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R v Slaimankhel [2015] NZHC 2140 (3 September 2015)

Last Updated: 5 October 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-006353 [2015] NZHC 2140

THE QUEEN

v

_{KHALID NASER SLAIMANKHEL}

_{SENTENCING REMARKS OF WHATA J}

Solicitors:

Meredith Connell, Crown Solicitors, Auckland

Copy to:

M W Ryan, Auckland

R v SLAIMANKHEL [2015] NZHC 2140 [3 September 2015]

[1] Mr Slaimankhel you have been found guilty of one count of kidnapping and one count of attempting to pervert the course of justice and you are here today to be sentenced.

[2] The maximum sentence on the kidnapping offending is 14 years’ imprisonment. The maximum sentence on the attempting to pervert the course of justice offending is seven years’ imprisonment.

[3] My sentence will be in five parts:

(a) First, I will set out an overview of the facts of your offending; (b) Second, I will talk about your personal circumstances;

(c) Third, I will summarise the submissions made by the Crown and on your behalf;

(d) Fourth, I will set out my assessment of sentence for you. I will include in this part my view of the material facts specific to you.

(e) Fifth, I will hand down your sentence.

Overview of Facts

[4] In February 2013, Mr Slaimankhel you were on bail with a condition that you not consume or possess controlled substances unless prescribed by a medical practitioner. On 1 February 2013 you were observed with the victim of the kidnapping, Mr Yacoub, in the Sylvia Park car park. You were seen retrieving a bag from the boot of Mr Yacoub’s car and placing it in your own car. Later that day you were stopped by the police and a search of your vehicle revealed a white plastic bag containing 1,084 mint green tablets. You were arrested for being in breach of bail and remanded in custody until 4 February 2013 and then you were released pending a defended bail hearing.

[5] On 4 February 2013 a search warrant was executed at Mr Yacoub’s home address and a small quantity of identical green tablets was located in a shoe box containing other anabolic steroids. Mr Yacoub gave an interview to the police stating that you had arranged for the green pills to be delivered to his house, and for him to hand over to you once they arrived.

[6] When you had heard that Mr Yacoub had been interviewed by the police, you became suspicious that Mr Yacoub had narked on you. You decided that it was necessary to have Mr Yacoub provide an affidavit on your behalf for the purposes of your bail hearing. You then arranged with Mr Paea to have him detain Mr Yacoub and bring him to your lawyer’s office. In furtherance of this objective, you arranged for a mutual friend, Mr Law, to set up a meeting with Mr Yacoub at the Burger King, Mangere. When Mr Yacoub arrived at the Burger King he was met by Mr Paea. He was accompanied by two associates, who like Mr Paea were large men. CCTV footage revealed that he spoke with Mr Yacoub in one of the restaurant’s booths. At various times one or both of his associates was in reasonably close proximity. While at the Burger King he threatened Mr Yacoub. Although the exact nature of those threats remains unclear and there was no physical touching, I accept that they involved threats of violence. Mr Yacoub then accompanied Mr Paea and his associates to your lawyer’s offices.

[7] When they arrived at the lawyer’s offices, they were met by you and all three of you entered the lawyer’s office together. All three of you attended an interview with your lawyer. During the course of the interview you advised Mr Yacoub that he needed to tell the truth on several occasions, so much so that your lawyer told you to stop speaking to Mr Yacoub.

[8] The purpose of the interview was to obtain an affidavit from Mr Yacoub to assist with your bail hearing the following day. At the conclusion of the interview the affidavit was sworn in front of another lawyer. On my view of the evidence, neither you nor Mr Paea was present while Mr Yacoub swore the affidavit.

[9] Mr Paea then took Mr Yacoub back to Burger King. Further threats of violence were made by him, though again there was no physical touching.

[10] I have already sentenced Mr Paea on 23 July 2015. I sentenced him to 12 months home detention for his role in these events. I consider that his role throughout was less premeditated and involved than yours, and that he was effectively following your direction.

