El-Nafeh v Police - [2018] NZHC 57

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-458 [2018] NZHC 57

BETWEEN
FAWAZ GHASSAN EL-NAFEH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 February 2018

Counsel:

S Brickell for Appellant
D Muratbegovic for Respondent

Judgment:

7 February 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 7 February 2018 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Scott Brickell (Auckland) for Appellant
Kayes Fletcher Walker (Manukau) for Respondent

EL-NAFEH v POLICE [2018] NZHC 57 [7 February 2018]

Introduction

[1] Mr El-Nafeh appeals the sentence of 19 months’ imprisonment imposed on him by Judge AM Wharepouri on 16 November 2017 in the Manukau District Court.1
The sole issue on appeal is whether the sentence should have been commuted to one of home detention.

The offending

[2] Judge Wharepouri sentenced Mr El-Nafeh on one charge of obtaining by deception and one charge of driving while suspended. The two charges were unrelated. The lead charge was obtaining by deception and the charge of driving while suspended appears to have played no real part in the sentencing.

[3] Essentially, Mr El-Nafeh stole from his brother-in-law by setting up a bank account and dishonestly procuring the transfer of $45,000 to that bank account. On the same day, Mr El-Nafeh withdrew the $45,000 in cash. He promptly spent it by paying debts and purchasing a car.

Appeal

[4] My task on an appeal against sentence is to decide whether the District Court

Judge made an error such that a different sentence should be imposed.

[5] In this case, Mr Brickell’s submission on behalf of Mr El-Nafeh is that the Judge erred in emphasising the sentencing principles of deterrence and denunciation. Instead, it is submitted the Judge should have given weight to the impact of imprisonment on Mr El-Nafeh’s family. Mr Brickell submits the Judge overstated the seriousness of the offending and erroneously concluded that imprisonment was the least restrictive sentence in all the circumstances.

[6] Mr Brickell has put before me a number of documents that were not before Judge Wharepouri. I have looked at them to see whether they are relevant to the submission that the Judge erred in his decision not to commute the sentence of

imprisonment to one of home detention and to such an extent that I should allow the appeal and impose a sentence of home detention.

[7] The first new document is an affidavit by Mr El-Nafeh’s wife sworn on

23 January 2018. The affidavit deposes to the hardships her family is suffering as a result of Mr El-Nafeh, the previous sole earner in the family, being imprisoned.

[8] Two further documents were filed on the day of the hearing of this appeal. The first is an affidavit sworn on 5 February 2018 by Mr El-Nafeh’s mother. In it, she offers to help pay reparation at the rate of $1,000 per week.

[9] The final document, dated 1 February 2018, is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read El-Nafeh v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 57
Decision Date: 7 February 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. El-Nafeh appealed against the sentence of 19 months’ imprisonment imposed by Judge AM Wharepouri on 16 November 2017 in the Manukau District Court. The sole issue on appeal was whether the sentence should have been commuted to one of home detention. The appeal was heard on 5 February 2018, and judgment was delivered on 7 February 2018. Mr. El-Nafeh was sentenced on charges of obtaining by deception and driving while suspended, with the former being the lead charge. He stole $45,000 from his brother-in-law by setting up a bank account and withdrawing the money in cash, which he promptly spent on debts and a car.

The court's task was to determine if Judge Wharepouri made an error such that a different sentence should be imposed. Mr. El-Nafeh’s counsel argued that the Judge erred by emphasising deterrence and denunciation rather than the impact of imprisonment on his family. The appellate court considered new documents submitted by Mr. El-Nafeh, including affidavits from his wife and mother, and a letter from a prospective employer, none of which were before the sentencing Judge. The court accepted that these post-sentencing events could be reviewed to the extent they demonstrated an error by the sentencing Judge. However, events occurring after imprisonment cannot be taken into account. The court found that Judge Wharepouri had considered the mitigating circumstances in the pre-sentence report, which indicated that Mr. El-Nafeh had nine previous convictions for fraud and had previously served a 10-month sentence of home detention. The court concluded that the seriousness of the offending, Mr. El-Nafeh’s criminal history, and the absence of an offer of reparation precluded home detention. Therefore, the appeal was dismissed, and the original sentence of 19 months’ imprisonment was upheld.

Orders