ALMARZOUQI v NEW ZEALAND POLICE [2020] NZHC 734

ALMARZOUQI v NEW ZEALAND POLICE [2020] NZHC 734 [8 April 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-5[2020] NZHC 734BETWEEN RAHLA ALMARZOUQIAppellantAND NEW ZEALAND POLICERespondentHearing: 11 March 2020Appearances: A Olney for AppellantD Neild for RespondentJudgment: 8 April 2020JUDGMENT OF GRICE JIntroduction[1] Ms Almarzouqi appeals against a sentencing decision of the District Courtrefusing to discharge her without conviction on a charge of making a false complaintto the police.1Background[2] Ms Almarzouqi pleaded guilty to two charges. At the sentencing hearing sheapplied for a discharge without conviction on both:(a) Breaching a protection order under ss 19(2)(e) and 49(1)(b) of theDomestic Violence Act 1995;2 and1 New Zealand Police v Almarzouqi [2019] NZDC 25001.2 This is a category 3 offence under s 6 of the Criminal Procedure Act 2011 and carries a maximumpenalty of three years' imprisonment.(b) Making a false complaint to Police under s 24(a) of the SummaryOffences Act 1981.3[3] Ms Almarzouqi was discharged without conviction on the first charge butconvicted and discharged on the second charge. That is the subject of this appeal.The factual background[4] The complainant and Ms Almarzouqi had a domestic relationship but areseparated. There have been allegations of domestic violence by Ms Almarzouqi andthe complainant.[5] Applications for protection orders were sought by both Ms Almarzouqi and thecomplainant against the other. Ms Almarzouqi applied three times, withdrawing thefirst but the second and third applications were declined by the Family Court.[6] The complainant was granted a protection order against Ms Almarzouqi.[7] Two incidents led to the charges:(a) On 17 June 2017 Ms Almarzouqi phoned the complainant, in breachof the protection order.(b) On 17 July 2017 Ms Almarzouqi in a written statement to a constable,made a false allegation of an offence that is that the complainant hadthreatened to kill her.[8] Ms Almarzouqi pleaded guilty to both charges and sought a discharge withoutconviction on each.[9] For a discharge without conviction the Court must be satisfied that the gravityof the offending does not outweigh the consequences of the conviction. A balancingexercise is undertaken as set out under s 107 of the Sentencing Act 2002.3 This is a category 2 offence under s 6 of the Criminal Procedure Act 2011 and carries a maximumpenalty of three months' imprisonment or a fine not exceeding $2,000.Relevant law and approach to appeal[10] Section 106 of the Sentencing Act 2002 provides that if a person who ischarged with an offence is found or pleads guilty, the Court "may discharge theoffender without conviction, unless by any enactment applicable to the offence thecourt is required to impose a minimum sentence".[11] The application of s 106 is guided by s 107:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[12] The Court of Appeal, noted that the s 107 test was a three-step process. It said:4[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressing theguidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, taking intoaccount all aggravating and mitigating factors of the offending and theoffender;(b) identification of the direct and indirect consequences of conviction;and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.[13] Only if that threshold is met can the Court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that any givenconsequence will happen.5 This standard recognises that the Court is assessing thelikelihood of something that may happen in the future.4 Prasad v R [2018] NZCA 537 (citations omitted).5 DC (CA47/2013) v R [2013] NZCA 255 at [43] .[14] This appeal is brought under ss 231 and 248 of the Criminal Procedure Act2011. An appeal against the refusal to grant a discharge without conviction is anappeal against conviction and sentence.6[15] The basis for determining an appeal against a refusal to grant a dischargewithout conviction is whether a miscarriage of justice has occurred:7(a) by virtue of a material error by the sentencing Judge in entering aconviction; or(b) as a result of an error by the Judge in applying the principles ofdischarging an offender without conviction under s 107 of theSentencing Act 2002.[16] The Court of Appeal in R v Hughes noted that such an appeal is not an appealagainst the discretion of the Court.8 It is a matter of fact requiring judicial assessmentand the discretionary power of the court to discharge without conviction arises only ifthe s 107 threshold has been met.9 Accordingly the normal appeal principles apply asset out in Austin, Nichols & Co Inc v Stichting Lodestar.10The Appellant's submissions[17] The appellant says that the Judge in the District Court erred when assessing thegravity of the offending and when assessing the consequences of the conviction.[18] As to gravity the appellant says the Judge erred in:(a) proceeding on the basis that the false complaint was the more seriouscharge and not having due regard to the significantly lesser maximum6 Jackson v R [2016] NZCA 627 at [7]–[8].7 At [12].8 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.9 At [11].10 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. This approachwas confirmed in Brown v New Zealand Police [2019] NZHC 2348; and Sharma v New ZealandPolice [2018] NZHC 2471.penalty prescribed by Parliament for the breach of protection orderoffence; and(b) not having sufficient regard to the fact that the offending took place inthe context of prolonged domestic abuse and violence.