AL QAYSI v NEW ZEALAND POLICE [2020] NZHC 1231

AL QAYSI v NEW ZEALAND POLICE [2020] NZHC 1231 [8 June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-54[2020] NZHC 1231BETWEEN AHMED AYAD NAZAR AL QAYSIAppellantAND NEW ZEALAND POLICERespondentHearing: 19 May 2020Appearances: J Yi for the AppellantE Rangamuwa for the RespondentSupplementarysubmissionscompleted:25 May 2020Judgment: 8 June 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 8 June 2020 at 3.30 pmRegistrar/Deputy RegistrarDate:[1] The appellant, Ahmed Al Qaysi, appeals against his conviction and sentenceon one charge of assault on a person in a family relationship. Mr Al Qaysi had soughta discharge without conviction pursuant to s 106 of the Sentencing Act 2002 but thiswas rejected by Judge Fitzgerald who concluded that the consequences ofMr Al Qaysi's offending were not out of proportion to the gravity of the offending.1Instead Mr Al Qaysi was convicted and sentenced to 80 hours community work.2[2] Section 106 provides that a court may discharge an offender withoutconviction. Section 107 then provides that a discharge without conviction must notbe granted unless the court is satisfied that the direct and indirect consequences of aconviction would be out of proportion to the gravity of the offence. Three main factorsare to be considered in this determination:3(a) The gravity of the offence; and(b) The direct and indirect consequences of a conviction; and(c) Whether those consequences are out of all proportion to the gravity ofthe offence.[3] If a judge is satisfied that the jurisdictional threshold in s 107 is met the judgecan then move to considering whether to exercise the residual discretion to dischargewithout conviction pursuant to s 106.[4] An appeal against a refusal to grant a discharge without conviction is an appealagainst both conviction and sentence.4 The test under s 107 requires an evaluativejudgment and is not a matter of discretion so the appeal court must reach its owndecision on the merits.5 Consequently the court must first consider whether the s 107disproportionality test has been met before exercising its residual discretion unders 106(1).1 Police v Al Qaysi [2020] NZDC 2625 at [12].2 At [14].3 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [16].5 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]-[13].[5] In support of the appeal Mr Al Qaysi relies upon evidence not beforeJudge Fitzgerald; an affidavit from the victim supporting the appeal, a letter from theNew Zealand Transport Agency ("NZTA") proposing to remove Mr Al Qaysi'spassenger endorsement, and information regarding his contract as a driver with Uber.There is no opposition to receipt of this material and it has been admitted.The offending[6] Mr Al Qaysi is the younger brother of the victim. On the evening of15 April 2019 Mr Al Qaysi was at home, where he lives with his mother and sister.On Mr Al Qaysi's account he had got very drunk after getting home from work andtook issue with his sister after finding her cat's feeding plates in the kitchen, as he wasseverely allergic to cats. A verbal argument ensued between Mr Al Qaysi and his sisterwhich ultimately resulted in Mr Al Qaysi grabbing his sister's hair and punching herin the back of the head and neck five times with a closed fist, with at least one of theblows hitting his sister's hand as she sought to protect herself.[7] The victim suffered a swollen right hand and swelling at the back of her head.The case for Mr Al Qaysi[8] Mr Yi, for Mr Al Qaysi, relying upon Mathieson v R6 submittedJudge Fitzgerald erred in his assessment of the gravity of the offending, in concludingthe offending fell into "the low end of the middle range" for the purposes of the s 106application.7 Mr Yi lists several mitigating factors that he submits mean the gravityof the offending should have been assessed as low including:(a) the rehabilitative efforts made by Mr Al Qaysi including a 20-weekanger management course;(b) attendance at eight weeks of alcohol counselling;(c) the fact the assault was brief and between siblings;6 Mathieson v R [2019] NZCA 406.7 Police v Al Qaysi [2020] NZDC 2625 at [5].(d) the fact the victim kicked the defendant first;(e) Mr Al Qaysi's apology and reconciliation efforts;(f) the lack of ongoing injuries; and(g) the unlikelihood of Mr Al Qaysi returning to court.