Ahmed v Police

[2013] NZHC 1024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000446 [2013] NZHC 1024

BETWEEN  MAISARA MAMDOUH AHMED Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 April 2013

Appearances: R K Treloar for Appellant

N M H Whittington for Respondent

Judgment:      9 May 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 May 2013 at 2:00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date.....................................

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – N Whittington – Email: [email protected]
Public Defence Service, 22 Amersham Way, Manukau

R Treloar - Email: [email protected]

AHMED V NZ POLICE HC AK CRI-2012-404-000446 [9 May 2013]

[1]      The appellant, Maisara Mamdouh Ahmed, appeals from Judge Callander’s refusal to grant a discharge without conviction in respect of charges of trespass, assault and burglary.1

[2]      The background to the offending was the break-up of a brief relationship between Mr Ahmed and the complainant, Ms Sinclair in early 2012.  According to Ms Sinclair, Mr Ahmed continued to contact her. The circumstances of the offences were as follows:

(a)      Trespass2  – on 26 April 2012 Ms Sinclair discovered that her home had been broken into.   A window had been replaced but there was broken glass on the outside of the new window.   Mr Ahmed’s fingerprints were found around the window and he was trespassed from the address.

(b)Assault3  – on 19 May 2012 Mr Ahmed entered Ms Sinclair’s home without her consent, went into her bedroom and assaulted her male friend.  The assault led to a struggle in which both Mr Ahmed and the friend fell back out of a large window, receiving injuries.

(c)       Burglary4 and assault5 – on 1 June 2012 Ms Sinclair received a phone call from Mr Ahmed who told her to look outside, which she did.  He was sitting in his car parked in her driveway.  He waved and then left. Later that night Mr Ahmed returned to the address and forced his way into  the  locked  garage.  He  attempted  to  gain  entry  to  the  house. Ms Sinclair’s friend went to the garage and told Mr Ahmed to leave. He grabbed the friend by her arms and pushed her away, then entered the house and began searching, apparently for a man he believed to be

inside.

1 NZ Police v Ahmed DC Papakura CRI-2012-055-001496, 23 November 2012.

2 Sections 3, 4 and 11 Trespass Act 1980.
3 Section 196 Crimes Act 1961.
4 Section 231(1)(a) Crimes Act 1961.

5 Section 9 Summary Offences Act 1981.

[3]      Mr  Ahmed  pleaded  guilty  to  the  charges.  Judge  Callander  refused  his application for a discharge without conviction and sentenced him to nine months’ supervision.

[4]      Although the Court may discharge an offender without conviction6 it cannot do so unless “satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.7   In considering whether it would be appropriate to discharge without conviction the Court must identify the gravity of the offending, identify the direct and indirect consequences of a conviction and  then  determine  whether  the  direct  and  indirect  consequences  of  conviction would be out of all proportion to the gravity of the offending.8

[5]      Mr Ahmed appeals on the ground that the Judge failed to:

(a)       Consider the relevant evidence relating to the gravity of the offending; (b)    Adequately consider the consequences of a conviction;

(c)      Properly  evaluate  the  question  whether  the  consequences  of  a conviction would be out of all proportion to the gravity of the offending.

Gravity of offending

[6]      The Judge, in sentencing, did not recite the details of the offences.  However, he considered that it was “not … a case of minimal culpability”.  I agree with the Judge’s assessment.

[7]      I consider this to be moderately serious offending. It was sustained over a period of months.  It involved Mr Ahmed forcing his way into Ms Sinclair’s house on two occasions when it was made clear to him that he was not welcome.   The

assault on Ms Sinclair’s male friend was not minor.

6 Section 106 Sentencing Act 2002

7 S 107 Sentencing Act 2002.

8 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; Z v R [2012] NZCA 599, [2013] NZAR 142.

[8]      In support of the appeal Mr Ahmed’s counsel referred to evidence apparently not before the Judge, that suggested that Ms Sinclair’s claim of having completely ended the relationship and not wanting any further contact with Mr Ahmed were not true.  There were text messages sent by the complainant to Mr Ahmed, for example, on the day before the 19 May 2012 offences, showing obviously consensual contact between them.