[19] On the consequences Ms Almarzouqi says that the Judge erred in:(a) not adequately recognising that she may suffer discrimination andabuse from other Muslims, including her family, not only if deported tothe United Arab Emirates (UAE) but also due to cultural stigmatizationshe faces in Aotearoa New Zealand; and(b) underestimating the risk of deportation. In particular she saysconviction increases the risk of deportation. Even if not immediatelydeported, the effect of s 167 of the Immigration Act 2009 is that MsAlmarzouqi could have the threat of deportation hanging over her forup to 10 years.The respondent's submissions[20] The respondent submits in terms of the gravity of the offending, the Judgeconsidered all the issues and in particular:(a) This was a part of a pattern of offending, Ms Almarzouqi having calledthe complainant multiple times; and(b) The Family Court Judge in the course of the decision to refuse aprotection order in favour of Ms Almarzouqi instead found that therewas serious psychological abuse against the complainant.[21] In terms of the consequences Ms Neild pointed out that the deportation riskwas always present and this had been recognised by the Judge. As Ms Almarzouqi ison a temporary visa, her visa status falls to be considered under s 157 of theImmigration Act. This allows deportation for any criminal offending, whether or notthere is conviction. This is a position supported by a letter provided from ImmigrationNew Zealand.Evidence concerning domestic violence/abuse[22] Mr Olney for Ms Almarzouqi pointed to the evidence of Constable Frances apoliceman stationed in the provincial town in which Ms Almarzouqi had lived withthe complainant when she first arrived in New Zealand. That evidence dated back to2014. The constable had been concerned over allegations made by Ms Almarzouqiabout being imprisoned in her home by the complainant and he made inquiries withthe neighbours about the issue. Mr Olney says the Constable must have beenconcerned because he wrote two letters concerning the incident.[23] In 2017 the Family Court dealt with applications by the complainant and byMs Almarzouqi for protection orders. As I have mentioned earlier the complainantwas granted a protection order but Ms Almarzouqi was not. In that case the Judgereferred to a history of applications for protection orders brought by Ms Almarzouqiwhich included an application in 2014 which was withdrawn. A hearing on anotherprotection order application she brought commenced in September 2015 wasadjourned part-heard and resumed in March 2016. Ms Almarzouqi was present andgave evidence during the first part of the hearing but was not in court for the resumedhearing. Judge Malosi delivered the decision in May. Her Honour said she did notfind Ms Almarzouqi to be a credible witness.11[24] Following the May 2017 hearing of the third application brought by MsAlmarzouqi the Family Court Judge referred to the evidence which Ms Almarzouqihad given concerning the reasons that the temporary protection order had beendischarged by Judge Malosi in the 2015 proceedings. The Judge referred to theevidence of Ms Almarzouqi in the 2017 hearing on that matter as "entirely misleadingof this Court" and providing "only a snippet" of the story.1211 New Zealand Police v Almarzouqi [2019] NZDC 25001 at [32] referring to [ ] [2017] NZFC3266(publication restrictions).12 New Zealand Police v Almarzouqi [2019] NZDC 25001 at [32] referring to [ ] [2017] NZFC3266 at [7] (publication restrictions). [ ] [2017] NZFC 3266 (publication restrictions).[25] The Family Court Judge at the 2017 hearing said that Ms Almarzouqi had"blatantly" lied on oath about the communications she had had with the complainantand excusing herself by saying that her previous lawyer had told her to lie. The Judgedid not consider Ms Almarzouqi required protection from the complainant.[26] Mr Olney submitted, that seeking a protection order is a future looking process.However the Judges had to review past events and in both cases the court was satisfiedthat the allegations were not made out and that Ms Almarzouqi had misled the Court.[27] In my view the comments of the Family Court Judges put Constable Frances'comments in context. While there might have been allegations by Ms Almarzouqi in2014 it appears that when tested those allegations of abuse were not made out. Whilethey may not be the precise allegations that Constable Frances was concerned with, inview of the decisions in both Family Court cases that followed I do not place muchweight on the 2014 allegations of domestic abuse made by Ms Almarzouqi.[28] Nevertheless, the Judge in the sentencing decision under appeal recognised thefraught background. He noted that Ms Almarzouqi alleged that she had been subjectto "systematic domestic abuse of violence of an abusive nature for several years".13He also noted the abundance of information before him, including the Family Courtdecision and the reports of Constable Frances. The Judge said there was a substantialbody of evidence that Ms Almarzouqi was in an abusive relationship but also therewas a strong body of evidence that she had abused her position by misleading andlying in statements to get what she wanted. He factored in the allegations of abuse inreaching this conclusion about the seriousness of the false complaint charge. Hesaid:14[32] I do not accept the explanation that she simply was not thinkingstraight because of the issues that she was facing, including the prosecution.Again, this was not something that was out of character. As Judges in theFamily Court have noted (and Judge Clarkson summarised this) and theevidence so far as the protection order is concerned, she made what JudgeClarkson said were statements thoroughly misleading and, in one case, clearlycontrary to the oath that she had taken in Court. Much of the information thatthe police have, whilst somewhat supportive of her having lived in an abusiveand violent relationship, also is of complaints made by her which were found13 New Zealand Police v Almarzouqi, above n 1, at [10].14 At [32] and [33].to have no substance. So, this appears to be another attempt by her to sheethome some punishment or retribution for the complainant by making thisstatement, which could have very serious effects for the complainant himself.