IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2024-404-000207
[2024] NZHC 2585	

BETWEEN	MUSHIN MAHAMUD ABDI
Appellant	
AND	THE KING
Respondent	

Hearing:	9 September 2024	
Appearances:	Appellant in Person
E Rangamuwa for Respondent	
Judgment:	10 September 2024	

JUDGMENT OF VENNING J
[Appeal against conviction and sentence and leave to appeal out of time]

This judgment was delivered by me on 10 September 2024 at 10.30 am,

Registrar/Deputy Registrar

Date……………

Solicitors:	Meredith Connell, Auckland Copy to:	Appellant

ABDI v R [2024] NZHC 2585 [10 September 2024]

[1]	On 26 February 2024 Muhsin Abdi pleaded guilty to one charge of theft and one charge of common assault in the Auckland District Court. He was sentenced on the same day by Judge Jelaš.1 She convicted and discharged Mr Abdi on the charge of theft and sentenced him to 40 hours’ community work and 10 months’ supervision on the charge of common assault. Mr Abdi was represented by counsel at the time.

[2]	Mr Abdi now appeals his conviction. He seeks a discharge without conviction on both charges.

Procedural background

[3]	There are a number of issues with the appeal. The first is that it is out of time. As noted, the convictions were entered on 26 February 2024. The appeal should have been filed by 25 March 2024. It was not filed until 14 May 2024. The only explanation offered was a delay in obtaining a grant of legal aid.

[4]	As the Crown have engaged with the merits of the appeal, I grant leave.

[5]	The next issue is representation. The appeal has been called before the Court on a number of occasions. It was called initially on 31 May 2024. At the time counsel who had filed the appeal was granted leave to withdraw. The appeal was then subsequently listed for call on 21 June 2024. On 20 June, Gordon J noted that Mr Abdi was self-represented but said he had applied for legal aid. The Judge adjourned the call to 5 July. On 5 July, it was further adjourned a final time to 26 July 2024. On 26 July it was allocated a hearing this morning on the basis that Mr Abdi would represent himself as legal aid had been declined. Mr Abdi confirmed he would not be filing further evidence. On 3 September 2024, Jagose J extended the time for Mr Abdi to file and serve his submissions to 30 August 2024. On 30 August 2024, Mr Abdi filed his submissions.

Background facts

[6]	The offending which led to Mr Abdi’s convictions according to the summary of facts he pleaded guilty to is that at approximately 3.00 am on 6 May 2023 Mr Abdi

1	R v Abdi [2024] NZDC 13727.

assaulted and stole from a victim, Mr Gambitsis, outside a property on New North Road, Kingsland. They briefly spoke outside the property following which Mr Abdi took from Mr Gambitsis’ wallet WINZ payment card and cash of $19. When Mr Gambitsis snatched his wallet back Mr Abdi punched him three times in the upper lip area and to the right side of his head. He then left with the WINZ payment card and cash. When initially spoken to Mr Abdi denied the offending.

Mr Abdi’s submissions

[7]	In his submissions filed with the Court Mr Abdi notes that he came to New Zealand as a refugee from Somalia with his family on 1 October 1999. At the time he would have been almost four. He says he did not proceed to trial in February for the two offences as he was advised by his lawyer at the time the matter would be adjourned for a hearing and could be adjourned until October. He said he was hoping to take his mother and father to the Hajj in mid-June and was worried he would not be able to travel with them. In his oral submissions this morning he said that on the day there was an induction at AUT which he was concerned at missing. Mr Abdi says that he had had a recent change of the lawyer assigned on legal aid and felt rushed. He was told there was a 95 per cent chance he would lose and be convicted. Not realising the significant and wide-ranging consequence that would have on him he pleaded guilty. Mr Abdi says he is not a thief and does not use forceful action against people but rather says in his written submissions that he was out one night with friends and “made a bad decision”. He says he is very remorseful for his actions and has undergone counselling and voluntary work in his community.

[8]	Mr Abdi is apparently a full-time student at AUT and hopes to pursue a career in community development work at Outreach programmes when he graduates. He suggests, but without providing any evidence, that the indirect consequences of a conviction would include the loss of a future career path and effects on his family. He says the direct consequences of the conviction is that he has not been able to find part- time work and is finding it difficult to secure a job. Again, apart from his assertion there is no documentary or supporting evidence to back those statements up.

