NOORI v NEW ZEALAND POLICE [2023] NZHC 3799

NOORI v NEW ZEALAND POLICE [2023] NZHC 3799 [4 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-521[2023] NZHC 3799BETWEEN PERS PUSHO NOORIAppellantAND NEW ZEALAND POLICERespondentHearing: 4 December 2023Appearances: H Shim for the AppellantM Nash for the RespondentJudgment: 4 December 2023ORAL JUDGMENT OF BECROFT J[As to appeal against conviction and sentence]Solicitors/Counsel:J Yi, Barrister, AucklandMeredith Connell, AucklandThe appeal[1] On 17 September 2022, the appellant, Pers Pusho Noori (Mr Noori), assaultedhis stepfather outside Upland Liquor Spot on Remuera Road, Auckland.1[2] Mr Noori saw his stepfather inside the liquor store and followed him, verballyabusing him. The stepfather left the store. As he did, Mr Noori took a swing at him,but missed. The stepfather then went back to his vehicle. Mr Noori followed himthere and confronted him a second time. He gained access to the vehicle, grabbed hisstepfather by his clothing and tried to drag him out from the front passenger side. Hepunched his stepfather once with a closed fist to the left cheek and kicked him to theleft upper thigh.2[3] After pleading guilty to a charge of common assault,3 Mr Noori applied for adischarge without conviction under s 106 of the Sentencing Act 2002.[4] District Court Judge CM Ryan heard the application. She noted that Mr Noori,to his credit, had admitted that he had previously received a discharge withoutconviction in 2020 for assaulting his mother with intent to injure her. Now, on similargrounds, he was advancing another application, this time for an assault on hisstepfather.4[5] The Judge assessed the gravity of the offending as low.5 She rejected purportedtravel consequences as speculative and a little uncertain at this stage of his life andalso largely arising because of his behaviour (which he would inevitably have toexplain), rather than because of any conviction.6 Further, purported employmentconsequences were speculative.7 This left only general consequences that apply to allthose in these circumstances convicted of an offence such as this.8 She found that1 New Zealand Police v Noori [2023] NZDC 21244 at [3].2 At [4].3 Crimes Act 1961, s 196.4 Above n 1, at [2].5 At [51].6 At [62].7 At [63].8 At [52] and ]64].those consequences were not out of all proportion to the gravity of the offending inthis case. Therefore, she dismissed the application.9Grounds of appeal[6] Mr Noori now appeals. He makes three arguments set out in Mr Shin's veryhelpful and comprehensive submissions:(a) The Judge erred by placing excessive weight on the gravity ofoffending. This is particularly in the light of the challenges in life hehas faced to date and was experiencing at the time. Also, the evidenceset out in the fresh affidavit of his stepfather, the victim, who is entirelysupportive of the Court according lenience by way of a dischargewithout conviction, must reduce the Court's assessment of the offence'sgravity.(b) The Judge erred by placing insufficient weight on the consequences ofconviction. Those consequences relate to, first, citizenship, second,overseas travel and third, employment.(c) The Judge erred in applying the balancing test.[7] In Mr Shin's view all the factors, when properly assessed, and particularly asto the consequence of conviction, mean that a conviction was out of all proportion tothe low gravity of the offending.Police opposition[8] The respondent opposes the appeal, submitting that the Judge was correct inthe entirety of her decision on the application.[9] However, no issue is taken with the application for leave to adduce the victim'saffidavit in support.9 At [64].[10] I have read the affidavit from the victim. It is not fresh in the sense it couldhave been obtained at the time. But the victim was overseas which would have madeit more difficult to obtain. It is relevant and it is cogent. I grant the application forleave to adduce it in support of Mr Noori's appeal.Approach on appeal[11] It is agreed between counsel that the proper approach on this appeal as set outin the submissions for the Police.[12] An appeal against a refusal to grant a discharge without conviction is acomposite appeal against both conviction and sentence.10 The appeal is by way ofrehearing whereby the appellate court makes its own assessment of whether the criteriafor discharge without conviction are met.11[13] The appellant bears the onus of satisfying the appeal court that it should differfrom the decision under appeal.12 Unless satisfied that a miscarriage of justice hasoccurred, the Court must dismiss Mr Noori's appeal.13 In the context of a dischargewithout conviction, a miscarriage of justice means a "material error" or that the Judge"erred in applying the principles" for discharging an offender without conviction.14Discharge without conviction – s 106[14] As to the appropriate process in assessing an application for a dischargewithout conviction, it is agreed that the approach set out the Police submissionsapplies.2.3 Discharges without conviction are made under s 106 of the SentencingAct 2002. Section 107 in turn provides that the discretion should onlybe exercised if "the court is satisfied that the direct and indirectconsequences of a conviction would be out of all proportion to thegravity of the offending".10 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].11 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].12 Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].13 Criminal Procedure Act 2011, s 232(2)–(3).14 Above n 10, at [12].2.4 The disproportionality assessment is made according to the three-stepapproach set out by the Court of Appeal in Z (CA447/2012) v R:15(a) identify the gravity of the offence, including the aggravatingand mitigating factors of the offending and the offender;(b) identify the direct and indirect consequences for the offender;and(c) determine whether those consequences are out of allproportion to the gravity of the offending.2.5 In terms of determining whether something is a "consequence", it isnot necessary for the Court to be satisfied that the outcome isinevitable. All that is required is a "real and appreciable risk" of itoccurring. If there is such a risk, the nature and seriousness of theconsequence, as well as the degree of likelihood of it occurring, willbe material to the Court's assessment of whether the consequences areout of all proportion to the gravity of the offence. As the Court saidin Iosefa v New Zealand Police, "In other words, the higher thelikelihood and the more serious the consequences the more likely it isthat the statutory test can be satisfied".16[15] As will be seen, this appeal focusses on each of the three steps required to befollowed in assessing whether a discharge without conviction should be granted. Ideal with each of those in turn.[16] For completeness, I add that there is no inviolable principle that a personcannot receive a second discharge without conviction, or a third for that matter. Eachapplication must be judged in the context of its own circumstances. That said, the factthat a previous discharge has been granted, especially for similar offending, will berelevant in assessing the appropriateness of a discharge and will sometimes weighheavily against it being granted.Did the Judge err by placing excessive weight on the gravity of the offending?[17] The first thing to say is that Judge Ryan concluded at paragraph [51] that thegravity of the offending must be regarded as "low".15 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].16 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].[18] She reached that conclusion by first identifying what actually happened. Shecorrectly noted that Mr Noori, after verbally abusing his stepfather and swinging apunch at him that missed, could have ended the situation then. But he did not. Hechose to follow him. She noted that although the stepfather wisely got out of the liquorstore and got into his car, Mr Noori followed him and confronted him again. Hegrabbed at his shirt, tried to pull him out of the car, punched him in the side of the headand kicked him. She noted that there were a number of offences rolled into oneperpetuated against this 56-year-old man. He was trying to get away and not to engagein conversation. Earlier on in her remarks, she had discussed, in a colourful way, theinherent dangers of attacks to a person's head. Perhaps it might be said, in thecircumstances where there was no expert evidence, the learned Judge slightlyexceeded what might have been appropriate.[19] All that said, her analysis cannot be faulted. On the basis of the facts she hadrecited, Judge Ryan correctly considered the gravity to be moderate.[20] But then she looked, as she had to do, at the circumstances of the offender. Sherecognised that Mr Noori pleaded guilty; that he had completed a "Stopping Violence"course; that he had put money into his stepfather's account to assist in terms ofcashflow. He was independent with his own financial affairs under control. He hadbeen promoted in a company which appeared to speak highly of him and where hewanted to make it his future. In fact, it was observed this was not the first non-violencecourse he had undertaken. To his credit, he has undertaken a further non-violencecourse.[21] In my view, it was very fair for Judge Ryan to reduce her the initial assessmentof the gravity of offences from moderate to low. When I pushed Mr Shin as to howthis could be said to be in error, he emphasised that it was a matter of semantics andterminology. He would have preferred an assessment that described the gravity asbeing "very low" or indeed "exceptionally low" or something less serious than "low".[22] Frankly, I think that is somewhat akin to "dancing on the head of a pin". Imean no disrespect to Mr Shin but, traditionally, Judges would usually view theoffending as falling into one of three general categories: low, moderate or serious.[23] In the round, it seems to me that Judge Ryan's assessment was perfectlyappropriate. There has been no material error.[24] I certainly take into account the new evidence from the victim. He is clearlysupportive of the application. He explains that he had a "sore cheek and leg butnothing major and nothing that required medical treatment". However, with his friendat the time, he reported the matter by attending at the Police station. That may indicatethat it was not viewed by him as being trivial.[25] However, since that time, he notes that Mr Noori has reached out to him. Hehas apologised to him. Mr Noori has explained that he saw his mother as siding withhis stepfather which led to Mr Noori having to leave the family home and beinghomeless for a little while. He said that caused him real difficulty.