HUSSAIN v NEW ZEALAND POLICE [2022] NZHC 3230

HUSSAIN v NEW ZEALAND POLICE [2022] NZHC 3230 [5 December 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000322[2022] NZHC 3230BETWEEN MUAWIN MOHAMMED HUSSAINAppellantAND NEW ZEALAND POLICERespondentHearing: 28 November 2022Appearances: Rajiv Rao for the AppellantSylvie Arnerich for the RespondentJudgment: 5 December 2022JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 5 December 2022 at 3:00 pm.Registrar / Deputy RegistrarDate:Introduction[1] Muawin Mohammed Hussain pleaded guilty to one charge of causing harm byposting a digital communication.1 On 1 September 2022, Judge A G Mahon sentencedhim at the Manukau District Court to nine months' supervision and 180 hours'community work, and ordered him to pay $1,000 reparation for emotional harm.2[2] Mr Hussain now appeals the community work component of his sentence onthe basis he is unable to complete the hours due to his employment commitments. Hesays the community work can appropriately be substituted for a fine. He also seeks tosubmit new evidence in support of his appeal.The facts[3] Mr Hussain is the brother-in-law of the victim. On 13 February 2021,Mr Hussain sent the victim an email via the address"adam.engineer1122@gmail.com" saying, "Hi do want to date." He sent her anotheremail from that address the following day, saying, "Hi what's your contact. If youdon't mind". The victim did not respond to either email.[4] Mr Hussain then, between 17 February 2021 and 13 August 2021, sent thevictim daily Facebook messages from multiple unknown Facebook accounts. Themessages were sexual and explicit. Many contained pornographic images or explicitsexual acts Mr Hussain said he would do to the victim. In the messages Mr Hussainreferred to the victim by name and said he knew facts about her, including where sheworked and lived and where her daughter attended school.[5] Mr Hussain also made multiple Facebook accounts using the victim's nameand her Facebook profile picture. From these accounts he sent friend requests to thevictim's mother-in-law, brother-in-law, two sisters and cousin.1 Harmful Digital Communications Act 2015, s 22. Maximum penalty two years' imprisonment ora $50,000 fine.2 Police v Hussain [2022] NZDC 19368.[6] Terrified and highly distressed by the persistent communication from anunknown source, the victim notified Police. Mr Hussain initially explained he sentthe messages to "play" with the victim. He provided no further motivation for theoffending.District Court decision[7] The Judge's sentencing notes are brief. He recorded he told the appellant hisoffending was very serious and conviction often resulted in a prison sentence.However, the Judge said Mr Hussain's lack of previous convictions and otherfavourable factors set out in the pre-sentence report had persuaded him to address theoffending in other ways. After also noting he was conscious of the effect the offendingwould have had on the appellant's relationships with his family, the Judge convictedand sentenced Mr Hussain.Approach to sentence appeals[8] This Court must allow the appeal if there is an error in the sentence imposedand a different sentence should be imposed.3 Otherwise, the Court must dismiss theappeal.4[9] The sentence must be manifestly excessive before the appeal Court maysubstitute its own views as to the appropriate sentence. The Court will not generallyintervene where the sentence is within the range that can properly be justified byaccepted sentencing principles.5 Whether a sentence is manifestly excessive is to beassessed in terms of the sentence given, rather than the process by which it is reached.6Application to adduce further evidence on appeal[10] For Mr Hussain, Mr Rao advances the appeal in reliance on new evidence inthe form of affidavits made by Mr Hussain and his wife, Ms Ali. Both addressMr Hussain's involvement in his electrical engineering business.3 Criminal Procedure Act 2011, s 250(2).4 Section 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA47 at [30].6 Ripia v R [2011] NZCA 101 at [15].[11] For the evidence to be admitted on this appeal, leave is required. The testgoverning whether leave should be granted is whether it is necessary or expedient inthe interests of justice.7 The respondent does not oppose the evidence being admitted.[12] In this instance I am prepared to admit the evidence, though I note it does notmeet the usual threshold requirement for freshness.8 As Mr Hussain himself admits,the evidence was in existence at the time of his sentencing. It contains material whichought to have been before the District Court.[13] However, I accept the evidence is cogent and credible. Mr Hussain explainshe has never faced a criminal charge before. As a result, he did not understand therequirements and obligations inherent in a sentence of community work. That is whyhe did not produce the evidence of his work commitments at the sentencing. I find theevidence as to this aspect of his evidence credible, although I interpolate to note theCourt should generally be sparing in accepting ignorance of the law and its processesas an excuse for failing to take a particular course. However, because the efficacy ofthe appeal relies on the evidence, it would not be expedient nor in the interests ofjustice in this case to exclude it. I admit the affidavits accordingly.The affidavits[14] In his affidavit of 14 November 2022, Mr Hussain deposes he has worked asan electrician for 18 years and has been self-employed the past 13 years. He operatesan electrical engineering business through two companies of which he and his wifeare the only directors and shareholders. The business provides electrical and securitysystem design, installation and maintenance services to commercial and industrialcustomers nationwide.