ALMARZOUQI v NEW ZEALAND POLICE [2020] NZCA 398

ALMARZOUQI v NEW ZEALAND POLICE [2020] NZCA 398 [7 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA312/2020[2020] NZCA 398BETWEEN RAHLA ALMARZOUQIApplicantAND NEW ZEALAND POLICERespondentCourt: Courtney, Wylie and Muir JJCounsel: Applicant in personBCL Charmley and ZWQ Andrew for RespondentJudgment:(On the papers)7 September 2020 at 3.30 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Muir J)Introduction[1] Ms Almarzouqi applies for leave to bring a second appeal from concurrentdecisions of the District and High Courts rejecting her application for a dischargewithout conviction1 on a charge of making a false complaint to the police.2 On thatcharge the District Court convicted and discharged her.3 She was simultaneously1 Sentencing Act 2002, s 106.2 Summary Offences Act 1981, s 24(a). Maximum penalty three months' imprisonment or a finenot exceeding $2,000.3 Police v Almarzouqi [2019] NZDC 25001.discharged without conviction on a charge of breaching a protection order.4 Her appealagainst sentence on the former charge was unsuccessful.5The test[2] Leave to bring a second appeal must not be granted unless the Court is satisfiedthat:6(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.Submissions[3] Ms Almarzouqi does not specifically address these criteria in her submissionswhich are substantially a repeat of her arguments before the High Court.7[4] In particular, she argues in respect of the gravity of the offending that:(a) it was wrong in principle for the sentencing Judge to proceed on thebasis that the false complaint was the more serious charge havingregard to the significantly greater maximum penalty prescribed byParliament for the breach of the protection order offence; and(b) insufficient regard was had to the fact that the offending took placewithin the context of prolonged domestic abuse.[5] In respect of the consequences of conviction she argues that:(a) there was no adequate recognition of the discrimination that theconviction would result in for her as a Muslim woman, both in4 Domestic Violence Act 1995, ss 19(2)(e) and 49(1)(b). Maximum penalty three years'imprisonment.5 Almarzouqi v Police [2020] NZHC 734.6 Criminal Procedure Act 2011, s 237(2).7 As summarised at [17]–[19] of the High Court's decision in Almarzouqi v Police, above n 5.the United Arab Emirates (UAE) (if she was deported) or within theMuslim community of New Zealand (if not); and(b) the risk of deportation was underestimated.[6] In support of alleged discrimination in New Zealand she now submits a letterdated 13 July 2020 from her local Member of Parliament suggesting that within theMuslim community "the shame and social and cultural stigma that come with aconviction will be amplified".[7] In response, the Police submit that Ms Almarzouqi's complaints are factual innature and their significance is confined to the circumstances of her case. They saythe appeal neither engages any matter of general or public importance nor is it a casewhere any miscarriage may have occurred.Discussion[8] We are not satisfied that the criteria in s 237(2) of the Criminal Procedure Act2011 are made out. Accordingly, we are not satisfied that leave should be granted.[9] The finding that offending with a higher maximum penalty was, on the factsof a particular case, less serious than proximate offending which attracted a lowerpotential sentence is unexceptional. As Grice J said:8While any comparison of seriousness between offences will take into accountthe maximum penalties what is necessary here is an analysis based on theactual offending before the Court.[10] Both the District and High Courts concluded that the false complaint charge(involving a written statement to the police that her former husband had threatened tokill her) was, on the facts, more serious than the breach of protection order charge(involving a vitriol-laden phone call, albeit with a legitimate initial purpose).[11] In assessing whether an issue of general and public importance arises on anintended appeal this Court may legitimately consider the strength of any issue which8 Almarzouqi v Police, above n 5, at [30].may be raised on the appeal.9 We regard the "higher maximum penalty" argument asso weak as not to engage the threshold test.[12] As to the context of the offending, this was again fully traversed in the HighCourt decision.10 Grice J cited the District Court Judge's finding that although therewas "a substantial body of evidence that [Ms Almarzouqi] was in an abusiverelationship, there [was] also a strong body of evidence that she abused her positionby misleading and lying statements, to get what she wanted".11 Her Honour clearlyregarded that as an accurate assessment of the position.12 These were all matters offact confined to the circumstances of Ms Almarzouqi's case.[13] In terms of the direct and indirect consequences of the conviction, Grice J notedthat the District Court Judge had been provided with a letter from the InternationalMuslim Association of New Zealand indicating that if Ms Almarzouqi was deportedher conviction would lead to a "life sentence" in the UAE, but that there was noevidence of similar stigmatisation in New Zealand.13 Ms Almarzouqi now tries to fillthat evidential lacuna with a letter from her MP. There is no application to admitfurther evidence which we would, in any event, have declined on the basis that itlacked both cogency (the MP is not a cultural expert) and more particularly"freshness".14[14] Finally, in respect of the risks of deportation, there is no basis to suggest thatthese were not properly considered by both the District Court and High Court Judges.As Grice J observed, potential deportation for criminal offending is notconviction-dependent.15 Nor does the conviction of itself make Ms Almarzouqi liablefor deportation.16 It may be that she is now required to obtain a character waiver inrespect of any application for a residence class visa. Both the High Court and thisCourt have routinely cautioned against the courts usurping the role of immigration9 Jones v Wellington City Council [2017] NZCA 261 at [19].10 Almarzouqi v Police, above n 5, at [22]–[28].11 Police v Almarzouqi, above n 3, at [33]; Almarzouqi v Police, above n 5, at [28].12 See in particular [27].13 At [36]–[37].14 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].15 Almarzouqi v Police, above n 5, at [41] citing s 157(5)(b) of the Immigration Act 2009.16 Unlike the position in Rahim v R [2018] NZCA 182.officials.17 The objection is based in notions of institutional competence and comity.We identify no issue of general or public importance, or potential miscarriage on thisaccount.Result[15] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent17 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[14]; Singh v Police [2020] NZHC 368 at [37]–[39]; and Ho v R [2016] NZCA 229 at [15]. InRahim v R this position was qualified to recognise the possibility of a discharge without convictionwhere the defendant would become liable for deportation and to do so would break up a familyunit. No such considerations apply here.