[9] Mr Yi also submitted that Judge Fitzgerald overstated the Court of Appeal'sposition in R v Taulapapa8 when he reasoned that "courts should be reluctant to usurpthe role of employers or others who, for good reasons, are entitled, perhaps evenrequired to know about all matters they consider relevant when deciding a person'sfitness and suitability for work or some other purpose".9 Mr Yi submitted the Judgedid not appreciate that the passage he referred to was one of many differing pointsabout the consequences of conviction, in the context of young people.[10] Finally, Mr Yi submitted that the letter from NZTA proposing to removeMr Al Qaysi's passenger endorsement is evidence that the consequence of aconviction is severe. If the passenger endorsement is removed the appellant will notbe able to drive as an Uber driver for the immediate future and will not be able toreapply for the endorsement for a period of 18 months. Mr Yi submits this will causeconsiderable financial stress on Mr Al Qaysi and his household. He also submits thathis second job as a storeman is also likely to be negatively impacted should hisemployer be notified of this conviction.Discussion[11] I begin my analysis by considering whether there was any error in theassessment of the gravity of the offending. On this first issue there is some force inMr Yi's submission and I accept the situation appears to be analogous to the positionin Mathieson v R.8 R v Taulapapa [2018] NZCA 414.9 Police v Al Qaysi [2020] NZDC 2625 at [11].[12] In that case the Court of Appeal considered that the lower courts had notapplied the correct approach in their assessment of gravity because the overallassessment failed to take into account positive mitigating factors, which were howeversubsequently taken into account when the defendant in that case was sentenced.10[13] A similar approach appears to have been followed in this case. In particular,while the sentencing Judge clearly took into account the mitigating factors, HisHonour's conclusion that the overall gravity of the offending "comes down to thelower end of the middle range" is in fact somewhat irreconcilable with the ultimatesentence imposed on Mr Al Qaysi. On the contrary 80 hours of community work is aclear indication that after taking into account the same mitigating features raised inrespect of the s 106 application Judge Fitzgerald regarded the offending as being atthe lower end, an assessment not challenged by the Police on appeal and which wasclearly open to His Honour on the material available in the District Court.[14] Given that position I now turn to consider whether there was any error withHis Honour's assessment of the direct and indirect consequences of a conviction onMr Al Qaysi.[15] As noted, the consequences of conviction Mr Al Qaysi claims aredisproportionate relative to the effect on his employment. For such consequences tobe considered, a court must be satisfied that there is a real and appreciable risk theywill eventuate.11 The approach to be taken was spelt out by the Court of Appeal inR v Taulapapa in the following terms:12When determining the effects of conviction on employment the Court mustidentify the consequence, assess the evidence offered for it, evaluate the riskthat the consequence will happen to the particular applicant, and form an overallassessment of seriousness. These are matters of judicial judgement.[16] The material before the Court shows that Mr Al Qaysi in fact works three jobs;as a barber, as a storeman and as an Uber driver. No information has been provided10 Mathieson v R [2019] NZCA 406 at [17].11 R v Taulapapa [2018] NZCA 414 at [22]; Mathieson v R [2019] NZCA 406 at [18].12 R v Taulapapa [2018] NZCA 414 at [46].as to the financial consequences of the loss of any of the jobs to either Mr Al Qaysi orhis family.[17] As Mr Yi accepted there is no suggestion a conviction will in any way affectMr Al Qaysi's work as a barber.[18] With regard to Mr Al Qaysi's position as a storeman it appears that hisemployer is not currently aware of the conviction. His employment contract gives hisemployer the ability to dismiss him for serious misconduct, including specifically"violent behaviour" and/or where there has been a:conviction for a criminal offence, that in the Company's opinion may affect itsreputation or relationships with its staff, customers or the public, or otherwiseaffects your suitability to continue to work for the Company.[19] As Ms Rangamuwa submitted for the Police, these provisions do not suggestthat a criminal conviction will automatically result in a loss of employment. On thecontrary, Mr Al Qaysi's employment agreement makes it clear that when an employeeis accused of serious misconduct, the employee is to be given a reasonable opportunityto provide an explanation and the company will consider the seriousness of theallegations amongst other factors before considering the appropriate action to take.