Naseer v Police

[2014] NZHC 2597

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000196 [2014] NZHC 2597

BETWEEN

MOHAMED NASEER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 October 2014
Appearances:	A Rasheed for Appellant L M Mills for Respondent
Judgment:	22 October 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 22 October 2014 at 2.30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

NASEER v NEW ZEALAND POLICE [2014] NZHC 2597 [22 October 2014]

Introduction

[1]      Following   a   defended   hearing   before   Judge   S   J   O’Driscoll   in   the District Court at North Shore on 15 July 2013, Mr Naseer was convicted of one charge  of  assault.    He  applied  for  a  discharge  without  conviction  but  this  was declined by Judge P Sinclair on 27 May 2014.1     Mr Naseer appeals against this decision.

The facts

[2]      Judge O’Driscoll found that Mr Naseer assaulted his wife in three separate incidents.  In the first of these he slapped her across her face.  In the second incident, Mr Naseer hit her twice on her back.  In the third incident, Mr Naseer held her arm tightly and twisted it.   The Judge also found that during the course of the third incident, Mr Naseer ripped the pocket on his wife’s dress and threatened to “smash her face up”.

[3]      Mr Naseer supported his application for a discharge without conviction with an affidavit in which he maintained that he did not assault his former wife, contrary to the Judge’s findings.  Mr Naseer explained that he is an auto mechanic and has been working for Mr Jagdish Nathoo in his automotive business for the past two and a half years.  Mr Naseer said that after his arrest, he told Mr Nathoo that he had been charged with assaulting his wife.  Mr Naseer said that Mr Nathoo responded that he would have to terminate his employment if he was convicted.  Mr Naseer attached a letter from Mr Nathoo explaining why he considered this would be necessary:

The reason being is because we entrusted with customer vehicles a person with a criminal record would be untenable as an employee.  I realise that it has been some time as Mohammed has been appearing in court but decision has  not changed.   If  Mohammed  is  convicted  of a  criminal offense his employment will be terminated.

[4]      Mr Naseer said that he believed he would face the same difficulty applying for any other job in the industry because working on customer’s cars involves “a high degree of trust” and that his conviction would “compromise the integrity of any

potential employer”.

1      Police v Naseer DC CRI-2013-044-001602 [27 May 2014].

[5]      Mr  Naseer  also  produced  a  certificate  confirming  he  had  completed  a

20 week Living Without Violence programme.  It appears that Mr Naseer elected to participate in this course despite his continued denial that any violence had occurred.

The sentencing decision

[6]      Judge Sinclair considered that although Mr Naseer’s offending was not at the most serious end of the scale, it was by no means insignificant.  The Judge observed that the victim felt “fearful and trapped” and was seeking a protection order.  The Judge noted that Mr Naseer continued to deny that he had assaulted his wife and that, in these circumstances, no credit could be given for remorse.  The Judge gave Mr Naseer credit for attending the Living Without Violence programme.  Taking all matters into account, the Judge assessed the gravity of Mr Naseer’s offending as moderate.

[7]      The Judge was sceptical about the suggestion that a conviction for assault would be relevant to his employment as an auto mechanic:2

While your employer writes in a letter that you will lose your employment, I note neither he nor you have provided an employment contract verifying this.

I hear from your counsel that your employer is adamant that if you receive a conviction he would not be able to continue employing you.  However, I have also heard from the police who contacted your employer that the basis of your employment is a friendship, and the police are sceptical as to whether your employer would in fact terminate your employment or not. I accept that the employer has responded differently to your counsel and the police, and his responses may have been different for various reasons.

I fail to see how a conviction of this kind could affect your ability to work as an auto mechanic.  I am not persuaded your employment is necessarily in jeopardy for this reason, or that you would fail to gain employment with any other employer with a conviction such as this.

[8]      The Judge was not satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of Mr Naseer’s offending. She accordingly dismissed the application and entered a conviction.   The Judge

imposed no penalty but ordered reparation of $250 for emotional harm.

2      At [13] to [15].

Grounds of appeal

[9]      The sole ground of appeal identified in Mr Naseer’s notice of appeal was that counsel failed to present his case properly.  However, in his written submissions for the appeal, Mr Rasheed advised that the grounds of the appeal are that the Judge erred in assessing the gravity of Mr Naseer’s offending as moderate and in overlooking the direct and indirect consequences of a conviction on Mr Naseer’s career.

