MEHRABI v NEW ZEALAND POLICE [2021] NZHC 750

MEHRABI v NEW ZEALAND POLICE [2021] NZHC 750 [8 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-004-008058[2021] NZHC 750BETWEEN MEHDI MEHRABIAppellantAND NEW ZEALAND POLICERespondentHearing: 22 March 2021Counsel: S J Mitchell for appellantR Morrison for respondentJudgment: 8 April 2021JUDGMENT OF KATZ J[Appeal against refusal to grant a discharge without conviction]This judgment was delivered by me on 8 April 2021 at 11:30 amRegistrar/Deputy RegistrarSolicitors: Meredith Connell, Office of the Crown Solicitor, AucklandCounsel: S J Mitchell, Barrister, AucklandIntroduction[1] Mehdi Mehrabi pleaded guilty to one charge of assault1 and two charges ofbehaving threateningly.2 He applied to be discharged without conviction, but hisapplication was declined by Judge P J Sinclair.3 Mr Mehrabi now appeals thatdecision. The issue on appeal is whether the Judge erred in finding that theconsequences of Mr Mehrabi's convictions were not out of all proportion to the gravityof his offending.Facts[2] Mr Mehrabi has family members who live next door to the two victims of hisoffending (whom I will refer to as "AB" and "CD"). The two properties share acommon driveway.[3] On the morning of Saturday 24 August 2019, AB was walking up his driveway.Mr Mehrabi parked his vehicle in the driveway and said sternly to AB "I need to speakto you". Mr Mehrabi then got out of his car and approached AB saying, "You owe mefifteen hundred bucks for my son's tail light that you hit". AB asked, "What are youon about?" to which Mr Mehrabi replied, "Are you gonna pay me or are we gonnahave trouble?" AB responded, "Are you serious?" to which Mr Mehrabi replied"Yeah, I am. Are you gonna pay me or is there going to be trouble?" While he wassaying this, Mr Mehrabi stepped towards AB. AB asked, "Are you threatening me?"to which Mr Mehrabi replied, "I'm more than threatening you". AB felt threatenedand started backing away, towards the street.[4] Mr Mehrabi then exclaimed: "If you're not going to pay, I'll take my money".He began walking towards AB's house, and AB followed behind him. Mr Mehrabiresponded by thrusting an open palm into AB's throat. This caused AB to stumbleback a few steps. He suffered some throat pain but had no lasting injuries.[5] The second victim ("CD") heard the commotion in the driveway and came out1 Crimes Act 1961, s 196. Maximum penalty of 1 years' imprisonment.2 Summary Offences Act 1981, s 21(1)(a). Maximum penalty of 3 months' imprisonment or a fineof $2000.3 Police v Mehrabi [2020] NZDC 23281.to see what was happening. She saw Mr Mehrabi walking in her direction. AB yelledat her to "get inside". CD felt threatened and turned to run back inside. In her haste,CD fell over, injuring her knee. She was five months' pregnant at the time.[6] Mr Mehrabi then returned to his vehicle and left the scene after telling AB:"Trust me, this isn't over".[7] When spoken to by police, Mr Mehrabi denied the offending and claimed itwas a "set up". As previously noted, however, he later entered guilty pleas to thecharges.Relevant law[8] Section 106 of the Sentencing Act 2002 (the "Act") provides that if a personpleads guilty to an offence, the Court may, instead of imposing a sentence, direct thatthe offender be discharged. The Court must not discharge an offender withoutconviction unless the Court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.4[9] In Z v R, the Court of Appeal set out a three-stage test to be applied by thecourts when considering applications for a discharge without conviction:5That is: when considering the gravity of the offence, the court should considerall the aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).District Court decision[10] Judge Sinclair refused Mr Mehrabi's application for a discharge withoutconviction.6 Applying the three-stage test set out above, her Honour first considered4 Sentencing Act 2002, s 107.5 Z v R [2012] NZCA 599, [2013] NZAR 142 (CA) at [27] citing Blythe v R [2011] NZCA 190,[2011] 2 NZLR 620 (CA). See also A (CA747/10) v R [2011] NZCA 328.6 Police v Mehrabi [2020] NZDC 23281.the gravity of the offending. The fact that Mr Mehrabi had previously received adischarge without conviction for assault was found to be an aggravating factor of theoffending.7 No credit for rehabilitative efforts was given as Mr Mehrabi had not takensteps to address the underlying causes of his offending.8 Factoring in Mr Mehrabi'sguilty plea, the gravity of the offending was assessed as being between low andmoderate.9[11] The Judge then considered the direct and indirect consequences of enteringconvictions. The first consequence relied upon by Mr Mehrabi was that if he wereconvicted, he may struggle to obtain a liquor license