[26] The victim also explains that there have been no arguments between them sinceand that they are now on very good terms. He also notes that Mr Noori is a goodperson at heart who has gone through a lot of difficulties, but he has picked himselfup very well and is doing well for himself. He says he fully supports his appeal for asecond chance. Technically that might be read as a third chance.[27] At any rate, the affidavit evidence certainly adds to the submission that theoffending for a Crimes Act common assault carrying a one-year maximum sentence istowards the bottom or low end of the scale – however that best be adjectivelydescribed. But there is no error by the Judge at this first step of the process.[28] I add that rather than a discount for previous good character, as argued for at[19(e)] of the appellant's submissions, it would have been open to the Judge to assessMr Noori's culpability as being higher than she did on the basis of his previousdischarge without conviction. This is permitted where a previous discharge withoutconviction has been given in relation to similar offending.17 This is the case here – MrNoori has assaulted his stepfather, having previously received a discharge withoutconviction for assaulting his mother with intent to injure her. I say no more than that.17 Swami v New Zealand Police [2012] NZHC 2725 at [25], citing Morgan v Police HC AucklandCRI-2009-404-212, 8 October 2009; and citing Police v McCabe [1985] 1 NZLR 361 (HC).Did the Judge err by placing insufficient weight on the consequences ofconviction?[29] Three particular consequences were adverted to by Mr Shin. I deal with themin order.Citizenship consequences[30] First, that Mr Noori's application for New Zealand citizenship would be moredifficult. In fact, as Ms Nash fairly observed, in Mr Noori's affidavit what he actuallysays about citizenship at paragraphs [34] and [35] is as follows:[34] I am currently living in New Zealand as a permanent resident. I wantto be able to apply for citizenship in New Zealand some day becauseI really like living in New Zealand.[35] I have heard that if I get a conviction, it will make it harder inbecoming a New Zealand citizen.[31] Mr Noori has not yet applied for New Zealand citizenship. This is somethingthat apparently will take place in the future. It is quite correct that under s 9A(1)(c) ofthe Citizenship Act 1977, because of this conviction, he would be required to wait outthree years before he can apply. That is presumably to demonstrate offending-freebehaviour and an otherwise responsible lifestyle in New Zealand. At that stage he willhave to pass the "good character test" set out in s 8(2)(c) of the Act. He will not thenbe "barred from citizenship", but a conviction such as this will raise what might beproperly called a "real and appreciable" difficulty.[32] I have no evidence before me as to what extent that will create such a difficulty.It will certainly be a hurdle for Mr Noori to jump. Mind you, I would think he wouldhave to explain his earlier behaviour where he was discharged without conviction inrespect of a charge of assault with intent to injure of his mother. So there will be, asMs Nash puts it, a marginal increase in the difficulty if a conviction is imposed herebecause he would have to disclose this second set of offending behaviour in any case.[33] Taken by itself, it seems to me the citizenship risk is an appreciable hurdle andMr Noori will, if he wishes to apply to become a New Zealand citizen, have to explainthis behaviour and that against his mother. But they can hardly be said to beinsuperable hurdles.Travel consequences[34] Second, Mr Noori is concerned that a conviction will stop him travellingoverseas. He particularly noted, through counsel, that he wished to travel to Australia,the USA and Japan. Certainly, none of those countries bar entry from someoneconvicted of an offence such as this. But the offending will certainly need explanationand it will make it harder to gain a visa.[35] I have no further information before me than that. This is not a situation as setout in the case of D v R,18 where the appellant was required for employment purposesto travel legally and at short notice to Australia. Her position was supported by wayof letter from her employer. There is no such information or a similar position here.Mr Noori is really talking about his desire for further travel, and it may be as part ofhis employment. But no more than "may be" that he might be required to do. Thereis no further information than that.[36] These matters were all carefully addressed by Judge Ryan. She made clear atparagraph [59] of her decision that while entry into the countries previously describedwill be harder, how much harder it will be for Mr Noori is a matter, as the Judge putit, "of speculation". It will be for the Australian authorities, she noted, to considerhow the conviction reflects on Mr Noori's good character. She then went on to providea more detailed analysis:[60] Next, the evaluation must be conducted with reference to all relevantconsiderations. That clearly means, as the High Court held in Wanoa that anyadverse consequences will arise out of the nature of the offending, rather thanthe conviction. Immigration authorities' consideration of all relevantcircumstances suggests that any adverse consequences must follow from thenature of the offending, rather than the conviction itself. That means that whatis key to the Australian authorities, in addition to US authorities and from thelimited information provided to me about Japan, the Japanese authorities, isthe nature of the offending.18 D v R [2019] NZHC 2857.