Almarzouqi v Police
[2020] NZHC 734
•8 April 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-5
[2020] NZHC 734
BETWEEN RAHLA ALMARZOUQI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 March 2020 Appearances:
A Olney for Appellant D Neild for Respondent
Judgment:
8 April 2020
JUDGMENT OF GRICE J
Introduction
[1] Ms Almarzouqi appeals against a sentencing decision of the District Court refusing to discharge her without conviction on a charge of making a false complaint to the police.1
Background
[2] Ms Almarzouqi pleaded guilty to two charges. At the sentencing hearing she applied for a discharge without conviction on both:
(a)Breaching a protection order under ss 19(2)(e) and 49(1)(b) of the Domestic Violence Act 1995;2 and
1 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 maximum penalty of three years’ imprisonment.
ALMARZOUQI v NEW ZEALAND POLICE [2020] NZHC 734 [8 April 2020]
(b)Making a false complaint to Police under s 24(a) of the Summary Offences Act 1981.3
[3] Ms Almarzouqi was discharged without conviction on the first charge but convicted 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 are separated. There have been allegations of domestic violence by Ms Almarzouqi and the complainant.
[5] Applications for protection orders were sought by both Ms Almarzouqi and the complainant against the other. Ms Almarzouqi applied three times, withdrawing the first 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 breach of 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 had threatened to kill her.
[8] Ms Almarzouqi pleaded guilty to both charges and sought a discharge without conviction on each.
[9] For a discharge without conviction the Court must be satisfied that the gravity of the offending does not outweigh the consequences of the conviction. A balancing exercise 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 maximum penalty 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 is charged with an offence is found or pleads guilty, the Court “may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence”.
[11]The application of s 106 is guided by s 107:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out 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 the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
…
[13] Only if that threshold is met can the Court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen.5 This standard recognises that the Court is assessing the likelihood 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 Act 2011. An appeal against the refusal to grant a discharge without conviction is an appeal against conviction and sentence.6
[15] The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:7
(a)by virtue of a material error by the sentencing Judge in entering a conviction; or
(b)as a result of an error by the Judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act 2002.
[16] The Court of Appeal in R v Hughes noted that such an appeal is not an appeal against the discretion of the Court.8 It is a matter of fact requiring judicial assessment and the discretionary power of the court to discharge without conviction arises only if the s 107 threshold has been met.9 Accordingly the normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.10
The Appellant’s submissions
[17] The appellant says that the Judge in the District Court erred when assessing the gravity 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 serious charge and not having due regard to the significantly lesser maximum
6 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 approach was confirmed in Brown v New Zealand Police [2019] NZHC 2348; and Sharma v New Zealand Police [2018] NZHC 2471.
penalty prescribed by Parliament for the breach of protection order offence; and
(b)not having sufficient regard to the fact that the offending took place in the 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 and abuse from other Muslims, including her family, not only if deported to the United Arab Emirates (UAE) but also due to cultural stigmatization she faces in Aotearoa New Zealand; and
(b)underestimating the risk of deportation. In particular she says conviction increases the risk of deportation. Even if not immediately deported, the effect of s 167 of the Immigration Act 2009 is that Ms Almarzouqi could have the threat of deportation hanging over her for up to 10 years.
The respondent’s submissions
[20] The respondent submits in terms of the gravity of the offending, the Judge considered all the issues and in particular:
(a)This was a part of a pattern of offending, Ms Almarzouqi having called the complainant multiple times; and
(b)The Family Court Judge in the course of the decision to refuse a protection order in favour of Ms Almarzouqi instead found that there was serious psychological abuse against the complainant.
[21] In terms of the consequences Ms Neild pointed out that the deportation risk was always present and this had been recognised by the Judge. As Ms Almarzouqi is on a temporary visa, her visa status falls to be considered under s 157 of the Immigration Act. This allows deportation for any criminal offending, whether or not
there is conviction. This is a position supported by a letter provided from Immigration New Zealand.
Evidence concerning domestic violence/abuse
[22] Mr Olney for Ms Almarzouqi pointed to the evidence of Constable Frances a policeman stationed in the provincial town in which Ms Almarzouqi had lived with the complainant when she first arrived in New Zealand. That evidence dated back to 2014. The constable had been concerned over allegations made by Ms Almarzouqi about being imprisoned in her home by the complainant and he made inquiries with the neighbours about the issue. Mr Olney says the Constable must have been concerned because he wrote two letters concerning the incident.