for a restaurant he was planningto open. The Judge expressed concern at the paucity of information before her on thisissue, which made it difficult for her to verify the genuineness of Mr Mehrabi's statedintention to open a business. This was not her critical concern, however. Rather:10more importantly, there is no information before the Court verifying how aconviction could impact your ability to obtain a liquor licence withconvictions for assault and behaving threateningly. In Graves v Police, theCourt held that the loss of an offender's liquor licence was not an automaticconsequence of conviction. Rather, the conviction would be one factor thatthe liquor licensing authority would take into account when reviewing theoffender's licence. The authority would also have the benefit of the Court'sjudgment to aid its decision.(Footnote omitted)[12] Her Honour concluded that the decision whether to grant Mr Mehrabi a liquorlicence should be made by the liquor licensing authority, with all the relevantinformation before it. The Court should not usurp that authority. She noted that highercourts have frequently held that where there is an independent body charged withdetermining the suitability of an individual for a licence, that body is best placed tomake the decision.11[13] The second consequence relied on by Mr Mehrabi was that he was hoping tomarry an Iranian woman and sponsor her to enter New Zealand. He was concernedthat a conviction would be detrimental to his chances of successfully doing so. The7 At [9]-[13].8 At [13]-[14].9 At [15]-[16].10 At [19].11 At [20].Judge found this concern to be speculative.12 Further, the appropriate body to considerand determine any spousal sponsorship application from Mr Mehrabi is ImmigrationNew Zealand, not the Court.13 Again, the Court should not usurp the processes of thatbody.[14] The Judge then applied the third stage of the test, balancing the low to moderategravity of offending with the consequences of the offending. She concluded that theconsequences of the conviction were not out of proportion to the offending, andtherefore a discharge without conviction should not be granted.14Approach on appeal[15] An appeal against the refusal to grant a discharge without conviction unders 106 of the Act is an appeal against both conviction and sentence.15 In Jackson v R,the Court of Appeal commented that:16 the principled basis for determining an appeal against a discharge withoutconviction is to establish that a miscarriage of justice has occurred by virtueof a material error by the sentencing judge in entering a conviction. That isbecause a trial includes a proceeding in which the appellant has pleaded guilty.Alternatively, it can be said that a miscarriage of justice has occurred "for anyreason" if the Judge has erred in applying the principles for discharging anoffender without conviction found in s 107 of the Sentencing Act.[16] The threshold test in s 107 is not a matter of discretion, but a matter of factrequiring judicial assessment, which can be subject to appeal on normal appellateprinciples.17 The discretionary power of the court to discharge without convictionunder s 106 arises and exists only if the court is satisfied that the s 107 threshold hasbeen met.1812 At [21].13 At [22]-[23].14 At [24].15 Jackson v R [2016] NZCA 627 at [7].16 At [12].17 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 (CA) at [11].18 At [11].Did the Judge err in finding that the consequences of Mr Mehrabi's convictionswere not out of all proportion to the gravity of his offending?[17] Mr Mitchell, counsel for Mr Mehrabi, submitted that the Judge had overstatedthe gravity of Mr Mehrabi's offending and had understated the consequences of hisconvictions. This had necessarily impacted on the final stage of the process – thebalancing exercise.Did the Judge overstate the gravity of Mr Mehrabi's offending?[18] Mr Mitchell submitted that the Judge made two key errors when assessing thegravity of Mr Mehrabi's offending:(a) she took into account that he had previously received a dischargewithout conviction; and(b) she should have adjourned sentencing and ordered Mr Mehrabi toattend a publicly funded anti-violence programme, which would haveimproved his prospects of being able to secure a discharge atsentencing.[19] Mr Mehrabi's earlier discharge without conviction related to a common assaulton his then wife. During an argument, Mr Mehrabi slapped the victim once with anopen palm, connecting with her ear and causing her to lose partial hearing for aboutfive seconds. The impact site was red and tender. In explanation, Mr Mehrabiadmitted that he had slapped the victim with an open palm, but said he could notexplain why, as he was drunk at the time.