Hussain v Police - [2022] NZHC 3230

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000322

[2022] NZHC 3230

BETWEEN
MUAWIN MOHAMMED HUSSAIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 November 2022

Appearances:

Rajiv Rao for the Appellant

Sylvie Arnerich for the Respondent

Judgment:

5 December 2022

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 5 December 2022 at 3:00 pm.

Registrar / Deputy Registrar Date:

HUSSAIN v NEW ZEALAND POLICE [2022] NZHC 3230 [5 December 2022]

Introduction

[1] Muawin Mohammed Hussain pleaded guilty to one charge of causing harm by posting a digital communication.1 On 1 September 2022, Judge A G Mahon sentenced him at the Manukau District Court to nine months’ supervision and 180 hours’ community work, and ordered him to pay $1,000 reparation for emotional harm.2

[2] Mr Hussain now appeals the community work component of his sentence on the basis he is unable to complete the hours due to his employment commitments. He says the community work can appropriately be substituted for a fine. He also seeks to submit new evidence in support of his appeal.

The facts

[3] Mr Hussain is the brother-in-law of the victim. On 13 February 2021, Mr Hussain sent the victim an email via the address “adam.engineer1122@gmail.com” saying, “Hi do want to date.” He sent her another email from that address the following day, saying, “Hi what’s your contact. If you don’t mind”. The victim did not respond to either email.

[4] Mr Hussain then, between 17 February 2021 and 13 August 2021, sent the victim daily Facebook messages from multiple unknown Facebook accounts. The messages were sexual and explicit. Many contained pornographic images or explicit sexual acts Mr Hussain said he would do to the victim. In the messages Mr Hussain referred to the victim by name and said he knew facts about her, including where she worked and lived and where her daughter attended school.

[5] Mr Hussain also made multiple Facebook accounts using the victim’s name and her Facebook profile picture. From these accounts he sent friend requests to the victim’s mother-in-law, brother-in-law, two sisters and cousin.

1 Harmful Digital Communications Act 2015, s 22. Maximum penalty two years’ imprisonment or a $50,000 fine.
2 Police v Hussain [2022] NZDC 19368.

[6] Terrified and highly distressed by the persistent communication from an unknown source, the victim notified Police. Mr Hussain initially explained he sent the messages to “play” with the victim. He provided no further motivation for the offending.

District Court decision

[7] The Judge’s sentencing notes are brief. He recorded he told the appellant his offending was very serious and conviction often resulted in a prison sentence. However, the Judge said Mr Hussain’s lack of previous convictions and other favourable factors set out in the pre-sentence report had persuaded him to address the offending in other ways. After also noting he was conscious of the effect the offending would have had on the appellant’s relationships with his…

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.

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Details

Case: [2022] NZHC 3230
Decision Date: 5 December 2022

CaseChat Overview and Summary

Muawin Mohammed Hussain appeals against the community work component of his sentence, imposed after he pleaded guilty to causing harm by posting a digital communication. Hussain argues that the community work cannot be completed due to his employment commitments, and that it can be substituted for a fine. The court was required to decide whether the sentence imposed was appropriate and whether a different sentence should be imposed. The court found that the sentence imposed was appropriate and that there was no error in the sentence. The court also found that the new evidence submitted by Hussain was credible and should be admitted. However, the court was not convinced that Hussain would be unable to comply with the community work sentence. The court found that the degree of intrusion or inconvenience to Hussain was modest and that a sentence of community work was sufficient to meet the objectives of the sentence. The appeal was dismissed.

Orders