Thazleem v Police - [2021] NZHC 130

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…

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 Thazleem v Police

Details

AGLC: Thazleem v Police [2021] NZHC 130
Case: [2021] NZHC 130
Decision Date: 10 February 2021

CaseChat Overview and Summary

Muksith Thazleem was convicted of two charges of assaulting his partner, the mother of his children. He appealed against the refusal of the District Court to grant him discharges without conviction. Thazleem argued that the sentencing judge had erred in the assessment of the seriousness of the offending, had failed to take into account relevant mitigating factors, and had failed to consider the consequences of a conviction. The judge held that the sentencing judge had erred in his assessment of the seriousness of the offending, as he had failed to take into account mitigating factors including Thazleem's young age, his completion of a programme for perpetrators of domestic violence, and his attempts to address mental health and addiction issues. The judge found that the consequences of a conviction were out of all proportion to the seriousness of the offending. The appeal was allowed, and Thazleem's convictions were quashed. He was discharged without conviction.
The court made an order that Muksith Thazleem's convictions be quashed and that he be discharged without conviction on the two charges of assaulting his partner.

Orders