KHOJA v NEW ZEALAND POLICE [2019] NZHC 2343

KHOJA v NEW ZEALAND POLICE [2019] NZHC 2343 [17 September 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2019-463-0070[2019] NZHC 2343BETWEEN MOHSIN HASANALI KHOJAAppellantAND NEW ZEALAND POLICERespondentDate of hearing: 17 September 2019Appearances: D W Pawson for the appellantE F Collis for the respondentDate of judgment: 17 September 2019ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:Pawson Law Limited, Te PukePollett Legal Limited, Tauranga[1] Mohsin Khoja pleaded guilty to doing an indecent act on a young person underthe age of 16.1 He then was registered on the Child Sex Offender Register (the"Register").2 He now appeals his conviction and sentence to four months'imprisonment, imposed by Judge I D R Cameron in the District Court at Whakataneon 7 August 2019.3 Mr Khoja appeals against both the District Court's refusal to granthim a discharge without conviction, and his sentence as being manifestly excessive.Background[2] Mr Khoja is a 28-year-old Indian national. At the time of his offending, he wasin New Zealand on a work visa. That visa expired on 27 May 2019, replaced with atemporary limited purpose visa, issued for the express purpose only of allowing MrKhoja to attend court hearings. That visa expired on 14 August 2019.[3] On 7 April 2019 at 6 pm, Mr Khoja was in Opotiki, selling electrical andhousehold goods door-to-door. The 13-year-old victim opened the door to him. Shehad just been in the shower, and was wrapped in a bath towel. Mr Khoja asked if herparents were home. She told him her mother was out. He asked if she had a boyfriend;on her denial, he asked if he could be her boyfriend. She engaged politely with him,despite now being afraid. She told him she could not be his girlfriend, given their agedifference (Mr Khoja then was 27 years old).[4] Mr Khoja said the age gap was inconsequential, and she was now his girlfriend.He hugged her tightly, kissing her on the lips while attempting to put his tongue in hermouth. When she resisted, he pulled back and told her to kiss him. He hugged hertwice more, touching her buttocks over the towel before kissing her again on the mouthand neck. Mr Khoja then left the address after telling her he loved her. She immediatelylocked the door and called a relative for help.1 Crimes Act 1961, s 134(3).2 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a).Registration is mandatory if a sentence of imprisonment is imposed.3 Police v Khoja [2019] NZDC 15630.Judgment under appeal[5] The Judge began with the orthodox three-step approach to a discharge withoutconviction application.4 He characterised Mr Khoja's offending as "serious" with"obvious" aggravating features.5 He took into account the significant "negativeemotional impact" on the victim, as evidenced by the victim impact statement.6Against that, he balanced Mr Khoja's positive references, letter of apology, attendanceat counselling sessions and his apology in open court. Ultimately, the Judge concluded,while there would be consequences for Mr Khoja if convicted, this was seriousoffending likely to attract a sentence of imprisonment. The likely consequences werenot out of all proportion to the gravity of the offending.7 The application for dischargewithout conviction was dismissed.[6] The Judge moved on to sentencing Mr Khoja. He noted, while Mr Khojaminimised his offending in the pre-sentence interview, in court he accepted thesummary of facts was accurate and comprehensively apologised. After canvassingcomparable case law,8 the Judge adopted a starting point of six months' imprisonment(which sat at the lowest end of the identified range). This was reduced to four monthson account of Mr Khoja's guilty plea and remorse. No home detention address wasproffered. An end sentence of four months' imprisonment was imposed.Issues on appeal[7] Mr Khoja's counsel, David Pawson, says the Judge erred in assessing thegravity of Mr Khoja's offending, and his conviction's consequences. Those errorsaffected the proportionality assessment for discharge, and rendered the end sentencemanifestly excessive.4 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.5 Police v Khoja, above n 3, at [4]–[5].6 At [5].7 At [10].8 Jury v Police [2015] NZHC 2587; Berryman v R HC Hamilton A91/98, 28 August 1998; R v ErakiCA73/03, 1 April 2003; and Hallett v Police [2018] NZHC 648.Approach on appeal[8] Courts may discharge an offender without