Approach to the appeal

[9]	An appeal against conviction under s 232(2)(c) of the Criminal Procedure Act 2011 proceeds on the basis that the Court must allow the appeal if satisfied that a miscarriage of justice has occurred for any reason. A miscarriage of justice is any error, irregularity or occurrence in relation to or affecting the trial that has created a real risk that:

(a)	the outcome of the trial was affected; or

(b)	resulted in an unfair trial or a trial that was a nullity.

[10]	A trial includes a proceeding in which the appellant, such as Mr Abdi, has pleaded guilty.2 The onus is however on Mr Abdi to show an error has been made and that justice has miscarried.3 Where, as here, the conviction has followed a plea of guilty it will only be in exceptional circumstances that an appeal against conviction will be entertained. Where the appellant fully appreciated the merits of his position and made an informed decision to plead guilty the conviction will not be impugned.4

[11]	In Winterburn v R,5 Powell J referred to a previous decision of Peters J in Barrington-Nash v NZ Police, in which case Peters J had held if a discharge without conviction was not raised in the District Court it precluded the issue from being raised on appeal in the High Court. In Ho v R the Court of Appeal did not reach a conclusion that a failure to raise the issue in the District Court was an absolute bar but noted it may be appropriate to consider granting a discharge on appeal where there had been a change in circumstance or fresh evidence became available following the sentencing in the District Court.6 Neither of those circumstances apply in the present case. Like the case of Winterburn, in Mr Abdi’s case there is no evidence before the Court from Mr Abdi’s unsworn assertions as to why the question of a discharge without conviction was not raised in the District Court.

2	Criminal Procedure Act 2011, s 232(5).
3	Sena v Police [2019] NZSC 55.
4	R v Proctor [2007] NZCA 289 at [4].
5	Winterburn v R [2019] NZHC 104 at [9], citing Barrington-Nash v NZ Police [2012] NZHC 868.
6	Ho v R [2016] NZCA 229.

Analysis

[12]	Normally a case such as Mr Abdi would proceed on the basis of trial counsel incompetence. There is a hint of that in Mr Abdi’s material but he does not take the matter further. There has been no waiver of privilege and no opportunity to obtain an affidavit from counsel. Mr Abdi has not himself advanced any evidence in support of the appeal, rather he relies on his written submissions.

[13]	Quite apart from the procedural difficulty Mr Abdi faces, having reviewed the offending and the material before the Court, the Court is satisfied that Mr Abdi would fail to meet the test under s 106 of the Sentencing Act 2002 in any event.

[14]	For a discharge, the Court must be satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending. As to the gravity of the offending, while the value of the property stolen was relatively low, and the charge was one of common assault, the offending took place in the early hours of the morning and involved more than one punch to the victim’s head and face and resulted in some injuries to the victim. It was accompanied by a theft. I note that in his submissions Mr Abdi does not directly deny the offending but rather says he “made a bad decision”.

[15]	The gravity of the offending is mitigated by Mr Abdi’s circumstances, namely that he is 29 years old and that he did plead guilty, and on that basis accepted responsibility for the offending.

[16]	Mr Abdi also confirmed that he has completed the 40 hours’ community work aspect of the sentence and the supervision has been put on hold pending the outcome of this appeal. During the hearing Mr Abdi produced a letter to the Court confirming his interest in the Islamic community, and his desire to increase his proficiency in the Arabic language to assist his study of the Koran.

[17]	However, while Mr Abdi is a young man, on his own admission he has previous convictions from Australia, and relevantly one of the convictions was for armed robbery with personal violence. I assess the gravity of the offending overall, having regard to his personal circumstances, as low to medium.

[18]	As to the consequences of conviction, as noted, no evidence has been filed to support Mr Abdi’s assertions that his employment in the future or his intended career path will be affected. The consequences that there may be of a conviction are the usual consequences that follow a conviction for one-off offending of this nature. I assess the consequences, both direct and indirect, of this conviction as low, particularly when taken with the previous convictions from Australia. In the circumstances Mr Abdi falls well short of establishing that the direct and indirect consequences of conviction are out of all proportion to the gravity of the offending.

[19]	For the above reasons there is no miscarriage of justice and no material error in the convictions entered nor in the sentence imposed by the District Court.

Result

[20]	Leave is granted to bring the appeal out of time but the appeal is dismissed.

Venning J