[20] The Judge did not err in taking into account Mr Mehrabi's prior dischargewithout conviction in assessing the gravity of his offending. Hore v Police,1919 Hore v Police [2015] NZHC 2313.MacDonald v R,20 and Sena v Police21 all provide clear authority that doing so ispermissible. In MacDonald v R, the Court of Appeal observed that:22 even in cases where the previous discharge relates to a different type ofoffending, the fact an applicant has already had the benefit of a discharge isstill a relevant factor that weighs against the grant of another discharge.[21] In Sena v Police, Downs J noted, in relation to the defendant's prior conduct(which had resulted in a discharge without conviction) that the fact that "convictionswere not entered in connection with this conduct does not render it immune fromanalysis".23 Downs J observed that although the fact of an earlier discharge sits morelogically at the final, discretionary, stage, the earlier conduct that underpinned thedischarge may aggravate the severity of latter offending of the same type. "This is notto engage in double-counting; the two aspects are conceptually distinct."24[22] Here, the violent aspect of the prior offending is similar to the violence inflictedin the present offending. The Judge was correct to consider the earlier conduct to bean aggravating feature.[23] Nor do I find the submission that the Judge should have ordered Mr Mehrabito attend a publicly funded anti-violence programme (as this might have improved hisprospects of obtaining a discharge) to be persuasive.[24] Mr Mitchell advised that Mr Mehrabi is unable to afford to pay for ananti-violence programme himself, as the cheapest private one he could find cost $800.If the Court ordered that he attend a publicly funded programme, however,Mr Mehrabi would be willing to do so. Mr Mitchell submitted that this Court shouldorder Mr Mehrabi to attend such a programme and then either re-sentence him, havingregard to his attendance, or remit the matter back to the District Court forre-sentencing.20 MacDonald v R [2019] NZCA 91.21 Sena v Police [2017] NZHC 2319.22 MacDonald v R [2019] NZCA 91 at [28].23 Sena v Police [2017] NZHC 2319 at [88].24 At [106].[25] Judge Sinclair was not persuaded that Mr Mehrabi's sentencing should beadjourned to enable Mr Mehrabi to undertake an anti-violence programme and/orattend a restorative justice conference, in order to enhance his application for adischarge. She observed that it was not clear why he had not engaged in theseprocesses earlier. The charges were laid in August 2019. Mr Mehrabi pleaded guiltya year later, in August 2020. He failed to attend sentencing in October 2020 and waseventually sentenced on 11 November 2020. Her Honour concluded that:25There is no reason why you could not have engaged in a programme, even ifyou had not completed the programme by sentencing, to illustrate yourcommitment. In any event, while this may have reduced the gravity of youroffending, in my view it would not have been sufficient to outweigh the directand indirect consequences, given the aggravating features I have justdiscussed.[26] Judge Sinclair's analysis of this issue cannot be faulted. There is no evidencethat Mr Mehrabi took any rehabilitative steps following his assault on his then wife in2014. In relation to the current offending, Mr Mehrabi has now had 19 months todemonstrate that he is seriously committed to rehabilitation. He has not done so. Itseems inherently unlikely that in such a lengthy period he would have been unable tosave, borrow, or otherwise find $800 to attend an anti-violence programme had hebeen genuinely motivated to do so. Indeed, I note that on 9 October 2020 he borrowed$40,000 from a finance company, which he is using to set up his business. If attendingan anti-violence programme had been a priority for Mr Mehrabi, he would have founda way to do so. Little turns on his non-attendance, however, as I share the Judge'sview that such attendance would not have been sufficient to tip the balance in favourof a discharge without conviction.[27] In conclusion, the Judge did not overstate the gravity of Mr Mehrabi'soffending.Did the Judge understate the direct and indirect consequences of a conviction?[28] I now turn to consider Mr Mitchell's submission that the Judge understated thedirect and indirect consequences of a conviction.25 Police v Mehrabi [2020] NZDC 23281 at [14].[29] Mr Mehrabi filed an affidavit in support of his appeal to address the Judge'sconcern at the paucity of information before her regarding Mr Mehrabi's intention toset up a restaurant business. Based on the documents annexed to that affidavit, I acceptthat Mr Mehrabi is taking steps to set up such a business. Counsel advised that thebusiness is in the nature of a burger bar.