[33] So, while there is a substantial body of evidence that she was in anabusive relationship, there is also a strong body of evidence that she abusedher position by misleading and lying statements, to get what she wanted.Gravity[29] I now turn to the gravity of the offending as it was reflected in the seriousnessof the false complaint charge compared to the breach of the protection order charge.Mr Olney said that the seriousness of the false complaint charge should not have beenelevated to the level found by the District Court Judge. This submission was based onthe fact that there was a higher maximum attaching to a breach of protection order andthe fact the Judge had granted a discharge in relation to that matter.[30] However, the Judge carefully evaluated the circumstances. On the basis of thefacts he considered that the false complaint was more serious than the protection orderbreach. While any comparison of seriousness between offences will take into accountthe maximum penalties what is necessary here is an analysis based on the actualoffending before the Court. The Judge analysed it as follows:15[31] Turning to the other charge, making the false complaint to the police,whilst it carries a lesser penalty as a maximum penalty, I consider it a moreserious charge. This is a charge where, after a month of being charged herselffor breaching the protection order, she has knowingly made a false statementto the police to put pressure on the complainant and, indeed, to have himprosecuted because of, no doubt, the charge that she faced. And then, there isthis underlying issue of the divorce and the repayment of the dowry, which ismentioned in some of the papers I have.[35] I believe on this particular occasion of the breach of the protectionorder case, that there was a reason for the call that had perhaps not previouslybeen present.[36] So, my decision is this. Whilst the effects on the defendant of herdivorce and convictions may be very serious in some quarters, I believe adistinction can be drawn between the two charges. As far as the beach ofprotection order is concerned, the circumstances in which the call wasoriginally made mitigate the seriousness of the offending. And whilst thereare other allegations, this is the sole charge she faces of breaching theprotection order. I believe, on balance, that the consequences of a conviction15 New Zealand Police v Almarzouqi, above n 1, at [31] and [35]–[37].in respect of that matter are out of all proportion to the seriousness of thatoffending.[37] But I do not accept that in respect of the other charge, of making thefalse statement to the police. This offending was in character. It was doneknowingly of the serious effects it may have, and in an effort to divert attentionaway from her behaviour and put pressure on the complainant, in anunjustifiable way.[31] He found the false complaint was made knowingly to divert attention fromMs Almarzouqi's behaviour and to put pressure on the complainant. This wasunjustified and could have had serious consequences. This compared to the lesssignificant breach of the protection order which involved phone calls of a less seriousnature.[32] The Judge made no error in this analysis. It was open to him and heappropriately found that in the circumstances the false complaint charge was moreserious than the breach of the protection order charge.Consequences[33] In relation to the assessment of consequences of the conviction onMs Almarzouqi, Mr Olney focussed on the effect of the conviction particularly inrelation to the way Ms Almarzouqi might be viewed by the Muslim community inNew Zealand. He said while the Judge did consider the effect on her if she returnedto the UAE he did not properly consider the implications should she remain inNew Zealand. The Judge said:16[24] It is clear from the information I have from the defendant's father andother members of her family that should she return to the United ArabEmirates or perhaps other Middle Eastern Islamic states, she may be at seriousrisk of being strongly discriminated against and, in fact, vilified. Her father'sletter is disturbing, to say the least. Whether this is a true reflection on whatmay happen, I cannot be sure, but there are several letters expressing a similarview.[25] However, the view is because of two things: firstly, she would be adivorced woman, which apparently is a status which is reviled; and secondly,a divorced woman with a conviction would be beyond all redemption.[34] He also commented:16 New Zealand Police v Almarzouqi, above n 1, at [24] and [25]. whilst the effects on the defendant of her divorce and convictions may bevery serious in some quarters, I believe a distinction can be drawn betweenthe two charges. [35] The Judge took into account the serious disadvantages that Ms Almarzouqiwould face in the Muslim community. In my view it is implicit he was also talkingabout a point of view which might be taken by some members of the Muslimcommunity in New Zealand. However, he did not have specific evidence on thatbefore him.