Victim impact statement

[11] As I did for Mr Paea’s sentencing, I must refer to Mr Yacoub’s victim impact statement. Mr Yacoub describes that the fear that he experienced after the kidnapping was crippling, disabling and made him feel weak. He says it took him and his family months to feel secure and safe again. He also describes the trial process and the telling effects that had on him. He also described how you, Mr Slaimankhel, were a big brother to him and the hurt caused by the fact that you arranged to have him kidnapped. He says that he just wishes that you can understand the hurt and pain that you have caused him and everyone for doing this.

Personal circumstances

[12] I turn then to your personal circumstances. I have read two pre-sentencing reports as to your personal circumstances. The first report is brief. It notes that at the time of trial you were subject to an eight month home detention sentence along with 200 hours community work on charges of behaving threateningly, procuring and possessing methamphetamine and for the administration, supply and dealing in other drugs not cannabis.

[13] The first report says that you dispute the current charges and will be appealing the sentence. Your risk of harm to others is assessed as medium, as is the likelihood of reoffending in light of your past offending and sense of self-entitlement evident in this offending.

[14] The second report provides significantly greater detail about you.

[15] Mr Slaimankhel, you are of Afghani (Pashtu) descent and came to New

Zealand with your family when you were just one year old. You report growing up

in a supportive environment, including six brothers and two sisters. You also report strong support in the community.

[16] You attended college to year 13 and attained NCEA Level 3 and you were also in the First XV. You obtained a Diploma in Personal Training through AUT and you have interests in competitive weight lifting. You also have a financial interest in the food supplement business.

[17] You are a practising Muslim and have had responsibilities associated with your mosque. It says that you do not drink alcohol or use illicit drugs.

[18] The report notes that you have shown a pro-social attitude, that you are not simply sitting back awaiting trial, but you were working while on electronic bail (for

15 months), followed by five months home detention (and there is no indication that you failed to comply with relevant conditions). Your report does note that you do not appear to recognise the potentially serious nature of some of your behaviour.

[19] Since being in custody it notes that you have assumed responsibility as unit representative in dealings with prison officers and management.

[20] The report notes that, given your behaviour, you may have a propensity for violence but also notes that you are awaiting an opportunity to participate in appropriate anger management counselling programs.

[21] The second report also states that you have now “expressed regret for your foolish behaviour that so badly affected the victim who was reportedly a friend, and said [you] would ‘turn the clock back’ if [you] could”.

[22] You are still assessed as having a medium likelihood of reoffending. The report notes that home detention remains available, but that your level of culpability may mean a custodial sentence is more appropriate.

[23] The report refers to Mr Yacoub’s reluctance to talk to the report writer, noting

that he was only prepared to speak to the Officer in charge.

[24] Your willingness to pay a substantial sum by way of reparation is also noted. [25] Imprisonment, release on conditions and reparation is recommended.

[26] Your counsel, Mr Ryan, has also produced various statements from family, friends and associates. The general theme of those statements are that you are “a good boy at heart”, have had a good and solid upbringing, and did well at school, but that you tend to get influenced by other people who take advantage of you. There is also some suggestion that you wish to improve yourself via university studies.

[27] It is also clear that you have a strong supportive family who individually and collectively have made a very positive contribution to New Zealand having travelled here as refugees from Afghanistan in search of a better life some 25 years ago.

Your letter

[28] I have also read your letter. I accept that you express remorse to the victims of your behaviour, which you describe as selfish and criminal. In that letter you offer an apology to Mr Yacoub for your thuggish behaviour and the substantial anxiety that you have caused. Your offer of $20,000 is put forward to assist in putting right what you have done.

[29] You also express regret to the police, to the community, to your family and to this Court.

[30] You refer to your desire to make a positive contribution to society through the fitness industry and to provide guidance to young people, especially on the use of artificial stimulants.

Submissions

[31] I now address the submissions made on sentencing.