[30] The provision of this new information, however, does not undermine the twokey strands of the Judge's reasoning in relation to this issue. Specifically, she statedthat:(a) There was no information before the Court verifying how the entry ofconvictions would impact Mr Mehrabi's ability to obtain a liquorlicence. It appeared, however, that convictions would simply be onefactor that the liquor licensing authority ("Authority") would take intoaccount.(b) It was not for the Court to usurp the role of the Authority.[31] I agree with the Judge on both matters. When considering applications fordischarge without conviction, courts have generally been reluctant to undermine therole of statutory authorities. As Wylie J observed Roberts v Police:26Where Parliament has seen fit to establish a statutory authority with the taskof selecting or screening applicants for admission to whatever trade orprofession may be involved then clearly Parliament has contemplated thatthose bodies should exercise a discretion as to admission in the light of theexpertise that those bodies will build up over a period of time and with theknowledge of the kind of qualities that are appropriate for the particular tradeor profession and those which render admission to that trade or professioninappropriate. It seems to me that it would be inappropriate, at any rate inall but the most exceptional case, for this Court to substitute its discretion asto what may or may not be relevant on the seeking of admission to a particularprofession for the discretion which Parliament has seen fit to vest in a statutorybody. Indeed, it is not perhaps going too far to say that to do so the Courtwould be actively concealing from the statutory body information whichought properly to come before that body.26 Roberts v Police (1989) 5 CRNZ 34 (HC) at 36-37.[32] In Graves v Police, Lang J commented (in relation to the prospective loss of amanager's license granted by the Authority) that:27Had the conviction meant that Mr Graves would automatically lose hismanager's licence, it is likely that I would have determined that theconsequences of the conviction would be disproportionate to the gravity of theoffending. I am satisfied, however, that that is not the case. The conviction,and the circumstances that led to it being entered, are just one aspect ofMr Graves' circumstances that the Authority will need to take into account.The Authority will also have the benefit of Judge McGuire's decision and mytwo judgments, and it will no doubt be able to gauge the nature and culpabilityof Mr Graves' offending from them. For that reason I do not accept that theconviction will automatically mean that Mr Graves will lose his manager'slicence.[33] Here, there is no evidence that Mr Mehrabi's convictions will automaticallyprevent him from obtaining a liquor licence. Rather, they will be one factor for theAuthority to consider. Further, his offending is clearly relevant to an assessment ofMr Mehrabi's suitability to hold a liquor licence. It would therefore be inappropriatefor this Court to (in effect) conceal Mr Mehrabi's convictions from the Authority,thereby preventing it from making a fully informed assessment of Mr Mehrabi'ssuitability as a licensee.[34] Similarly, it is for the relevant immigration authorities, not this Court, to assessMr Mehrabi's suitability to sponsor the entry into New Zealand of his potential futurewife. His convictions will be relevant to that assessment, although not determinative.In Singh v R, the Court of Appeal noted that the Courts have been reluctant to considerimmigration consequences in discharge without conviction applications.28 Rather, theusual approach has been to leave immigration matters to the immigration authorities.29The Judge was clearly correct to take that approach here.[35] In conclusion, the Judge did not err in her analysis of the consequences ofentering convictions in respect of the charges.Proportionality test[36] It follows that the Judge did not err in finding that the consequences of a27 Graves v Police HC Rotorua CRI-2010-463-57 at [25].28 Singh v R [2020] NZCA 411 at [14].29 At [14].conviction were not out of all proportion to the gravity of the offending. The Judgecorrectly determined that the gravity of Mr Mehrabi's offending was low to moderate.The consequences of a conviction proffered by Mr Mehrabi were by no means certainand, in any event, whether or not those consequences eventuate are mattersappropriately left to the determination of the relevant statutory bodies. Their rolesshould not be usurped or undermined by the Court. The Judge therefore did not err inrefusing to discharge Mr Mehrabi without conviction.Result[37] The appeal is dismissed.____________________________Katz J