v Williams:17 If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. [29] At the oral hearing before us, there was some confusion as to exactly when Mr Saber had been on bail and its terms. Following the hearing, Ms Edwards filed supplementary submissions containing the correct information. She said that the position appeared to differ somewhat from what had been presented to Judge Paul. [30] Mr Saber, following his arrest, was held in custody until released on bail on 15 January 2007. We do not need to be concerned about that period on remand, as that will automatically count towards service of the term of imprisonment. [31] From 15 January 2007 to 19 June 2007, a period of about five months, Mr Saber was on bail, subject to a number of conditions. One of those conditions was a 24 hour curfew. Such bail would have been roughly equivalent to a sentence of home detention. [32] The conditions were relaxed from 19 June 2007. Effectively from then until August 2008 he was simply on a night curfew, just as large numbers of those on bail are. Then, from 14 August 2008 up to the date of trial, the curfew condition was deleted. Essentially, from then on, there were merely reporting conditions. 17 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [18]. [33] None of this is anything out of the ordinary except for the first five months on 24 hour curfew. We do consider the Judge should have allowed a discount for the restrictiveness of that condition.18 In the circumstances, we consider Mr Saber should have been given a six month discount with respect to time on bail and the restrictions thereof. Was an MPI of five years too long? [34] As we have said, Mr Lawry did not dispute the Judge’s entitlement to fix an MPI in the circumstances of this case. We consider that concession properly made. But he submitted five years was too long. Five years represented, of course, 50 per cent of the Judge’s sentence of ten years’ imprisonment. For reasons we have given, we have reduced the headline sentence to eight years’ imprisonment. Applying 50 per cent to that figure, we come to an MPI of four years. [35] We consider that such an MPI in the circumstances of this case is fully justified. We note it is slightly less than the MPI fixed in the comparable case of Wi. Result [36] We allow the appeal. We quash the sentence of ten years’ imprisonment and substitute a sentence of eight years’ imprisonment. We reduce the MPI from five years to four years. Solicitors: Duff Lawry Richmond Limited, Auckland, for Appellant Crown Law Office, Wellington, for Respondent 18 See R v Bishop [2009] NZCA 265 and R v Winkelmann [2010] NZCA 215.