[20] Similar considerations apply to the possible loss of Mr Al Qaysi's passengerendorsement. While I have reservations as to whether the documents provided byMr Al Qaysi accurately represent his contract with Uber,13 it is clear that Mr Al Qaysiwould not be able to carry passengers legally without the necessary passengerendorsement. The letter from NZTA (which was not before Judge Fitzgerald) indicatesa provisional decision to remove Mr Al Qaysi's passenger endorsement with particularreference to the present conviction. The letter makes it clear however that hispassenger endorsement had been issued on what is described as a "without prejudice"basis as a result of previous traffic infringements and the provisional decision toterminate refers not only to the present conviction, but a further traffic infringement13 As Ms Rangamuwa noted, the agreement is unsigned and otherwise non-specific to Mr Al Qaysi,and refers to the requirements and expectations for Uber drivers in Australia. There is nothingcontained within the agreement provided by Mr Al Qaysi to suggest that it extends to New Zealanddrivers or more specifically, Mr Al Qaysi.incurred when Mr Al Qaysi used his cell phone while driving. The letter makes it clearthat:Violence-related behaviour is directly relevant to fitness and property [sic] ofpassenger endorsement holders, and to public safety pursuant to ss 30C and 30D of the Land Transport Act 1998 Your conviction above shows capacity tobe violent in a serious manner when in heated situations. This is especiallyconcerning if you were to be driving passengers.Those who hold endorsements to drive vehicles used for passenger service areexpected by the transport agency to observe the highest standards of publicsafety. Holding a passenger endorsement is a privilege and by virtue of yourposition you are placed in a position of trust. Your offending is not consistentwith this requirement.Based on the matters I have set out above, I am satisfied that you are not a fitand proper person to hold a passenger endorsement.[21] Despite this, the letter goes on to note "this is not a final determination and [MrAl Qaysi is] given the right to make submissions" pending a final determination,following which he has the right of appeal to the District Court pursuant to s 106 ofthe Land Transport Act 1998. At the hearing Mr Yi confirmed that the submissionsprocess is currently on hold pending the outcome of this appeal.[22] It is therefore clear that in respect of Mr Al Qaysi's jobs as a storeman and asan Uber driver that there is no inevitability that Mr Al Qaysi will lose either job and itis clear that the matters raised in mitigation before Judge Fitzgerald will be relevant,as will the affidavit sworn by the victim in support of Mr Al Qaysi's appeal.[23] The issues are strikingly similar to those considered in Elmeleh v Police.14 Inthat case this Court on appeal allowed a discharge without conviction on what wasapparently a less serious charge of common assault, albeit with significantly lessmitigating factors than the present, including the fact that the appellant in that casewas found guilty at a judge alone trial. As in the present case Mr Elmeleh, a taxidriver, had received notification from the NZTA that he was no longer a fit and properperson to hold a passenger endorsement taking into account his conviction and a range14 Elmeleh v Police [2019] NZHC 3371.of traffic infringements, and notwithstanding the submission and appeal process theconsequences of a conviction were disproportionate.[24] With respect the approach followed in Elmeleh does not reflect well settledprinciple that the courts will not interfere with matters that employers and/orprofessional bodies are required to consider. As Wylie J noted in Solicitor-General vMohib:15The approach the Courts have taken to the issue of immigration consequencesis consistent with the approach taken to employment consequences wherethere is an independent body charged with determining the suitability ofindividuals for particular employment. In this context,16 Hammond J noted asfollows:Whether a conviction will form an occupational barrier is arelevant consideration in determining whether to grant a dischargewithout conviction. Where the conviction will result in an absolutebar to the occupation that may carry extra weight with the Court.I do not think there is any such