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 a letter from Mr Mohammed Hatem advising that he has “given” Mr El-Nafeh a job as restaurant manager and that the position is being held for him.

[10]     The role of an appellate Judge on a sentencing appeal is to correct error. In the absence of error, a sentence appeal must be dismissed.  Events which have occurred after the date of imprisonment cannot be taken into account.2

[11]     However, I accept that events which occurred after the sentencing can be looked at to the extent that they demonstrate an error on the part of the sentencing Judge.

[12]     In this case, the information about Mr El-Nafeh and his family before Judge Wharepouri, largely contained in the PAC report, was summarised by the Judge as follows:

[15]      Before making adjustment for the mitigating circumstances I turn to your  pre-sentence  report. The  pre-sentence  report  tells  me  that  you  are

40 years old, that you and your wife have five children, that you are regretful and remorseful for your behaviour. You told the report-writer that your view is that there was an agreement between you and your wife’s family that there

should be a 50/50 split of the net proceeds obtained from the sale of your family home, your wife’s family reneged on that agreement, you felt cheated

and frustrated with the arrangement so you decided to take $45,000 from the profit which you honestly believed was yours to take. I am told that you are not presently employed, you are currently being financed by your own mother

who pays for the rental property in which you, your wife and your children now live. You have applied for bankruptcy, that fact tells me that there is little prospect of you making any reparation towards your victim. The report- writer’s conclusions include the fact that your offending seems to be the result of you having a sense of entitlement, poor decision-making and a desire to free yourself from difficult financial difficulties. The recommendation in the report is home detention and reparation.

[13]     Mr Brickell’s submission is that the Judge should have foreseen that in these circumstances a sentence of imprisonment would impose unfair hardship on Mr El- Nafeh’s family because the family would be deprived of his support as an income earner.

Discussion

[14]     I accept the submission of Mr Muratbegovic for the Crown that, taken as a whole, Judge Wharepouri cannot be taken to have focused on deterrence and denunciation to the exclusion of all other relevant factors.  The Judge clearly turned his mind to the relevant matters in the pre-sentence report.  The Judge’s conclusion was that the seriousness of the offending (he referred to it as “very serious”, which might be an overstatement) and Mr El-Nafeh’s record of similar offending precluded home detention. Accordingly, deterrence and denunciation had to be emphasised.

[15]     Mr El-Nafeh committed nine fraud offences over the years 2004, 2006, 2010 and 2011. In 2013, in respect of seven of them, he was sentenced to 10 months’ home detention.

[16]     The subject fraud was committed in January 2017.  It was, as the Judge said, premeditated and a breach of trust.  No reparation was offered and the Judge was told that  Mr El-Nafeh  had  made  an  application  for  bankruptcy.    The  victim  impact statement disclosed the serious financial consequences for the victim of the fraud and the Judge emphasised that in his decision not to grant home detention.

[17]     The Judge was not told that if Mr El-Nafeh were given home detention he would be able to work from home, with the assistance of his wife, and thus support his family who would otherwise be reduced to penury.  That is not surprising. As the wife’s  affidavit  corroborates,  Mr El-Nafeh  was  unemployed  at  the  date  of  his

sentencing because his employment as a suit salesman could not continue if he were subject to a home detention sentence. The wife’s affidavit talks in general terms about an intention that Mr El-Nafeh would carry on his business from home with her assistance.  But no particulars are given.

[18]     The offer by Mr El-Nafeh’s mother to help with reparation, and the apparent offer of a job in a restaurant, were not before the Judge and have occurred only now. They are not relevant to my task as an appellate Judge.

[19]     Home detention is acknowledged to be a sentence which serves the purposes of denunciation and deterrence.   It is particularly appropriate where the need to rehabilitate can be emphasised, and it is determined to be the least restrictive sentence available.

[20]     In this case, with a serious fraud involving a significant breach of trust, committed by a mature man who had nine previous convictions for fraud, and who had previously served a 10 months sentence of home detention, I cannot say that it was  outside the range  of sentences  open  to  the Judge to  impose a sentence of imprisonment.   Put another way, imprisonment was not clearly excessive in the circumstances.

Result

[21]     The appeal is dismissed.

Brewer