[23] In 2017 the Family Court dealt with applications by the complainant and by Ms Almarzouqi for protection orders. As I have mentioned earlier the complainant was granted a protection order but Ms Almarzouqi was not. In that case the Judge referred to a history of applications for protection orders brought by Ms Almarzouqi which included an application in 2014 which was withdrawn. A hearing on another protection order application she brought commenced in September 2015 was adjourned part-heard and resumed in March 2016. Ms Almarzouqi was present and gave evidence during the first part of the hearing but was not in court for the resumed hearing. Judge Malosi delivered the decision in May. Her Honour said she did not find Ms Almarzouqi to be a credible witness.11
[24] Following the May 2017 hearing of the third application brought by Ms Almarzouqi the Family Court Judge referred to the evidence which Ms Almarzouqi had given concerning the reasons that the temporary protection order had been discharged by Judge Malosi in the 2015 proceedings. The Judge referred to the evidence of Ms Almarzouqi in the 2017 hearing on that matter as “entirely misleading of this Court” and providing “only a snippet” of the story.12
11 New Zealand Police v Almarzouqi [2019] NZDC 25001 at [32] referring to [ ] [2017] NZFC 3266(publication restrictions).
12 New Zealand Police v Almarzouqi [2019] NZDC 25001 at [32] referring to [ ] [2017] NZFC 3266 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 complainant and excusing herself by saying that her previous lawyer had told her to lie. The Judge did 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 satisfied that 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 in 2014 it appears that when tested those allegations of abuse were not made out. While they may not be the precise allegations that Constable Frances was concerned with, in view of the decisions in both Family Court cases that followed I do not place much weight on the 2014 allegations of domestic abuse made by Ms Almarzouqi.
[28] Nevertheless, the Judge in the sentencing decision under appeal recognised the fraught background. He noted that Ms Almarzouqi alleged that she had been subject to “systematic domestic abuse of violence of an abusive nature for several years”.13 He also noted the abundance of information before him, including the Family Court decision and the reports of Constable Frances. The Judge said there was a substantial body of evidence that Ms Almarzouqi was in an abusive relationship but also there was a strong body of evidence that she had abused her position by misleading and lying in statements to get what she wanted. He factored in the allegations of abuse in reaching this conclusion about the seriousness of the false complaint charge. He said:14
[32] I do not accept the explanation that she simply was not thinking straight because of the issues that she was facing, including the prosecution. Again, this was not something that was out of character. As Judges in the Family Court have noted (and Judge Clarkson summarised this) and the evidence so far as the protection order is concerned, she made what Judge Clarkson said were statements thoroughly misleading and, in one case, clearly contrary to the oath that she had taken in Court. Much of the information that the police have, whilst somewhat supportive of her having lived in an abusive and violent relationship, also is of complaints made by her which were found
13 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 sheet home some punishment or retribution for the complainant by making this statement, which could have very serious effects for the complainant himself.
[33] So, while there is a substantial body of evidence that she was in an abusive relationship, there is also a strong body of evidence that she abused her 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 seriousness of 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 been elevated to the level found by the District Court Judge. This submission was based on the fact that there was a higher maximum attaching to a breach of protection order and the fact the Judge had granted a discharge in relation to that matter.
[30] However, the Judge carefully evaluated the circumstances. On the basis of the facts he considered that the false complaint was more serious than the protection order breach. While any comparison of seriousness between offences will take into account the maximum penalties what is necessary here is an analysis based on the actual offending 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 more serious charge. This is a charge where, after a month of being charged herself for breaching the protection order, she has knowingly made a false statement to the police to put pressure on the complainant and, indeed, to have him prosecuted because of, no doubt, the charge that she faced. And then, there is this underlying issue of the divorce and the repayment of the dowry, which is mentioned in some of the papers I have.
…
[35] I believe on this particular occasion of the breach of the protection order case, that there was a reason for the call that had perhaps not previously been present.
[36] So, my decision is this. Whilst the effects on the defendant of her divorce and convictions may be very serious in some quarters, I believe a distinction can be drawn between the two charges. As far as the beach of protection order is concerned, the circumstances in which the call was originally made mitigate the seriousness of the offending. And whilst there are other allegations, this is the sole charge she faces of breaching the protection order. I believe, on balance, that the consequences of a conviction
15 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 that offending.
[37] But I do not accept that in respect of the other charge, of making the false statement to the police. This offending was in character. It was done knowingly of the serious effects it may have, and in an effort to divert attention away from her behaviour and put pressure on the complainant, in an unjustifiable way.
[31] He found the false complaint was made knowingly to divert attention from Ms Almarzouqi’s behaviour and to put pressure on the complainant. This was unjustified and could have had serious consequences. This compared to the less significant breach of the protection order which involved phone calls of a less serious nature.
[32] The Judge made no error in this analysis. It was open to him and he appropriately found that in the circumstances the false complaint charge was more serious than the breach of the protection order charge.