suggestion in this case. If there isan independent body charged with determining the suitability ofindividuals for particular employment, the Court may be moreready to enter a conviction, it being of the view that it is in thepublic interest that that body is best able to make a decision withthe benefit of full disclosure of the fact. The fact that theconviction may act as a barrier to graining entrance to anoccupation is not a determinative factor – it is merely a factor tobe considered in the balancing exercise.Similarly, in R v Rollo,17 the Court of Appeal accepted a submission "that theCourt should take care not to usurp the function of registration bodies, such asthe Council, by routinely providing discharges in cases of this kind".18(footnotes in original)[25] This was in fact the approach taken by Judge Fitzgerald in this case in whichhe referred to the following passage in R v Taulapapa:1915 Solicitor-General v Mohib [2016] NZHC 1908 at [51].16 Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].17 R v Rollo CA 1/04, 9 October 2004; Maraj v Police [2016] NZCA 279 at [28].18 At [6]-[7].19 R v Taulapapa [2018] NZCA 414 at [42](a). The quotation in the Sentencing Notes in fact appearsto be an amalgam of the quote from Taulapapa and the following from Mitchell v Police [2020]NZHC 440 which reads "the Court must also consider the employer's right to know and should behesitant to usurp the role of a particular employer or registration authority to decide thesignificance of a particular conviction. The employer's right to know carries particular weightwhere there is an independent statutory or other registration agency charged with assessing aperson's character or suitability for a particular career." (citations omitted).[A conviction] may affect the person's career, but that consequence mustnormally yield to the employer's right to know. This principle extends toindependent bodies charged with assessing the character or suitability for aparticular career. It applies to all offenders for whom convictions are recorded,including the young.(footnotes omitted)[26] This type of approach is relevant to both occupations at issue in this case.Mr Al Qaysi's employer in his storeman role is concerned about the presence of acriminal conviction where that affects the employer's reputation or relationships withits staff, customers or the public, or otherwise affects Mr Al Qaysi's suitability tocontinue to work and granting a discharge without conviction would clearly preventthe company from undertaking this assessment.[27] It is also particularly important with regard to the decision to be made byNZTA. This is because it is clear that the NZTA decision involves specificconsideration of public safety issues, as identified by NZTA in the letter. Importantly,to the extent the documentation from Uber provided by Mr Al Qaysi reflects his owncontractual arrangements, it would seem that Uber relies upon NZTA doing its jobeffectively to ensure that Uber drivers are fit and proper people to safely carrypassengers. In addition, as a discharge without conviction has the effect of anacquittal,20 granting a discharge in this case would lead to the artificial position thatthe NZTA is aware of the domestic violence at issue in this appeal and to whichMr Al Qaysi has pleaded guilty, but is effectively required not to take it into accountnotwithstanding the criteria for determining what a fit and proper person may be hasformed absolutely no part of the analysis required in this appeal. Such an approachclearly fails to allow the NZTA to properly perform its function. Given that position Iconcur with Judge Fitzgerald's conclusion that a court should be reluctant to "usurpthe role of a particular employer to decide the significance of a particularconviction",21 particularly where, as here, Mr Al Qaysi was already on notice withissues regarding his passenger endorsement and the present conviction is not the onlymatter being considered by the NZTA.20 Sentencing Act 2002, s 106(2).21 Police v Al Qaysi [2020] NZDC 2625 at [11]. See Mitchell v Police [2020] NZHC 440 at [18].[28] In the circumstances and allowing for the fact that the gravity of the offendingwas as noted objectively less than allowed for by the sentencing Judge, I nonethelessagree with Judge Fitzgerald's ultimate conclusion that the consequences of aconviction for Mr Al Qaysi are not disproportionate to the gravity of the offending.As a result, the appeal must be dismissed.Decision[29] The appeal is dismissed._______________________________Powell J