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 “[email protected]” 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 family, the Judge convicted and sentenced Mr Hussain.

Approach to sentence appeals

[8]    This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.3 Otherwise, the Court must dismiss the appeal.4

[9]    The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will not generally intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.5 Whether a sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.6

Application to adduce further evidence on appeal

[10]   For Mr Hussain, Mr Rao advances the appeal in reliance on new evidence in the form of affidavits made by Mr Hussain and his  wife, Ms Ali.   Both address    Mr Hussain’s involvement in his electrical engineering business.

3      Criminal Procedure Act 2011, s 250(2).

4      Section 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

6      Ripia v R [2011] NZCA 101 at [15].

[11]   For the evidence to be admitted on this appeal, leave is required. The test governing whether leave should be granted is whether it is necessary or expedient in the interests of justice.7 The respondent does not oppose the evidence being admitted.

[12]   In this instance I am prepared to admit the evidence, though I note it does not meet the usual threshold requirement for freshness.8 As Mr Hussain himself admits, the evidence was in existence at the time of his sentencing. It contains material which ought to have been before the District Court.

[13]   However, I accept the evidence is cogent and credible. Mr Hussain explains he has never faced a criminal charge before. As a result, he did not understand the requirements and obligations inherent in a sentence of community work. That is why he did not produce the evidence of his work commitments at the sentencing. I find the evidence as to this aspect of his evidence credible, although I interpolate to note the Court should generally be sparing in accepting ignorance of the law and its processes as an excuse for failing to take a particular course. However, because the efficacy of the appeal relies on the evidence, it would not be expedient nor in the interests of justice in this case to exclude it. I admit the affidavits accordingly.

The affidavits

[14]   In his affidavit of 14 November 2022, Mr Hussain deposes he has worked as an electrician for 18 years and has been self-employed the past 13 years. He operates an electrical engineering business through two companies of which he and his wife are the only directors and shareholders. The business provides electrical and security system design, installation and maintenance services to commercial and industrial customers nationwide.

[15]   Although the business employs six full-time electrical apprentices, Mr Hussain is the sole licensed electrician. He therefore bears the sole responsibility for supervising, connecting and signing off on all work the apprentices complete.

7      Criminal Procedure Act 2011, s 335(2).

8      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

[16]   Mr Hussain estimates he works a minimum of 40 to 50 hours a week. Most of his work at customer sites is undertaken on weekdays between 8:00 am and 5:00 pm. However, because he has to work around his customers’ operational requirements he often attends sites on weekends. He deposes the business employs no administrative staff. He attends to the administrative needs of the business in the evenings of most weekdays until 9:00 pm or 10:00 pm.

[17]   The business also provides a 24/7 maintenance or emergency callout service. Mr Hussain says this aspect is a crucial part of the business, estimating he attends three to five callouts a week on average. He says as the sole licensed electrician, he is the only employee qualified to attend callouts.

[18]   He further deposes he frequently travels given the business has customers spread across the country. He estimates that in recent months he has been away from Auckland two to three nights a week on average.

[19]   In light of these work commitments, Mr Hussain claims he does not have sufficient time each week to complete the required amount of community work. He calculates the sentence works out to approximately 3.8 hours per week in the first six months and approximately 3.1 hours in the second six months. He cites in particular the inability to respond and attend to emergency callouts if he was undertaking community work. He says his family relies significantly on the business’ income to meet household outgoings and day-to-day living expenses. He is concerned any impact on the business will also adversely impact his family, as well as his apprentices who rely on his direct supervision and availability.

[20]   In her affidavit, Ms Ali confirms Mr Hussain’s evidence. She says that although she is a co-director of the companies she does not have any formal role in the business and cannot step in for Mr Hussain. She says she has no experience in the electrical field and has her own full-time employment with the District Health Board. She also says Mr Hussain undertakes the school transport for their two primary- school-aged children.

Should the Court intervene on appeal?

[21]   For the respondent, Ms Arnerich submits the sentence is not amenable to review because the Judge made no error in failing to account for Mr Hussain’s employment circumstances purely because that information was not referred to him.

She cites in support the Court of Appeal’s comments in Wikohika v R:9

“[24] … that where ill-health was not apparent at sentence but evidence comes to light subsequently, or an intervening event occurs (such as a serious injury while in prison), the sentence is unlikely to be reduced on appeal as there will be an absence of error at the time of sentencing that warrants the appellate court interfering with the sentence under s 250(2) of the Criminal Procedure Act 2011.”

[22]   While I respectfully agree with the Court’s comments in Wikohika, I cannot agree they apply on the facts of the present case. In Wikohika, the intervening event was the diagnosis of and treatment for breast cancer. However, the diagnosis was made after the sentencing and after an appeal to the High Court. Because the intervening event pre-dated the sentencing, the Judge made no error in imposing the sentence.10 In this case, even though Mr Hussain’s employment circumstances were not fully before the sentencing Judge, they were in existence at the time of the sentencing.

[23]   Mr Rao submits that on a sentence appeal the Court can set aside a sentence of community work in circumstances where that sentence is not “manifestly excessive” but is, instead, not the appropriate sentence in the circumstances. He notes s 56(1)(b) of the Sentencing Act 2002 requires the Court, when considering whether to impose a sentence of community work, to give particular consideration to whether the sentence would be appropriate having regard to the offender’s character and personal history, and to any other relevant circumstances.

[24]   By way of example he cites Potter v Police, where Asher J substituted a sentence of 125 hours’ community work for 15 weeks’ community detention.11 There the defendant offered fresh evidence on appeal of his work commitments which he

9      Wikohika v R [2020] NZCA 352.

10     The same is true for Poi v R [2015] NZCA 300 at [11]., which the Court of Appeal cites in

Wikohika.

