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Mohammed Omar Nassery escaped the Soviet invasion of Afghanistan as a child.
But the former refugee has failed to convince the Supreme Court he should leave prison to serve out his sentence, for two armed robberies, from home.
Nassery was addicted to methamphetamine in 2019 after leaving a drug rehabilitationprogramme early and relapsing.
Toward the end of that year he embarked upon the Auckland offending spree that would end in a prison term, court documents from his failed appeal show.
On November 27, 2019, Nassery, who is listed on the companies office as having run a painting company, went to a Mobil service station, put $50 of fuel in his work van and drove off without paying.
Two days later he went into the PK Superette in Pt Chevalier wearing a white Halloween mask and wielding a thick stainless steel knife.
The PK Superette in Pt Chevalier, one of two shops robbed by Mohammed Nassery in 2019. Photo / Supplied
He demanded money from the sole attendant then made off with $300 to $400 cash and several cigarette packets.
The next day he went to another dairy near his home in Te Atatū, again wearing a white mask and using a big knife to threaten a worker and take cash and cigarettes.
Police caught up with him shortly afterwards and found him in possession of stolen licence plates.
After a jury trial in the Auckland District Court, he was convicted of two charges of aggravated robbery, one of theft of petrol, and one of receiving stolen registration plates.
The Taikata Superette in Te Atatu, one of two shops robbed by Mohammed Nassery in 2019. Photo / Supplied
At sentencing, Judge Claire Ryan took a starting point of five years.
She applied a 20 per cent discount for his personal circumstances. Nassery, who was 42 at the time of his offending, is a former refugee from the Soviet invasion of Afghanistan.
He arrived in New Zealand aged 11.
Judge Ryan took another 20 per cent off the sentence for his addiction issues and five percent to take into account mental health issues separate from his addiction.
Another five percent reduction was granted for other factors including the fact he had spent time on restrictive electronically monitored bail.
That cut the original five year sentence in half to two years, six months.
However, the reduction was not enough to make Nassery eligible for home detention, which only becomes an option for Judges when the prison sentence is less than two years.
Nassery appealed to the Court of Appeal which heard his case on May 9.
His lawyer Nathan Batts argued he should have received home detention to allow him to attend rehabilitation.
Mohammed Nassery was convicted of the armed robbery of a supprette in Auckland while wearing a white Halloween mask. Photo / Herald files
Batts said Judge Ryan should have given a greater discount for Nassery's mental health issues.
The Judge also should have given a greater reduction for the time he spent on restrictive electronically monitored bail - including more than a year subject to a nighttime curfew and eight weeks on a 24-hour curfew, Batts argued.
The Court's judgment delivered by Justice Geoffrey Venning said it was not convinced the 50 percent worth of discounts applied at sentencing were insufficient to take into account the "mitigating features".
It dismissed Nassery's appeal.
"We are not persuaded that the overall discounts of 50 per cent for personal mitigating factors could be regarded as insufficient to take account of all mitigating features on Mr Nassery's behalf," Justice Venning said.
Nassery then tried to appeal to New Zealand's court of last resort.
A Supreme Court judgment delivered on Friday denied his request for leave to appeal his convictions.
"The difficulty for the applicant here is that the discounts given were already generous, but the sentencing judge explicitly concluded that a two-year sentence was a bridge too far."
The Supreme Court noted Judge Ryan had to take into account the fact Nassery did not plead guilty.
"Also implicit in the judge's reasoning was that, had Mr Nassery entered an early guilty plea, he probably would have qualified for a sentence of home detention based on the acceptance of responsibility such plea would have represented.