conviction only if the direct andindirect consequences of a conviction would be out of all proportion to the gravity ofthe offence.9 Only then may the Court consider whether to exercise its residualdiscretion.10 The proportionality test is a question of fact requiring judicial assessment.There must be a "real and appreciable" risk any given consequence will happen; thisrecognises the court is assessing future likelihood.11 The offender should putinformation before the court to provide a factual basis for a decision the test has beensatisfied. But there is no legal onus on the offender to do so; all that is required is thejudge be satisfied s 107 is met.12[9] If Mr Khoja can establish Judge Cameron was wrong, I will consider hisdischarge afresh.13 If Mr Khoja's conviction remains, I will decide if the correctsentence was imposed.14[10] I must allow the appeal against sentence only if I am satisfied both there is anerror in the sentence, and a different sentence should be imposed.15 In any other case,I must dismiss the appeal.16 The approach previously taken by courts on sentencingappeals continues to apply;17 the measure of error is the sentence be "manifestlyexcessive" – the principle is "well-engrained" in this Court's approach to sentencingappeals.18 I will not intervene where the sentence is within a range properly justifiedby accepted sentencing principle. Whether 'manifestly excessive' is to be assessed interms of the sentence given, rather than by the process by which it is reached.199 Sentencing Act 2002, s 106; and Z (CA447/2012) v R, above n 4, at [27].10 An appeal against a refusal to grant a discharge is an appeal against conviction and sentence; seeJackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.11 DC (CA47/2013) v R [2013] NZCA 255 at [43].12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; and DC (CA47/2013) v R,above n 11, at [43].13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].14 Jackson v R, above n 10, at [13].15 Criminal Procedure Act 2011, s 250(2).16 Section 250(3).17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].18 At [33] and [35].19 Ripia v R [2011] NZCA 101 at [15].Should Mr Khoja have been discharged without conviction?[11] I turn first to consider if Mr Khoja should have been discharged withoutconviction.—gravity of offending[12] I disagree the Judge overstated the gravity of Mr Khoja's offending. It was ofdirect, unwanted, and resisted intimate contact with a victim less than half his age;facilitated in a predatory way by his work-related access; and inflicted with somedegree of persistence on a 13-year-old girl, who should have been safe in her home. Itinvolved a breach of the trust placed in those who enter private property for work.20[13] The Judge was bound to have regard for the victim impact statement21 – andthe significant distress and trauma caused by Mr Khoja from his victim's perspective,as is the precise objective of a victim impact statement22 – but clearly identified thelimits to its legitimate ambit. The Judge's notes illustrate the statement was far fromcentral to his assessment of gravity, making only one reference to it.[14] And the Judge also had explicit regard for mitigating features personal to MrKhoja. But there is room to doubt their exculpatory scope, given Mr Khoja's pre-sentence interview – only a week before sentencing – in which he blamed the victim,denied knowing of her youth, characterised his comments as "a joke", and describedhis hugs as "normal behaviour".[15] On balance, Mr Khoja's offending is at least of moderate gravity.20 R v Eraki, above n 8, at [15].21 Sentencing Act 2002, s 8(f). The extent of harm resulting from the offence must also be consideredas an aggravating factor under s 9(1)(d).22 Victims' Rights Act 2002, s 17AB:"The purpose of a victim impact statement is to—(a) enable the victim to provide information to the court about the effects of the offending;and(b) assist the court in understanding the victim's views about the offending; and(c) inform the offender about the impact of the offending from the victim's perspective."—consequences of conviction[16] Mr Khoja complains of the ordinary consequences of convictions of this kindon people in his position. Registration as a child sex offender is the automaticconsequence of receiving a sentence of imprisonment for his offending.23 While itcarries negative connotations, that is its point.