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Khoja v Police

Khoja v Police

Case [2019] NZHC 2343 17 September 2019

Criminal Liability

Sentencing

Proportionality

Victim Impact Statement

Remorse

Appeal

Criminal Law

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2019-463-0070

[2019] NZHC 2343

BETWEEN
MOHSIN HASANALI KHOJA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing: 17 September 2019

Appearances:

D W Pawson for the appellant E F Collis for the respondent

Date of judgment:

17 September 2019

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
Pawson Law Limited, Te Puke Pollett Legal Limited, Tauranga

KHOJA v NEW ZEALAND POLICE [2019] NZHC 2343 [17 September 2019]

[1] Mohsin Khoja pleaded guilty to doing an indecent act on a young person under the age of 16.1 He then was registered on the Child Sex Offender Register (the “Register”).2 He now appeals his conviction and sentence to four months’ imprisonment, imposed by Judge I D R Cameron in the District Court at Whakatane on 7 August 2019.3 Mr Khoja appeals against both the District Court’s refusal to grant him a discharge without conviction, and his sentence as being manifestly excessive.

Background

[2] Mr Khoja is a 28-year-old Indian national. At the time of his offending, he was in New Zealand on a work visa. That visa expired on 27 May 2019, replaced with a temporary limited purpose visa, issued for the express purpose only of allowing Mr Khoja to attend court hearings. That visa expired on 14 August 2019.

[3] On 7 April 2019 at 6 pm, Mr Khoja was in Opotiki, selling electrical and household goods door-to-door. The 13-year-old victim opened the door to him. She had just been in the shower, and was wrapped in a bath towel. Mr Khoja asked if her parents were home. She told him her mother was out. He asked if she had a boyfriend; on her denial, he asked if he could be her boyfriend. She engaged politely with him, despite now being afraid. She told him she could not be his girlfriend, given their age difference (Mr Khoja then was 27 years old).

[4] Mr Khoja said the age gap was inconsequential, and she was now his girlfriend. He hugged her tightly, kissing her on the lips while attempting to put his tongue in her mouth. When she resisted, he pulled back and told her to kiss him. He hugged her twice more, touching her buttocks over the towel before kissing her again on the mouth and neck. Mr Khoja then left the address after telling her he loved her. She immediately locked the door and called a relative for help.

1      Crimes Act 1961, s 134(3).
2      Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a). Registration is mandatory if a sentence of imprisonment is imposed.
3      Police v Khoja [2019] NZDC 15630.

Judgment under appeal

[5] The Judge began with the orthodox three-step approach to a discharge without conviction application.4 He characterised Mr Khoja’s offending as “serious” with…

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.

Continue reading Khoja v Police

Details

AGLC: Khoja v Police [2019] NZHC 2343
Case: [2019] NZHC 2343
Decision Date: 17 September 2019

CaseChat Overview and Summary

Mohsin Hasanali Khoja appeals against his conviction and sentence, imposed by Judge I D R Cameron in the District Court at Whakatane on 7 August 2019, for doing an indecent act on a young person under the age of 16. Mr Khoja, a 28-year-old Indian national on a work visa, was registered on the Child Sex Offender Register. He argues that the Judge erred in assessing the gravity of his offending and the consequences of his conviction, rendering the refusal to grant him a discharge without conviction, and the sentence of four months’ imprisonment, manifestly excessive. The High Court found that the offending was of moderate gravity and that the consequences of a conviction were not disproportionate. The sentence was not manifestly excessive.

The Court first considered whether Mr Khoja should have been discharged without conviction. It disagreed that the Judge overstated the gravity of Mr Khoja’s offending. It was of direct, unwanted, and resisted intimate contact with a 13-year-old girl, facilitated in a predatory way by his work-related access. The Judge had regard to the victim impact statement and mitigating features personal to Mr Khoja. On balance, Mr Khoja’s offending was at least of moderate gravity. The consequences of conviction were ordinary for offending of this kind, not at all out of all proportion to the gravity of the offending. The Judge did not err in declining to discharge Mr Khoja without conviction.

The Court then considered if four months’ imprisonment was manifestly excessive. The Judge did not take into account Mr Khoja’s likely deportation in declining home detention; rather, he was dissuaded by the flight risk Mr Khoja posed. Regardless, home detention was not an option for the Judge. Six months’ to two years’ imprisonment routinely has been thought appropriate for offending of this kind. The Judge’s six-month starting point reflects offending of only moderate gravity. Four months’ imprisonment was not manifestly excessive.

The appeal is dismissed.

Orders