Mehrabi v Police - [2021] NZHC 750

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-008058

[2021] NZHC 750

BETWEEN
MEHDI MEHRABI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 March 2021

Counsel:

S J Mitchell for appellant R Morrison for respondent

Judgment:

8 April 2021

JUDGMENT OF KATZ J

[Appeal against refusal to grant a discharge without conviction]

This judgment was delivered by me on 8 April 2021 at 11:30 am

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Office of the Crown Solicitor, Auckland Counsel: S J Mitchell, Barrister, Auckland

MEHRABI v NEW ZEALAND POLICE [2021] NZHC 750 [8 April 2021]

Introduction

[1] Mehdi Mehrabi pleaded guilty to one charge of assault1 and two charges of behaving threateningly.2 He applied to be discharged without conviction, but his application was declined by Judge P J Sinclair.3 Mr Mehrabi now appeals that decision. The issue on appeal is whether the Judge erred in finding that the consequences of Mr Mehrabi’s convictions were not out of all proportion to the gravity of his offending.

Facts

[2] Mr Mehrabi has family members who live next door to the two victims of his offending (whom I will refer to as “AB” and “CD”). The two properties share a common driveway.

[3] On the morning of Saturday 24 August 2019, AB was walking up his driveway. Mr Mehrabi parked his vehicle in the driveway and said sternly to AB “I need to speak to you”. Mr Mehrabi then got out of his car and approached AB saying, “You owe me fifteen hundred bucks for my son’s tail light that you hit”. AB asked, “What are you on about?” to which Mr Mehrabi replied, “Are you gonna pay me or are we gonna have trouble?” AB responded, “Are you serious?” to which Mr Mehrabi replied “Yeah, I am. Are you gonna pay me or is there going to be trouble?” While he was saying this, Mr Mehrabi stepped towards AB. AB asked, “Are you threatening me?” to which Mr Mehrabi replied, “I’m more than threatening you”. AB felt threatened and started backing away, towards the street.

[4] Mr Mehrabi then exclaimed: “If you’re not going to pay, I’ll take my money”. He began walking towards AB’s house, and AB followed behind him. Mr Mehrabi responded by thrusting an open palm into AB’s throat. This caused AB to stumble back a few steps. He suffered some throat pain but had no lasting injuries.

[5]The second victim (“CD”) heard the commotion in the driveway and came out

1      Crimes Act 1961, s 196. Maximum penalty of 1 years’ imprisonment.
2      Summary Offences Act 1981, s 21(1)(a). Maximum penalty of 3 months’ imprisonment or a fine of $2000.
3      Police v Mehrabi [2020] NZDC 23281.

to see what was happening. She saw Mr Mehrabi walking in her direction. AB yelled at her to “get inside”. CD felt threatened and turned to run back inside. In her haste, CD fell over, injuring her knee. She was five months’ pregnant…

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: [2021] NZHC 750
Decision Date: 8 April 2021

CaseChat Overview and Summary

In Mehrabi v Police, the High Court of New Zealand was asked to review the decision of the District Court to refuse Mehdi Mehrabi's application for a discharge without conviction. Mehrabi had pleaded guilty to one charge of assault and two charges of behaving threateningly. The District Court found that the consequences of a conviction were not out of proportion to the gravity of Mehrabi's offending, and therefore declined to grant a discharge without conviction. Mehrabi appealed this decision, arguing that the District Court had overstated the gravity of his offending and understated the consequences of his convictions. The High Court considered whether the District Court erred in its assessment of the gravity of Mehrabi's offending and the consequences of a conviction.

The Court found that the District Court did not err in its assessment of the gravity of Mehrabi's offending. The Court held that it was appropriate for the District Court to consider Mehrabi's prior discharge without conviction as an aggravating factor, as well as his failure to engage in rehabilitative efforts. The Court also held that it was not necessary for the District Court to adjourn sentencing to allow Mehrabi to attend an anti-violence programme, as his lack of action over an extended period suggested that such attendance would not have been sufficient to tip the balance in favour of a discharge without conviction.

Furthermore, the Court held that the District Court did not err in its analysis of the direct and indirect consequences of a conviction. The Court agreed with the District Court that it was not appropriate for it to usurp the role of statutory authorities in assessing Mehrabi's suitability for a liquor licence and spousal sponsorship. The consequences of a conviction were matters appropriately left to the determination of the relevant statutory bodies. The Court held that the District Court did not err in finding that the consequences of a conviction were not out of proportion to the gravity of Mehrabi's offending.

As a result, the appeal was dismissed, and Mehrabi's convictions were upheld. The Court found that the District Court had correctly applied the principles for discharging an offender without conviction found in section 107 of the Sentencing Act 2002, and therefore the appeal against the refusal to grant a discharge without conviction was without merit.

Orders