Thazleem v Police
[2021] NZHC 130
•10 February 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-98
[2021] NZHC 130
BETWEEN MUKSITH THAZLEEM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 February 2021 Counsel:
C R Sheat for Appellant
H M L Farquhar for Respondent
Judgment:
10 February 2021
JUDGMENT OF ELLIS J
[1] Mr Thazleem was convicted on two charges of assaulting a person with whom he is in a family relationship.1 The victim was his partner, and the mother of his children, A.2
[2] Mr Thazleem’s application under s 106 of the Sentencing Act 2002 (the SA) for discharges without conviction was declined in the District Court.3 He now appeals this refusal on the grounds that:
(a)the Judge misstated the seriousness of the offending;
(b)the Judge did not take into account relevant mitigating factors; and
1 Crimes Act 1961, s 194A [maximum penalty of two years’ imprisonment].
2 At the time of the offending they had two children. They now have three.
3 Police v Thazleem [2020] NZDC 19339. He was subsequently sentenced to six months’ supervision.
THAZLEEM v NEW ZEALAND POLICE [2021] NZHC 130 [10 February 2021]
(c)the Judge did not take into account relevant factors regarding the consequences of a conviction.
Facts
[3] At the time of the offending, Mr Thazleem was 21. He and A had been in a relationship for four years. Their two children were then three years and eight months old. The family was living together in emergency motel housing in Lower Hutt.
[4] At about 3 pm on 7 August 2019, Mr Thazleem and A argued. Mr Thazleem does not recall the substance of the argument, but he says that the difficulty of the family’s living situation was its cause.
[5] In the course of the argument, Mr Thazleem slapped A hard in the face three times. He also threw a container of baby wipes at her head, hard enough to split open the container. A was left with a swollen eye and a severe headache after the assault, which took place in the presence of at least one of the children.
[6] Mr Thazleem and his partner have since reconciled and, I am advised, now have another child. I am also advised that the family has secured permanent accommodation (in A’s name) through Kāinga-Ora.
Discharge without conviction: the law
[7] Section 106 of the SA provides that if a person who is charged with an offence is found guilty or pleads guilty, the court “may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence”. The application of s 106 is guided by s 107:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[8]Speaking of the s 107 test, the Court of Appeal has noted:4
4 Prasad v R [2018] NZCA 537 (footnotes omitted).
[11] It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.
Decision under appeal
[9] After setting out the relevant facts, Judge Tompkins noted that Mr Thazleem had deposed that, since the offending, he had “stopped cold turkey using cannabis” and he had “now been prescribed with antidepressants”.5 The Judge noted that A’s victim impact statement (taken two days after the offending and prior to her reconciliation with Mr Thazleem) recorded that A felt:
… significantly alone, depressed, and sad, and has started to blame herself because she “thought it was my fault that he was doing this to me”. She also records feeling suicidal.
[10] After recording the couple’s subsequent reconciliation, the Judge noted that Mr Thazleem had continued to do the Living Without Violence course and that:6
[6] There is a completion report from the provider of the Living Without Violence programme recording that that has been completed and that the defendant attended all sessions, completed all required tasks, including acknowledging behaviour and preparing and put in place safety relapse prevention plans.
[11] The Judge recorded that Mr Thazleem’s counsel, Ms Sheat, had emphasised that there had been no further incidents of family violence since the offending, but he then said, “I do not have independent corroboration of that”.7
5 The Judge had earlier recorded that Mr Thazleem had advised that at around the time of the offending he had been generally concerned about the level of his cannabis use, and that he had been depressed. He had not, however, been “stoned” at the material time.
6 Police v Thazleem, above n 3.
7 At [5].
[12] Then, the Judge noted that in support of the application for discharge without conviction, Ms Sheat had submitted that:
[7] … the offending is moderately serious, although not as serious as some which comes before the court in this kind of context, and that the moderate seriousness of the offending has been significantly mitigated by the steps the defendant has taken since the offending, primarily both the completion of the Living Without Violence programme and the reestablishment of the relationship and the continuation of that relationship now for some considerable period of months without further incident.
[13] After summarising the further submissions made by Ms Sheat, including as to the adverse effect of a conviction on Mr Thazleem’s employment prospects, the Judge said:
[9] … I accept that this was moderately serious offending. It seems to have been triggered by a fairly commonplace argument but swiftly escalated to physical violence, both the slaps to the victim’s face on three occasions and then the throwing of the objects sufficiently hard both to cause it to break open and to cause both a swollen eye and a strong headache. This was clearly much more than a minor assault.
[10] On the other side of the balance, the consequences for the defendant are relatively commonplace and I do not accept Ms Sheat’s submission that as an unskilled worker, if anything, those consequences are greater than they would be for a person mid or late career or with vocational qualifications obtained after study or apprenticeship or the like.
[11] I do accept as the High Court and Court of Appeal have accepted that these convictions will likely render the task of job hunting more difficult for the defendant, but I cannot conclude that the level of increased difficulty is sufficient to render those difficulties out of all proportion to the seriousness of the offending. As already noted, this offending was three slaps to the face and the throwing of an object at the head of the victim in the presence of at least one of their young children, the baby, and the force applied was sufficient to cause a bruised eye and an immediate headache. It was moderately serious offending, but beginning to get up there in the scale of such offending.