[15] Although the business employs six full-time electrical apprentices, Mr Hussainis the sole licensed electrician. He therefore bears the sole responsibility forsupervising, connecting and signing off on all work the apprentices complete.7 Criminal Procedure Act 2011, s 335(2).8 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].[16] Mr Hussain estimates he works a minimum of 40 to 50 hours a week. Most ofhis work at customer sites is undertaken on weekdays between 8:00 am and 5:00 pm.However, because he has to work around his customers' operational requirements heoften attends sites on weekends. He deposes the business employs no administrativestaff. He attends to the administrative needs of the business in the evenings of mostweekdays until 9:00 pm or 10:00 pm.[17] The business also provides a 24/7 maintenance or emergency callout service.Mr Hussain says this aspect is a crucial part of the business, estimating he attends threeto five callouts a week on average. He says as the sole licensed electrician, he is theonly employee qualified to attend callouts.[18] He further deposes he frequently travels given the business has customersspread across the country. He estimates that in recent months he has been away fromAuckland two to three nights a week on average.[19] In light of these work commitments, Mr Hussain claims he does not havesufficient time each week to complete the required amount of community work. Hecalculates the sentence works out to approximately 3.8 hours per week in the first sixmonths and approximately 3.1 hours in the second six months. He cites in particularthe inability to respond and attend to emergency callouts if he was undertakingcommunity work. He says his family relies significantly on the business' income tomeet household outgoings and day-to-day living expenses. He is concerned anyimpact on the business will also adversely impact his family, as well as his apprenticeswho rely on his direct supervision and availability.[20] In her affidavit, Ms Ali confirms Mr Hussain's evidence. She says thatalthough she is a co-director of the companies she does not have any formal role in thebusiness and cannot step in for Mr Hussain. She says she has no experience in theelectrical field and has her own full-time employment with the District Health Board.She also says Mr Hussain undertakes the school transport for their two primary-school-aged children.Should the Court intervene on appeal?[21] For the respondent, Ms Arnerich submits the sentence is not amenable toreview because the Judge made no error in failing to account for Mr Hussain'semployment circumstances purely because that information was not referred to him.She cites in support the Court of Appeal's comments in Wikohika v R:9"[24] that where ill-health was not apparent at sentence but evidencecomes to light subsequently, or an intervening event occurs (such as a seriousinjury while in prison), the sentence is unlikely to be reduced on appeal asthere will be an absence of error at the time of sentencing that warrants theappellate court interfering with the sentence under s 250(2) of the CriminalProcedure Act 2011."[22] While I respectfully agree with the Court's comments in Wikohika, I cannotagree they apply on the facts of the present case. In Wikohika, the intervening eventwas the diagnosis of and treatment for breast cancer. However, the diagnosis wasmade after the sentencing and after an appeal to the High Court. Because theintervening event pre-dated the sentencing, the Judge made no error in imposing thesentence.10 In this case, even though Mr Hussain's employment circumstances werenot fully before the sentencing Judge, they were in existence at the time of thesentencing.[23] Mr Rao submits that on a sentence appeal the Court can set aside a sentence ofcommunity work in circumstances where that sentence is not "manifestly excessive"but is, instead, not the appropriate sentence in the circumstances. He notes s 56(1)(b)of the Sentencing Act 2002 requires the Court, when considering whether to impose asentence of community work, to give particular consideration to whether the sentencewould be appropriate having regard to the offender's character and personal history,and to any other relevant circumstances.[24] By way of example he cites Potter v Police, where Asher J substituted asentence of 125 hours' community work for 15 weeks' community detention.11 Therethe defendant offered fresh evidence on appeal of his work commitments which he9 Wikohika v R [2020] NZCA 352.10 The same is true for Poi v R [2015] NZCA 300 at [11]., which the Court of Appeal cites inWikohika.11 Potter v Police [2014] NZHC 1769.claimed would interfere with his ability to comply with his community work sentence.In deciding whether to intervene on appeal, Asher J said:"[18] I have no doubt that the sentence imposed by Judge Fraser wasappropriate in the circumstances and that he made no error at the time.However, I have before me relevant new material which was not drawn to hisattention. That new material indicates that community work is not anappropriate sentence if Mr Potter is to meet his work and domesticcommitments.[20] Given that there was inadequate material before the Judge on the issueof community work, I consider it appropriate for this Court to intervene onappeal."