11     Potter v Police [2014] NZHC 1769.

claimed would interfere with his ability to comply with his community work sentence. In deciding whether to intervene on appeal, Asher J said:

“[18] I have no doubt that the sentence imposed by Judge Fraser was appropriate in the circumstances and that he made no error at the time. However, I have before me relevant new material which was not drawn to his attention. That new material indicates that community work is not an appropriate sentence if Mr Potter is to meet his work and domestic commitments.

…

[20] Given that there was inadequate material before the Judge on the issue of community work, I consider it appropriate for this Court to intervene on appeal.”

[25]   This reasoning, with which I agree, is directly applicable to Mr Hussain’s case. On its face, the sentence imposed by the Judge was appropriate based on the information then before him. However, he did not have all relevant, material information that could have been available to him at the time.12 That constitutes an “error”, although not of the Judge’s own making, rendering the sentence amenable to review on appeal. The Court of Appeal explained in Tutakangahau v R that the concept of “manifestly excessive” is merely “a means of examining the significance of the error to decide whether a different sentence should be imposed.”13 But that it is not the test in and of itself. Instead, it must be shown there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.14

[26]   However, unlike Asher J in Potter, I am not convinced the affidavit evidence shows Mr Hussain would be unable to comply with his community work sentence. Asher J’s decision to intervene in Potter was driven by the fact he considered a sentence of equal gravity (in the form of community detention) was available as an alternative to community. My reasons follow.

12     That is, of course, Mr Hussain’s fault, but because I have decided it is in the interests of justice to admit the new evidence on appeal, it is immaterial where the fault lies.

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, above n 5, at [32].

14     At [30], citing R v Shipton [2007] 2 NZLR 218 (CA) at [139].

Is Mr Hussain unable to comply with his community work sentence?

[27]   First, there is no evidence that the Department of Corrections’ (“Corrections”) requirements under a sentence of community work would prevent his ability to comply with the order of community work. There is no evidence before me  as to when     Mr Hussain would be required to undertake community work, what that work would involve or where it would be undertaken. I was advised from the bar that Corrections are prepared to be flexible and adaptable to the needs of those sentenced to community work. However, on the material before me I simply do not know. Mr Rao’s response is that irrespective of flexibility, Mr Hussain’s work obligations being on call all day every day make this factor of no moment. For reasons which follow I cannot agree.

[28]   Secondly, I cannot accept Mr Hussain’s bald assertion that because he needs to be on call at all times he cannot comply with the sentence. This claim begs the obvious question of what contingencies Mr Hussain has in place should he fall so ill he is unable to work or where events in his life or in connected others’ lives require him to be away from work? Every business will have strategies in place to cover the inevitable,  unplanned  absences  of  essential   workers.  Furthermore,   how  does Mr Hussain deal with emergency callouts when he is already out dealing with an existing emergency? He cannot be in two places at the same time. As a prudent and apparently successful and able businessman, it is inconceivable that he does not have some form of cover by an appropriately qualified technician or locum. Again, the evidence is silent on this.

[29]   Thirdly, it cannot be overlooked that the sentence imposed was for very serious offending which, ordinarily, would attract a sentence of imprisonment as the Judge observed. The Judge determined that Mr Hussain’s personal circumstances operated to reduce what would otherwise have been a full-time custodial sentence. Although the complainant now supports the appeal, her victim impact statement makes it clear that she was understandably extremely traumatised and deeply affected by the course of highly sexualised and explicit messages she received from an unknown person. She was unable to sleep. She believed someone was watching her and her children. She needed others to escort her to and from her work carpark in case the offender was “waiting to pounce” on her. She lost her trust in others.

[30]   Fourth, and relatedly, a fine – even a substantial fine – would represent a wholly inadequate response to the offending. I am also not satisfied a fine is the appropriate penalty for Ms Hussain’s offending. Section 13 of the Sentencing Act relevantly provides:

“13     Sentence of fine

If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must regard a fine as the appropriate sentence for the particular offence unless—

(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine; or

(b)the court is satisfied that the application of any of the principles in section 8 to the particular case make a fine inappropriate; or

(c)…

(d)the court is satisfied that a fine, on its own or in addition to a sentence of reparation, would otherwise be clearly inadequate in the circumstances.”

[31]   Mr Rau says a “reasonably substantial fine” should be substituted. In oral submissions he suggested a fine in the range of $3,000 to $5,000. As noted, I agree with the Judge’s assessment that Mr Hussain’s offending was very serious. The imposition of a fine would not be sufficient to hold Mr Hussain accountable for his offending, to promote in him a sense of responsibility for the harm he caused, or to denounce his conduct.

[32]   On the other hand, a sentence of community work in tandem with supervision and a reparation payment for emotional harm is sufficient to meet those objectives.

[33]   Fifth, every sentence, to a greater or lesser extent, involves some level of intrusion and/or inconvenience to the person who is subject to it. Such persons will usually have to make adjustments of some sort in their lives. That is implicit and a natural consequence of any Court imposed sanction. That a sentence of community work may be inconvenient or even very inconvenient to Mr Hussain does not make it an inappropriate sentence.

[34]   Sixth, in relative terms the degree of intrusion or inconvenience to Mr Hussain is modest. Mr Hussain needs only to undertake fewer than four hours of community work per week in the first six weeks and just over three hours per week thereafter. That is hardly onerous.

Conclusion

[35]   Accordingly, I find that the Judge made no error in sentencing Mr Hussain, nor do I consider a different sentence should be imposed.

Result

[36]The appeal is dismissed.

Moore J

Barristers/Solicitors:

Mr Rao, Auckland

Crown Solicitor, Manukau