[61] It is therefore not the conviction, but what Mr Noori has actually donethat is relevant to those authorities. That is the same in New Zealand inrelation to visas and citizenship as held in Sok v R and other cases.19Deportation and the rejection of an application for citizenship is aconsequence of the offending.20 All the authorities will have to consider thecircumstances and decide accordingly.[62] Mr Noori will have to, whatever I do, disclose to the US andAustralian authorities, at least, what he has done to his mother as well as whathe has done to his stepfather. That is so whether I convict him today or not.Furthermore, given the vagaries about Mr Noori's travel plans, I consider thatthe consequences are vague and uncertain, not real and appreciable.[37] In my view it cannot be said that Judge Ryan was in error in this approach. Itseems to be consistent with the authorities. Again, as Ms Nash pointed out, in anycase Mr Noori will have to disclose all his behaviour. There will be an increaseddifficulty, but only marginally so if a conviction is imposed, over and above what hewould have to explain in any case.Employment[38] As to employment, clearly Mr Noori is concerned that a conviction may blightfuture employment prospects. I do not know whether he has disclosed this offendingto his employer. Shortly before the sentencing, I am told he was promoted. Hecontinues to be employed. There is no suggestion that he will be "released". He isapparently spoken well of and is doing well. The Judge emphasised that there is noclear information as to any adverse consequences in the way of a bar to furtherpromotion or, more importantly, the ability to stay in employment. One would haveexpected an appropriate letter from his employer or better still an affidavit if this wasa genuine risk.General[39] I have to say, too, that there is something in the view expressed by Judge Ryanthat if the sorts of consequences that were set out here were accepted as justifying adischarge, it would mean that in very many similar cases where citizenship hurdles,increased travel difficulties, and difficulties with employment prospects applied, it19 See Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962; Gasu v Police [2021] NZHC 2948; andCabuyao v R [2021] NZHC 3395.20 Bolea v R [2023] NZCA 39 at [46].would mean that discharges without conviction would have to be regularly granted interms of consistency.[40] I do not mean to overstate that conclusion. Of course, every case depends onits own circumstances. But in my view there needs to be more than has been put beforethe Court here in the way of specific intentions for travel, particularly work-related, apressing need for citizenship or some clear employment difficulties such as beingprecluded from employment or promotion because of this type of offending. That hasnot been provided in this case and it seems is not available.[41] So, all in all, I would regard the consequences of conviction here to be just asJudge Ryan described them to be – as being the sorts of consequences that would applyto anybody in the defendant's position who is convicted of this type of offending.Did the Judge err in applying the "balancing test"?[42] The test requires that the consequences of conviction must be "out of allproportion" to the gravity of the offending. Those words "out of all proportion" mustbe given some meaning. They mean more than "out of proportion". They mean morethan "disproportionate".[43] Here, the gravity of the offending may be considered as low. But it is not atthe lowest end of the scale. And it must be taken into account that there has been aprevious discharge without conviction. I place no strong reliance on that. Each casemust be considered in its own circumstantial context. But it cannot be ignored.[44] I also accept that a 21-year-old at the time of the offending, now 23 years old,can act impulsively without thought of consequences. This could well be the casehere. But I temper that with the reminder that Mr Noori had undergone an angermanagement course.[45] So, there can be no fault, as I have concluded no material error in the Judge'sassessment of the offending as being low.[46] Neither is there fault in her assessment of the consequences of the offending.[47] In my view, applying the appropriate balancing test and giving it meaning the"real and appreciable" difficulties in gaining citizenship, overseas travel, and perhapsemployment, are not out of all proportion to the gravity of the offending. The mostthat can be said is they might be slightly out of proportion. But no more than that.Conclusion[48] When the test is properly applied, there is no material error in any aspect of thetest that was imposed by Judge Ryan. Hers was a very full and very comprehensiveassessment. There may be some quibble that could be taken with words here and there,and some of the phraseology but, overall, her approach is clear. The three-step processhas been properly set out. It has been analysed and applied in detail. In the end theconclusion speaks of no miscarriage of justice. It is a decision that is without materialerror. There is no miscarriage of justice.[49] The decision must stand. The appeal is dismissed.__________________________Becroft J