[9]      Although that evidence does have some relevance, it cannot operate to reduce the gravity of the offences.  The texts did not contain invitations for Mr Ahmed to go to Ms Sinclair’s home. The nature of the ongoing contact did not justify Mr Ahmed ignoring a trespass notice, forcing his way into her home, ignoring requests to leave and assaulting other visitors to the property.  Nor were Mr Ahmed’s claimed feelings of confusion or upset about the state of his relationship with Ms Sinclair justification for such behaviour.

Consequences of conviction

[10]     An applicant for an order discharging without conviction need not prove that the feared consequences are certain.  It is sufficient if there is a real appreciable risk that such consequences would occur.9

[11]     Mr  Ahmed  gave  affidavit  evidence  regarding  the  consequences  of  a conviction for him.  He is a competitive bodybuilder and at the time of the offending was working as a personal trainer.  He deposed that he had competed at international level and wished to make a career out of bodybuilding.  He gave details of some of his successes, including being invited to form part of the New Zealand National Bodybuilding Association team travelling to Germany in 2011.

[12]     Mr  Ahmed  said  that  in  travelling  for  the  purposes  of  body  building competitions he would need to apply for a work visa and declare his convictions:

I know I will not be able to compete overseas if I am convicted.  I will need to apply for a work visa.  Many countries will not allow my application with such serious convictions on my record.

9 Iosefa v Police HC Christchurch CIV-2004-409-64, 21 April 2005.

…

I have trained for a number of years to reach the level of bodybuilding I am at.  I have no other skills I can rely on.

[13]     The Judge was somewhat dismissive of this possible consequence:

[5]       In terms of your other hope that you might be able to go overseas with the bodybuilding I really could not see anything concrete there that really  supported  the  view  that  you  would  be  prevented  from  travel. Therefore, I could not see any significant consequence to you there.  You have hopes and aspirations but the reality of life is you are probably going to spend the rest of your days living and working in New Zealand.  You will probably not end up travelling the world circuit of bodybuilders and in any event there is nothing here suggesting that.

[14]     Whilst the information that Mr Ahmed was able to put before the Court probably did not justify such a dismissive view of Mr Ahmed’s prospects, I agree with the Judge that there was not a sufficient basis for concluding that there existed a real and appreciable risk that he would be prevented from travelling.  In particular, there was no information about the immigration policies of any of the relevant countries to show that convictions of the kind Mr Ahmed has would, in fact, cause him to be refused a visa.

[15]     The second consequence that Mr Ahmed is concerned about is the effect on his ability to obtain employment as a personal trainer in New Zealand.  He annexed to his affidavit two advertisements for such work.  One identified as a prerequisite a lack of previous convictions and the other identified a lack of previous convictions as desirable. Mr Ahmed observed in his affidavit that:

… The chances a gym will hire me as a personal trainer in the future are low. The gym places trust in personal trainers with their premises and goods.  It is unlikely  they  will  hire  me  with  convictions  for  burglary  and  violent offending.

[16]     The Judge’s view of this issue was that:

I  accept,  of  course,  that  some  employers  would  not  be  happy  about employing you with convictions of this sort but most I think if the circumstances were explained properly in full would say well okay this happened in the context of a broken relationship.  You were emotional, you lost control of yourself and away it went and you ended up with these convictions. A potential employer may well say I do not think you are at risk to the customers of this gym.

[17]     The effect of convictions on a person’s ongoing ability to support themselves is a matter for serious consideration. I consider that the Judge’s assessment was right. On the evidence it is likely that Mr Ahmed would be regarded as unsuitable for a number of jobs due to his convictions.   But the evidence does not show that employment would be precluded.

Are these consequences out of all proportion to the gravity of the offending?

[18]     The Judge concluded that the consequences of these convictions were not out of all proportion to the gravity of the offending. I consider that this was correct. Had Mr Ahmed had only a single conviction, the position could well have been different. But three separate sets of offending of the kind involved in this case would require much more serious consequences to tip the balance in favour of a discharge without conviction than Mr Ahmed has been able to show.

[19]     The appeal is dismissed.

P Courtney J