The Crown

[32] Ms Patterson submits that kidnapping is plainly the lead offence, but it is appropriate to identify a global starting point taking into account both the kidnapping and the attempting to pervert the course of justice offending.

[33] She submits that a starting point in the order of three and a half years’ imprisonment is appropriate having regard to various aggravating factors including premeditation, threatened violence, length of detention and the extent of the harm. Reference is also made to a number of authorities with starting points in the range of

three to four years.¹ Ms Patterson also emphasised that the perverting the course of

justice offending is a particularly aggravating feature and that would ordinarily attract by itself a three year starting point.²

[34] The Crown identifies the previous convictions as an aggravating feature but accepts that by itself would not justify an uplift. Ms Patterson notes that your offending occurred while on bail for other offending.

[35] The Crown also opposes home detention given the seriousness of the offending and the nature of the charges.

Mr Slaimankhel’s submissions

[36] Mr Ryan appeared for you. He does not accept the Crown’s characterisation of the offending. He accepts that there was some degree of planning, but that it was unsophisticated. He acknowledges that there were threats of violence by Mr Paea, but they should not influence your sentencing. He also says that the length and type of detention does not qualify as an aggravating factor.

[37] He submits, against this background, that the Crown’s starting point is too

high, referring to cases where is says the nature of the offending was far more serious and attracted starting points of two and half to three years.³ He also referred

¹ R v Piper [2012] NZCA 104; R v Rangitaawa HC Christchurch CRI 2004-009-14066, 11 August

_{2005; R v Hunter & Wu HC Auckland CRI-2008-092-011429, 25 June 2010.}

² _{Citing R v Mangnus and Turney HC Auckland CRI-2006-004-7577, 1 November 2007.}

³ R v Piper, above n 1; Mau’u v R [2011] NZCA 385 and Tozer v R [2010] NZCA 7.

to sentences for kidnapping, including one case where there were acts of physical violence which nonetheless attracted an end sentence of home detention.⁴

[38] In further submissions, Mr Ryan refers to my sentence of Mr Paea. He accepts that while there are material differences in the culpability of Mr Paea and you, the mitigating factors are both similar and that you have offered to pay emotional harm reparation to the victim which he says I must consider for the purposes of s 10.

[39] He emphasised that you are a young man and that you accept responsibility for your actions and that the parity principle must also be considered.

Assessment

Purposes and principles of sentencing

[40] For the first part of my assessment, I am now going to describe the principles that guide sentencing.

[41] I have to take into account the purposes and principles of sentencing outlined in s 7(8) of the Sentencing Act 2002. There is a need to denounce your offending and to hold you accountable for the harm that you have done. The sentence is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might similarly offend and I have to consider the protection of the public.

[42] The sentence I impose upon you must be consistent in kind and in length with those imposed on others who have offended in a similar way. I must consider the gravity of your offending and your culpability. I must also take into account any circumstances that might otherwise make an appropriate sentence disproportionately severe and any effects that the offending has had upon you. I must also consider your rehabilitation and impose the least restrictive sentence possible.

_{[43] As noted by Mr Ryan I must take into account your offer of reparation.}

⁴ Chahil v R [2010] NZCA 244 and R v Hunter & Wu, above n 1.

My assessment

[44] I agree with the Crown that it is appropriate to treat the kidnapping as the lead offence but to approach sentencing on a holistic basis and with regard to the totality of the offending in terms of fixing the starting point.

[45] As I did with Mr Paea, I consider that there are three particularly aggravating factors to the offending. First there was a high level of planning – while lacking in sophistication, you retained Mr Paea to detain Mr Yacoub and arranged for Mr Law to dupe Mr Yacoub into attending the Burger King so that he could be confronted there by Mr Paea.

[46] Second, and connected to the level of premeditation, the purpose of the kidnapping was to pervert the course of justice – a serious offence in its own right.

[47] Third, the kidnapping caused significant emotional harm to Mr Yacoub.

