EL-NAFEH v POLICE [2018] NZHC 57

EL-NAFEH v POLICE [2018] NZHC 57 [7 February 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-458[2018] NZHC 57BETWEEN FAWAZ GHASSAN EL-NAFEHAppellantAND NEW ZEALAND POLICERespondentHearing: 5 February 2018Counsel: S Brickell for AppellantD Muratbegovic for RespondentJudgment: 7 February 2018JUDGMENT OF BREWER JThis judgment was delivered by me on 7 February 2018 at 2:30 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Scott Brickell (Auckland) for AppellantKayes Fletcher Walker (Manukau) for RespondentIntroduction[1] Mr El-Nafeh appeals the sentence of 19 months' imprisonment imposed onhim by Judge AM Wharepouri on 16 November 2017 in the Manukau District Court.1The sole issue on appeal is whether the sentence should have been commuted to oneof home detention.The offending[2] Judge Wharepouri sentenced Mr El-Nafeh on one charge of obtaining bydeception and one charge of driving while suspended. The two charges wereunrelated. The lead charge was obtaining by deception and the charge of driving whilesuspended appears to have played no real part in the sentencing.[3] Essentially, Mr El-Nafeh stole from his brother-in-law by setting up a bankaccount and dishonestly procuring the transfer of $45,000 to that bank account. Onthe same day, Mr El-Nafeh withdrew the $45,000 in cash. He promptly spent it bypaying debts and purchasing a car.Appeal[4] My task on an appeal against sentence is to decide whether the District CourtJudge made an error such that a different sentence should be imposed.[5] In this case, Mr Brickell's submission on behalf of Mr El-Nafeh is that theJudge erred in emphasising the sentencing principles of deterrence and denunciation.Instead, it is submitted the Judge should have given weight to the impact ofimprisonment on Mr El-Nafeh's family. Mr Brickell submits the Judge overstated theseriousness of the offending and erroneously concluded that imprisonment was theleast restrictive sentence in all the circumstances.[6] Mr Brickell has put before me a number of documents that were not beforeJudge Wharepouri. I have looked at them to see whether they are relevant to thesubmission that the Judge erred in his decision not to commute the sentence of1 Police v El-Nafeh [2017] NZDC 26250.imprisonment to one of home detention and to such an extent that I should allow theappeal and impose a sentence of home detention.[7] The first new document is an affidavit by Mr El-Nafeh's wife sworn on23 January 2018. The affidavit deposes to the hardships her family is suffering as aresult of Mr El-Nafeh, the previous sole earner in the family, being imprisoned.[8] Two further documents were filed on the day of the hearing of this appeal. Thefirst is an affidavit sworn on 5 February 2018 by Mr El-Nafeh's mother. In it, sheoffers to help pay reparation at the rate of $1,000 per week.[9] The final document, dated 1 February 2018, is a letter from Mr MohammedHatem advising that he has "given" Mr El-Nafeh a job as restaurant manager and thatthe position is being held for him.[10] The role of an appellate Judge on a sentencing appeal is to correct error. In theabsence of error, a sentence appeal must be dismissed. Events which have occurredafter the date of imprisonment cannot be taken into account.2[11] However, I accept that events which occurred after the sentencing can belooked at to the extent that they demonstrate an error on the part of the sentencingJudge.[12] In this case, the information about Mr El-Nafeh and his family before JudgeWharepouri, largely contained in the PAC report, was summarised by the Judge asfollows:[15] Before making adjustment for the mitigating circumstances I turn toyour pre-sentence report. The pre-sentence report tells me that you are40 years old, that you and your wife have five children, that you are regretfuland remorseful for your behaviour. You told the report-writer that your viewis that there was an agreement between you and your wife's family that thereshould be a 50/50 split of the net proceeds obtained from the sale of yourfamily home, your wife's family reneged on that agreement, you felt cheatedand frustrated with the arrangement so you decided to take $45,000 from theprofit which you honestly believed was yours to take. I am told that you arenot presently employed, you are currently being financed by your own mother2 Poi v R [2015] NZCA 300.who pays for the rental property in which you, your wife and your childrennow live. You have applied for bankruptcy, that fact tells me that there is littleprospect of you making any reparation towards your victim. The report-writer's conclusions include the fact that your offending seems to be the resultof you having a sense of entitlement, poor decision-making and a desire tofree yourself from difficult financial difficulties. The recommendation in thereport is home detention and reparation.[13] Mr Brickell's submission is that the Judge should have foreseen that in thesecircumstances a sentence of imprisonment would impose unfair hardship on Mr El-Nafeh's family because the family would be deprived of his support as an incomeearner.Discussion[14] I accept the submission of Mr Muratbegovic for the Crown that, taken as awhole, Judge Wharepouri cannot be taken to have focused on deterrence anddenunciation to the exclusion of all other relevant factors. The Judge clearly turnedhis mind to the relevant matters in the pre-sentence report. The Judge's conclusionwas that the seriousness of the offending (he referred to it as "very serious", whichmight be an overstatement) and Mr El-Nafeh's record of similar offending precludedhome detention. Accordingly, deterrence and denunciation had to be emphasised.[15] Mr El-Nafeh committed nine fraud offences over the years 2004, 2006, 2010and 2011. In 2013, in respect of seven of them, he was sentenced to 10 months' homedetention.[16] The subject fraud was committed in January 2017. It was, as the Judge said,premeditated and a breach of trust. No reparation was offered and the Judge was toldthat Mr El-Nafeh had made an application for bankruptcy. The victim impactstatement disclosed the serious financial consequences for the victim of the fraud andthe Judge emphasised that in his decision not to grant home detention.[17] The Judge was not told that if Mr El-Nafeh were given home detention hewould be able to work from home, with the assistance of his wife, and thus supporthis family who would otherwise be reduced to penury. That is not surprising. As thewife's affidavit corroborates, Mr El-Nafeh was unemployed at the date of hissentencing because his employment as a suit salesman could not continue if he weresubject to a home detention sentence. The wife's affidavit talks in general terms aboutan intention that Mr El-Nafeh would carry on his business from home with herassistance. But no particulars are given.[18] The offer by Mr El-Nafeh's mother to help with reparation, and the apparentoffer of a job in a restaurant, were not before the Judge and have occurred only now.They are not relevant to my task as an appellate Judge.[19] Home detention is acknowledged to be a sentence which serves the purposesof denunciation and deterrence. It is particularly appropriate where the need torehabilitate can be emphasised, and it is determined to be the least restrictive sentenceavailable.[20] In this case, with a serious fraud involving a significant breach of trust,committed by a mature man who had nine previous convictions for fraud, and whohad previously served a 10 months sentence of home detention, I cannot say that itwas outside the range of sentences open to the Judge to impose a sentence ofimprisonment. Put another way, imprisonment was not clearly excessive in thecircumstances.Result[21] The appeal is dismissed.________________________________Brewer