[25] This reasoning, with which I agree, is directly applicable to Mr Hussain's case.On its face, the sentence imposed by the Judge was appropriate based on theinformation then before him. However, he did not have all relevant, materialinformation that could have been available to him at the time.12 That constitutes an"error", although not of the Judge's own making, rendering the sentence amenable toreview on appeal. The Court of Appeal explained in Tutakangahau v R that theconcept of "manifestly excessive" is merely "a means of examining the significanceof the error to decide whether a different sentence should be imposed."13 But that it isnot the test in and of itself. Instead, it must be shown there was an error "whetherintrinsically, or as a result of additional material submitted" on appeal.14[26] However, unlike Asher J in Potter, I am not convinced the affidavit evidenceshows Mr Hussain would be unable to comply with his community work sentence.Asher J's decision to intervene in Potter was driven by the fact he considered asentence of equal gravity (in the form of community detention) was available as analternative to community. My reasons follow.12 That is, of course, Mr Hussain's fault, but because I have decided it is in the interests of justice toadmit the new evidence on appeal, it is immaterial where the fault lies.13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, above n 5, at [32].14 At [30], citing R v Shipton [2007] 2 NZLR 218 (CA) at [139].Is Mr Hussain unable to comply with his community work sentence?[27] First, there is no evidence that the Department of Corrections' ("Corrections")requirements under a sentence of community work would prevent his ability to complywith the order of community work. There is no evidence before me as to whenMr Hussain would be required to undertake community work, what that work wouldinvolve or where it would be undertaken. I was advised from the bar that Correctionsare prepared to be flexible and adaptable to the needs of those sentenced to communitywork. However, on the material before me I simply do not know. Mr Rao's responseis that irrespective of flexibility, Mr Hussain's work obligations being on call all dayevery day make this factor of no moment. For reasons which follow I cannot agree.[28] Secondly, I cannot accept Mr Hussain's bald assertion that because he needs tobe on call at all times he cannot comply with the sentence. This claim begs the obviousquestion of what contingencies Mr Hussain has in place should he fall so ill he isunable to work or where events in his life or in connected others' lives require him tobe away from work? Every business will have strategies in place to cover theinevitable, unplanned absences of essential workers. Furthermore, how doesMr Hussain deal with emergency callouts when he is already out dealing with anexisting emergency? He cannot be in two places at the same time. As a prudent andapparently successful and able businessman, it is inconceivable that he does not havesome form of cover by an appropriately qualified technician or locum. Again, theevidence is silent on this.[29] Thirdly, it cannot be overlooked that the sentence imposed was for very seriousoffending which, ordinarily, would attract a sentence of imprisonment as the Judgeobserved. The Judge determined that Mr Hussain's personal circumstances operatedto reduce what would otherwise have been a full-time custodial sentence. Althoughthe complainant now supports the appeal, her victim impact statement makes it clearthat she was understandably extremely traumatised and deeply affected by the courseof highly sexualised and explicit messages she received from an unknown person. Shewas unable to sleep. She believed someone was watching her and her children. Sheneeded others to escort her to and from her work carpark in case the offender was"waiting to pounce" on her. She lost her trust in others.[30] Fourth, and relatedly, a fine – even a substantial fine – would represent awholly inadequate response to the offending. I am also not satisfied a fine is theappropriate penalty for Ms Hussain's offending. Section 13 of the Sentencing Actrelevantly provides:"13 Sentence of fineIf a court is lawfully entitled under this or any other enactment toimpose a fine in addition to, or instead of, any other sentence, the courtmust regard a fine as the appropriate sentence for the particularoffence unless—(a) the court is satisfied that the purpose or purposes for which sentenceis being imposed cannot be achieved by imposing a fine; or(b) the court is satisfied that the application of any of the principles insection 8 to the particular case make a fine inappropriate; or(c) (d) the court is satisfied that a fine, on its own or in addition to a sentenceof reparation, would otherwise be clearly inadequate in thecircumstances."[31] Mr Rau says a "reasonably substantial fine" should be substituted. In oralsubmissions he suggested a fine in the range of $3,000 to $5,000. As noted, I agreewith the Judge's assessment that Mr Hussain's offending was very serious. Theimposition of a fine would not be sufficient to hold Mr Hussain accountable for hisoffending, to promote in him a sense of responsibility for the harm he caused, or todenounce his conduct.[32] On the other hand, a sentence of community work in tandem with supervisionand a reparation payment for emotional harm is sufficient to meet those objectives.[33] Fifth, every sentence, to a greater or lesser extent, involves some level ofintrusion and/or inconvenience to the person who is subject to it. Such persons willusually have to make adjustments of some sort in their lives. That is implicit and anatural consequence of any Court imposed sanction. That a sentence of communitywork may be inconvenient or even very inconvenient to Mr Hussain does not make itan inappropriate sentence.[34] Sixth, in relative terms the degree of intrusion or inconvenience to Mr Hussainis modest. Mr Hussain needs only to undertake fewer than four hours of communitywork per week in the first six weeks and just over three hours per week thereafter.That is hardly onerous.Conclusion[35] Accordingly, I find that the Judge made no error in sentencing Mr Hussain, nordo I consider a different sentence should be imposed.Result[36] The appeal is dismissed.Moore JBarristers/Solicitors:Mr Rao, AucklandCrown Solicitor, Manukau