[48] I disagree however with the Crown that the threats of violence were seriously aggravating in this case. As noted in my sentencing of Mr Paea, most if not all kidnapping will involve some form of violence – it inheres to the nature of the offending – hence the maximum sentence. Having said that the threats of violence are plainly relevant to my assessment as to where the offending sits in the spectrum of offending of this kind.

[49] Nor do I consider that the length or nature of the detention to be particularly aggravating. There was no physical violence at anytime. I do not accept the evidence that Mr Yacoub was “fisted” on the way out of the Burger King. The CCTV footage does not reveal that Mr Paea touched Mr Yacoub at any time. Furthermore, except for the trip to the lawyer’s office, the vast majority of the kidnapping occurred in a public place where the prospect of physical violence was always going to be low.

[50] For completeness I do not accept Mr Ryan’s submission that the threats of

violence made by Mr Paea ought not to factor in your sentence. You were directing

the kidnapping operation. You set it in motion for your own ends. You must accept the foreseeable consequences of doing so.

[51] Against this backdrop I turn to other sentences for kidnapping for guidance as to the appropriate starting point. I have set out in some detail the frame afforded by the authorities in terms of the starting point in my sentence for Mr Paea.⁵ I do not propose to repeat it here. I found that Mr Paea’s offending attracted a starting point of two years six months. I consider that your culpability must be regarded as higher than his given that you:

(a) Instigated the offending and directed how it should unfold – you were the project manager while Mr Paea was, in short, your employee; and

(b) You stood to gain the most from it, namely to pervert the course of justice.

[52] This latter factor is particularly aggravating (as unlike Mr Paea, I am sure you knew full well from the outset that the object of the kidnapping was to influence the outcome of your bail proceedings) and this brings squarely into frame the need to denounce your conduct and deter similar conduct.

[53] Having said that I accept however the rationale for the kidnapping was misconceived – you had already admitted the breach, including that they were probably illicit drugs, so little was to be gained by adducing evidence from Mr Yacoub as to his understanding of what the pills were. It reveals a distinct lack of sophistication. Indeed, foolish is an apt description in my view.

[54] Furthermore as I noted in the Paea sentencing, the offending is not as serious as the offending in R v Mangnus & Turney⁶ cited by Ms Patterson. In that case encouraging swearing a false affidavit alone attracted a starting point of three years.

_{But that was a case involving a rape proceeding, and, if the affidavit had been}

5. R v Paea [2015] NZHC 1705 at [31] – [40], referring to authorities including R v Banfeild CA CA22/05, 27 July 2005; R v Piper [2012] NZCA 104; R v Rangitaawa HC Christchurch CRI

2004-009-14066, 11 August 2005; R v Hunter & Wu HC Auckland CRI-2008-092-011429, 25

_{June 2010.}

⁶ R v Mangnus and Turney, above n 2.

accepted, it could have played a significant part overall in those proceedings. By contrast, this case involved obtaining an affidavit for a bail hearing. There is some dispute still as to Mr Yacoub’s role on the supply of the controlled drugs to you and in any event you had admitted this bail breach to the police. While all cases of perverting the course of justice will attract the Court’s denunciation, some account needs to be made of the purpose in fact served by the conduct, the method that was undertaken to achieve it, and it would be wrong in my view to make generalisations

as to start point in this context.⁷

[55] In the result, given the seriousness of the offending and the central leading role played by you the starting point must properly be materially higher than Mr Paea’s. I consider that, against the survey of authorities noted in Mr Paea’s sentencing, an additional six months to the starting point is appropriate and commensurate with the offending as a whole. Your starting point is therefore three years.

[56] I have taken into account the perverting the course of justice offending in fixing the starting point, no further uplift is required.

[57] As to mitigating factors, I acknowledge the comments made in the second presentence report and testimonials given on your behalf. They suggest that when in the right environment, you can be a productive member of society. Regrettably these testimonials are in part offset by your previous convictions, especially for the threatening behaviour. It must be recalled however that you were still relatively young (about 24) at the time of the previous and present offending. I think therefore that a small discount is warranted to reflect your capacity to rehabilitate if given the opportunity to do so.