Consequences
[33] In relation to the assessment of consequences of the conviction on Ms Almarzouqi, Mr Olney focussed on the effect of the conviction particularly in relation to the way Ms Almarzouqi might be viewed by the Muslim community in New Zealand. He said while the Judge did consider the effect on her if she returned to the UAE he did not properly consider the implications should she remain in New Zealand. The Judge said:16
[24] It is clear from the information I have from the defendant’s father and other members of her family that should she return to the United Arab Emirates or perhaps other Middle Eastern Islamic states, she may be at serious risk of being strongly discriminated against and, in fact, vilified. Her father’s letter is disturbing, to say the least. Whether this is a true reflection on what may happen, I cannot be sure, but there are several letters expressing a similar view.
[25] However, the view is because of two things: firstly, she would be a divorced 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 be very serious in some quarters, I believe a distinction can be drawn between the two charges. …
[35] The Judge took into account the serious disadvantages that Ms Almarzouqi would face in the Muslim community. In my view it is implicit he was also talking about a point of view which might be taken by some members of the Muslim community in New Zealand. However, he did not have specific evidence on that before him.
[36] Mr Olney pointed to a letter dated 28 May 2019 from the International Muslim Association of New Zealand. He said this was the evidence in support of the likely disadvantages Ms Almarzouqi would encounter within the New Zealand Muslim community. That letter outlines Ms Almarzouqi’s vulnerability and the disastrous effects of a conviction on her. It says that what she would face would be akin to a life sentence where she is deprived of basic rights to respect, “socialisation, the ability to marry and secure employment”. However, all those comments are made with the specific qualification that they were made about the likely consequences that “a Muslim Woman from the Middle East (UAE) would likely face should she receive a criminal 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 by the community and her family if she returned to the UAE or other Gulf countries. It does not purport to comment on the consequences in the New Zealand Muslim community. There is nothing to suggest the Judge failed to take into account any of the material which was put before him.
[38] I am satisfied that the Judge took the material before him into account and in particular the matters raised in the letter from the New Zealand Muslim Society in assessing 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 the conviction in relation to her immigration status. She has applied for a residence class visa. The immigration guidelines indicate that a person may require a character waiver
if that person is convicted of an offence while being the holder of a temporary entry class visa or temporary/permanent visa under the Immigration Act for which the Court has the power to impose imprisonment for a term of three months or more.
[40] The directives contained in the material from the Department of Immigration before the Court was not contentious. It indicated that an immigration officer must not automatically decline a residence class visa on character grounds. The immigration officer must consider the surrounding circumstances to decide whether a good character requirement is justified. Those circumstances include the seriousness of the offence. This is generally indicated by the term of imprisonment or size of the fine, the number of offences, the nature of the offence, when it occurred and a number of other criteria. The Judge recognised the effect on the immigration issues when he made the following comments:17
[34] I believe the consequences to her of a conviction are not inconsiderable. As far as immigration is concerned, a conviction or no conviction, on the face of it, makes no difference to their decision whether to issue a deportation notice. However, a conviction for an offence carrying a maximum of three years’ imprisonment may be more important to Immigration than one, for example, carrying a maximum of three months’ imprisonment.
[41] Mr Olney’s written submissions appear to indicate that Ms Almarzouqi is presently on a temporary work visa. It appears that there will be no difference in the Department of Immigration’s decision about whether to issue a deportation notice as the fact of criminal offending can be taken into account in deciding whether or not a deportation 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 that the threat to Ms Almarzouqi’s immigration status should have been accorded greater weight than was allowed by the Judge.
[43] In Rahim v R19 the consequence of a conviction would have been that Mr Rahim 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 removal of an established status or the risk; that is, the appellant’s established residency status would be removed.21 In that case that significant consequence was not drawn to the District Court Judge’s attention.22
[45] It is difficult to compare cases as the facts and circumstances will vary considerably as is apparent from the above. The Court of Appeal has warned that care needs to be taken not to lose sight of the particular facts of the case under consideration by undertaking an analysis of the gravity by reference to other cases.23 The same comments 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 the significance of the issue of possible deportation and the effect on immigration status in Ms Almarzouqi’s particular circumstances. I am satisfied he made no error and his decision was appropriate.
Conclusion
[47] As will be apparent I am of the view that the Judge was correct in his application of the law and his assessment of the s 107 factors. I am satisfied that the Judge was correct in his assessment that the direct and in-direct consequences of a conviction would not be out of all proportion to the gravity of the offence.
[48]Accordingly, the appeal is dismissed.
Grice J
Solicitors:
Crown Law Office, Wellington for Respondent
20 Jeon v New Zealand Police [2014] NZHC 66.
21 At [18].
22 At [22].
23 Rahim v R, above n 19, at [18].
7
0