[17] Any difficulties Mr Khoja might experience in subsequent employment arelargely met by the fact his offending arose in the course of his employment, whichprospective employers are entitled to know. There is nothing in his case justifying myusurpation of Immigration New Zealand's functions.24[18] Deportation is inevitable without an appropriate visa. There is no evidence ofthe "difficulties" Mr Khoja is said to face in India, except his assertion his parentssoon are to retire and will be financially dependent on him. Nothing is evidenced tosuggest he has any special travel requirement which conviction would make moredifficult.[19] There is no evidence to establish any real and appreciable risk specificconsequences will occur,25 as disproportionate. Without such evidence, I conclude MrKhoja's complaints are not beyond those ordinary consequences.—proportionality analysis[20] Mr Khoja's offending was of moderate gravity, at the lower end of offendingof its kind. He has displayed some remorse, while also attending counselling sessions.He is a first-time offender. But the offending itself involved highly inappropriate andinsistent physical contact, rejected and resisted by a 13-year-old girl in her own home.The age disparity, circumstances of how Mr Khoja came to be on the property, and hispersistent conduct are aggravating factors. His pre-sentence report shows a lack of23 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7. See alsoDayaratne v Police [2019] NZCA 30, [2019] 2 NZLR 778 at [5]; and Taitapanui v R [2018] NZCA300 at [1].24 Ji v R [2015] NZCA 308 at [49]; A (CA747/10) v R [2011] NZCA 328 at [30]; Ho v R [2016]NZCA 229 at [15]; and R v Foox [2000] 1 NZLR 641 (CA) at [39].25 DC (CA47/2013) v R, above n 11, at [43], citing Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].insight into his actions. The identified consequences are the ordinary consequences ofoffending of this kind, not at all out of all proportion to the gravity of the offending.[21] The Judge did not err in declining to discharge Mr Khoja without conviction.Was the sentence manifestly excessive?[22] I therefore consider if four months' imprisonment was manifestly excessive.[23] I accept Mr Khoja's likely deportation should not be a factor in determiningthe applicability of any community-based sentence.26 But the Judge did not take thatinto account in declining home detention; rather, he was dissuaded by the flight riskMr Khoja posed.27 Regardless, home detention was not an option for the Judge. Noaddress then was or since has been provided.[24] I also accept some of the authorities referred to by the Judge related to adifferent charge.28 But six months' to two years' imprisonment routinely has beenthought appropriate for offending of this kind.29 There is no guideline case forsentencing in respect of doing an indecent act on a young person, each case turning onits particular facts.30 Care is required in drawing comparisons.31[25] The maximum penalty under s 134(3) is seven years' imprisonment. TheJudge's six-month starting point reflects offending of only moderate gravity. Onreviewing broadly comparable case law – although the current offending involvessomewhat unique circumstances – a six-month starting point is very much at the lowend of the available range.32 No issue can be taken with the two-month discount for26 R v Ondra [2009] NZCA 489 at [7].27 At [19].28 Jury v Police, above n 8; and Hallett v Police, above n 8 (but the offence of indecent assault carriesthe same maximum penalty).29 Berryman v R, above n 8, at 4. See also R v H CA221/05, 17 October 2005 at [12].30 Wild v R [2019] NZCA 189 at [15].31 At [15].32 Tini v Police [2013] NZHC 2143 (a 28-year old courier driver stopped and asked a 12-year oldgirl if she wanted a lift home, before holding her hand and touching her breast; he asked a numberof personal questions and asked if she wanted to be picked up from school; a starting point of tenmonths adopted); and R v Eraki, above n 8 (a taxi driver made unwanted advances on his passenger(a mature woman), by attempting to kiss her multiple times; an end sentence of five months andtwo weeks was imposed on appeal).Mr Khoja's guilty plea and remorse: that equates to a discount of the full 25 per centfor Mr Khoja's guilty plea and more than 8 per cent for remorse (which is generous,given its limited nature here).[26] Thus four months' imprisonment was not manifestly excessive.Result[27] The appeal is dismissed.—Jagose J