[12] On the other side of the balance, the consequences are not great, they are significant, and they will represent an obstacle to employment, but I cannot conclude that they are out of all proportion to the seriousness of the offending. In those circumstances, the s 106 application is declined.
Approach on appeal
[14] Mr Thazleem’s appeal is brought under ss 248 and 250 of the Criminal Procedure Act 2011.
[15] An appeal against a refusal to discharge without conviction is a composite appeal against conviction and sentence.8 It proceeds by way of rehearing.9 Mr Thazleem must establish that a miscarriage of justice has occurred because of a material error by the sentencing judge in entering a conviction or because the sentencing judge has wrongly applied the principles for discharging an offender without conviction.10
Discussion
[16] I agree with Ms Sheat’s submission that, in assessing the gravity of the offence (and assessing it as “moderately serious”), the Judge was wrong to focus solely on the seriousness of the assault itself. He failed to consider mitigating factors relating either to the offending or to Mr Thazleem personally.
[17] As the Judge’s earlier precis of her submissions made clear, Ms Sheat’s own characterisation of the offending as “moderately serious” was specifically qualified by her subsequent reference to at least some of those mitigating factors. Those factors, in my view, include:11
(a)Mr Thazleem’s undoubtedly fraught living circumstances at the time. He and his family were, effectively, homeless.
(b)His youth (at 21 years old he was within the age bracket routinely now regarded by the Courts as mitigating).
(c)His guilty pleas.
(d)His completion of the Living Without Violence Programme (which, as I understand it, included his continued attendance by Zoom during the COVID-19 lockdown).
8 Jackson v R [2016] NZCA 627 at [6]–[16].
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
10 Jackson, above n 8, at [12]–[15]; and Criminal Procedure Act 2011, s 232.
11 While the Judge had referred earlier to Mr Thazleem’s completion of the Living Without Violence Programme, it appears to have played no part in his assessment of the gravity of the offending.
(e)His (admittedly self-reported) attempts to address his mental health and addiction issues.
[18] And while there may have been no independent corroboration of Ms Sheat’s advice that there had been no further family violence incidents involving the couple, it is to be expected that counsel for the Police would have drawn any such incidents to the Court’s attention, had they occurred.
[19] In my view, all these matters properly serve to reduce significantly the gravity of Mr Thazleem’s offending and should have been taken into account in the Judge’s analysis. As a matter of logic, that conclusion must alter the subsequent proportionality assessment. Whether it does so in a way that means that a miscarriage has occurred is the question that will ultimately determine the outcome of this appeal.
[20] Before turning to that question, however, it is necessary to address the points made by Ms Sheat about the “consequences” side of the ledger. As noted by the District Court Judge, the consequences relied on focus on the impact of a conviction on Mr Thazleem’s employment prospects.
[21] While it may be correct to say that a conviction will commonly affect a defendant’s employment or employment prospects, I do not consider that to be a complete answer here. The focus must be on the possible or probable impact on Mr Thazleem’s prospects and, then, whether that impact is out of all proportion to the gravity of the offending. For that reason, I do not find reference to other cases involving different offenders in different circumstances particularly helpful.
[22] Here, Mr Thazleem is a young man with a young—and apparently still growing—family. It seems he has no work “skills” (as that word is used in the employment world) but has previously found work as a painter and a gardener. He says, and I accept, that he is very likely to be asked to disclose any convictions by any future employer. And while—as the Courts have often said in the context of s 106 applications—it is important that employers are informed of such matters so that they can make their own assessment, I think there is an air of unreality to the suggestion that Mr Thazleem’s conviction would not see his CV moved to the bottom of the pile.
[23] One of the reasons that youth is regarded as a mitigating factor in sentencing is the clear empirical evidence that young people, particularly those with no criminal history such as Mr Thazleem, have greater prospects of rehabilitation than older, more “hardened” offenders. The steps already taken by Mr Thazleem in that direction provides further evidence of that. His ability to find employment is also crucial in his own rehabilitative journey. It seems to me to be wrong in principle to dismiss the impediment to that posed by the entry of convictions as routine or insignificant. Indeed, I consider that such an impediment would be out of all proportion to my significantly recalibrated assessment of the gravity of Mr Thazleem’s offending.
[24] Being satisfied that the s 107 threshold is met, there remains the question of whether the discretion should be exercised under s 106 to discharge Mr Thazleem without conviction. As has often been noted, it is rare for an offender to pass through the s 107 gateway, and not then be discharged.12 This is not one of those rare cases. In my view it is appropriate to exercise that discretion in Mr Thazleem’s favour.
Result
[25] The appeal is allowed. Mr Thazleem’s convictions are quashed. He is discharged without conviction on the two s 194A charges.
[26] I end by recording that Mr Thazleem owes Ms Sheat a particular debt of gratitude for her unflagging efforts on his behalf.
Rebecca Ellis J
Solicitors:
Cathie Sheat, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
12 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
0
4
0