Application to adduce further evidence

[10]     Mr Naseer applies to adduce further evidence in support of his appeal.  This application is opposed.

[11]     The further proposed evidence comprises a lengthy affidavit from Mr Naseer, a  report  from  a  therapist  and  an  affidavit  from  Mr  Nathoo.    In  his  affidavit, Mr Naseer explains that he has now remarried.  He says that with the assistance of the therapist he has now been able to accept responsibility for what he did.  He says that he did not have a written employment contract with Mr Nathoo.  He says that his employment has been terminated although Mr Nathoo has not replaced him and is prepared to re-employ him if he is discharged without conviction.

[12]     Mr  Nathoo  confirms  in  his  affidavit  that  he  does  not  have  a  written employment contract with Mr Naseer.  He says that he terminated his employment on 9 June 2014 but has “agreed to employ him again on the same terms once he is cleared of the charges”.  Mr Nathoo claims that it “became impossible” for him to continue employing Mr Naseer once he had a criminal record.  He explains that this is because his clients:

have high expectations of us as their mechanics, and as certifiers for their vehicles.  Sometimes an issue can arise with certification.  This can become a  sensitive  situation  as  they  also  know  about  their  vehicles  and  might disagree with us.  It is crucial that they have full confidence in the garage, in myself and my employees.

[13]     No explanation has been offered as to why this evidence could not have been

obtained for the hearing in the District Court.   While Mr Naseer’s acceptance of

responsibility is  a  recent  development,  the  Judge  was  obliged  to  determine  his application on the basis of the evidence as it then stood.  I do not consider that the proposed new evidence can be received.  In any event, it would make no difference to the analysis.

Discussion

[14]     There is no jurisdiction to discharge a person without conviction unless the test in s 107 of the Sentencing Act 2002 is met.  In that sense, s 107 operates as a gateway provision.  The question as to whether the test is met in a particular case is a matter requiring judicial assessment based on the facts. An appeal is to be dealt with according to normal appellate principles.

[15]     The enquiry involves a three step process.  First, the Court must consider the gravity of the offending taking into account all relevant circumstances of the offending and the offender.  Second, the Court must consider the direct and indirect consequences of a conviction in the particular circumstances.  Third, the Court must consider whether the consequences of a conviction would be out of all proportion to the gravity of the offending.  If the Court is satisfied that the requirements of s 107 are met, it will then need to exercise its residual discretion under s 106.  However, the Court of Appeal has stated that it will only be in rare cases that the Court will exercise its discretion under s 106 to refuse to discharge a person who meets the s 107 criteria.

[16]     In  view  of  Judge  O’Driscoll’s  findings,  I  agree  with  Judge  Sinclair’s assessment that the gravity of Mr Naseer’s offending was moderate.  The offending did not involve a single isolated incident but reflected a pattern of unacceptable behaviour.  Judge Sinclair had no choice but to deal with the matter on the basis that Mr  Naseer  had  failed  to  take  responsibility  for  his  actions  and  had  shown  no remorse.

[17]     I share Judge Sinclair’s scepticism about the consequences of a conviction in this case.   It is hard to see how a conviction for assault would prevent Mr Naseer working as an auto mechanic.  Whether Mr Naseer has a conviction for it or not, it

has been proved beyond reasonable doubt that he assaulted his wife on several occasions.   If this means that Mr Naseer is not the sort of person Mr Nathoo is prepared  to  employ,  then it  should  make no  difference whether a conviction  is entered.  What matters must surely be Mr Naseer’s conduct, not whether he has a conviction for it.  As to employment opportunities elsewhere, there is no evidence from anyone in the industry to suggest that this type of conviction is likely to restrict employment opportunities.

[18]     I am not persuaded that the consequences of the conviction for Mr Naseer will be out of all proportion to the gravity of his offending.  Mr Naseer does not meet the criteria set out in s 107 and accordingly there is no jurisdiction to discharge him without conviction.

Result

[19]     The appeal is dismissed.

M A Gilbert J