[58] You have now also demonstrated, albeit belatedly, genuine remorse for your actions in my view. The unqualified acceptance of your culpability, combined with your open apology and an offer to engage in a restorative justice conference is

_{evidence of this.}

⁷ See for example cases cited by Courtney J in R v Mangnus & Turney, above n 2 at [10] including

R v Hillman; R v Gemmell CA 257/96, 2 October 1996; R v Clutterbuck CA 372/99, 17

November 1999.

[59] You have also made an offer of $20,000 reparation. Section 10(2) of the Sentencing Act 2002 directs that in deciding on whether an offer to make amends should be taken into account, the Court must take into account:

(a) Whether it was genuine and whether it was capable of fulfilment; and

(b) Whether it has been accepted by the victim as mitigating the wrong. [60] I am satisfied that the offer is genuine and that it is capable of fulfilment. I

am now, however, advised that Mr Yacoub does not accept the offer and in declining the offer he made the following comment:⁸

Mr Slaimankhel has thrown around money to have people respect and do things for him. It is what he has done and he will never completely understand what he does because he always gets off easy.

[61] While I put no store in the latter comment, the fact of the matter is that Mr

Yacoub does not consider that a payment of money will mitigate the harm to him.

[62] I am, nevertheless, satisfied that, given the now unequivocal expression of remorse, I consider that the offer to make amends should be taken into account, though on a much more limited basis than had Mr Yacoub accepted it.

What then is the appropriate discount?

[63] In Mr Paea’s case I applied a discount of 20% in light of his high level of genuine remorse, evinced immediately following trial, and his personal circumstances – including a commitment to family and essentially good character. In combination I was confident that he presented as a worthy person with strong prospects of rehabilitation.

[64] Regrettably, Mr Slaimankhel, I do not have the same confidence with you, given your full background, including your delayed acceptance of culpability and

⁸ Mr Slaimankhel has always thrown around money to have people respect and do things for him.

It is what he has done and he will never completely understand what he does because he always gets off easy. [correct quotation from NZ Police Statement of Constable John Faga, 3 September

2015].

your prior offending. But as noted, I accept your remorse and offer to makes amends is now genuine, that you are still relatively young and that you have good family support to help you through this phase of your life, which is encouraging in terms of your capacity to rehabilitate.

[65] In Birk v Police, a discount of 15 per cent was applied for remorse and an offer of $10,000 in a case of aggravated robbery.⁹ In R v Cara, a discount of 25 per cent was applied for good character and the making of amends, which was accepted by the victim.¹⁰ In R v Johnson, the Court of Appeal approved a discount of 5 per cent for reparation of $10,000 in a serious sexual abuse case but fixed a total discount at 15 per cent for all mitigating factors.¹¹ I note also that the Court placed real significance on the fact that the victim accepted the offer in that case.

[66] Having regard to those authorities, it seems to me that in combination a discount of 15 per cent is appropriate.

[67] Given this outcome, it is unnecessary to consider home detention as you are not eligible for it.

End Sentence

[68] Mr Slaimankhel please stand.

[69] Mr Slaimankhel, on each count of kidnapping and perverting the course of justice I impose a sentence of two years and six months to be served concurrently.

[70] Mr Slaimankhel I also convict you on each count of kidnapping and perverting the course of justice. Given your conviction for kidnapping, you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a

_{written notice outlining these consequences, which lists the serious violent offences.}

⁹ _{Burke v Police HC Tauranga CRI 2006-470-32, 16 November 2006.}

¹⁰ _{R v Cara [2005] 1 NZLR 823 (HC).}

¹¹ R v Johnson [2010] NZCA 168.

[71] First, if you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[72] Secondly, if you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[73] Mr Slaimankhel you may stand down.