[36] Mr Olney pointed to a letter dated 28 May 2019 from the International MuslimAssociation of New Zealand. He said this was the evidence in support of the likelydisadvantages Ms Almarzouqi would encounter within the New Zealand Muslimcommunity. That letter outlines Ms Almarzouqi's vulnerability and the disastrouseffects of a conviction on her. It says that what she would face would be akin to a lifesentence where she is deprived of basic rights to respect, "socialisation, the ability tomarry and secure employment". However, all those comments are made with thespecific qualification that they were made about the likely consequences that "aMuslim Woman from the Middle East (UAE) would likely face should she receive acriminal conviction and then return to her home country".[37] It is clear the letter refers to the manner in which she might likely be treated bythe community and her family if she returned to the UAE or other Gulf countries. Itdoes not purport to comment on the consequences in the New Zealand Muslimcommunity. There is nothing to suggest the Judge failed to take into account any ofthe material which was put before him.[38] I am satisfied that the Judge took the material before him into account and inparticular the matters raised in the letter from the New Zealand Muslim Society inassessing the culturally-driven consequences to Ms Almarzouqi of a conviction.Consequences relating to deportation[39] Perhaps the strongest point for Ms Almarzouqi is the possible effect of theconviction in relation to her immigration status. She has applied for a residence classvisa. The immigration guidelines indicate that a person may require a character waiverif that person is convicted of an offence while being the holder of a temporary entryclass visa or temporary/permanent visa under the Immigration Act for which the Courthas the power to impose imprisonment for a term of three months or more.[40] The directives contained in the material from the Department of Immigrationbefore the Court was not contentious. It indicated that an immigration officer mustnot automatically decline a residence class visa on character grounds. Theimmigration officer must consider the surrounding circumstances to decide whether agood character requirement is justified. Those circumstances include the seriousnessof the offence. This is generally indicated by the term of imprisonment or size of thefine, the number of offences, the nature of the offence, when it occurred and a numberof other criteria. The Judge recognised the effect on the immigration issues when hemade the following comments:17[34] I believe the consequences to her of a conviction are notinconsiderable. As far as immigration is concerned, a conviction or noconviction, on the face of it, makes no difference to their decision whether toissue a deportation notice. However, a conviction for an offence carrying amaximum of three years' imprisonment may be more important toImmigration than one, for example, carrying a maximum of three months'imprisonment.[41] Mr Olney's written submissions appear to indicate that Ms Almarzouqi ispresently on a temporary work visa. It appears that there will be no difference in theDepartment of Immigration's decision about whether to issue a deportation notice asthe fact of criminal offending can be taken into account in deciding whether or not adeportation liability notice should be issued, whether or not she is convicted.18[42] Mr Olney referred to a number of decisions in support of his submission thatthe threat to Ms Almarzouqi's immigration status should have been accorded greaterweight than was allowed by the Judge.[43] In Rahim v R19 the consequence of a conviction would have been that MrRahim became liable for deportation. That is not the case here.17 New Zealand Police v Almarzouqi, above n 1, at [34].18 Immigration Act 2009, s 157(5)(b).19 Rahim v R [2018] NZCA 182 at [26] and [30].[44] In Jeon v New Zealand Police20 the consequence might have been the removalof an established status or the risk; that is, the appellant's established residency statuswould be removed.21 In that case that significant consequence was not drawn to theDistrict Court Judge's attention.22[45] It is difficult to compare cases as the facts and circumstances will varyconsiderably as is apparent from the above. The Court of Appeal has warned that careneeds to be taken not to lose sight of the particular facts of the case under considerationby undertaking an analysis of the gravity by reference to other cases.23 The samecomments apply to the comparison of assessment of the consequences.[46] In the circumstances I am of the view that the Judge did take into account thesignificance of the issue of possible deportation and the effect on immigration statusin Ms Almarzouqi's particular circumstances. I am satisfied he made no error and hisdecision was appropriate.Conclusion[47] As will be apparent I am of the view that the Judge was correct in hisapplication of the law and his assessment of the s 107 factors. I am satisfied that theJudge was correct in his assessment that the direct and in-direct consequences of aconviction would not be out of all proportion to the gravity of the offence.[48] Accordingly, the appeal is dismissed._________________Grice JSolicitors:Crown Law Office, Wellington for Respondent20 Jeon v New Zealand Police [2014] NZHC 66.21 At [18].22 At [22].23 Rahim v R, above n 19, at [18].